text:
    In the Matter of Bridget Y. and Others, Children Alleged to be Neglected. Chautauqua County Department of Social Services, Respondent; Kenneth M.Y. et al., Appellants. (Appeal No. 1.)
    Decided May 8, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent is not on a question of law (see CPLR 5601 [a]).


source: Caselaw Access Project

license: Public Domain

text:
    CARI, LLC, Appellant, v 415 Greenwich Fee Owner, LLC, et al., Respondents.
    Submitted March 12, 2012;
    decided May 8, 2012
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s denial of plaintiffs motion for leave to file a second amended complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Caroline Commisso, Appellant, v Steven G. Orshan et al., Respondents.
    Submitted March 5, 2012;
    decided May 8, 2012
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 876 (2012)].


text:
    In the Matter of Eighth Judicial District Asbestos Litigation. Stephen Drabczyk, as Executor of Ronald Drabczyk, Deceased, Respondent, v Fisher Controls International, LLC, Appellant.
    Submitted May 2, 2012;
    decided May 8, 2012
   Motion by Crane Co. for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein dismissed as academic.


text:
    Albert G. Fraccola, Jr., et al., Appellants, v Phyllis Fraccola, Individually and as Sole Shareholder of Hydrania, Inc., et al., Respondents.
    Decided May 8, 2012
   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 Estate of Oswald Jordan, Deceased. Victor Jordan, Appellant; Lenna Susannah Jordan, Respondent.
    Decided May 8, 2012
   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 Jerry Lineberger, Appellant, v Norman Bezio, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Decided May 8, 2012
   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 Paul S. et al., as Persons Having Placement of Colleen Y. and Others, Respondents, v Rita S. et al., Appellants. (And Five Related Proceedings.) (Appeal No. 2.)
    Decided May 8, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Jose Hernandez, Appellant.
    Submitted April 16, 2012;
    decided May 8, 2012
   Motion for reargument dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.24 [b]) [see 95 NY2d 885 (2000); 95 NY2d 792 (2000)]. Motion for poor person relief dismissed as academic.


text:
    In the Matter of State of New York, Respondent, v Bobby P., Appellant.
    Decided May 8, 2012
   Appeal, insofar as taken from that part of the Appellate Division order that affirmed the October 2010 order of Supreme Court, 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 the remaining portion of the Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Sunrise Check Cashing and Payroll Services, Inc., et al., Respondents, v Town of Hempstead et al., Appellants.
    Submitted March 12, 2012;
    decided May 8, 2012
   Motion by respondents, insofar as it seeks to dismiss the appeal taken from the Supreme Court judgment entered upon remittal, granted, and the appeal dismissed, without costs, upon the ground that the judgment is not the final paper from which an appeal may be taken (see CPLR 5611); motion, insofar as it seeks to dismiss the appeal taken from the Appellate Division order, denied.

Motion by appellants, insofar as it seeks leave to appeal from the Appellate Division order, denied as unnecessary; motion, insofar as it seeks leave to appeal from the Supreme Court judgment entered upon remittal, dismissed upon the ground that the judgment is not the final paper from which leave to appeal may be sought (see CPLR 5611). Motion by appellants, treated as one to enlarge the record, denied as unnecessary upon the ground that the material sought to be submitted is subject to judicial notice.


text:
    In the Matter of Yung Brothers Real Estate Co., Inc., et al., Appellants, v Robert D. Limandri, as Commissioner of the New York City Department of Buildings, et al., Respondents.
    Submitted April 2, 2012;
    decided May 8, 2012
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic.


text:
    Jasmine Zheng et al., Appellants, v City of New York et al., Respondents.
    Submitted April 9, 2012;
    decided May 8, 2012
   Motion for leave to appeal granted. Motion for poor person relief granted. Motion for interim relief denied.


text:
    [969 NE2d 779, 946 NYS2d 561]
    In the Matter of Diane L. Schilling.
    Decided May 31, 2012

      APPEARANCES OF COUNSEL

      E. Stewart Jones, Jr., Troy, for petitioner.

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

On the Court’s own motion, it is determined that Honorable Diane L. Schilling is suspended, with pay, effective immediately, from the office of Justice of the East Greenbush Town Court, Rensselaer County, pending disposition of her request for review of a determination by the State Commission on Judicial Conduct.

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


author: Memorandum.

text:
    [970 NE2d 864, 947 NYS2d 829]
    IDX Capital, LLC, et al., Appellants, et al., Plaintiffs, v Phoenix Partners Group LLC et al., Respondents, et al., Defendants.
    Argued April 24, 2012;
    decided May 31, 2012

      APPEARANCES OF COUNSEL

      Olshan Grundman Frome Rosenzweig & Wolosky LLP, New York City (<Jeffrey A. Udell of counsel), for IDX Capital, LLC, and another, appellants.

      Graubard Miller, New York City (Lawrence D. Bernfeld of counsel), for Brady Halper, appellant.

      Nixon Peabody LLP, New York City (Frank H. Penski of counsel), John F. Bolton and Christopher J. Porzio, for respondents.
   OPINION OF THE COURT

Memorandum.

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

IDX Capital, LLC and its principals, James Cawley and Brady Halper, commenced this action against, among others, Phoenix Partners Group LLC, Phoenix Partners Group LP, Nicholas Stephan and Marcos Brodsky, for tortious interference with prospective business relations and aiding and abetting breach of fiduciary duty arising from defendants’ alleged participation in derailing IDX Capital’s acquisition by a third party. Plaintiffs asserted a separate claim against Stephan for injunctive relief relative to a settlement agreement he had previously entered into with Cawley. Supreme Court denied defendants’ motion for summary judgment. The Appellate Division, with two Justices dissenting, modified and, as pertains to this appeal, dismissed the second verified amended complaint as against the Phoenix entities, Stephan and Brodsky (83 AD3d 569 [1st Dept 2011]).

We affirm. In response to defendants’ prima facie showing of entitlement to summary judgment, plaintiffs failed “to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact” as to whether Stephan and Brodsky participated in codefendant Wesley Wang’s admitted campaign to interfere with the proposed acquisition, the Phoenix entities should be held vicariously liable for Wang’s conduct, or Cawley was entitled to injunctive relief (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

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

Order, insofar as appealed from, affirmed, etc.


text:
    [970 NE2d 427, 947 NYS2d 404]
    Mark Weiner, Appellant, v City of New York et al., Respondents.
    Argued April 26, 2012;
    decided May 31, 2012

      APPEARANCES OF COUNSEL

      Law Office of Arnold E. DiJoseph, P.C., New York City (Arnold E. DiJoseph, III, of counsel), for appellant.

      Michael A. Cardozo, Corporation Counsel, New York City (Julie Steiner, Stephen J. McGrath and Michael Shender of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question not answered as unnecessary.

Plaintiff Mark Weiner, who was employed by the New York City Fire Department as an emergency medical technician, was hurt while responding to a report of an injured person on a boardwalk in Brighton Beach. He applied for and received workers’ compensation benefits from his employer—the City of New York. Subsequently, Weiner commenced this action against the City and its Parks and Recreation Department, alleging both common-law negligence and a cause of action under General Municipal Law § 205-a. According to Weiner, the boardwalk was poorly illuminated, causing his fall.

The City moved to dismiss the complaint pursuant to CPLR 3211, arguing that Weiner’s receipt of workers’ compensation benefits barred his lawsuit, that as an emergency medical technician he was not within the class of persons who may bring an action under section 205-a, and that he could not proceed against the City as “owner” of the boardwalk. Supreme Court denied the motion, citing Lo Tempio v City of Buffalo (6 AD3d 1197 [4th Dept 2004]).

The Appellate Division, Second Department, reversed, agreeing with the City that Weiner’s action was barred by his receipt of workers’ compensation benefits, and that he could not sue the City in its landlord role. The Appellate Division granted Weiner leave to appeal to this Court and certified the question whether its opinion and order was properly made.

Workers’ compensation benefits are “[t]he sole and exclusive remedy of an employee against his employer for injuries in the course of employment” (Gonzales v Armac Indus., 81 NY2d 1, 8 [1993]). This precludes suits against an employer for injuries in the course of employment.

“In exchange for the security of knowing that fixed benefits will be paid without the need to resort to expensive and sometimes risky litigation, . . . the employee has been asked to pay a price in the form of the loss of his common-law right to sue his employer in tort and perhaps to enjoy a more substantial recovery through a jury award” (Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 159-160 [1980]).

Nonetheless, Weiner contends that he may bring this action against the City pursuant to section 205-a, because that statute gives a right of action to “any officer, member, agent or employee of any fire department” who is injured on duty, “[i]n addition to any other right of action or recovery under any other provision of law” (General Municipal Law § 205-a [1]).

Weiner’s principal argument relies on a difference in wording between General Municipal Law § 205-a (pertaining to firefighters) and General Municipal Law § 205-e (pertaining to police officers). Section 205-e contains the same statement found in section 205-a that the cause of action created by the statute exists “[i]n addition to any other right of action or recovery under any other provision of law” (General Municipal Law § 205-e [1]). But section 205-e (pertaining to police officers) explicitly provides that “nothing in this section shall be deemed to expand or restrict any right afforded to or limitation imposed upon an employer, an employee or his or her representative by virtue of any provisions of the workers’ compensation law” (General Municipal Law § 205-e [1]). Weiner contends that the omission of this language concerning Workers’ Compensation Law in section 205-a with respect to firefighters was deliberate. We disagree.

Had the Legislature intended to give firefighters, but not police officers, the right to sue as well as receive workers’ compensation benefits, this distinction, we are certain, would have been evident in the legislative history. It is not. To the contrary, in his Memorandum approving the last major amendment of General Municipal Law § 205-a, in 1996, Governor Pataki expressly stated that municipalities (outside New York City)

“that provide workers’ compensation for their firefighters and police officers . . . will not incur any additional liability, for nothing in the bill affects the provisions of existing law stipulating that the right to compensation or benefits under the workers’ compensation law is the exclusive remedy an employee has against an employer or co-employee for injuries incurred in the course of his or her employment” (Governor’s Approval Mem, Bill Jacket, L 1996, ch 703, reprinted in 1996 McKinney’s Session Laws of NY, at 1936 [emphasis added]).

We conclude that it was not the intent of the Legislature to allow recipients of workers’ compensation benefits to sue their employers in tort under section 205-a.

It follows, then, that Lo Tempio was wrongly decided insofar as that Court held that a plaintiffs acceptance of workers’ compensation benefits does not preclude a tort action against his or her employer. We need not resolve today whether emergency medical technicians who are employed by fire departments and are not recipients of workers’ compensation benefits are entitled to the right of action provided by section 205-a, or whether the right of action is limited to firefighters.

Finally, plaintiffs common-law negligence claim was also properly dismissed. We have long refused to condone the circumvention of the workers’ compensation scheme by means of a theory that would allow an employer to be sued in its capacity as property owner (see Billy, 51 NY2d at 160). “[A]n employer remains an employer in his relations with his employees as to all matters arising from and connected with their employment” (id.). Here, Weiner’s injuries arose from and were connected with his employment as an emergency medical technician.

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

Order affirmed, etc.


text:
    Daniel Marks Cohen et al., Appellants, v Andrew M. Cuomo, Governor of the State of New York, et al., Respondents.
    Submitted May 14, 2012;
    decided May 31, 2012
   Motion by H. William Van Allen for leave to appear amicus curiae on the appeal herein dismissed as academic.


text:
    In the Matter of Michael A. Cunningham, Appellant, v New York State Department of Labor, Respondent.
    Submitted May 14, 2012;
    decided May 31, 2012
   Motion by New York State United Teachers for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of Destiny EE., a Child Alleged to be Permanently Neglected. Ulster County Department of Social Services, Respondent; Karen FF., Appellant. (And Other Proceedings.)
    Submitted March 26, 2012;
    decided May 31, 2012
   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:
    John Gronski et al., Appellants, v County of Monroe, Respondent.
    Submitted December 27, 2011;
    decided May 31, 2012
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 18 NY3d 374 (2011)].


text:
    JP Morgan Chase Bank, N.A., Respondent, v Jon Edelson et al., Defendants. C-Con Corp., Proposed Intervenor-Appellant.
    Submitted March 12, 2012;
    decided May 31, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Richard M. Metz, as Personal Representative of the Estate of Mary Helen Metz, Deceased, et al., Respondents, v State of New York, Appellant. (And Six Other Related Claims.)
    Submitted May 14, 2012;
    decided May 31, 2012
   Motion by City of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Keith A. Adams, Appellant.
    Submitted May 21, 2012;
    decided May 31, 2012
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Santiago Alvarez, Appellant.
    Submitted May 29, 2012;
    decided May 31, 2012
   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 Jay J. Barboni, Appellant.
    Submitted May 7, 2012;
    decided May 31, 2012
   Motion for assignment of counsel granted and Mary P Davison, Esq., care of Davison Law Office, 61 North Main Street, PO Box 652, Canandaigua, New York 14424 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Lawrence Blankymsee, Appellant.
    Submitted May 7, 2012;
    decided May 31, 2012
   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 on the appeal herein.


text:
    The People of the State of New York, Respondent, v Christopher Brinson, Appellant.
    Submitted May 7, 2012;
    decided May 31, 2012
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Austin Cornelius, Appellant.
    Submitted May 14, 2012;
    decided May 31, 2012
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Kirk Hanley, Appellant.
    Submitted May 14, 2012;
    decided May 31, 2012
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v James A. Harris, Jr., Respondent.
    Submitted May 29, 2012;
    decided May 31, 2012
   Motion for assignment of counsel granted and Warren S. Hecht, Esq., 118-21 Queens Boulevard, Suite 518, Forest Hills, New York 11375 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Demetrius McGee, Appellant.
    Submitted May 21, 2012;
    decided May 31, 2012
   Motion for assignment of counsel granted and David C. Schopp, Esq., Legal Aid Bureau of Buffalo, Inc., 237 Main Street, Suite 1602, Buffalo, New York 14203 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Paul Thompson, Appellant.
    Submitted May 14, 2012;
    decided May 31, 2012
   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 on the appeal herein.


text:
    The People of the State of New York, Respondent, v Timothy Williams, Appellant.
    Submitted May 14, 2012;
    decided May 31, 2012
   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 ex rel. Santo Gonzalez, Appellant, v New York State Department of Correctional Services et al., Respondents.
    Submitted January 17, 2012;
    decided May 31, 2012
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 802 (2011)].


text:
    Regional Economic Community Action Program, Inc., Appellant, v Enlarged City School District of Middletown, Respondent.
    Submitted March 19, 2012;
    decided May 31, 2012
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 18 NY3d 474 (2012)].


text:
    VBH Luxury, Incorporated, Plaintiff, v 940 Madison Associates LLC, Defendant and Third-Party Plaintiff-Respondent. Excelsior Insurance Company, Third-Party Defendant-Appellant, et al., Third-Party Defendant.
    Submitted March 26, 2012;
    decided May 31, 2012
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 18 NY3d 899 (2012)].


text:
    Jasmine Zheng et al., Appellants, v City of New York et al., Respondents.
    Submitted May 29, 2012;
    decided May 31, 2012
   Motion by Sanctuary for Families et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    [973 NE2d 158, 950 NYS2d 63]
    In the Matter of Board of Managers of Copley Court Condominium, Appellant, v Town of Ossining et al., Respondents, and Briarcliff Manor Union Free School District, Respondent.
    Argued April 24, 2012;
    decided June 5, 2012

      APPEARANCES OF COUNSEL

      Bleakley Platt & Schmidt, LLP, White Plains (Hugh D. Fyfe of counsel), for appellant.

      Kuntz, Spagnuolo, Murphy & Gronbach, PC., Bedford (Raymond G. Kuntz of counsel), for Briarcliff Manor Union Free School District, respondent.
   OPINION OF THE COURT

Memorandum.

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

The condominium at issue in this tax certiorari proceeding is located in the Village of Briarcliff Manor, in the Town of Ossining, and within the Briarcliff Manor Union Free School District (Briarcliff School District). Petitioner, Board of Managers of Copley Court Condominium (Copley), commenced a proceeding against the Town of Ossining and its Assessor and Board of Review seeking review of its tax assessment for the year 2001 pursuant to article 7 of the Real Property Tax Law. In the manner prescribed by RPTL 708 (3), which requires a petitioner to mail a copy of the petition to the superintendent of the school district within which the property at issue is located, Copley notified the Superintendent of Briarcliff School District of the proceeding. Copley also commenced similar proceedings for each of the next six tax years (2002-2007), but for each of those years, Copley’s counsel, evidently under the mistaken impression that the property was actually located within an adjacent school district, the Ossining Union Free School District, mailed copies of the petitions to the Superintendent of the Ossining School District instead of to Briarcliff School District. Briarcliff School District intervened and moved to dismiss the proceedings, and Copley cross-moved for leave to serve Briarcliff School District. The Supreme Court denied the motion and granted the cross motion. The Appellate Division reversed, granting Briarcliff School District’s motion to dismiss (79 AD3d 1032 [2d Dept 2010]). This Court granted Copley’s motion for leave to appeal (16 NY3d 711 [2011]), and we now affirm.

RPTL 708 (3) requires that, in a tax certiorari proceeding, “one copy of the petition and notice shall be mailed ... to the superintendent of schools of any school district within which any part of the real property on which the assessment to be reviewed is located,” and provides that “[f]ailure to comply with the provisions of this section shall result in the dismissal of the petition, unless excused for good cause shown.” A mistaken belief on the part of a petitioner’s counsel that a property is located within a particular school district does not, standing alone, provide a sound basis to conclude that the taxpayer has shown good cause to excuse its failure to provide timely notice to the correct school district such that the petitioner may avoid otherwise mandatory dismissal of the petition (compare Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-105 [2001] [holding that the “good cause” standard referenced in CPLR 306-b requires a party failing to comply with the service provisions in that section to demonstrate “reasonably diligent efforts at service as a threshold matter” in order to be granted an extension of the time for service]). RPTL 708 (3) requires petitioner to show good cause to excuse its failure to notify the appropriate school district, and not merely to demonstrate the absence of prejudice to the school district. Therefore, even assuming, as Copley argues, that Briarcliff School District was not prejudiced by Copley’s error, Copley has nevertheless failed to satisfy the statutory requirement.

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

Order affirmed, with costs, in a memorandum.


text:
    [969 NE2d 1162, 947 NYS2d 47]
    Mark Dzielski et al., Respondents, v Essex Insurance Company, Appellant, et al., Defendant.
    Decided June 5, 2012

      APPEARANCES OF COUNSEL

      Hurwitz & Fine, EC., Buffalo (Dan D. Kohane of counsel), for appellant.

      Damon Morey LLE, Buffalo (Kathleen M. Reilly, Eric C. Naegely and Jessica M. DeMichiel 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 reversed, with costs, plaintiffs’ motion for summary judgment denied, defendant’s motion for summary judgment granted, and judgment granted to defendant declaring that it has no obligation to indemnify its insured in the underlying personal injury action, for the reasons stated in the dissenting memorandum at the Appellate Division (90 AD3d 1493, 1495-1497 [2011]).

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


text:
    In the Matter of Association for Community Living, Inc., et al., Appellants, v New York State Office of Mental Health et al., Respondents.
    Decided June 5, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Ayinde Fair, Appellant, v Joseph T. Smith, Individually and as Superintendent of Shawangunk Correctional Facility, et al., Respondents.
    Decided June 5, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Peter Gonzalez et al., Appellants, v L’Oreal USA, Inc., Respondent.
    Submitted April 9, 2012;
    decided June 5, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Lisa Harbatkin, Appellant, v New York City Department of Records and Information Services et al., Respondents.
    Submitted July 25, 2011;
    decided June 5, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal granted.


text:
    In the Matter of Edward Koehl, Appellant, v John Lempke, Superintendent, Five Points Correctional Facility, Respondent.
    Decided June 5, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Deborah Rae Lamb et al., Appellants, v Governor for New York State et al., Respondents.
    Submitted April 9, 2012;
    decided June 5, 2012
   Motion for reconsideration of this Court’s February 21, 2012 dismissal order denied [see 18 NY3d 920 (2012)]. Motion for a stay dismissed as academic.


text:
    Marko S., Also Known as Marko Alexander S., Also Known as Marko A., Respondent, v Heather S., Also Known as Heather Kim S., Appellant.
    Submitted April 9, 2012;
    decided June 5, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    David Mirvish, Appellant, v Hanno D. Mott, Individually and as Executor of Yulla H. Lipchitz, Deceased, et al., Respondents.
    Submitted March 26, 2012;
    decided June 5, 2012
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 18 NY3d 510 (2012)].


text:
    Freda Gates Pozefsky, Appellant, v Richard T. Aulisi et al., Respondents, et al., Defendants.
    Submitted April 16, 2012;
    decided June 5, 2012
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 897 (2012)].


text:
    In the Matter of Anna Scheffey-Hohle, Appellant, v Travis C. Durfee, Respondent.
    Decided June 5, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    Daniel Schick et al., Respondents, v 200 Blydenburgh, LLC, et al., Appellants.
    Submitted April 9, 2012;
    decided June 5, 2012
   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.


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

text:
    [972 NE2d 83, 948 NYS2d 842]
    In the Matter of New York City Transit Authority, Appellant, v New York State Public Employment Relations Board et al., Respondents.
    Argued April 25, 2012;
    decided June 7, 2012

      APPEARANCES OF COUNSEL

      Martin B. Schnabel, General Counsel for New York City Transit Authority, Brooklyn (Robert K. Drinan and Mariel A. Tanne of counsel), for appellant.

      David P. Quinn, Albany, for New York State Public Employment Relations Board, respondent.

      Cary Kane LLP, New York City (Nicholas Hanlon and Larry Cary of counsel), for Transport Workers Union of America, Local 100, respondent.
   OPINION OF THE COURT

Memorandum.

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

In April 2000, the New York City Transit Authority (the NYCTA) unilaterally instituted a policy regarding dual employment. Under the policy, a NYCTA employee may engage in dual employment provided that it does not “interfere with the proper and effective discharge of the employee’s duties with the [NYCTA].” As relevant here, the policy imposed particular restrictions on “employees in safety-sensitive titles,” including bus operators, tower operators, train conductors, train operators and train dispatchers. Furthermore, the policy stated that department heads “may create and disseminate department-specific standards which may be more stringent than standards set forth [here], as warranted to assure the safety of the public and of [NYCTA] employees.”

Effective May 1, 2006, the NYCTA adopted “more stringent” standards for the dual employment of train conductors, train operators and tower operators. Two months later, the Transport Workers Union, Local 100 (the TWU), representing several employees of the NYCTA, filed an improper practice charge, alleging that the NYCTA violated Civil Service Law § 209-a (1) (d) by failing to negotiate with the Union before implementing these stricter standards. Acknowledging that it did not negotiate with the TWU, the NYCTA asserted that it had no obligation to do so because the decision to impose more restrictive standards was a management prerogative since it related to its mission of providing a safe system of public transit.

An Administrative Law Judge (the ALJ) conducted a hearing in February 2007. At the outset of the hearing, the ALJ noted that the parties stipulated to the introduction of certain joint exhibits. One of those exhibits was a letter from the NYCTA Office of Labor Relations indicating that the NYCTA “did not rely upon any safety studies” when it implemented the more restrictive dual employment standards. However, the NYCTA’s Chief Transportation Officer, Kevin O’Connell, testified at the hearing that the purpose of the new standards was to ensure that those in safety-sensitive positions were “getting sufficient rest.” During his testimony, O’Connell referred to an unidentified report from the National Transportation Safety Board determining that employee fatigue affects safety and recounted that a collision occurred in 1995 when a NYCTA employee fell asleep at the control.

The ALJ agreed with the NYCTA and dismissed the TWU’s improper labor practice charge. The TWU filed a statement of exceptions with the Public Employment Relations Board (PERB). In June 2009, PERB reversed the ALJ’s determination, rescinded the May 2006 dual employment standards and directed the NYCTA to make whole certain affected employees. The NYCTA then commenced this CPLR article 78 proceeding in Supreme Court. Following transfer of the proceeding to the Appellate Division, the Court confirmed the determination (78 AD3d 1184 [2d Dept 2010]). We granted the NYCTA leave to appeal (17 NY3d 711 [2011]).

It is well settled that “[t]he Taylor Law (Civil Service Law art 14) requires collective bargaining over all ‘terms and conditions of employment’ ” (Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563, 572 [2006], quoting Civil Service Law § 204 [2]). Where a public employee alleges that a public employer has failed to negotiate the terms and conditions of employment—an improper employer practice (see Civil Service Law § 209-a [1] [d]), PERB has exclusive jurisdiction to resolve the dispute between the parties (see Civil Service Law § 205 [5] [d]; see also Matter of Zuckerman v Board of Educ. of City School Dist. of City of N.Y., 44 NY2d 336, 342 [1978]). We “have made clear that ‘the presumption . . . that all terms and conditions of employment are subject to mandatory bargaining’ cannot easily be overcome” (Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 572, quoting Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73, 79 [2000]). However, “certain decisions of an employer, though not without impact upon its employees, may not be deemed mandatorily negotiable terms and conditions of employment . . . because they are inherently and fundamentally policy decisions relating to the primary mission of the public employer” (Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 669 [1990] [internal quotation marks omitted]; see also Matter of County of Erie v State of N.Y. Pub. Empl. Relations Bd., 12 NY3d 72, 78 [2009]).

Here, the NYCTA urges us to hold that its implementation of more stringent dual employment standards was mission-related and, therefore, not subject to collective bargaining. It is indisputable that the NYCTA’s core mission is to provide a safe system of public transit {see Public Authorities Law § 1202 [1]; § 1204 [15]). Although we need not “defer to PERB’s judgment” (Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 575) on whether an employer’s unilateral policy decision relates to its primary mission, the record in this case is inadequate to support the NYCTA’s argument that the dual employment standards at issue were in furtherance of its core mission of public safety. As noted earlier, the NYCTA did not rely on particular safety studies when it imposed these new standards. Moreover, the NYCTA did not explain why it chose to impose the more restrictive dual employment standards on certain safety-sensitive employees—train conductors, train operators and tower operators—while exempting others—bus operators and train dispatchers—who share similar job functions. Simply put, on the limited record before us, there is an insufficient basis to disturb PERB’s determination.

We have considered the NYCTA’s remaining arguments and find them to be without merit.

Smith, J. (dissenting).

This case should be decided on the basis of the common-sense proposition that it is dangerous for people who do not get enough sleep to operate subway trains. The NYCTA should therefore be permitted to adopt unilaterally, without collective bargaining, the rule that is in issue here, requiring, in substance, that train operators and other employees in safety-sensitive jobs must, if they want to work at another job, have eight hours off excluding commuting time before they report to work for the NYCTA.

We have repeatedly recognized that certain subjects are so important to the public interest that they are exceptions to the general rule requiring public employers to bargain with employee representatives over the terms and conditions of employment (e.g. Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774 [1976] [decisions on teacher tenure]; Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273 [2000] [criminal investigations of employee misconduct]; Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 [2006] [PBA v PERB] [police discipline]). Most recently, in Matter of City of New York v Patrolmen’s Benevolent Assn. of the City of N.Y., Inc. (14 NY3d 46 [2009]), we held that the choice of a methodology for the drug screening of uniformed police officers was a management prerogative not subject to collective bargaining. The majority makes no attempt to distinguish any of these cases—to explain, for example, why somnolent subway drivers present a less serious threat to the public than pot-smoking police officers. I would hold this case to be controlled by those I have cited.

The majority here faults the NYCTA for failing to put forward “particular safety studies” to support its new standards (majority mem at 880). But why are studies needed to demonstrate that an employee driving a train full of people should have eight fall hours of rest between jobs? Why cannot that matter be left to the NYCTA’s common-sense judgment? The majority finds “an insufficient basis to disturb PERB’s determination” (id.), but an agency responsible for public employment relations should not be determining a question like this at all. Here, as in PBA v PERB, the issue is “the relative weight to be given to competing policies” (6 NY3d at 575)—in this case, the competing policies of protecting employees’ bargaining rights and protecting the public safety. We, not PERB, should be determining that question, and should decide that the interest in public safety is the weightier one.

Chief Judge Lippman and Judges Ciparick, Graffeo and Read concur; Judge Smith dissents in an opinion in which Judge Pigott concurs; Judge Jones taking no part.

Judgment affirmed, with costs, in a memorandum.


text:
    [971 NE2d 856, 948 NYS2d 575]
    The People of the State of New York, Respondent, v Ramon Flores, Appellant.
    Argued April 26, 2012;
    decided June 7, 2012

      APPEARANCES OF COUNSEL

      Anna Jost, Tonawanda, for appellant.

      Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant Ramon Flores was convicted, following a jury trial, of one count of first-degree sexual abuse, two counts of first-degree rape, two counts of first-degree attempted sodomy and one count of first-degree sodomy. He was subsequently sentenced to 20 years in prison to be followed by five years of postrelease supervision. On appeal, the Appellate Division exercised its interest of justice jurisdiction to reverse that part of the judgment convicting defendant of first-degree attempted sodomy under one of the counts of the indictment, dismissed that count and otherwise affirmed (83 AD3d 1460 [4th Dept 2011]).

Defendant’s indictment was based, in part, on the nine-year-old complainant’s videotaped testimony for the grand jury The district attorney provided defendant’s trial counsel with a copy of the transcript of the complainant’s grand jury testimony, and trial counsel viewed the videotape at the district attorney’s offices. Defendant argues that CPL 240.45 and People v Rosario (9 NY2d 286 [1961]) obligated the People to provide trial counsel with a copy of the videotape. But trial counsel did not object to the arrangements made by the district attorney for him to view the videotape; nor did he ever request a copy of it. This issue is therefore not preserved for appellate review (People v Jackson, 78 NY2d 900 [1991]). We have considered defendant’s other arguments and find them to be without merit.

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

Order affirmed in a memorandum.


text:
    [976 NE2d 216, 951 NYS2d 690]
    The People of the State of New York, Respondent, v Feoid Haffiz, Appellant.
    Argued April 25, 2012;
    decided June 7, 2012
    APPEARANCES OF COUNSEL

      Quadrino & Schwartz, P.C., Garden City (Bruce A. Barket of counsel), for appellant.

      Thomas J. Spota, District Attorney, Riverhead (Michael Blakey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On March 6, 2008, defendant pleaded guilty to criminal sale of a controlled substance in the second degree, criminal sale of a firearm in the third degree, and criminal possession of a weapon in the second degree. Two months later, defendant, with new defense counsel, moved to withdraw the plea arguing, among other things, that the defense of entrapment had been established and he was innocent as a matter of law. Relying on our decision in People v McDonald (1 NY3d 109 [2003]), defendant also claimed that his defense counsel at the time of the plea was ineffective by misinforming him that “sometimes people are not deported” after a criminal conviction, when, in fact, defendant’s felony conviction resulted in mandatory deportation. County Court denied defendant’s motion, finding that defendant’s allegations of innocence were contradicted by the plea allocution. The court did not address defendant’s ineffective assistance of counsel claim.

On appeal to the Appellate Division, defendant further argued that his plea should be vacated pursuant to the then-recent decision Padilla v Kentucky (559 US —, 130 S Ct 1473 [2010]). In Padilla, the United States Supreme Court recognized that “deportation is a particularly severe penalty” with a “close connection to the criminal process,” and held that constitutionally effective assistance of counsel requires defense counsel to inform his or her client whether a plea carries the risk of deportation (559 US at —, 130 S Ct at 1481-1482, 1484, 1486 [internal quotation marks omitted]). The Appellate Division affirmed the denial of defendant’s motion (77 AD3d 767 [2d Dept 2010]).

We agree with the Appellate Division that the trial court did not abuse its discretion in denying defendant’s motion to withdraw his plea. “The established rule is that a guilty plea will be upheld as valid if it was entered voluntarily, knowingly and intelligently” (People v Fiumefreddo, 82 NY2d 536, 543 [1993]). “A defendant is not entitled to withdraw his guilty plea based on a subsequent unsupported claim of innocence, where the guilty plea was voluntarily made with the advice of counsel following an appraisal of all the relevant factors” (People v Dixon, 29 NY2d 55, 57 [1971]). Here, the plea colloquy reveals that defendant knowingly and voluntarily admitted the factual allegations of the crimes and made no protest of innocence.

Further, while Padilla may support vacatur of the plea based on a claim of ineffective assistance of counsel, in this case the claim is predicated on hearsay matters and facts not found in the record on appeal. The claim should be raised in a postconviction application under CPL article 440, where the basis of the claim may be fully developed (see People v Brown, 45 NY2d 852 [1978]).

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

Order affirmed in a memorandum.


text:
    Cynthia A. Bell, Appellant, v 24-26 East 82nd Street Corporation et al., Respondents.
    Submitted April 30, 2012;
    decided June 7, 2012
   Motion for reargument denied [see 18 NY3d 917 (2012)].


text:
    Mayra Bonilla et al., Appellants, v Mohammed Abdullah et al., Respondents.
    Submitted April 23, 2012;
    decided June 7, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Donald Felix, Respondent, v Law Office of Thomas F. Liotti, Appellant.
    Submitted May 14, 2012;
    decided June 7, 2012
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 974 (2012)]. Motion for a stay dismissed as academic.


text:
    In the Matter of Leon R. Koziol, Individually and as Parent of Child A. and Child B., and on Behalf of Parents and Children Similarly Situated, Appellant, v Martha Walsh Hood, as Justice of the Supreme Court, et al., Respondents.
    Decided June 7, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Chief Judge Lippman taking no part.


text:
    K2 Investment Group, LLC, et al., Respondents-Appellants, v American Guarantee & Liability Insurance Company, Appellant-Respondent.
    Decided June 7, 2012
   On the Court’s own motion, appeal by respondents-appellants dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law in favor of respondents-appellants (see CPLR 5601 [a]). Motion by respondents-appellants for leave to appeal granted.


text:
    In the Matter of Makayla L.P., an Infant. Steuben County Department of Social Services, Respondent; Alecia M.P., Respondent, and David S., Appellant.
    Submitted March 26, 2012;
    decided June 7, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Appellant, v Damien Warren, Respondent.
    Submitted May 7, 2012;
    decided June 7, 2012
   Motion to vacate this Court’s April 25, 2012 preclusion order granted.


text:
    In the Matter of Willard Saperston, Appellant, v Heather Holdaway, Respondent.
    Decided June 7, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Louis A. Terminello et al., Appellants, v Village of Piermont, Respondent, et al., Defendants.
    Submitted March 26, 2012;
    decided June 7, 2012
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that no substantial constitutional question is directly involved.


text:
    [972 NE2d 111, 948 NYS2d 870]
    The People of the State of New York, Respondent, v Richard Kelley, Appellant.
    Argued May 1, 2012;
    decided June 12, 2012

      APPEARANCES OF COUNSEL

      Office of the Appellate Defender, New York City (Kerry S. Jamieson, Richard M. Greenberg and Rosemary Herbert of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Sylvia Wertheimer and Patrick J. Hynes of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, by vacating the convictions for course of sexual conduct against a child in the first degree and endangering the welfare of a child, and a new trial ordered as to those counts, and, as so modified, affirmed.

Defendant was indicted for one count of course of sexual conduct against a child in the first degree in connection with various acts that he allegedly committed against his daughter prior to her thirteenth birthday; multiple counts of rape and incest for actions that purportedly occurred after his daughter became 13 years of age; two counts of endangering the welfare of a child; and 20 counts of criminal contempt for violations of an order of protection issued to the child and her mother. During the investigation, the victim’s mother turned over to police the underwear that her daughter had worn on the day of the alleged final incident, along with a bed sheet and a towel that her daughter claimed defendant ejaculated on (which the child described as defendant’s usual behavior after he performed sexual acts with her). Analysis of the underwear revealed the presence of male DNA that did not belong to defendant. A copy of the report detailing the testing of the underwear was provided to defense counsel before trial. For some unexplained reason, the towel was not tested for genetic material.

Defendant’s trial strategy focused on the lack of DNA evidence implicating him. Near the end of the People’s direct case, defense counsel inquired of the prosecution why the towel had not been tested. This lead to the People’s discovery that the towel had not been examined for genetic material, so they arranged for testing. When the People advised the court of this development, defense counsel objected to the introduction of any evidence derived from the towel, arguing that defendant’s right to a fair trial would be undermined since the centerpiece of his defense was the absence of any scientific evidence corroborating the child’s accusations.

After defendant’s direct testimony and cross-examination, the People disclosed that the towel had been analyzed and was found to contain defendant’s semen and the DNA of a female, but not that of defendant’s daughter. Defense counsel reiterated that the evidence should be precluded or a mistrial ordered because the proffered scientific proof had not been available during the formulation of defendant’s defense and it was too late for the defense to shift its emphasis. The trial court ruled that the People could introduce the DNA results and defendant could retake the stand, if he wished. The jury ultimately convicted defendant of first-degree course of sexual conduct against a child, endangering the welfare of a child and criminal contempt. The Appellate Division affirmed (82 AD3d 463 [1st Dept 2011]) and a Judge of this Court granted leave to appeal (17 NY3d 807 [2011]).

On these facts, the introduction of the scientific evidence pertaining to the genetic testing of the semen on the towel violated defendant’s right to a fair trial. By the time the People discovered the testing oversight, defendant’s contention that there was no DNA evidence to corroborate the charges had been placed before the jury, defendant had already testified and the trial was too far along for defense counsel to present a new defense theory. The evidence also corroborated a particular aspect of the daughter’s testimony—that defendant commonly ejaculated on a towel after intercourse—and her awareness of that fact indicated that she either had been exposed to or subjected to her father’s sexual proclivities. The trial court therefore should have precluded the submission of this evidence or declared a mistrial (see generally People v Goins, 73 NY2d 989, 991 [1989]). But the error was harmless as to the criminal contempt charges because defendant admitted his guilt regarding those crimes. Consequently, defendant is entitled to a new trial on the charges of first-degree course of sexual conduct against a child and endangering the welfare of a child.

Smith, J. (dissenting).

I agree with defendant that the belated testing of the towel was a violation of CPL 240.20 (1) (c), which requires the People to make available upon a defendant’s demand “[a]ny written report . . . concerning a . . . scientific test or experiment.” The statute does not require the People to test anything—only to make available such tests as they have— but when, as here, the People delay the testing until well after the trial has begun, the effect is to defeat the purpose of the statute. If the People had done this deliberately, I might agree with the majority that the trial court should have precluded the results of the test, or ordered a mistrial.

But it is undisputed that the People were guilty of no more than an innocent mistake. Under these circumstances, the trial court did not abuse the discretion given to it by CPL 240.70 (1), which says that, where a party has failed to comply with a discovery obligation, the court may, among other things, “grant a continuance, issue a protective order, prohibit the introduction of certain evidence or the calling of certain witnesses or take any other appropriate action.” When it became known that the towel had not been tested, the court asked whether defendant “would like to delay the proceedings and see what the evidence is”; and after deciding to admit the test results, the court invited defendant, who had already testified, “to retake the stand to develop any issues concerning the towel.” Defendant declined both offers. I do not think fairness required the trial judge to do more—to choose between excluding relevant evidence and aborting the trial.

The towel was never a major part of the case. It was barely mentioned in the People’s opening; was not mentioned at all in defendant’s; and was the subject of only a few questions during the cross-examination of the complainant. And the belatedly obtained test results were not of much significance, because the complainant’s DNA was not found on the towel. Indeed, as the Appellate Division pointed out, the evidence that was obtained— the towel contained defendant’s semen, mixed with other female DNA (presumably his wife’s)—cut both ways. Both sides made use of it, without clear advantage to either, in closing argument. The People argued that, as the majority here suggests, the evidence confirmed the complainant’s familiarity with “her father’s sexual proclivities” (majority mem at 890); but defendant argued that the absence of the complainant’s DNA proved the complainant lied when she claimed to have had sex with defendant shortly before the towel was turned over to the police.

Other evidence played a much larger role at the trial. The complainant’s testimony was strongly corroborated by defendant’s own statements. After his arrest, he wrote to his wife: “It is nobody’s business what a man and his wife and family do in regards to each other if it’s agreed upon jointly.” He wrote to his daughter: “I never forced you ... I never tricked you.” In another letter to his wife, he begged her to read Genesis 19:31-38, recounting incest between Lot and his daughters. “This,” defendant said, “is in the word of God!” The letters are virtually a confession. Any prejudice to defendant from the admission of the test results was insignificant by comparison.

Defendant was convicted after a fair trial. There is no good reason to try this case again.

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

Order modified, etc.


text:
    [971 NE2d 859, 948 NYS2d 578]
    The People of the State of New York, Respondent, v Tony William, Appellant.
    Argued May 2, 2012;
    decided June 12, 2012

      APPEARANCES OF COUNSEL

      Davis Polk & Wardwell LLP, New York City (Jonathan K. Chang, Edmond Polubinski, III, and Jonathan Stroble of counsel), and Office of the Appellate Defender (Richard M. Greenberg and Rosemary Herbert of counsel) for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Andrew E. Seewald and Vincent Rivellese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Whether the circumstances of a particular case rise to the level of reasonable suspicion presents a mixed question of law and fact that is beyond our review if the determination has record support (see People v Pines, 99 NY2d 525, 527 [2002]). In this case, although different conclusions may have been reasonable at the fact-finding level, record evidence supports the lower courts’ determination that the police possessed reasonable suspicion and our review therefore ends (see People v Hicks, 68 NY2d 234, 238 [1986]). Similarly, “[w]hether a showup is reasonable under the circumstances and/or unduly suggestive are mixed questions of law and fact” (People v Gilford, 16 NY3d 864, 868 [2011]). The determinations of the courts below that the showup was reasonable and not unduly suggestive are supported by the record and are likewise beyond our further review.

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

Order affirmed in a memorandum.


text:
    [973 NE2d 160, 950 NYS2d 65]
    The People of the State of New York, Respondent, v Brian Gammon, Appellant.
    Argued May 2, 2012;
    decided June 12, 2012

      APPEARANCES OF COUNSEL

      O’Brien & O’Brien, LLP, Nesconset (Stephen L. O’Brien of counsel), for appellant.

      Thomas J. Spota, District Attorney, Riverhead (Michael J. Miller and Thomas Constant of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

After being convicted of driving while intoxicated (see Vehicle and Traffic Law § 1192 [3]), defendant was sentenced to three years of probation and served a 60-day term of incarceration (a condition of probation). Some time thereafter, defendant was found to have violated a condition of probation and, as a result, District Court sought to order an additional 60 days of imprisonment. The court remarked, “I promised that I would sentence you to an additional 60 days incarceration. That’s in addition to the 60 days you already served, and terminate you from probation.”

However, on June 8th, the actual date of sentencing, the court did not specify that it was ordering an additional term of imprisonment, pronouncing that “[p]ursuant to my promise on June 2, the defendant is terminated from probation. I sentence him to 60 days in jail.” Defendant was immediately taken into the custody of the Suffolk County jail, but was released the same day because of an erroneous determination crediting him with time served for the original 60-day period of incarceration from the underlying conviction. Days after learning of defendant’s release, the District Court resentenced him to “120 days in jail which is an additional 60 days to the 60 days sentence that he already served.” Defendant argues that the resentencing violated Criminal Procedure Law § 430.10 and his constitutional right under the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution.

We hold that the resentencing of defendant did not violate the proscriptive language of section 430.10 which provides that “[ejxcept as otherwise specifically authorized by law, when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced.”

It is well established that courts have the “inherent power to correct their records, where the correction relates to mistakes, or errors, which may be termed clerical in their nature, or where it is made in order to conform the record to the truth” (People v Minaya, 54 NY2d 360, 364 [1981], quoting Bohlen v Metropolitan El. Ry. Co., 121 NY 546, 550-551 [1890]). Consequently, we have recognized that courts can exercise this authority “in circumstances where it clearly appears that a mistake or error occurred at the time a sentence was imposed” (People v Richardson, 100 NY2d 847, 850 [2003] [internal quotation marks omitted]). It is evident, on this record, that District Court intended to impose an “additional 60 days incarceration” for the violation of probation. Its failure to specify that this was a successive term of imprisonment created the type of ambiguity a court has the inherent authority to clarify (see Minaya, 54 NY2d at 364; People v Wright, 56 NY2d 613 [1982]; People v Reed, 85 AD3d 824 [2d Dept 2011]). In this sense, the sentence was not changed after the June 8 pronouncement.

Nor did the resentencing violate defendant’s constitutional right against double jeopardy. In People v Williams (14 NY3d 198 [2010]), we held that once defendants had satisfied their original judgments by completing their sentences and been released from incarceration at the termination of their sentences, a reasonable expectation of finality had attached and double jeopardy prevented imposition of postrelease supervision (PRS) at resentencing. The defendants in Williams served out their terms of imprisonment, and the sentencing judges unambiguously did not pronounce PRS, whereas here, defendant received an ambiguous sentence and did not serve out the original sentence imposed, as reasonably understood by all the parties.

In light of the court’s express intent to impose an additional period of incarceration; its authority to correct an apparent ambiguity in pronouncing sentence; and the parties’ understanding that defendant was to serve a 60-day term of imprisonment for the violation of probation, in this unique situation, it cannot be said that defendant acquired a legitimate expectation of finality when he was mistakenly released the same day he was taken into custody. Under these circumstances, no reasonable expectation of finality could have attached to the ambiguous sentence so that the court would be precluded, under principles of double jeopardy, from correcting its ambiguity and resentencing defendant in accordance with its stated intent (see Minaya, 54 NY2d at 366).

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

Order affirmed in a memorandum.


text:
    Paul Alexander, Appellant, v Raymond Kelly, as the Police Commissioner of the City of New York, et al., Respondents.
    Submitted April 23, 2012;
    decided June 12, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of David Burr, Appellant, v Timothy B. Howard, Sheriff of Erie County, Respondent.
    Submitted April 23, 2012;
    decided June 12, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Benjamin V.R. Conlon, an Attorney, Appellant. Committee on Professional Standards, Respondent.
    Decided June 12, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Victor Altheus DePonceau, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, et al., Respondents.
    Decided June 12, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Irene Gottesman et al., Respondents, v Evelyn Friedman, Also Known as Eveline Friedman, et al., Appellants, et al., Defendants.
    Submitted April 30, 2012;
    decided June 12, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Lance International, Inc., Appellant, v First National City Bank, Respondent.
    Submitted April 2, 2012;
    decided June 12, 2012
   Motion for leave to appeal dismissed upon the ground that it does not lie from the Appellate Division order, appellant having previously moved for leave to appeal to the Court of Appeals (17 NY3d 922 [2011]) from the same Appellate Division order from which leave to appeal is currently sought (see 166 Archer Ave. Co., LLC v New York City Health & Hosps. Corp., 15 NY3d 839 [2010]).


text:
    The People of the State of New York ex rel. Demetrio Lifrieri, Appellant, v William A. Lee, Respondent.
    Submitted April 23, 2012;
    decided June 12, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Jeffrey Thrall, Appellant, v CNY Centro, Inc., et al., Respondents.
    Submitted April 2, 2012;
    decided June 12, 2012
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution.


text:
    Town of Fenton et al., Appellants, v Town of Chenango, Respondent. (And Other Proceedings/Actions.)
    Submitted April 2, 2012;
    decided June 12, 2012
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of appellants’ 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 the Arbitration between Village of Horseheads, Appellant, and Horseheads Police Benevolent Association, Inc., Respondent.
    Submitted May 21, 2012;
    decided June 12, 2012
   Motion for leave to appeal denied. Motion for stay relief denied.


author: Memorandum. Ciparick, J. (concurring). Smith, J. (concurring). Read, J. (dissenting).

text:
    [973 NE2d 752, 950 NYS2d 342]
    Ayube Hussein, as Parent of a Student in the Albany City School District, et al., Respondents, v State of New York, Appellant.
    Argued April 26, 2012;
    decided June 26, 2012

      APPEARANCES OF COUNSEL

      Eric T. Schneiderman, Attorney General, Albany (Denise A. Hartman, Barbara D. Underwood and Andrew D. Bing of counsel), for appellant.

      Divine, Markovits & Snyder, L.L.P., Albany (Terence J. Devine of counsel), and The Biggerstaff Law Firm, L.L.P., Slingerlands (Robert E. Biggerstaff and Laura K. Biggerstaff of counsel), for respondents.

      Richard E. Casagrande, Latham, and Elizabeth R. Schuster for New York State United Teachers, amicus curiae.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs’ claims are neither moot nor unripe for review. The merits of the controversy are not before us.

Ciparick, J. (concurring).

I fully agree with the majority’s holding that plaintiffs’ claims are neither moot nor unripe. I write separately to emphasize that Campaign for Fiscal Equity v State of New York (86 NY2d 307 [1995] [CFE IJ) is, and should remain, good law and that the parameters we set forth in that case and in CFE II (Campaign for Fiscal Equity v State of New York, 100 NY2d 893 [2003]) to define the content of a constitutionally-required “sound basic education” do not intrude into the policy-making functions of the other branches of government but rather constitute a proper exercise of our interpretative function.

“With full recognition and respect . . . for the distribution of powers in educational matters among the legislative, executive and judicial branches,” we have observed that “it is nevertheless the responsibility of the courts to adjudicate contentions that actions taken by the Legislature and the executive fail to conform to the mandates of the Constitutions which constrain the activities of all three branches” (Board of Educ., Levittown Union Free School Dist. v Nyquist, 57 NY2d 27, 39 [1982] [Levittown]). Indeed, though “[w]e have neither the authority, nor the ability, nor the will, to micromanage education financing ... it is the province of the Judicial branch to define, and safeguard, rights provided by the New York State Constitution, and order redress for violation of them” (CFE II, 100 NY2d at 925; see also Matter of Maron v Silver, 14 NY3d 230, 263 [2010] [“whether the Legislature has met its constitutional obligations . . . is within the province of this Court”]).

Article XI, § 1 of the State Constitution, the Education Article, provides: “The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.” In Levittown, we held that the Education Article imposed a duty on the Legislature to provide all children in New York the opportunity of an “education,” a term that we interpreted “to connote a sound basic education” (57 NY2d at 48). We observed that “[w]hat appears to have been contemplated when the [E]ducation [A]rticle was adopted at the 1894 Constitutional Convention was a Statewide system assuring minimal acceptable facilities and services” (id. at 47).

In CFE I, noting “Levittown’s unambiguous acknowledgment of a constitutional floor with respect to educational adequacy” (86 NY2d at 315), we set out to further define “a sound basic education” in order that we may meaningfully measure the State’s efforts to meet its constitutional obligations. We determined that

“[s]uch an education should consist of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury. If the physical facilities and pedagogical services and resources made available under the present system are adequate to provide children with the opportunity to obtain these essential skills, the State will have satisfied its constitutional obligation” (id. at 316).

We set forth certain essentials, finding that

“[cjhildren are entitled to minimally adequate physical facilities and classrooms which provide enough light, space, heat, and air to permit children to learn. Children should have access to minimally adequate instrumentalities of learning such as desks, chairs, pencils, and reasonably current textbooks. Children are also entitled to minimally adequate teaching of reasonably up-to-date basic curricula such as reading, writing, mathematics, science, and social studies, by sufficient personnel adequately trained to teach those subject areas” (id. at 317).

In Judge Simons’ dissent in CFE I, he argued that “[i]t is for other branches of government, not the courts, to define what constitutes a sound basic education and, assuming the State has not defaulted on its duty to establish a State-wide system and provide financial support, to ensure that the opportunity to be educated is available to all” (id. at 333). Judge Simons expressed the view that the courts’ ability to assess the constitutionality of an education financing scheme should be curtailed once “the State has established a structure for the school system and provided adequate funding for it as measured by the State’s resources” (id. at 342 [emphasis added]).

In CFE II, we rejected the State’s argument that a sound basic education was achieved by the eighth or ninth grade (100 NY2d at 906) and held that children are entitled to “the opportunity for meaningful high school education, one which prepares them to function productively as civic participants” (id. at 908). We directed the State to determine the actual cost of a sound basic education and to ensure that schools receive the resources necessary to provide it (see id. at 930). Judge Read argued in dissent that we had created a constitutional standard that was “illusory,” lacking “any way to measure whether it has been (or may be) met” (id. at 948, 952).

In his concurrence, Judge Smith embraces the views of Judge Simons and Judge Read in their respective dissents and questions the continued viability of CFE I (see concurring op at 908), the alternative to that case’s rule being, ostensibly, that the Legislature and Executive will assume the task of defining a “sound basic education” as it relates to the Education Article and fund it at a level they deem reasonable within budget limits (see CFE I, 86 NY2d at 342 [Simons, J., dissenting]). Judge Read’s dissent here echoes similar sentiments, but goes further to say that because “gross and glaring inadequacy . . . cannot be said to exist in New York[’s education system]” given the State’s high per pupil expenditures, the constitutional threshold for this Court’s review of the other branches’ education financing decisions has not been met (see dissenting op at 909 [internal quotation marks omitted]). Contrary to my colleagues in concurrence and dissent, I see no reason to depart from our decision in CFE I and, since claims such as plaintiffs’ implicate the Education Article’s protected rights, I am compelled to express my concerns about the potential consequences of disturbing that precedent.

If we declare that a sound basic education consists only of what the Legislature and Executive dictate, the scope of the State’s constitutional duty under the Education Article and, conversely, the scope of the constitutional rights of our schoolchildren, is limited to what those branches say it is. Abandoning CFE I would not only entrust the Legislature and Executive with the decidedly judicial task of interpreting the meaning of the Education Article but cast them in the role of being their own constitutional watchdogs. Though, under Levittown, we could continue to review claims of “gross and glaring inadequacy” (57 NY2d at 48), our inquiry would be superficial as the adequacy of the Legislature’s and Executive’s efforts would, in the first instance, be defined by those branches. Our system of separation of powers does not contemplate or permit such self-policing, nor does it allow us to abdicate our function as “the ultimate arbiters of our State constitution” (Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d 14, 28 [2006]; see also Cohen v State of New York, 94 NY2d 1, 11 [1999]) simply because public funds are at stake. In short, parsing out what the Education Article actually requires, as we did in CFE I and CFE II, not only enables the Legislature and Executive to fulfill their constitutional mandate but ensures that we in the Judiciary do the same.

Thus far, CFE I has not created the kind of thicket of litigation the New Jersey courts have encountered in the decades the State’s education financing scheme was declared unconstitutional (see Robinson v Cahill, 118 NJ Super 223, 287 A2d 187 [Law Div 1972], mod 62 NJ 473, 303 A2d 273 [1973]; Education Law Ctr. ex rel. Abbott v Burke School Children v New Jersey Dept. of Educ., 2012 WL 1080867, 2012 NJ Super Unpub LEXIS 732 [App Div Apr. 3, 2012]). That it will has been the concern of the critics of CFE I and CFE II (see CFE II, 100 NY2d at 958 [Read, J., dissenting] [“(t)his dispute ... is destined to last for decades, and ... is virtually guaranteed to spawn similar lawsuits throughout the state”]; Hussein v State of New York, 81 AD3d 132, 134 [3d Dept 2011] [opining that, as a result of CFE I, there could be “civil actions commenced on behalf of students in every school district across the state”]). Even if a bevy of protracted claims arise, however, CFE I should not be compromised. Prudential concerns about judicial economy are both valid and necessary; however, they are no reason to close the courthouse doors to parents and children with viable constitutional claims. That the State may be violating its constitutional mandate on a grander scale, in many more localities and toward many more children, than originally anticipated does not drown out, by force of volume, the existence of the violation. As my colleague stated in dissent in Bordeleau v State of New York (18 NY3d 305 [2011]), “[unconstitutional acts do not become constitutional by virtue of repetition[ ] [or] custom” (id. at 318 [Pigott, J, dissenting]). Neither do valid legal claims become less actionable by virtue of the fact that they are shared by many. The potential breadth of the problem is cause for greater, not lesser, vigilance.

Moreover, the experience of New Hampshire provides its own cautionary tale of the consequences of leaving to the Legislature and Executive the task of defining a constitutionally adequate education, as CFE Fs critics would have us do. In 1993, the Supreme Court of New Hampshire held that the state’s constitution “imposes a duty on the State to provide a constitutionally adequate education to every educable child,” but declared that it was for the Legislature and the Executive to “define the parameters of the education mandated by the constitution” (see Claremont School Dist. v Governor, 138 NH 183, 184, 192, 635 A2d 1375, 1376, 1381 [1993]). By 1997, when neither branch had done so, the court again made clear that the State was duty bound to, among other things, define the content of a constitutionally adequate education, fund it and create a system of accountability to ensure its delivery (see Claremont School Dist. v Governor, 142 NH 462, 477, 703 A2d 1353, 1360-1361 [1997]). Again, the court noted that it was “not appointed to establish educational policy, nor to determine the proper way to finance its implementation” (142 NH at 475, 703 A2d at I860). In 1998, the State sought a two-year extension to fulfill its constitutional mandate, which the court denied (see Claremont School Dist. v Governor, 143 NH 154, 157, 725 A2d 648, 650 [1998] ). A year later, with still no definition in place but with legislation pending, the court denied as premature the plaintiffs’ request to assign a special master to define a constitutionally adequate education and to determine its cost, noting “once more . . . that it is neither [the court’s] task nor intent to manage the public school systems of the State” (Claremont School Dist. v Governor, 144 NH 210, 212, 744 A2d 1107, 1108-1109 [1999] [internal quotation marks and citation omitted]). By 2002, after accountability and financing legislation failed, the court held that “the State’s duty to provide a constitutionally adequate education includes accountability,” which “means that the State must provide a definition of a constitutionally adequate education, the definition must have standards, and the standards must be subject to meaningful application” (Claremont School Dist. v Governor, 147 NH 499, 508-509, 794 A2d 744, 751 [2002]). Between 2002 and 2008 “the only action taken by the legislature to fulfill its acknowledged obligation . . . was the establishment . . . of a joint legislative oversight committee on accountability” (Londonderry School Dist. SAU #12 v State, 157 NH 734, 739, 958 A2d 930, 934 [2008, Broderick, Ch. J., dissenting] [internal quotation marks omitted]).

What we have learned from New Hampshire’s education financing litigation is that had we adopted the dissenting Judge’s proposed rule in CFE I we would not necessarily have avoided litigation and, in fact, may have produced more. Though one can only speculate, it is quite possible that had we elected not to provide qualitative standards by which to understand what is meant by a “sound basic education,” we may have found it necessary to do so now, 17 years after CFE I. In Londonderry, former Chief Justice Broderick, dissenting from the majority’s decision to dismiss the most recent education financing claims as moot, recounted the history of the Claremont cases and observed that the Supreme Court of New Hampshire, “for the past fifteen years, ha[d] repeatedly, respectfully and appropriately deferred to the political branches to resolve the critical issues the numerous school funding decisions have identified” (157 NH at 740, 958 A2d at 935), but to no avail. Noting that the State had still not met its obligation, the Chief Justice aptly concluded that “[d]eference . . . has its limits. Constitutional rights must be enforced or they cease to be rights” (id.).

Indeed, there is “a point at which the education available is so palpably inadequate that the courts must intervene, determine the extent of the inadequacy and order the problem to be solved at State expense” (CFE I, 86 NY2d at 342 [Simons, J., dissenting]). Without such outer bounds, it is the Education Article’s mandate of a State-provided free public education that becomes “illusory” (CFE II, 100 NY2d at 948 [Read, J., dissenting]), not the template provided in CFE I and CFE II to flesh out the nature of that obligation. To be sure, “[i]t is the responsibility of the State to offer the opportunity of a sound basic education, and it is the responsibility of this Court to determine whether the State is fulfilling its responsibility to the plaintiffs” (CFE II, 100 NY2d at 940 [Smith, G.B., J., concurring]). Thus, while plaintiffs face the “formidable burden of proof imposed on one who attacks the budget plan” (CFE III, 8 NY3d 14, 29 [2006] [internal quotation marks omitted]), and the trial court may veiy well determine that the State has met its constitutional obligations through the enactment of the 2007 Foundation Aid reforms, the Court today reaches the correct result in allowing plaintiffs’ claims to move forward.

Smith, J. (concurring).

I concur on constraint of Campaign for Fiscal Equity v State of New York (86 NY2d 307 [1995] [CFE I]).

This case, like CFE I, is based on allegations that the State is not adequately funding certain of its public schools, and thus is violating the Education Clause of the State Constitution (art XI, § 1: “The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated”). The Appellate Division, while believing itself bound to uphold the complaint, expressed its doubt that such cases should be in the courts. The Appellate Division said:

“Though we are loathe to enmesh the courts in a subject that primarily involves state fiscal policy and social policy concerns, rather than strictly legal issues, the Court of Appeals decision in Campaign for Fiscal Equity v State of New York (86 NY2d 307 [1995]) compels us to affirm. Courts must act with restraint and should avoid interfering with matters that generally fall within the province of the Executive and Legislature, so as to preserve the separation of powers. The Court of Appeals has expressed those concerns, yet determined that it would allow students and parents to sue defendant over school funding—a subject that not only has legal implications, but intimately intertwines them with budgetary issues and public policy choices (see Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d at 28; Campaign for Fiscal Equity v State of New York, 100 NY2d at 925; see also Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d at 34-35 [Kaye, Ch. J., concurring in part and dissenting in part]). Judge Rosenblatt’s concurrence in the latest CFE decision noted that those cases dealt only with school funding in the City of New York, and that a statewide approach to this problem is best left to the Executive and Legislature (see Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d at 33 [Rosenblatt, J., concurring]). While we wholeheartedly agree, and believe that those branches of government should be dealing with this issue without undue interference—potentially rising to the level of civil actions commenced on behalf of students in every school district across the state—we are constrained to hold that the present action must be permitted to proceed according to the course charted by the Court of Appeals.” (Hussein v State of New York, 81 AD3d 132, 134 [3d Dept 2011].)

Judge Simons expressed similar views 17 years ago in his CFE I dissent:

“It is for other branches of government, not the courts, to define what constitutes a sound basic education and, assuming the State has not defaulted on its duty to establish a State-wide system and provide financial support, to ensure that the opportunity to be educated is available to all.” (86 NY2d at 333.)

I agree with the Appellate Division here, with Judge Simons, and with Judge Read’s dissent in Campaign for Fiscal Equity v State of New York (100 NY2d 893, 950 [2003] [CFE II]), where she pointed out “[t]he risks inherent in” CFE F s “novel approach to constitutional adjudication.” But CFE I decided that lawsuits like this one can be brought.

If CFE I is accepted as good law, the State’s arguments for dismissing this complaint cannot succeed. Indeed, those arguments seem to me very weak. The State’s brief contains two points, the first saying that in light of recent legislation relating to school funding it would be “imprudent” for the courts to entertain the case, and the second saying the case is barred by “traditional principles of mootness and ripeness.” I know of no warrant for rejecting a claim to vindicate a recognized constitutional right on the ground of imprudence. And the case is obviously neither moot nor unripe. A moot case is one in which nothing turns on the result—but if plaintiffs prevail here, large sums of taxpayer money would be directed to the public schools of their districts. And if plaintiffs, the parents of children in those public schools, are constitutionally entitled to have this money spent on their children’s educations, they are entitled to it now. They would be rightly dismayed to learn that their claims will not ripen for several years, until after their children have graduated.

I can only understand the State’s arguments here as implicitly inviting us to abandon CFE I. Despite the views I have expressed, I do not believe we should now accept the invitation. The worst fears of Judges Simons and Read, as expressed in their CFE I and CFE II dissents, have not yet come true, and perhaps never will. In CFE III (Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d 14 [2006]), we adhered to CFE I and CFE II, but made clear that in applying those precedents we will show great deference to executive and legislative choices as to how much money to put into public schools, and how to allocate that money. A similar trend has appeared in some other states in which school funding issues have been constitutionalized: those states have not repudiated their earlier decisions, but have interpreted them to leave broad scope for choices made by the executive and legislative branches (see Hancock v Commissioner of Educ., 443 Mass 428, 822 NE2d 1134 [2005]; Montoy v State, 282 Kan 9, 138 P3d 755 [2006]; Londonderry School Dist. SAU #12 v State, 157 NH 734, 958 A2d 930 [2008]).

Thus it is not clear to me that we cannot live with the CFE I decision. I must add that it is also not clear to me that we can. I take heart, however, from the fact that we have so far not set out upon a road like that traveled by New Jersey, where school funding litigation is now in its fifth decade (see Robinson v Cahill, 118 NJ Super 223, 287 A2d 187 [Law Div 1972], mod 62 NJ 473, 303 A2d 273 [1973]; Education Law Ctr. ex rel. Abbott v Burke School Children v New Jersey Dept. of Educ., 2012 WL 1080867, 2012 NJ Super Unpub LEXIS 732 [App Div Apr. 3, 2012]).

Read, J. (dissenting).

Granted, this appeal may not be conventionally moot or unripe. But then, plaintiffs’ claims are not justiciable in the orthodox sense either (see Board of Educ., Levittown Union Free School Dist. v Nyquist, 57 NY2d 27, 48 [1982] [indicating the constitutional standard would be unmet only in the case “possibly, of gross and glaring inadequacy,” which cannot be said to exist in New York where “the average per pupil expenditure exceeds that in all other States but two”]; Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 341-342 [1995, Simons, J., dissenting] [interpreting Levittown to hold that “(t)he courts . . . were not to interfere in constitutional responsibilities assigned to other branches of government unless the executive and legislative branches had, in effect, defaulted on their duty to establish a State-wide system of education and fund it”] [CFE I]). This is why adequacy litigation is so difficult to deal with once the judiciary slips the traces of justiciability and lets these lawsuits go forward—as we did in CFE I and Campaign for Fiscal Equity v State of New York (100 NY2d 893 [2003] [CFE 77])—despite the serious separation-of-powers issues they pose.

The adequacy litigation in New York differed from that in most states, as the CFE plaintiffs challenged only the level of state funding of the New York City School District, not the adequacy of education funding on a statewide basis. Nonetheless, the Governor proposed and the Legislature adopted a statewide plan—chapter 57 of the Laws of 2007—in response to the CFE litigation and, in particular, our decision in Campaign for Fiscal Equity, Inc. v State of New York (8 NY3d 14 [2006] [CFE 777]). Indeed, as the Attorney General points out, the Legislature in chapter 57 essentially adopted the Zarb Commission’s methodology and conclusions—which we endorsed as reasonable in CFE III—to create the formula to determine each district’s share of state school aid, and then significantly increased the amount of recommended funding.

In other states where, as in New York, substantial statewide education reforms have been put in place in response to judicial determinations of inadequacy, courts have declined to endorse follow-on adequacy challenges (see e.g. Hancock v Commissioner of Educ., 443 Mass 428, 822 NE2d 1134 [2005 plurality]; Londonderry School Dist. SAU #12 v State, 157 NH 734, 958 A2d 930 [2008]; Montoy v State, 282 Kan 9, 138 P3d 755 [2006]; see also Dayton, Dupre and Houck, Brother, Can You Spare a Dime? Contemplating the Future of School Funding Litigation in Tough Economic Times, 258 Educ L Rep 937 [Sept. 30, 2010] [summarizing the trend in recent adequacy cases toward deference to legislators, who are constitutionally required to balance state budgets annually]). Underlying these decisions is a forbearance seemingly born of heightened separation-of-powers sensitivities where the political branches have engaged in good-faith education reforms, given that the constitutional standards in this area are ambiguous, the solutions are subjective and the results are uncertain. Other state courts in recent years have dismissed new adequacy claims outright, expressing reluctance to risk entanglement with the prerogatives of the elected branches (see Bonner v Daniels, 907 NE2d 516, 522 [Ind 2009]; Oklahoma Educ. Assn. v State ex rel. Oklahoma Legislature, 158 P3d 1058, 1066 [Okla 2007]; Nebraska Coalition for Educ. Equity & Adequacy [Coalition] v Heineman, 273 Neb 531, 557, 731 NW2d 164, 183 [2007]).

The Attorney General asks us to dismiss plaintiffs’ complaint, but does not suggest that we overrule the CFE line of cases. Rather, he asks us to emulate sister state courts by, in effect, reverting to Levittown’s more modest conception of justiciability in light of the passage of chapter 57, which signaled the political branches’ serious engagement with issues of education funding, costs and reform. In fact, after this case was argued Governor Cuomo announced formation of a blue-ribbon commission with a wide-ranging charter to examine the State’s K-12 education system, specifically including the problems facing high-need urban school districts (see Executive Order [Cuomo] No. 44 [9 NYCRR 8.44] [dated Apr. 13, 2012]).

I would accept the Attorney General’s invitation and dismiss the complaint. Plaintiffs seek increased state funding on the theory that more money necessarily equals better student outcomes. They criticize the education aid formula prior to 2007, as it was applied to their small city school districts, but most of their ire is directed at chapter 57. In their view, the 2007 reforms assigned too humble a piece of New York’s school aid pie to their districts. Thus, this lawsuit, as is invariably the case in adequacy litigation, implicates a host of public policy questions. First and foremost, what exactly needs to be done to improve schools and student performance—especially, to close the achievement gap—and what is the price tag for these necessary measures, once settled upon? Given the extensive and continuing debate prompted by the publication of A Nation at Risk nearly 30 years ago, the answers to these fundamental questions remain elusive. Additional, equally subjective and policy-laden fiscal questions inhere in this lawsuit. Just for starters, what size budget do the State’s revenues support in a particular year? how much of this revenue should the Legislature appropriate to support public education, as opposed to Medicaid or public assistance or other government programs and operations? how much should the public be taxed to support public education? how should the financial burden be shared by localities and the State?

The “stubborn thing[ ]” at the heart of this case is that the way in which these public policy questions are resolved by the Governor and the Legislature will dictate how much school aid plaintiffs’ districts receive year to year in the future. We do plaintiffs no favor by keeping alive the illusion they can successfully end-run this fact via the courts.

Accordingly, I respectfully dissent.

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

Order affirmed, etc.

      . Although the dissent “would accept the Attorney General’s invitation [to] dismiss the complaint” without necessarily overruling the CFE line of cases (dissenting op at 911), declaring plaintiffs’ claims nonjusticiable would effectively render CFE I and CFE II of, at best, dubious precedential value.

      . The court did cite seven criteria as “general, aspirational guidelines for defining educational adequacy” (142 NH at 474, 703 A2d at 1359).

      . In addition to the five Claremont cases already mentioned, the Supreme Court of New Hampshire issued three advisory opinions at the request of the Legislature regarding the constitutionality of various aspects of the State’s education financing efforts (see Opinion of the Justices [Reformed Pub. School Fin. Sys.], 145 NH 474, 765 A2d 673 [2000]; Opinion of the Justices [Tax Plan Referendum], 143 NH 429, 725 A2d 1082 [1999]; Opinion of the Justices [School Fin.], 142 NH 892, 712 A2d 1080 [1998]).

      . The majority in Londonderry dismissed the petitioners’ declaratory judgment action challenging the constitutionality of the statute previously governing education funding, because intervening legislation had superseded the challenged bill; therefore, the contested bill was no longer in effect (see 157 NH at 736, 958 A2d at 932). As the substitute legislation had neither been “challenged by the petitioners or subjected to a factual inquiry before the trial court,” the case was dismissed as moot (id.). Here, by contrast, chapter 57 of the Laws of 2007, the legislation that the State claims renders plaintiffs’ action moot, is precisely the legislation that plaintiffs’ second amended complaint alleges was insufficient to provide a sound basic education to the children in plaintiffs’ districts.

      . New York has maintained its high-ranking position. According to the National Education Association, the U.S. average per student expenditure for public elementary and secondary schools in 2009-2010 fall enrollment was $10,586. Among the states, New York ranked second in per pupil expenditures ($16,922), barely behind New Jersey ($16,967) (National Education Association, Rankings and Estimates: Rankings of the States 2010 and Estimates of School Statistics 2011 [Dec. 2010], at x, available at http://www.nea.org/assets/ docs/HE/NEA_Rankings_and_Estimates010711.pdf [accessed June 19, 2012]). Total expenditures for public elementary and secondary schools in New York increased from $25.6 billion ($10.2 billion in state funds) in fiscal year 1995-1996 (the year CFE I was decided) to $55.7 billion ($23.4 billion in state funds) in fiscal year 2009-2010 (New York State Education Department, Education Statistics for New York State [Table 10: Total Expenditures and State Funds for Public Elementary and Secondary Schools], available at http:// www.pl2.nysed.gov/irs/statistics/public/2012/TABLE10.pdf [accessed June 19, 2012]).

        (n. cont’d)

      . This is the first adequacy case to survive a motion to dismiss since CFE I (see New York Civ. Liberties Union v State of New York, 4 NY3d 175, 182 [2005] [“because school districts, not individual schools, are the local units responsible for receiving and using state funding, and the State is responsible for providing sufficient funding to school districts, a claim under the Education Article requires that a district-wide failure be pleaded”]; New York State Assn. of Small City School Dists., Inc. v State of New York, 42 AD3d 648 [3d Dept 2007] [dismissing complaint for failure to allege district-wide failure for any particular school district]). These two cases, involving many of the same interests as this one, apparently served as something of a dress rehearsal.

      . National Commission on Excellence in Education, A Nation at Risk: The Imperative for Educational Reform (1983).

      . “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence” (John Adams, Argument in Defense of the Soldiers in the Boston Massacre Trials [Dec. 1770]).