SUPREME COURT, APPELLATE DIVISION FIRST DEPARTMENT ...

SUPREME COURT, APPELLATE DIVISIONFIRST DEPARTMENTMARCH 11, 2008THE COURT ANNOUNCES THE FOLLOWING DECISIONS:Mazzarelli, J.P., Saxe, Buckley, McGuire, JJ.9848-9849N The People of the State of New York, Index 401620/04by Eliot Spitzer, Attorney Generalof the State of New York,Plaintiff-Respondent,Richard A. Grasso,Defendant-Appellant,Kenneth G. Langone,Defendant,The New York Stock Exchange, Inc.,Defendant-Respondent.- - - - - - -Richard A. Grasso,Plaintiff-Appellant,-against--against-The New York Stock Exchange, Inc., et al.,Defendants-Respondents.[And a Third-Party Action]_________________________Williams & Connolly LLP, Washington, DC (Gerson A. Zweifach ofcounsel), for appellant.Andrew M. Cuomo, Attorney General, New York (Avi Schick ofcounsel), for Attorney General, respondent.Winston & Strawn LLP, New York (Robert L. Michels of counsel),for The New York Stock Exchange, Inc. and John S. Reed,respondents._________________________

Order, Supreme Court, New York County (Charles E. Ramos,J.), entered September 14, 2006, which denied defendant’s motionfor the court’s recusal, unanimously affirmed, without costs.Appeal from order, same court and Justice, entered August 14,2006, which granted plaintiff’s motion for a bifurcated trialinsofar as to sever the first cause of action for a nonjurytrial, unanimously dismissed as moot, without costs.The underlying action was brought by the Attorney General tochallenge compensation and benefits awarded to the former CEO ofthe New York Stock Exchange, Richard Grasso. A detaileddiscussion of the background of the litigation and the substanceof the complaint is set forth in our decision in People v Grasso(42 AD3d 126 [2007]).In May 2004, when the complaint in this action was filed, itwas assigned to Justice Ramos. The case was removed to federalcourt at Grasso’s request in mid-June 2004. The federal courtthen remanded it back to Justice Ramos on December 9. During aDecember 15, 2004 conference call, the Attorney General advisedthe parties and the court that it had a 2002 letter sent by anexecutive search firm to the NYSE suggesting that Justice Ramosbe considered for a position on the NYSE Board of Directors. Thenext day, Justice Ramos conferred with the parties and theircounsel in chambers. Grasso’s counsel made it clear that hisclient had not been involved in employment applications. Counsel2

for the NYSE advised those present that it had located anotherletter, sent in October 2003 by the same executive search firm,again suggesting that Justice Ramos be considered for a position1on the NYSE Board . It is undisputed that all of the partiesagreed at the meeting that the letters did not provide a basisfor the court’s recusal.In April 26, 2006, Justice Ramos proposed holdingconferences with each of the parties to explore the possibilityof settling the case. On May 2, 2006, the Attorney General senta letter to the court and the parties stating its position:"We continue to believe that the [c]ourtshould proceed with its planned [settlement]meetings with the caveat, however, that noparty later assert that the meetings serve todisqualify the [c]ourt from acting as a factfinderin this proceeding, or in any wayaffect the State’s right to assert thatequitable claims should be decided by the[c]ourt. With those issues preserved, themeetings should occur as scheduled (emphasisadded)."1Both the 2002 and the 2003 letters are authored by a memberof the search firm, and directed to the NYSE’s CEO (Grasso in2002, Reed in 2003). Each briefly outlines Justice Ramos’srelevant experience. Particularly, the October 2003 lettercontains the following paragraph:"Recently Justice Ramos raised a judicial objection tothe billing of New York State at a rate of $14,000 perhour by a group of plaintiff attorneys for the PhillipMorris class action tobacco litigation. His objectionis based on an ethical guideline dealing with a legalprofessional’s obligation to charge a reasonable fee."The NYSE took no action on either letter, and Justice Ramos wasnever interviewed by the NYSE.3

The Attorney General reiterated this position in an e-mail sentto the court and the parties on May 4, 2006. Counsel for Grassoresponded: “we did not understand the [c]ourt to be setting anypre-conditions to the scheduled meetings. We will be prepared toaddress any of those issues at our conference.”The court met with third-party defendant H. Carl McCall andhis counsel on April 26, 2006, and with Grasso and his counsel onMay 10, 2006. One of Grasso’s attorneys claims that he spokeprivately with the Judge, and expressed his concern that thecourt would conduct settlement negotiations, decide motions forsummary judgment, and if necessary, try the case. Another ofGrasso’s attorneys recounted that Justice Ramos said “he wouldreassign the case, depending on ‘how far things go’ with thesettlement discussions.” The court similarly recalled stating“as [required,] that if settlement negotiations progressed to thepoint that it would be improper for this [c]ourt to continue,[it] would reassign the matter.”There were no additional meetings with the court on theissue of settlement, and the parties did not come to anyagreement. Between May 2006 and August 2006, the court heardsummary judgment motions by defendant Langone and third partydefendant McCall. The court also heard a motion by defendantGrasso to obtain certain discovery from NYSE. On July 31, 2006,Grasso, the Attorney General, and the NYSE all moved for summary4

judgment.On August 3, 2006, the Attorney General made a motion tobifurcate the first cause of action and to proceed with a benchtrial on that claim. Grasso opposed, contending that all of theclaims were subject to trial by jury. His counsel wrote a letterto Justice Ramos asking him to reassign the case “consistent withthe commitment made to [Grasso and his counsel] last May.” Theletter stated:“as one would expect when judges get involvedin ex parte settlement negotiations,statements are made that make itinappropriate for the [c]ourt to keep thecase for purposes of trial. We do notbelieve that the [c]ourt - consistent withits commitment to the appearance of fairnessand impartiality in a trial of thisimportance - can now proceed to try the case.It is unthinkable that the [c]ourt would evencontemplate sitting as trier of fact.”The following day, the court heard arguments on the AttorneyGeneral’s motion to bifurcate the trial. At the close ofarguments, Grasso raised the issue of the court’s recusal, andthe court invited him to make a formal motion. By order enteredAugust 14, 2006, the court granted the motion for a bifurcatedtrial insofar as to sever the first cause of action for a nonjurytrial. Grasso challenges this order.Grasso then made a formal motion for reassignment of thecase to another justice, which the court denied in a September14, 2006 order. In its decision, the court stated that it had no5

interest in the case and had formed no opinion as to the validityof any claim or defense. It also stated that the executivesearch firm’s actions in circulating his resume to the NYSE werenot a basis for disqualification. Finally, the court noted that“nothing of any substance or sensitivity (in the context ofrecusal) was revealed” in the single settlement conference thatthe court held with Grasso and his counsel. Defendant Grassoalso appeals from this order.As an initial matter, the order granting plaintiff’s motionfor a non-jury trial on the first cause of action has beensuperceded by our decision in (People Grasso, 42 AD3d 126 supra)in which we dismissed the first cause of action outright. Westated:"The first cause of action, 'for Impositionof a Constructive Trust and Restitution,'relies on the provisions of the N-PCLauthorizing the payment of 'reasonable'compensation (N-PCL 202[a][12] and 515[b])which 'shall be commensurate with servicesperformed' (N-PCL 202[a][12]). It allegesthat the annual compensation and otherbenefits Grasso received were neither'reasonable' nor 'commensurate with theservices performed,' and asserts that to theextent these payments were not 'reasonable'and not 'commensurate with the servicesperformed,' they were 'unlawful and ultravires under N-PCL §§ 202(a)(12) and 515(b),'they were 'against public policy,' and they'unjustly enriched' Grasso, and that Grasso'cannot in equity and good conscience retainsuch payments.'”(id. at 130). We then concluded that the Attorney General did6

not have explicit authority, under the Not for Profit CorporationLaw, to enforce N-PCL 202[a][12] and 515[b], and we dismissedthis claim. As this disposition moots the motion court’s August14, 2006 order, we dismiss the appeal from that ruling (seeMatter of Standley v New York State Div. of Parole, 40 AD3d 1344[2007]; York Holdings v Shafran, 278 AD2d 77 [2000]).As to the appeal from the September 14 order, Judiciary Law§ 14 governs the disqualification of judges. It provides:"[a] judge shall not sit as such in, or takeany part in the decision of, an action,claim, matter, motion or proceeding to whichhe is a party, or in which he has beenattorney or counsel, or in which he isinterested, or if he is related byconsanguinity or affinity to any party to thecontroversy within the sixth degree."Here, the parties concede that there are no grounds requiringdisqualification as a matter of law under Judiciary Law § 14.However, Grasso contends that Justice Ramos should nonethelesshave recused himself.It is settled that “absent a legal disqualification underJudiciary Law § 14, a Trial Judge is the sole arbiter of recusal”(People v Moreno, 70 NY2d 403, 405 [1987]; Matter of Alizia McK.,25 AD3d 429, 430 [2006]; Best v Best, 302 AD2d 295 [2003]). Inaddition, the court’s decision on a recusal motion will not bedisturbed unless it constitutes an abuse of discretion (seePeople v Alomar, 93 NY2d 239, 246 [1999]; People v Moreno, 70NY2d at 405-406).7

Defendant Grasso contends that Justice Ramos should haverecused himself because of the two letters circulated to the NYSEby the executive search firm in 2002 and 2003 and hisparticipation in one settlement meeting with each of the parties.He argues that for Justice Ramos to retain the case, he wouldtherefore be in violation of the Rules Governing Judicial Conduct(22 NYCRR) § 100.3(B)(4). That section provides: “[a] judgeshall perform judicial duties without bias or prejudice againstor in favor of any person.” Grasso also relies upon 22 NYCRR§ 100.3(E)(1), which states:“[a] judge shall disqualify himself orherself in a proceeding in which the judge'simpartiality might reasonably be questioned,including but not limited to instances where:(a)(i) the judge has a personalbias or prejudice concerning aparty.”There is nothing in the record indicating that Justice Ramoscould not be impartial in this matter, or that he had a “personalbias or prejudice” towards any of the parties. Initially, theparties all agreed that neither the 2002 nor the 2003 letter sentby the executive search firm was a basis for recusal. Both weresubmitted well before this action was commenced and assigned toJustice Ramos (cf. Pepsico, Inc. v McMillen, 764 F2d 458, 461[1985] [recusal required where judge, during trial, was innegotiation “albeit preliminary, tentative, indirect,unintentional and ultimately unsuccessful” for a future position8

at the two law firms appearing before him]). Further, nothing inthe record indicates that the NYSE’s prior failure to offerJustice Ramos a position biased, prejudiced, or predisposed theJudge to reach any particular conclusion in this litigation.The settlement conferences that the court held with each ofthe parties are similarly not a valid basis for recusal. RulesGoverning Judicial Conduct (22 NYCRR) § 100.3(B)(7) states that“[a] judge shall dispose of all judicial matters promptly,efficiently and fairly,” and the commentary to this sectionprovides, as relevant,“[a] judge should encourage and seek tofacilitate settlement [without coercion]. . . In matters that will be tried without ajury, a judge who seeks to facilitatesettlement should exercise extreme care toavoid prejudging or giving the appearance ofprejudging the case.”Code of Judicial Conduct Canon 3, Commentary 3.13. Thusparticipation in settlement conferences is encouraged, even incases which may involve a bench trial. Justice Ramos attemptedto settle this case, but he met with the parties only once. Herelated that nothing of substance or sensitivity was revealed inGrasso’s settlement conference, and that he was aware that Grassohad strong resistance to any form of compromise. In his orderdenying recusal, Justice Ramos stated that he did not faultGrasso for his feelings about the claims asserted against him,and that given these beliefs, he appropriately ended any attempts9

to facilitate a settlement. In the circumstances, the court'sdecision to continue to preside over the case also constituted aproper exercise of its broad discretion to determine whetherrecusal was warranted.M-6507 People, etc. v Grasso, et al.Motion seeking leave to enlarge recordgranted.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK10

Tom, J.P., Friedman, Nardelli, Catterson, JJ.2438 Alice Huang, Index 106258/02Plaintiff-Respondent,-against-New York City Transit Authority,Defendant-Appellant._________________________Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), forappellant.Sullivan Papain Block McGrath & Cannavo, P.C., New York (Brian J.Shoot of counsel), for respondent._________________________Judgment, Supreme Court, New York County (Faviola A. Soto,J.), entered April 4, 2006, upon a jury verdict finding defendant100% liable for plaintiff’s injuries and awarding plaintiff $2million for past pain and suffering, $150,000 for past medicalexpenses, $12,250,000 for future pain and suffering, $3,042,287for future medical expenses, $8,066,400 for future home aideexpenses, and $3,065,900 for future lost earnings, unanimouslymodified, on the facts, the awards for future lost wages, painand suffering, home health aide expenses and medical costsvacated, and the matter remanded for a new trial solely on theissue of those damages, and otherwise affirmed, without costs,unless plaintiff stipulates, within 30 days after service of acopy of this order, to reduction of the award for future lostearnings to $850,000, the award for future pain and suffering to$5,000,000, the award for future home health aide expenses to11

$2,100,750, and the award for future medical costs to $1,388,000,and to entry of an amended judgment in accordance therewith.A fair interpretation of the trial evidence supports thejury’s finding that the subway conductor failed to comply withdefendant’s rules and regulations requiring a conductor to lookto the front and the back of the train while the doors are open,before signaling the motorman to proceed, and as the train beginsto exit the station, and thus negligently failed to observeplaintiff, who had bent down beside the stopped train to retrievea book she had dropped while exiting the train (see Jackson v NewYork City Tr. Auth., 227 AD2d 181 [1996]). When the train struckplaintiff in the head as it moved forward, she was spun aroundand her left leg got caught between the train and the platform.She was then dragged a considerable distance. The jury’s findingthat defendant was 100% liable was supported by a fairinterpretation of the evidence, namely, that the accident couldhave been averted if the conductor had seen what there was to beseen, that plaintiff was near the train and that he should havewaited before signaling the motorman to proceed (id.; Robinson vNew York City Tr. Auth., 105 AD2d 614 [1984]).Plaintiff’s expert notice set forth in reasonable detail thesubject matter and substance of the expert’s anticipatedtestimony, in compliance with CPLR 3101(d) (see Nedell v St.George’s Golf & Country Club, 203 AD2d 121 [1994]). The expert’s12

opinions regarding the speed of the train, the time it took tostop and the distance it traveled after striking plaintiff andbefore stopping, were founded upon information supplied bydefendant’s own investigative reports and other disclosedinternal documents, together with the police report anddeposition testimony of the witnesses (see generally Soto v NewYork City Tr. Auth., 6 NY3d 487, 493-494 [2006]). Contrary todefendant’s contention, the expert did not introduce a new theoryof liability, i.e., that the conductor had negligently delayed inactivating the emergency brake. The police report, whichindicated that plaintiff was dragged 40 feet by the train, wasproperly admitted into evidence under the business recordexception through the testimony of the police sergeant whoprepared the report, interviewed the witnesses, and recordedtheir statements (see Penn v Kirsh, 40 AD2d 814 [1972]).Ultimately, counsel for defendant conceded the accuracy ofplaintiff’s expert’s testimony in his summation to the jury.Defendant’s argument that it was denied a fair trial whenplaintiff’s counsel, in violation of the attorney-clientprivilege and in front of the jury, questioned the conductorabout communications he had had with defense counsel during abrief recess, and by certain remarks made by plaintiff’s counselin opening and closing, is not preserved for appellate review13

(see generally Califano v City of New York, 212 AD2d 146, 152-153[1995]). In any event, defendant failed to meet its burden ofshowing that it took every reasonable precaution to preserve thesecrecy of the overheard communications, which were made in asmall, busy courtroom (see Doe v Poe, 92 NY2d 864, 867 [1998]).Plaintiff’s counsel’s opening and closing remarks constitutedeither fair comment on the evidence or fair response todefendant’s arguments, or are mischaracterized by defendant.We find the damage awards for plaintiff’s catastrophicinjuries excessive only to the extent indicated (see CPLR 5501[c]). We have considered defendant’s remaining arguments andfind them unavailing.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK14

Mazzarelli, J.P., Andrias, Catterson, McGuire, JJ.2568 The People of the State of New York, Ind. 2891/05Respondent,-against-Sandrene Austin,Defendant-Appellant._________________________Robert L. Moore, West Hempstead, for appellant.Robert M. Morgenthau, District Attorney, New York (Amyjane Rettewof counsel), for respondent._________________________Judgment, Supreme Court, New York County (Gregory Carro,J.), rendered October 18, 2006, convicting defendant, after ajury trial, of grand larceny in the second and third degrees andthree counts of falsifying records in the first degree, andsentencing her to an aggregate term of 3 to 9 years, unanimouslyaffirmed.On her prospective juror questionnaire, the juror inquestion, who was subsequently seated as juror No. 12, statedthat she had a “close friend who is a member of the New YorkCounty District Attorney." When asked by the court whether therewas “[a]nything about that relationship you believe might affectyou in evaluating the testimony here,” the prospective jurorresponded, “I’m probably instinctually [sic] more trusting of theDA, but I think I am aware of the bias, so I can be good aboutit.” When asked what “more trusting” meant, she replied, “Justthe perspective to approaching specific facts, I guess.” The15

court then asked if she could evaluate the testimony “with anopen mind,” to which the prospective juror replied, “Yeah, I willbe aware of my own bias.” The court responded, "All right," andcontinued interviewing the rest of the prospective jurors.After the court and the prosecutor finished their inquiries,defense counsel addressed the panel, but seemingly addressed hisremarks to the prospective juror who had a friend in the DistrictAttorney’s Office. He asked,"Now when the witness comes up here, and theDA puts that witness on, you told us beforeI’ll recognize my bias, but you see, there isa bias.Does everyone understand that? When peopleare represented by the DA’s office, they saythey have come out of their way, they arevictims of crime. Whatever they say, I amgoing to believe.Is that a proper way to approach being ajuror, ma’am?"The prospective juror responded, "No." Defense counselcontinued:"But I know it enters people’s minds becausethey tell us. I have been doing this a longtime, I have to be very careful with you. IfI go back and tell Sandrene she is a goodjuror, she is going to be fair to both sides,right? She will say, what about that biasfor the DA’s office? She will say, she’s gota good friend working with the DA’s office.Are you going to be able to say to yourfriend, later on, if your verdict is notguilty, I acquitted and not have a problemwith that?Yes?"16

The prospective juror answered, "Yeah, no problem." Theprospective juror also stated she “[a]bsolutely” would be able toevaluate a witness on the stand "like anybody else, and sit andlisten to what they have to say" and consider if the witness madea mistake, no matter who put the witness on the stand. She alsoagreed that witnesses do not get "extra credit because they arebrought by the DA."After completion of the voir dire, defense counselchallenged the prospective juror for cause on the ground that shehad a clear bias in favor of the District Attorney’s office andthat, when questioned, she did not say she would not have a bias,but only that she recognized it. The prosecutor responded thatthe prospective juror "was very clear she would be able to put itaside and would have no problem voting not guilty," even thoughshe would see her friend in the D.A.’s Office afterwards. "Shereiterated she would overcome any bias, notwithstanding anynatural bias. I don’t believe a ‘for cause’ is appropriate.”The court agreed, stating, "She certainly made that clear when Ispoke to her, but she made it even clearer after you spoke toher.That is denied."Clearly, the prospective juror in question gave both defensecounsel and the court an unequivocal, personal assurance that shewould be able to put her bias aside and render an impartial17

verdict on the evidence and, contrary to defendant’s argument,the trial court properly denied defense counsel’s challenge forcause (see People v Arnold, 96 NY2d 358, 362 [2001] [“Upon such achallenge, a juror who has revealed doubt, because of priorknowledge or opinion, about her ability to serve impartially mustbe excused unless the juror states unequivocally on the recordthat she can be fair.”]; see also People v Chambers, 97 NY2d 417,419 [2002] [While the use of terms such as “I think” or “I’lltry” will not automatically make a statement equivocal, thepanelist’s statements in context and as a whole must provide anunequivocal assurance of his or her ability to set aside a statedbias]; People v Shulman, 6 NY3d 1, 27 [2005], cert denied 547 US1043 [2006] [in evaluating a prospective juror, the trial courtmay consider “the whole examination of the juror, including hisappearance and demeanor”] [internal quotation marks & citationomitted]). Nor is there any merit to defendant’s contention,raised for the first time on appeal and thus not preserved forreview, that the court erred in failing to inquire as to thedepth of the prospective juror’s friendship with her friend inthe District Attorney’s office. If that was a concern, defensecounsel could easily have made such inquiry.The verdict was not against the weight of the evidence. Wehave considered defendant’s additional contentions regardingimproper bolstering and excessiveness of sentence and find them18

without merit.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK19

Tom, J.P., Saxe, Friedman, Gonzalez, McGuire, JJ.2868 William McCleery, et al., Index 106475/04Plaintiffs-Appellants,-against-Consolidated Edison of New York, Inc., et al.,Defendants-Respondents._________________________Thomas Torto, New York, for appellants.Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York(Richard E. Lerner of counsel), for respondents._________________________Order, Supreme Court, New York County (Milton A. Tingling,J.), entered August 17, 2006, which, in an action for personalinjuries, granted defendants' motion for summary judgmentdismissing the complaint, affirmed, without costs.Defendants (Con Ed) made out a prima facie case ofentitlement to summary judgment by submitting the depositiontestimony of several individuals who were present at the accidentlocation, none of whom knew how plaintiff sustained injury. Theydid not see the Con Ed vehicle run over plaintiff's foot, nor didthey observe any displacement of the 8 to 12 orange cones set uparound plaintiff's truck as he threaded a length of gas pipe heldin a vise attached to the rear of the vehicle.Even if the evidence submitted by plaintiff in opposition tothe motion had been sufficient to raise a question concerning howthe accident occurred, in the absence of any proof as to howplaintiff sustained his injury, it failed to raise a triable20

issue of fact with respect to the alleged negligent operation ofthe Con Ed vehicle (see Saborido-Calvo v New York City Tr. Auth.,11 AD3d 216 [2004]). Plaintiff's inability to relate the mannerin which the accident occurred does not relieve him of the burdento set forth a prima facie case by demonstrating that defendants'"negligence was 'a substantial cause of the events which producedthe injury'" (Lynn v Lynn, 216 AD2d 194, 195 [1995], quotingDerdiarian v Felix Contr. Co., 51 NY2d 308, 315 [1980]).All concur except Saxe and Gonzalez, JJ. whodissent in a memorandum by Saxe, J. asfollows:21

SAXE, J. (dissenting)I respectfully dissent, because I conclude that issues offact are presented, regarding exactly how plaintiff’s foot wascrushed and whether the driver of the Con Edison vehicle wasnegligent, that preclude the grant of summary judgment todefendants.On March 22, 2004, plaintiff William McCleery was workingfor Hawkeye Construction Company in connection with a contractbetween Hawkeye and defendant Con Edison pursuant to whichHawkeye was to replace and repair gas mains. McCleery was partof a crew replacing the gas lines for homes located on MurrayLane in Flushing, Queens. Plaintiff and his coworker, JohnBauer, arrived in their Hawkeye “box” truck at the work site, at8:00 A.M., parking the truck with the driver’s side next to thecurb, where it remained all day.That afternoon, at approximately 3:20 P.M., plaintiff was inthe process of preparing a new pipe to be installed to run fromthe outside to the inside of one of the homes on that street.For the cutting and preparation of the pipe, a length of pipe washeld by a vise attached to the body of the truck, on its rearpassenger side. Consequently, to perform the cutting andthreading, plaintiff had to stand in the street on the passengerside of the truck.A Con Edison employee, Michael Coluni, drove a Con Edison22

panel van to the work site to deliver pipe hangers, which areused to support gas lines. As Coluni approached the work site,he observed plaintiff cutting the pipe on the rear passenger sideof the Hawkeye truck and initially stopped his van approximately20-30 feet behind plaintiff’s truck. Thereafter, he drove histruck forward, stopping approximately parallel to the Hawkeyetruck, in a position where his driver’s door was past the visearea. The two trucks were separated by approximately two to fourfeet. Coluni slid open the door to his truck and handed the pipehangers to plaintiff, who was standing between the two trucksfacing the driver’s side of the Con Ed truck. The two men spokebriefly, plaintiff placed the pipe hangers in his pocket, andthen he turned around and walked back.While Coluni stated that he observed plaintiff walk aroundto the back of his truck, and only then began to pull away,plaintiff says that he walked only two or three steps back to thevise area to continue the task of threading the pipe that wasstill in the vise. According to plaintiff, he was standing inthe street between the two vehicles, facing the vise, with hisback toward the Con Ed truck and his right foot behind him,pressing forward to operate the threader, when he felt himself“tipping” and falling down without understanding why, and he feltpain in his right foot. He rolled underneath his truck and beganscreaming for help. Plaintiff did not make any observations23

egarding the Con Ed truck and what had occurred.Defendant asserts that plaintiff has failed to offerevidence demonstrating either how the accident occurred or thatthe van driver was negligent. However, the established facts,combined with some disputed facts, provide a basis for a possibleinference that plaintiff was injured because Coluni failed tomake necessary adjustments as he drove his van away from theHawkeye truck, so as to avoid running over plaintiff’s foot andknocking him over as he proceeded with his work in the areabetween the two vehicles.The majority cites Saborido-Calvo v New York City Tr. Auth.(11 AD3d 216 [2004]) for the proposition that plaintiff failed tooffer any evidence of negligence. However, in that case theplaintiff had fallen onto subway tracks and been hit by a train,but the submitted evidence provided no basis from which to infernegligence on the part of the train operator. The situation hereis different. Plaintiff’s statement that he returned to hisposition between the two vehicles to recommence threading thepipe in the vise, when he was knocked over and his foot crushed,when seen in combination with the evidence that Coluni pulled hisvan away from the Hawkeye truck after giving plaintiff the pipehangers, permits the inference that Coluni failed to noticeplaintiff’s presence between the vehicles and that, as he pulledaway, the back of the Con Ed van knocked plaintiff down and ran24

over his foot.The majority’s assertion that none of the submitted evidencesupports the inference of negligence on defendant’s part cannotbe squared with this Court’s ruling in Brito v Manhattan & BronxSurface Tr. Operating Auth. (188 AD2d 253 [1992], appealdismissed 81 NY2d 993 [1993]). In Brito, the testimony at trialestablished that the defendant’s bus made a right turn at anintersection, and the plaintiff was observed immediatelythereafter lying in the crosswalk with a crushed right foot andother injuries, and with a bag of crushed groceries next to him,some produce from which was smeared in the direction traveled bythe bus, whose right rear tires bore traces of the same foods.While this Court recognized that the bus driver might not havebeen negligent, it concluded that the evidence was sufficient tocreate a prima facie case, since “[i]t is enough that [plaintiff]shows facts and conditions from which the negligence of thedefendant and the causation of the accident by that negligencemay be reasonably inferred,” viewing the evidence in the lightmost favorable to the plaintiff and giving him every favorableinference (188 AD2d at 254, quoting Ingersoll v Liberty Bank, 278NY 1, 7 [1938]). While evidence of how the injuries were causedwas strong in Brito, evidence of the defendant’s negligence was,if anything, weaker in Brito than it is in the present case.In holding that the circumstantial evidence was sufficient25

to permit an inference of both negligence and causation, theCourt in Brito cited the nature of the injuries, the position ofthe plaintiff’s body in the crosswalk, the proximity and timingof the bus’s movement, and the link between the crushed produceand the bus (188 AD2d at 254-255). Notably, however, while muchof that evidence clearly supported the inference that theplaintiff’s injuries were caused by his being struck by the bus,far less of the evidence logically supported an inference of thedriver’s negligence. The one piece of evidence that most clearlysupported the inference that the bus driver in Brito had actednegligently was the position of the plaintiff’s body in thecrosswalk after the accident, which could lead to the inferencethat the plaintiff had been in the crosswalk, with the right ofway, when he was struck by the bus. Yet, in this Court’s view,the evidence about where the plaintiff lay in the street afterthe accident apparently failed to provide a basis for inferringthat the plaintiff had been in the crosswalk with the right ofway before being struck by the bus, since its reversal of theplaintiff’s verdict and order of a new trial was based upon aperceived “absence of evidence that the pedestrian-plaintiff wasactually in the crosswalk when the bus began its turn” (188 AD2dat 255 [emphasis added]). This Court held that in the absence ofevidence that the plaintiff was in the crosswalk when the busbegan its turn, the instruction given to the jury regarding the26

traffic regulation requiring vehicles turning a corner to yieldthe right of way to pedestrians in the crosswalk “assumed acritical fact” and was unduly prejudicial to the defendant’s case(id.).Simply put, if, in Brito, the location of the plaintiff’sbody after the accident did not permit a finding that he was atthat approximate location before the bus struck him, thenprecious little indeed remained to permit the inference that thebus driver had been negligent. Yet, this Court specifically heldthat a prima facie showing of negligence had been made. There isfar more circumstantial evidence supporting the claim ofnegligence in the matter now before us. The mere timing of theevents just before the incident, established in part byplaintiff’s testimony that he went immediately back to work atthe vise after receiving the pipe hangers from Coluni, places himin a danger zone where he could be hit as the Con Edison vanpulled away. Notwithstanding Coluni’s self-serving testimonythat he carefully watched plaintiff leave that area before hepulled away, there is a possible inference from plaintiff’stestimony that Coluni pulled away without properly ensuring thatplaintiff was not between the two vehicles at the time,permitting a finding of negligence. Indeed, by insisting that hewaited to pull away until plaintiff had gone to the back of histruck, Coluni implicitly recognized the risk of injury to27

plaintiff if in fact he had remained situated between the twovehicles as Coluni drove off.With or without Brito as a point of comparison, theforegoing evidence is sufficient prima facie to permit areasonable inference of negligence.Moreover, there is also evidence supporting the inference ofcausation. While it is certainly possible that plaintiffcoincidentally fell down just at the moment the Con Edison vanbegan to drive away, the timing of events and plaintiff’spossible proximity to the van as he stood between the vehicles issufficient to permit an inference that the Con Edison van somehowknocked plaintiff over and ran over his foot.denied.I therefore submit that summary judgment should have beenTHIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK28

Andrias, J.P., Friedman, Buckley, McGuire, Moskowitz, JJ.2965 In re Boutros Mankarios, Index 107087/06Petitioner-Respondent,-against-New York City Taxi and Limousine Commission,Respondent-Appellant._________________________Michael A. Cardozo, Corporation Counsel, New York (Drake A.Colley of counsel), for appellant.Raff & Becker, LLP, New York (Maria T. Guarnieri of counsel), forrespondent._________________________Order, Supreme Court, New York County (Karen S. Smith, J.),entered November 14, 2006, which granted petitioner’s petition toannul respondent Taxi and Limousine Commission’s denial ofpetitioner’s application for a taxicab driver’s license, anddirected respondent to issue the license, unanimously reversed,on the law, without costs, the petition denied and the proceedingdismissed.In 1998 petitioner was issued a license by respondent NewYork City Taxi and Limousine Commission (TLC) to operate ataxicab. In December 2002 TLC preferred three charges againstpetitioner based on an incident that occurred in his cab while hewas transporting two 14-year-old female passengers. Instead ofchallenging the charges at an administrative hearing, petitionerentered into a stipulation with TLC pursuant to which he pleadedguilty to a violation of rule 2-60(a) of the taxicab drivers29

ules, which prohibits verbal abuse and use of physical force bytaxicab drivers against passengers (35 RCNY 2-60[a]), andsurrendered his TLC license. The stipulation stated, in relevantpart, that:“4. [Petitioner] shall not reapply for anylicence issued by [TLC] for a period of one(1) year from the date [of the stipulation].If [petitioner] should elect to reapply at afuture date, the application will be referredfor a fitness review. [Petitioner] is awarethat [TLC] will consider the factssurrounding this Stipulation, and there is noguarantee that the application will beapproved at a future date” (emphasis added).In September 2005 petitioner reapplied to TLC for a license.Following a hearing, an Administrative Law Judge recommended tothe TLC’s Commissioner that the application be denied. TheAdministrative Law Judge noted, among other things, that onlythree years had elapsed since the incident, and concluded that“[petitioner] is not presently fit to hold an operator’slicense.” The Commissioner accepted the Administrative LawJudge’s conclusion and denied the application. Petitionercommenced this CPLR article 78 proceeding challenging TLC’sdetermination. Supreme Court granted the petition, annulled thedetermination and directed TLC to grant the application. Thisappeal by TLC ensued.Based on the parties’ briefs, the only issue for ourdetermination is whether TLC’s denial of petitioner’s applicationwas arbitrary and capricious (see CPLR 7803[3]). “[J]udicial30

eview of an administrative determination is limited to whethersuch determination was arbitrary or capricious or without arational basis in the administrative record, and once it has beendetermined that an agency's conclusion has a sound basis inreason the judicial function is at an end” (Matter of Partnership92 LP & Bldg. Mgt. Co., Inc. v State of N.Y. Div. of Hous. &Community Renewal, 46 AD3d 425, 428 [2007] [internal quotationmarks, citations and ellipsis omitted]; see Alexander, PracticeCommentaries, McKinney’s Cons Laws of NY, Book 7B, C7803:2, 2008Supp Pamph, at 172 [“The arbitrary and capricious standard askswhether the determination in question had a rational basis”]).Here, TLC’s determination has a rational basis. Thedetermination was predicated on the serious misconduct petitioneradmitted he committed in pleading guilty and that, at the time ofthe hearing, only three years had passed since it occurred.Notably, although TLC would have been authorized to do so in anyevent, it was entitled under the express terms of the stipulationto “consider the facts surrounding th[e] Stipulation” whenreviewing petitioner’s application. Petitioner’s post-revocationeducational and occupational achievements did not compel TLC tofind that petitioner was fit to hold a TLC license. Rather, TLCwas free to weigh those achievements against “the factssurrounding th[e] Stipulation” in determining petitioner’sapplication. Since TLC’s determination has a rational basis, we31

are foreclosed from substituting our judgment for that of theagency (see Matter of Arrocha v Bd. of Educ. of City of N.Y., 93NY2d 361 [1999]).We note that no argument was asserted by petitioner in hispetition or in his brief regarding the poor quality of thetranscript of his hearing before the Administrative Law Judge.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK32

Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.3013 The People of the State of New York, Ind. 1243/05Respondent,-against-Curtron M.,Defendant-Appellant._________________________Steven Banks, The Legal Aid Society, New York (Harold V.Ferguson, Jr., of counsel), for appellant.Robert M. Morgenthau, District Attorney, New York (MelissaPennington of counsel), for respondent._________________________Judgment, Supreme Court, New York County (Richard D.Carruthers, J. at hearing; Arlene R. Silverman, J. at plea andsentence), rendered August 22, 2006, convicting defendant ofburglary in the third degree, adjudicating him a youthfuloffender, and sentencing him to a term of 5 years’ probation,unanimously affirmed.The court properly denied defendant’s suppression motion.There is no basis for disturbing the court’s credibilitydeterminations, which are supported by the record (see People vProchilo, 41 NY2d 759, 761 [1977]). The credible policetestimony adduced at the hearing satisfied the People’s burden ofestablishing that defendant agreed to waive his Miranda rights.To the extent that defendant is arguing that suppression of his33

statement is warranted as a sanction for the loss of a Mirandawarnings form, we find that argument without merit.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK34

Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.3014 Jonathan Fernandez, etc., et al., Index 6734/05Plaintiffs-Appellants,-against-Highbridge Realty Associates, et al.,Defendants-Respondents._________________________Trolman, Glaser & Lichtman, P.C., New York (Michael T. Altman ofcounsel), for appellants.Maroney O’Connor LLP, New York (Thomas J. Maroney of counsel),for Highbridge Realty Associates and United Property Services,Inc., respondents.Fiedelman & McGaw, Jericho (James K. O’Sullivan of counsel), forP&M Management Realty Corp., respondent._________________________Order, Supreme Court, Bronx County (Stanley Green, J.),entered December 1, 2006, which granted defendants’ motions forsummary judgment dismissing the complaint, unanimously affirmed,without costs.Summary judgment was properly granted to defendants buildingowners in this action where plaintiff was injured when, whiledescending a multiple-flight stairway owned by the City of NewYork and running between two avenues, a loose stair wobbled andcaused him to fall. Although Administrative Code of the City ofNew York § 7-210 requires owners of real property to maintainabutting sidewalks in a reasonably safe condition, the sectiondoes not define “sidewalk,” and, viewing the legislative historyof the section, we find that the definition of “sidewalk” set35

forth in Administrative Code § 19-101(d), which does notencompass the subject multiple-flight stairway, should govern(see also Vucetovic v Epsom Downs, Inc., 45 AD3d 28 [2007]). Thedefinition of “sidewalk” in Administrative Code § 7-201(c)(1)(b),urged by plaintiffs and which includes “step[s] and stairway[s],”applies by its terms only “[a]s used in this subdivision,” andaddresses the requirement in actions against the City for priorwritten notice of a defect to the City.We further note that the record evidence establishes thateven following the enactment of Administrative Code § 7-210, theCity has continued to exercise control over the subject stairway,including snow removal and making repairs.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK36

Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.3016 In re Ahmed I.,A Person Alleged to bea Juvenile Delinquent,Appellant.- - - - -Presentment Agency._________________________Tamara A. Steckler, The Legal Aid Society, New York (Raymond E.Rogers of counsel), for appellant.Michael A. Cardozo, Corporation Counsel, New York (Tahirih M.Sadrieh of counsel), for presentment agency._________________________Order of disposition, Family Court, New York County (Mary E.Bednar, J.), entered on or about February 7, 2007, whichadjudicated appellant a juvenile delinquent, upon a fact-findingdetermination that he committed acts, which, if committed by anadult, would constitute assault in the second degree, attemptedassault in the second degree, resisting arrest, obstructinggovernmental administration in the second degree and criminalpossession of a weapon in the fourth degree, and placed him onprobation for a period of 12 months, unanimously affirmed,without costs.There was nothing in appellant’s counsel’s summation, or inany other aspect of the fact-finding hearing, that was sufficientto raise a justification defense. Accordingly, his claim thatthe presentment agency failed to disprove that defense isunpreserved and we decline to review it in the interest of37

justice. As an alternative holding, we also reject it on themerits. We also find that the court’s finding was not againstthe weight of the evidence (see People v Danielson, 9 NY3d 342,348-349 [2007]). There is no basis for disturbing the court’sdeterminations concerning credibility. We have considered andrejected appellant’s remaining arguments addressed to thesufficiency and weight of the evidence.Given the seriousness of the offenses, which included, amongother things, injury to a police officer, and appellant’smisbehavior and poor performance in school, the court properlyexercised its discretion in denying appellant’s request for anadjournment in contemplation of dismissal, and insteadadjudicating him a juvenile delinquent and placing him onprobation, which was the least restrictive dispositionalalternative consistent with appellant’s needs and the need forprotection of the community (see e.g. Matter of Jonaivy Q., 286AD2d 645 [2001]).THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK38

Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.3017 James Conklin, Index 28535/03Plaintiff-Appellant-Respondent,-against-Triborough Bridge and Tunnel Authority, et al.,Defendants-Respondents-Appellants._________________________Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), forappellant-respondent.Jones Hirsch Connors & Bull, P.C., New York (Katina Despas-Barousof counsel), for respondents-appellants._________________________Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.),entered on or about December 18, 2006, which denied plaintiff’scross motion for summary judgment on his Labor Law § 240 claim,granted the portions of defendants’ motion for summary judgmentthat sought to dismiss the Labor Law § 240 and § 241(6) claims,except insofar as the latter is predicated upon Industrial Code(12 NYCRR) § 23-1.7(f), and denied the portion of defendants’motion that sought to dismiss the Labor Law § 200 claim againstdefendant Campbell Painting, unanimously modified, on the law,plaintiff’s cross motion for summary judgment on his Labor Law§ 240 claim granted, defendant’s motion to dismiss that claimdenied, and defendant’s motion to dismiss the Labor Law § 241(6)claim denied insofar as that claim is predicated upon IndustrialCode (12 NYCRR) § 23-1.7(d), and otherwise affirmed, withoutcosts.39

Plaintiff alleges that he was injured when he slipped on a“chicken ladder” or “makeshift ladder,” consisting of twoparallel wooden planks with two-by-fours nailed across them atregular intervals, which was placed on sloped ground to functionas a ramp, and which provided the sole means of access to hisemployer’s shanty. As a ramp, the “chicken ladder” presented arisk covered by Labor Law § 240, and the record demonstrates thatdefendants’ failure to equip it with a handrail or other safetydevice was the proximate cause of plaintiff’s injuries (seeMcCann v Central Synagogue, 280 AD2d 298, 299-300 [2001]). Wenote that plaintiff’s untimely cross motion was not improperlyconsidered, since it sought relief on the same issues as wereraised in defendants’ timely motion (see Altschuler v GramatanMgt., Inc., 27 AD3d 304, 304-305 [2006]).Plaintiff’s Labor Law § 241(6) claim predicated uponIndustrial Code (12 NYCRR) § 23-1.7(f) was properly sustained,because the ramp, which is alleged to have been unsafe, provideda means of access to different working levels. The claimpredicated upon § 23-1.7(d) should have been sustained becausethe ramp constituted a passageway alleged to have been covered ina slippery substance. Plaintiff slipped not on muddy ground buton mud covering the cross-pieces of the ramp. The remainingLabor Law § 241(6) claims were properly dismissed.Plaintiff’s Labor Law § 200 claim was properly sustained as40

against Campbell, the general contractor, who constructed andmaintained the “chicken ladder” alleged to have been constantlyin a muddy and slippery state (see Comes v New York State Elec. &Gas Corp., 82 NY2d 876, 877 [1993]; Lombardi v Stout, 80 NY2d 290[1992]).THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK41

Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.3018 Alberta Harris, Index 23088/03Plaintiff-Appellant,-against-City of New York Health & HospitalsCorporation,Defendant-Respondent,“Aramark” Corporation,Defendant.________________________Mauro Goldberg & Lilling LLP, Great Neck (Caryn L. Lilling ofcounsel), for appellant.Michael A. Cardozo, Corporation Counsel, New York (Pamela SeiderDolgow of counsel), for respondent.__________________________Order, Supreme Court, Bronx County (Edgar Walker, J.),entered November 21, 2006, which, insofar as appealed from aslimited by the briefs, granted defendant City of New York Health& Hospitals Corporation’s motion to set aside the verdict to theextent of ordering a new trial solely on the issue of damagesunless plaintiff stipulated to a reduction of the jury awards forpast and future pain and suffering from $500,000 and $1,000,000to $400,000 and $120,000, respectively, unanimously modified, onthe facts, the conditional award for future pain and sufferingincreased to $250,000, and otherwise affirmed, without costs.The 76-year-old plaintiff tripped and fell on a raisedportion of overlapping floor mats in the lobby of LincolnHospital, which is operated and maintained by defendant. The42

uncontroverted evidence at trial indicated that she sufferedtears to the menisci of both knees and underwent arthroscopicsurgery on her left knee, which had been operated on twice for atorn meniscus before the accident. Plaintiff was bedridden forabout two weeks after the accident and two weeks after thesurgery and received physical therapy for nine months. She walkswith a cane, may require a knee replacement in 10 to 15 years,and is in constant pain. However, she is able to liveindependently, to do her own shopping and laundry and to travelby public transportation, and she is able to walk two blocks at aslow pace. She takes the same pain medication as she was takingbefore the accident.The record supports the trial court’s reduction of the juryawards, which “deviate[d] materially from what would bereasonable compensation” (CPLR 5501[c]). However, theconditional reduction for future pain and suffering was excessiveto the extent indicated.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK43

Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.3020-3021 The City of New York, Index 403335/03Plaintiff-Respondent-Appellant,-against-Welsbach Electric Corp.,Defendant,Insurance Company of North America,Defendant-Appellant-Respondent._________________________Nixon Peabody LLP, New York (Michael P. Murphy of counsel), forappellant-respondent.Michael A. Cardozo, Corporation Counsel, New York (Janet L.Zaleon of counsel), for respondent-appellant._________________________Order, Supreme Court, New York County (Edward H. Lehner,J.), entered May 11, 2006, which denied the motion of defendantCentury Indemnity Company (Century), successor to InsuranceCompany of North America, for summary judgment dismissing thecomplaint as against it, and denied the City of New York’s crossmotion for partial summary judgment as against Century,unanimously affirmed, without costs.Because defendant Welsbach Electric Corp., the named insuredunder the policy issued by Century, and the City, an additionalinsured under the policy, were adverse parties in the underlyingaction, the City had an independent obligation to provide timelywritten notice of the claim to Century (see Travelers Ins. Co. vVolmar Constr. Co., 300 AD2d 40, 44 [2002]). Further discovery44

as to whether Welsbach provided timely notice would serve nopurpose (see American Mfrs. Mut. Ins. Co. v CMA Enters., 246 AD2d373 [1998]).Since Century asserted its late notice defense 92 days afterreceiving the City’s summons and complaint, its disclaimer cannotbe held to be timely as a matter of law (see CPLR 3012[c];Insurance Law § 1212[b]). While the City waived any defensebased on lack of personal jurisdiction in the parties’ agreementextending Century’s time to answer, it did not waive its right toassert an untimely disclaimer defense (cf. DiGuglielmo vTravelers Prop. Cas., 6 AD3d 344, 346 [2004], lv denied 3 NY3d608 [2004]).Nor can Century’s notice of disclaimer be held to beuntimely as a matter of law, since Century asserts that it neededtime to investigate the 10-year old claim. However, an issue offact exists whether Century conducted its investigation promptly,diligently and in good faith (see Those Certain Underwriters atLloyds, London v Gray, 2007 NY Slip Op 8885, *3 [2007]; cf. 2540Assoc. v Assicurazioni Generali, 271 AD2d 282, 284 [2000]).Contrary to Century’s contention, discovery as to itsinvestigation would not violate the attorney-client and protectedwork-product privileges (see Brooklyn Union Gas Co. v AmericanHome Assur. Co., 23 AD3d 190, 191 [2005]).Contrary to Century’s further contention, Insurance Law45

§ 3420(d) protects the insured from the insurer’s unreasonabledelays in disclaiming coverage even where, as here, theunderlying claim has been satisfied (see e.g. 474431 Assoc. v AXAGlobal Risks US Ins. Co., 18 AD3d 604, 605 [2005]).In light of our determination, we do not address Century’sremaining contentions.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK46

Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.3022 The People of the State of New York, Ind. 5308/98Respondent,–against-David Quinones,Defendant-Appellant._________________________Susanna De La Pava, New York, for appellant.Robert M. Morgenthau, District Attorney, New York (Timothy C.Stone of counsel), for respondent._________________________Order, Supreme Court, New York County (Michael J. Obus, J.),entered on or about August 1, 2006, which denied defendant’smotion to be resentenced pursuant to the Drug Law Reform Act of2005, unanimously affirmed.A defendant seeking resentencing on a class A-II felonyconviction under the 2005 DLRA (L 2005, ch 643, § 1) must beeligible for merit time under Correction Law § 803(1)(d).Correction Law § 803(1)(d)(ii) provides that merit time is notavailable to any person serving an indeterminate sentence for,among other things, a violent felony. On January 6, 1999,defendant received a group of sentences for both drug and nondrugconvictions. These sentences included a term of 2a to 7years for a violent felony offense, to be served concurrentlywith life sentences on his class A-II felony drug convictions.Defendant did not preserve his present argument that the maximumterm of the violent felony sentence had allegedly expired before47

he made his application, rendering him eligible for resentencing,and we decline to review it in the interest of justice. As analternative holding, we also reject it on the merits (see Peoplev Merejildo, 45 AD3d 429 [2007]). Defendant is in the samesituation as the defendant in Merejildo, except that this caseinvolves concurrent rather than consecutive sentences. Pursuantto Penal Law § 70.30(1)(a), “concurrent sentences represent asingle punishment measured by the sentence for the highest gradeoffense into which all concurrent sentences merge.” (People vRamirez, 89 NY2d 444, 450 [1996]; see also Deary v Goord, 32 AD3d1074 [2006]). Accordingly, the motion court correctly concludedthat because defendant is incarcerated pursuant to a judgmentthat includes a sentence for a violent felony, he is ineligiblefor merit time under Correction Law § 803(1)(d)(ii) and thus isineligible for resentencing.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK48

Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.3023 Sidney J. Schwartzbaum, as President Index 112212/04of Assistant Deputy Wardens/DeputyWardens Association, etc., et al.,Petitioners-Appellants,-against-Martin F. Horn, Commissioner of theDepartment of Correction of the City of New York,Respondent-Respondent._________________________Kenneth V. Gomez, New York, for appellants.Michael A. Cardozo, Corporation Counsel, New York (Alan Beckoffof counsel), for respondent._________________________Order, Supreme Court, New York County (Herman Cahn, J.),entered April 19, 2006, which, in this CPLR article 78proceeding, denied the petition seeking to annul respondent’sdetermination reassigning petitioner Harrison from Warden LevelII to Warden Level I, and dismissed the petition, unanimouslyaffirmed, without costs.The determination reassigning Harrison from Warden Level II,where he served as respondent’s Chief of Staff, to Warden Level Iwas not arbitrary or capricious, and was a rational exercise ofdiscretion. Although Harrison was under investigation forpossible wrongdoing in allegedly giving a Department ofCorrection (DOC) snowblower to a correction officer for his ownuse, the record evidence, including respondent’s testimony,establishes that Harrison’s reassignment was not a disciplinary49

punishment, which would implicate the procedural protectionsafforded by Civil Service Law § 75, but one based on theassessment that Harrison lacked the requisite integrity andjudgment to retain his position (compare Matter of Campbell v NewYork City Tr. Auth., 253 AD2d 813 [1998], lv denied 93 NY2d 805[1999]). The determination was within respondent’s discretion(see Matter of Kitchings v Jenkins, 85 NY2d 694, 698 [1995]), andwas based on Harrison’s own admissions that after becoming awareof the allegations of wrongdoing as a result of the access he hadto sensitive information in his position as respondent’s Chief ofStaff, he contacted the correction officer and instructed him toget rid of the snowblower. There exists no basis to disturb thecourt’s findings crediting respondent’s testimony.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK50

Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.3024 The People of the State of New York, Ind. 1095/96Respondent,-against-Edwin Pedraja,Defendant-Appellant._________________________Steven Banks, The Legal Aid Society, New York (Joanne Legano Rossof counsel), for appellant.Robert M. Morgenthau, District Attorney, New York (Sheryl Feldmanof counsel), for respondent._________________________Order, Supreme Court, New York County (Carol Berkman, J.),entered on or about January 26, 2006, which, in adjudicatingdefendant a level two sex offender under the Sex OffenderRegistration Act (Correction Law art 6-C), to the extent appealedfrom as limited by the briefs, declined to rule on arecommendation in the risk assessment instrument that defendantbe assessed 10 points under the risk factor of age at first sexcrime, unanimously affirmed, without costs.Defendant concedes that he qualifies as a level two sexoffender, based on 80 uncontested points in the risk assessmentinstrument. The court properly declined to rule on the 10contested points, since no such ruling was necessary to its51

determination (cf. People v Graham, 35 AD3d 299 [2006], lv denied8 NY3d 808 [2007]).THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK52

Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.3025 Petition in the Estate of File 4657/02Tigran Arrathoon, Deceased,to Determine the Widow’s Right toElect against Decedent’s Will.- - - - -Siran Arrathoon,Petitioner-Respondent,-against-Maro A. Goldstone,Respondent-Appellant._________________________Duane Morris LLP, New York (Thomas R. Newman of counsel), forappellant.Farrell Fritz, P.C., Uniondale (John R. Morken of counsel), forrespondent._________________________Order, Surrogate’s Court, New York County (Renee R. Roth,S.), entered October 9, 2007, which, after a nonjury trial,dismissed respondent’s claim that petitioner widow had abandoneddecedent and was disqualified to elect against his will as hissurviving spouse, unanimously affirmed, with costs.The court properly determined that respondent, who waspetitioner and decedent’s daughter, did not meet her burden ofdemonstrating that petitioner abandoned decedent during hislifetime (see Matter of Riefberg, 58 NY2d 134 [1983]; Matter ofMaiden, 284 NY 429 [1940]; Matter of Gardner, 176 AD2d 142[1991], lv dismissed 78 NY2d 1124 [1991]). The evidenceestablished that petitioner and decedent, who had been marriedfor 65 years, were each forced by circumstances to live with, or53

near, the child who could provide them with emotional andpractical support, that neither spouse abandoned the other, andthat their separate living arrangements were necessitated bytheir advanced age and failing health.We have considered respondent’s remaining contentions andfind them unavailing.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK54

Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.3027 The People of the State of New York, Ind. 3332/05Respondent,-against-Jayson Torres,Defendant-Appellant._________________________Steven Banks, The Legal Aid Society, New York (Andrew Fine ofcounsel), and Davis Polk & Wardwell, New York (Boris E. Ayala ofcounsel), for appellant.Robert M. Morgenthau, District Attorney, New York (Joann Kahn ofcounsel), for respondent._________________________Judgment, Supreme Court, New York County (Arlene R.Silverman, J.), rendered May 2, 2006, convicting defendant, aftera jury trial, of criminal possession of a controlled substance inthe second degree, and sentencing him, as a second felony drugoffender, to a term of 3½ years, unanimously affirmed.An officer saw defendant engage in two transactionssuggestive of drug sales, and then saw him actually give drugpackets to an unapprehended buyer in return for cash. The policearrested defendant and found 13 glassine envelopes of heroin onhis person. Defendant’s theory at trial was that the heroin wasonly for his personal use, that he did not sell drugs, and thathe had purchased, rather than sold, drugs during the encounterobserved by the officer.A detective, qualified as an expert regarding the quantityand packaging of drugs, testified that “a user would never walk55

around with twelve glassines on them. That’s what a seller walksaround with or would have in their possession.” Neitherdefendant’s general objection (see People v Tevaha, 84 NY2d 879[1994]), nor any arguments he supposedly made at an unrecordedcolloquy (see People v Kinchen, 60 NY2d 772 [1983]), nor hispost-verdict motion (see People v Padro, 75 NY2d 820 [1990])preserved his present challenge to this testimony, and we declineto review it in the interest of justice. As an alternativeholding, we find that the testimony was improperly admitted, butthat the error was harmless. An expert may testify thatspecified quantities or packaging of drugs are consistent withpossession by a seller and inconsistent with mere personal use(People v Hicks, 2 NY3d 750 [2004]). Here, however, the experteffectively testified that this defendant did not possess theheroin only for his personal use, and that he was a seller; thisinvaded the province of the jury (see People v Salaam, 46 AD3d1130, 1131 [2007]). Nevertheless, defendant’s conductindependently established his intent to sell, and the deviationfrom the permissible scope of expert testimony was harmless.At the commencement of the defense case, defense counselindicated that defendant’s wife, who had been expected totestify, had not appeared. When counsel indicated thatdefendant’s wife would have testified that defendant had gone outto buy drugs on the day of the incident, the court characterized56

the projected testimony as inadmissible hearsay, but noted that,in any event, the wife did not seem to be available to testify.Counsel did not protest either of those conclusions, advance anyhearsay exception or other theory of admissibility, or request acontinuance to secure the wife’s attendance. Nothing in thecourt’s tentative and unelaborated ruling prevented defendantfrom doing any of those things, and nothing in the recordsupports defendant’s assertion that such actions would have beenfutile (compare People v Mezon, 80 NY2d 155, 161 [1992]).Accordingly, defendant did not preserve any of his claims,including his constitutional argument, concerning his effort tocall his wife to testify (see People v George, 67 NY2d 817, 819[1986]), and we decline to review them in the interest ofjustice. As an alternative holding, we also reject them on themerits. Even assuming that defendant’s wife would haveultimately appeared, and that her testimony might have beenadmissible on some theory (never articulated at trial) such asits relevance to defendant’s state of mind, it would not havebeen particularly exculpatory, because testimony that defendantintended to buy drugs for his own use was not inconsistent withan intent to sell drugs as well. Accordingly, there was noviolation of defendant’s right to present a defense. Defendant’s57

elated claim concerning a portion of his own testimony islikewise unpreserved and without merit.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK58

Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.3028 In re Proceeding for Custody, etc.,Rita T.,Petitioner-Appellant,-against-Commissioner of Administration for Children’sServices of the City of New York,Respondent-Respondent._________________________Kenneth M. Tuccillo, Hastings-On-Hudson, for appellant.Michael A. Cardozo, Corporation Counsel, New York (Julie Steinerof counsel), for respondent.Tamara A. Steckler, The Legal Aid Society, New York (Judith Sternof counsel), Law Guardian._________________________Order, Family Court, Bronx County (Gayle P. Roberts, J.),entered on or about October 11, 2005, which, after a hearing,denied petitioner’s application for custody of the subjectchildren, unanimously affirmed, without costs.The court’s determination that it was in the best interestsof the children to deny custody to petitioner, their maternalgrandmother, was amply supported by the record evidence,including the positive environment provided by the foster mother,who had cared for the children for the majority of their livesand tended to their special needs, and her stated desire to adoptthe children (see Matter of Luz Maria V., 23 AD3d 192 [2005], lvdenied 6 NY3d 710 [2006]). Further, petitioner visited thechildren infrequently and was unaware of their needs.59

Previously, the Family Court had made a finding of neglectagainst her with regard to two of the children. Petitioner alsoadmitted that rather than permanently caring for the children,she hoped to return them to their mother, whose parental rightsto the children were terminated following a finding of permanentneglect.We have considered petitioner’s remaining contentions andfind them unavailing.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK60

Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.3030 Billie Jo Livingston, etc., Index 114512/02Plaintiff-Appellant,-against-Hard Rock Café, Inc., et al.,Defendants-Respondents,th221 West 57 Street Corp., et al.,Defendants._________________________McElfish & Associates, LLC, New York (Raymond D. McElfish ofcounsel), for appellant.Malapero & Prisco LLP, New York (Ian B. Forman of counsel), forrespondents._________________________Order, Supreme Court, New York County (Leland DeGrasse, J.),entered March 7, 2006, which granted defendant Hard Rock Café,Inc.’s motion for judgment at the close of plaintiff’s evidence,unanimously affirmed, without costs.Plaintiff failed to establish a connection between what herexpert testified was a defective condition of the step at theentrance to the Hard Rock Café and her decedent’s trip and fallexiting the restaurant (CPLR 4401; see generally Kane v EstiaGreek Rest., 4 AD3d 189, 190 [2004]).Plaintiff’s remaining contentions are without merit.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 200861_______________________CLERK

Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.3031N-3031NA Howard Rosengarten, P.C., Index 108581/05Plaintiff-Respondent,-against-Richard Hott,Defendant-Appellant._________________________Donald R. Cohen, Hicksville, for appellant.Marc Bogatin, New York, for respondent._________________________Order, Supreme Court, New York County, (Judith J. Gische,J.), entered June 8, 2006, which, upon plaintiff’s motion tostrike defendant’s answer and to enter a default judgment againsthim for failure to comply with a discovery order in this actioninvolving an alleged agreement to share legal fees in threepersonal injury cases, compelled defendant to produce his clientfiles relating to this action, and order, same court and Justice,entered January 22, 2007, which, to the extent appealable, denieddefendant’s motion to renew, unanimously affirmed, with costs.Defendant’s contention that the materials sought areprotected by the attorney-client privilege was not raised inopposition to the original motion to compel disclosure, andaccordingly, it is not preserved (see e.g. Murray v City of NewYork, 195 AD2d 379, 381 [1993]). Were we to consider theargument, we would find that the subject documents are material62

and necessary to the resolution of the instant action (see CPLR3101[a]; Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406[1968]), and that defendant failed to sustain his burden ofestablishing that the documents are entitled to protection underthe privilege (see Spectrum Systems Intl. Corp. v Chemical Bank,78 NY2d 371, 377 [1991]; Matter of Priest v Hennessy, 51 NY2d 62,69 [1980]), or a federal court sealing order, or settlementagreements.Defendant’s motion to renew was properly denied where heprovided no reasonable justification for failing to present thefacts on renewal on the original motion (see Diaz v Ford MotorCo., 29 AD3d 339, 340 [2006]).We have considered defendant’s remaining arguments and findthem unavailing.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK63

Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.3032N Anthony Rega, Index 601008/04Plaintiff-Appellant, 591179/04Avon Products, Inc., et al.,Defendants–Respondents,Intellisource, Inc.,Defendant.- - - - - - -Avon Products, Inc., et al.,Third-Party Plaintiffs-Respondents,-against--against-Pitney Bowes, Inc., et al.,Third-Party Defendants-Respondents,Control Engineering Services, Inc., etc., et al.,Third-Party Defendants._________________________Klein & Folchetti, Port Chester (Robert W. Folchetti of counsel),for appellant.Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick ofcounsel), for Avon Products, Inc. and Avon Capital Corporation,respondents.Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains(Richard Reiter of counsel), for Pitney Bowes Inc., Pitney BowesManagement Services, Inc. and Service Integration Group, L.P.,respondents._________________________Order, Supreme Court, New York County (Rolando T. Acosta,J.), entered November 17, 2006, which, to the extent appealedfrom as limited by the briefs, granted the motions by the Avondefendants and the Pitney Bowes third-party defendants fordiscovery, and denied plaintiff’s motion for a protective order,64

unanimously affirmed, without costs.CPLR 3101(a) calls for “full disclosure of all mattermaterial and necessary in the prosecution or defense of anaction, regardless of the burden of proof.” Evidence is“material” if sought “in good faith for possible use asevidence-in-chief or rebuttal or for cross-examination” (Allen vCrowell-Collier Publ. Co., 21 NY2d 403, 407 [1968], quoting otherauthority). Furthermore, waiver of a physician-patient privilegeoccurs when a party voluntarily and affirmatively inserts theissue of a physical or mental defect or condition into thelitigation by way of testimony or written submission (see Avila v106 Corona Realty Corp., 300 AD2d 266 [2002]).Here, the evidence sought by Avon and Pitney Bowes regardingplaintiff’s prior and subsequent injuries was material fordefense of the action. Plaintiff voluntarily placed his physicalcondition in issue by averring in his bill of particulars that itwas aggravated or exacerbated by his injuries in this action, andthat he was permanently, albeit partially, disabled as a result.In light of these averments, both Avon and Pitney Bowes areentitled to discovery to determine the extent, if any, to whichthe plaintiff’s claimed injuries and damages are attributable toaccidents other than the one at issue here (see Caplow v Otis El.Co., 176 AD2d 199 [1991]; see also Vanalst v City of New York,276 AD2d 789 [2000]; cf. Noble v Ackerman, 216 AD2d 140 [1995]).65

Since plaintiff’s prior injuries may even have impacted on hisability to work after this most recent accident, Avon and PitneyBowes should be entitled to discovery on that issue as well.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK66

Mazzarelli, J.P., Saxe, Friedman, Nardelli, JJ.3033 The People of the State of New York, Ind. 5125/05Respondent,-against-Terrence Price,Defendant-Appellant._________________________Steven Banks, The Legal Aid Society, New York (Robert Budner ofcounsel), for appellant.Robert M. Morgenthau, District Attorney, New York (Dennis O.Cohen of counsel), for respondent._________________________Judgment, Supreme Court, New York County (Richard D.Carruthers, J. at suppression hearing; Gregory Carro, J. at pleaand sentence), rendered March 8, 2006, convicting defendant ofcriminal possession of a weapon in the third degree, andsentencing him, as a second felony offender, to a term of 5years, unanimously affirmed.The court properly denied defendant’s suppression motion.There is no basis for disturbing the court’s credibilitydeterminations, which are supported by the record (see People vProchilo, 41 NY2d 759, 761 [1977]). The officer had reasonablesuspicion to frisk defendant during a lawful traffic stop, wherethe officer observed a large bulge in defendant’s pocket anddefendant repeatedly disregarded the officer’s requests that he67

keep his hands away from the bulge (see People v Mims, 32 AD3d800 [2006]; People v Fludd, 20 AD3d 351 [2005], lv denied 5 NY3d852 [2005]; see also People v Moret, 240 AD2d 321 [1997], lvdenied 90 NY2d 908 [1997]). Defendant’s hand movements withregard to the bulge were not innocuous, and they caused theofficer to have a reasonable fear that defendant was preparing todraw a weapon.We perceive no basis for reducing the sentence.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK68

Mazzarelli, J.P., Saxe, Friedman, Nardelli, JJ.3035-3036 In re Jeanne S.,Petitioner-Respondent,-against-Salvatore S.,Respondent-Appellant._________________________Seth Muraskin, Huntington, for appellant.Lisa Fischel-Wolovick, New York, for respondent._________________________Order, Family Court, Bronx County (Alma Cordova, J.),entered on or about January 11, 2007, which denied respondentfather’s objections to the Support Magistrate’s order, interalia, terminating respondent’s child support obligation as ofMarch 2, 2004, the child’s 21st birthday, not, as respondentsought, as of March 1996, when the child moved out of petitionermother’s home and into respondent’s home before returning to themother’s home in June 2001, unanimously affirmed, without costs.Family Court incorrectly denied the father’s objections tothe Support Magistrate’s order as untimely where it does notappear that the father was ever served with a copy of that orderwith notice of entry (Family Ct Act § 439[e]; Matter ofCommissioner of Social Servs. v Dietrich, 208 AD2d 474, 474-475[1994]). However, as Family Court indicated it would rule wereit to reach the merits of the objections, although the child,under the terms of the parties’ separation agreement, may have69

een temporarily emancipated when he left the mother’s residenceto live with the father, the father’s support obligation wasrevived when the child returned to live with the mother (seeMatter of Boden v Boden, 42 NY2d 210, 212 [1977]; Matter of Boginv Goodrich, 265 AD2d 779, 781 [1999]; Matter of Crimmins vCrimmins, 192 Misc 2d 290 [2002]). There is no evidence thatprior to turning 21, the child was self-supporting or withdrewfrom parental control and supervision (compare Matter of Roe vDoe, 29 NY2d 188 [1971]; see Matter of Alice C. v Bernard G.C.,193 AD2d 97 [1993]).THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK70

Mazzarelli, J.P., Saxe, Friedman, Nardelli, JJ.3037-3037A Good Energy, L.P., et al., Index 600513/06Plaintiffs-Respondents,-against-Chris Kosachuk,Defendant-Appellant._________________________Clyde Jay Eisman, New York, for appellant.McCue Sussmane & Zapfel, P.C., New York (Kenneth Sussmane ofcounsel), for respondents._________________________Order, Supreme Court, New York County (Karla Moskowitz, J.),entered March 13, 2007, which denied defendant’s motion forsummary judgment dismissing the complaint, granted plaintiffs’cross motion for summary judgment on the issue of liability,granted plaintiffs’ motion to dismiss the counterclaims andthird-party complaint, and denied defendant’s motion to stay,vacate or otherwise modify the preliminary injunction granted byan order, same court and Justice, entered June 23, 2006,enforcing certain restrictive convenants, unanimously modified,on the law, plaintiffs’ cross motion denied, and the injunctionmodified so as to limit the covered territory to the eight stateswithin which plaintiff Good Energy, L.P. operates; to eliminatethe restriction against solicitation of suppliers; and toeliminate the restriction against dealing with those of GoodEnergy’s clients that were not serviced by defendant during his71

tenure at Good Energy and those clients that came to Good Energysolely because of a preexisting relationship with defendant, andotherwise affirmed, without costs. Appeal from the June 23, 2006order unanimously dismissed, without costs, as superseded by theappeal from the March 13, 2007 order.Since defendant did not convey his shares as part of alarger conveyance of Good Energy as a going concern, but, rather,sold his shares back to the majority shareholder, no issue of“continuity of place” or “continuity of name” is involved, andthe “sale of business” rationale is not applicable (seePurchasing Assoc. v Weitz, 13 NY2d 267, 271 [1963]; Titus &Donnelly v Poto, 205 AD2d 475 [1994]). Instead, the covenants inthe parties’ agreement for purchase and sale should be analyzedunder the stricter reasonableness standard applicable toemployment agreements (see BDO Seidman v Hirshberg, 93 NY2d 382[1999]).The covenant not to solicit is unreasonable to the extent itrestricts defendant from doing business with Good Energy’s energysuppliers as well as its customers, since there are a limitednumber of energy suppliers in the United States, and the covenanteffectively excludes defendant from continued employment in theindustry. The covenant not to compete is reasonable in terms ofduration, five years, but unreasonable in terms of geographicarea, the entire United States, since Good Energy operates in72

only eight states. Furthermore, the covenant not to compete isunreasonable because it purports to prohibit defendant fromdealing with Good Energy’s entire client base, thus including notonly those clients or customers that had been created andmaintained at Good Energy’s expense, but also those clients thatwere not serviced by defendant during his tenure at Good Energyand those that came to Good Energy solely because of apreexisting relationship with him (see BDO Seidman, 93 NY2d at392).In light of the above, plaintiffs’ cross motion for summaryjudgment must be denied. While defendant concededly had arelationship with Triple Net Properties, a former customer ofGood Energy, the circumstances giving rise to that relationshipare not clear. At a minimum, a factual issue exists whetherdefendant breached the restrictive covenants as narrowed above.Defendant’s counterclaims and third-party complaint wereproperly dismissed because the record evidence does not supporthis allegation that he was “forced” to sell his minority interestor that his interests were undervalued and resold at aconsiderable profit.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK73

Mazzarelli, J.P., Saxe, Friedman, Nardelli, JJ.3038 Metal Management, Inc., Index 601910/07Plaintiff-Appellant,-against-Esmark Incorporated, et al.,Defendants-Respondents._________________________Dewey & LeBoeuf LLP, New York (Jonathan D. Siegfried of counsel),for appellant.McGuire Woods LLP, New York (Richard L. Jarashow of counsel), forrespondents._________________________Order, Supreme Court, New York County (Charles E. Ramos,J.), entered October 26, 2007, which denied plaintiff’s motionfor summary judgment in lieu of complaint, unanimously affirmed,with costs.Plaintiff has not established its prima facie entitlement toaccelerated judgment pursuant to CPLR 3213. Its claim, based ona guaranty, requires resort to external documents, since theguarantor guaranteed the punctual payment when due of all paymentobligations pursuant to each purchase order and payment of theguaranteed obligations strictly in accordance with the terms ofeach purchase order, and the purchase orders required thatinvoices be issued, that the goods furnished be of good quality,and that any discrepancies be resolved prior to invoicing (seeWeissman v Sinorm Deli, 88 NY2d 437, 444 [1996]; Tradition N. Am.v Sweeney, 133 AD2d 53, 53-54 [1987]).74

In any event, despite all the documents submitted byplaintiff, a clear issue of fact exists as to the quantum ofdamages due under the guaranty, as to which plaintiff bears theburden of proof (see J.R. Loftus, Inc. v White, 85 NY2d 874, 877[1995]).THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK75

Mazzarelli, J.P., Saxe, Friedman, Nardelli, JJ.3039 The People of the State of New York, Ind. 4808/04Respondent,-against-Assia Serrano,Defendant-Appellant._________________________Robert S. Dean, Center for Appellate Litigation, New York(Jonathan M. Kirshbaum of counsel), for appellant.Robert M. Morgenthau, District Attorney, New York (Mark Dwyer ofcounsel), for respondent._________________________Judgment, Supreme Court, New York County (Rena K. Uviller,J.), rendered April 11, 2006, convicting defendant, after a jurytrial, of murder in the second degree, burglary in the firstdegree and robbery in the second degree, and sentencing her to anaggregate term of 18 years to life, unanimously affirmed.Defendant did not preserve her present claim, made pursuantto Batson v Kentucky, 476 US 79 (1986), that the court failed toseat a panelist who had been excused after the People exercised aperemptory challenge against her. Defendant made a Batsonapplication the day after the panelist was excused, and when thecourt granted the application to the extent of seating certainother panelists, defendant failed to request that the panelist atissue on appeal be seated as well, even though defendantspecifically requested that the other panelists be seated.Although defendant initially made arguments concerning the76

panelist at issue, she subsequently listed the panelists shewished to be seated, and the panelist now at issue was not amongthem. As a result, the court never ruled upon whether thePeople’s demeanor-based reason for striking this particularpanelist was race-neutral and non-pretextual. Accordingly, herpresent claim is unpreserved and we decline to review it in theinterest of justice, particularly since, as a result ofdefendant’s procedural default, the trial court was not calledupon to exercise its unique opportunity to evaluate matters ofdemeanor (see People v Smocum, 99 NY2d 418, 423 [2003]).The record establishes that contrary to defendant’sargument, the People did not, at any point in the trial, altertheir theory regarding the cause of the victim’s death. Rather,when defendant’s expert provided an alternative theory, thePeople, as restricted by the court’s rulings, properly crossexaminedhim regarding his theory. The court struck anytestimony that could be viewed as improper, and delivered asuitable curative instruction. The People adhered to the court’sruling, and their summation, which was consistent with theirtheory of causation, did not suggest a different theory.Similarly, the court’s discussion of causation during its finalcharge to the jury properly set forth the People’s specifictheory and did not leave open the possibility that the jury couldfind causation on another basis.77

Defendant’s Confrontation Clause argument is without merit.The expert physician who testified as a rebuttal witness for thePeople did not place before the jury the “testimonial”declarations of a nontestifying physician in violation of Peoplev Goldstein (6 NY3d 119 [2005], cert denied US , 126 S Ct 2293[2006]). The expert’s testimony was based entirely on facts inevidence and his personal knowledge. To the extent that herelied on the nontestifying doctor’s findings, those findingswere contained in a report that had been received in evidencewithout objection.Defendant’s claim regarding the imposition of a mandatorysurcharge and fees is unpreserved and we decline to review it inthe interest of justice. As an alternative holding, we alsoreject it on the merits (see People v Lemos, 34 AD3d 343 [2006],lv denied 8 NY3d 924 [2007]).THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK78

Mazzarelli, J.P., Saxe, Friedman, Nardelli, JJ.3043 Viviana Medina, et al., Index 21737/04Plaintiffs,Iris Dedos,Plaintiff-Appellant,-against -Crecencio Medina,Defendant,James M. Gutierrez,Defendant-Respondent._________________________Dinkes & Schwitzer, P.C., New York (Souren A. Israelyan ofcounsel), for appellant.Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R.Seldin of counsel), for respondent._________________________Order, Supreme Court, Bronx County (Mark Friedlander, J.),entered December 14, 2006, which, insofar as appealed from,granted defendant-respondent’s motion for summary judgmentdismissing the complaint as to plaintiff-appellant for lack of aserious injury as required by Insurance Law § 5102(d),unanimously affirmed, without costs.There is no merit to plaintiff’s argument that defendant’sprima facie showing was rendered deficient by his physician’sacknowledgment that a bulging disc was revealed by the MRI ofplaintiff’s lumbar spine taken shortly after the accident (seeLloyd v Green, 45 AD3d 373 [2007]; Kearse v New York City Tr.Auth., 16 AD3d 45, 49-50 [2005]). In opposition, plaintiff79

adduced no medical evidence of impingement or other neurologicdeficits that could be attributed to a bulging disc, and theobjectively tested range of motion limitations noted inplaintiff’s lumbar spine, as well as her cervical spine, leftknee and shoulder, were not assessed until nearly five yearsafter the accident, too remote to raise an issue of fact as towhether the restrictions were caused by the accident (see Lopez vSimpson, 39 AD3d 420 [2007]). The excerpts from an arthoscopicoperative report on plaintiff’s left knee, included inplaintiff’s bill of particulars, indicates only a partial tear ofthe anterior cruciate ligament, and there is no evidence thatsurgical repair of the knee was performed. We have consideredplaintiff’s 90/180-day claim and find that it too lacks merit.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK80

Mazzarelli, J.P., Saxe, Friedman, Nardelli, JJ.3045 The People of the State of New York, Ind. 3461/04Respondent,-against-Rafael Hernandez,Defendant-Appellant._________________________Steven Banks, The Legal Aid Society, New York (William B. Carneyof counsel), for appellant.Robert M. Morgenthau, District Attorney, New York (Edward A.Jayetileke of counsel), for respondent._________________________Judgment, Supreme Court, New York County (Budd G. Goodman,J.), rendered February 10, 2005, convicting defendant, after ajury trial, of two counts of burglary in the second degree, andsentencing him, as a persistent violent felony offender, toconcurrent terms of 20 years to life, unanimously affirmed.Defendant received effective assistance of counsel under thestate and federal standards (see People v Benevento, 91 NY2d 708,713-714 [1998]; see also Strickland v Washington, 466 US 668[1984]). Defendant asserts that his counsel rendered ineffectiveassistance by failing to make specific challenges to thesufficiency of the evidence. While failing to make a “winningargument” can constitute ineffective assistance (People v Turner,5 NY3d 476, 481 [2005]), none of the arguments in question fallinto that category. The evidence supported the conclusion thatdefendant had no privilege or license to enter either of the81

apartments at issue (see e.g. People v Quinones, 173 AD2d 395[1991], lv denied 78 NY2d 972 [1991]), and also supported theconclusion that he left his fingerprints in those apartments inthe course of burglarizing them (see e.g. People v Texeira, 32AD3d 756 [2006], lv denied 7 NY3d 904 [2006]), and we find thatarguments to the contrary would have been unavailing.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK82

Mazzarelli, J.P., Saxe, Friedman, Nardelli, JJ.3046 In re John Mulet, Index 105095/06Petitioner-Appellant,-against-Raymond Kelly, as Police Commissioner of the City ofNew York, etc., et al.,Respondents-Respondents._________________________Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains (JohnL. Leifert of counsel), for appellant.Michael A. Cardozo, Corporation Counsel, New York (MordecaiNewman of counsel), for respondents._________________________Judgment, Supreme Court, New York County (Leland DeGrasse,J.), entered October 23, 2006, which denied petitioner policeofficer’s application to annul respondents’ denial of accidentaldisability retirement benefits, and dismissed the petition,unanimously affirmed, without costs.Credible evidence rebuts the World Trade Center presumption(Administrative Code of City of NY § 13-252.1[1][a]), assuming itapplies, and supports the Medical Board’s determination thatpetitioner’s disability is not traumatic in origin (see Matter ofBorenstein v New York City Employees’ Retirement Sys., 88 NY2d756, 760-761 [1996]). We have considered petitioner’s other83

arguments, including those based on the conflicting opinions ofhis psychiatrist and social worker, and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK84

Mazzarelli, J.P., Saxe, Friedman, Nardelli, JJ.3047 The People of the State of New York, Ind. 1992/05Respondent,-against-Rodney Edmonds,Defendant-Appellant._________________________Robert S. Dean, Center for Appellate Litigation, New York (CarolA. Zeldin of counsel), for appellant.Robert M. Morgenthau, District Attorney, New York (JessicaSlutsky of counsel), for respondent._________________________Judgment, Supreme Court, New York County (Bonnie Wittner,J.), rendered on or about July 28, 2006, unanimously affirmed.No opinion. Order filed.85

Mazzarelli, J.P., Saxe, Friedman, Nardelli, JJ,3048 Isadora Patterson, Index 105065/05Plaintiff-Respondent,-against-Arturo Rivera, et al.,Defendants-Appellants._________________________Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R.Seldin of counsel), for appellants.Fotopoulos, Rosenblatt & Green, New York (Constantine D.Fotopoulos of counsel), for respondent._________________________Order, Supreme Court, New York County (Deborah A. Kaplan,J.), entered July 25, 2007, which denied defendants’ motion forsummary judgment dismissing the complaint for lack of a seriousinjury under Insurance Law § 5102(d), unanimously affirmed,without costs.The motion was properly denied on the ground thatdefendants’ expert did not address the MRI reports showingherniated discs, which in conjunction with other evidence wasindicative of serious injury (see Wadford v Gruz, 35 AD3d 258[2006]; Nix v Yang Gao Xiang, 19 AD3d 227 [2005]). Sincedefendants failed to meet their initial burden on the motion,86

there is no need to consider plaintiff’s opposing papers (seeid.).THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK87

Mazzarelli, J.P., Saxe, Friedman, Nardelli, JJ.3049 Luis Sierra, Index 52124/06Petitioner,-against-NYC Department of Correction, Warden,Rikers Island Correction Facility,Respondent._________________________The Legal Aid Society, New York (William Gibney of counsel), forpetitioner.Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordonof counsel), for respondent_________________________Determination of respondent New York City Department ofCorrection, dated September 29, 2006, finding petitioner guiltyof possessing a contraband weapon, unanimously confirmed, thepetition denied, and the proceeding (transferred to this Court byorder of the Supreme Court, Bronx County [Thomas Farber, J.],entered December 15, 2006) dismissed, without costs.The hearing officer’s determination is supported bysubstantial evidence, including the misbehavior report andhearing testimony. It is undisputed that a correction officersaw an object in a vent in petitioner’s cell, which was pushed sofar back the officer was unable to retrieve it. That the officerwas ultimately able to retrieve the weapon from the back end ofthe vent in the locked closet next door to petitioner’s cell doesnot undermine the finding that the contraband was secreted withinpetitioner’s control, especially since there was a clothesline88

attached to it (see Matter of Tarbell v Goord, 263 AD2d 563[1999]). The fact that inmates had no access to the lockedcloset further supports a reasonable inference that thecontraband was secreted from within petitioner’s cell, and thatthe clothesline was attached to make it retrievable by the personoccupying the cell. Under the circumstances, it is unavailingthat the officer was able to access the weapon from the lockedcloset rather than from petitioner’s cell, particularly since itis clear that he had no prior knowledge of the nature of theobject, nor would he have been aware how it was placed in thevent.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK89

Mazzarelli, J.P., Saxe, Friedman, Nardelli, JJ.3050N Michael Dortheimer, Index 105431/06Petitioner-Appellant,-against-Marc A. Safir, et al.,Respondents-Respondents._________________________Michael Dortheimer, appellant pro se.The Goldstein Law Group, P.C., New York (Daniel Callaway ofcounsel), for respondents._________________________Order and judgment (one paper), Supreme Court, New YorkCounty (William A. Wetzel, J.), entered September 28, 2006, whichdenied petitioner’s application to vacate a portion of anarbitration award, unanimously affirmed, with costs.Petitioner has not established that the arbitration awardwas in manifest disregard of the law, since there has been noshowing that the arbitrators ignored or refused to apply agoverning legal principle (see Wien & Malkin LLP v. Helmsley-Spear, Inc., 6 NY3d 471, 479-481 [2006], cert dismissed US ,127 S Ct 34 [2006]). The arbitrators were presented withmultiple claims and issues, and nothing in their lump sum awardsuggests that they deliberately disregarded Labor Law issuesregarding unpaid wages. Moreover, even if we were to assume thatthe Labor Law constituted the predominant governing law herein,we would conclude that petitioner failed to establish that thearbitrators deliberately chose to ignore such law or refused to90

apply it, as opposed to merely misunderstanding or misapplyingthe law.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: MARCH 11, 2008_______________________CLERK91

Andrias, J.P., Friedman, Williams, Buckley, Sweeny, JJ.1683 In re Leopold Siao-Pao, Index 401345/06Petitioner-Appellant,-against-Robert Dennison, Chairman,New York State Division of Parole,Respondent-Respondent._________________________Steven N. Feinman, White Plains, for appellant.Leopold Siao-Pao, appellant pro se.Andrew M. Cuomo, Attorney General, New York (Robert C. Weisz ofcounsel), for respondent._________________________Order and judgment (one paper), Supreme Court, New YorkCounty (Shirley Werner Kornreich, J.), entered September 22,2006, affirmed, without costs.Opinion by Buckley, J. All concur except Andrias, J.P. andSweeny, J. who dissent in an Opinion by Sweeny, J.Order filed.92

THE FOLLOWING MOTION ORDERSWERE ENTERED AND FILED ONMARCH 11, 2008Lippman, P.J., Tom, Mazzarelli, Andrias, Saxe, JJ.M-957XM-973XM-1059XM-1106XM-1114XMazzucca v Corda101 Norfolk LLC v Eastside Restaurant Corp.Myers v Club OctagonCheslow v HuttnerRoitberg v The Marquee Group, Ltd., a New YorkCorporation - Estate of MiecnikowskiM-1103 People ex rel. Smith, Shawn v WardenM-1104 People ex rel. Joyner, Damon v WardenM-1105 People ex rel. Ramos, William v WardenAppeals withdrawn.Lippman, P.J., Tom, Mazzarelli, Andrias, Saxe, JJ.M-1127 Mongelluzzo v The City of New YorkAppeal, previously perfected for the March 2008 Term,withdrawn.Lippman, P.J., Tom, Mazzarelli, Andrias, Saxe, JJ.M-1058XBaum v The Millennium Hotel - The United NationsDevelopment Corporation - Cushman & Wakefield, Inc.(And a third-party action)Appeal and cross appeals withdrawn.M-01

Lippman, P.J., Tom, Mazzarelli, Andrias, Saxe, JJ.M-942 People v Wright, RobertAppeal from judgment of the Supreme Court, Bronx Countyrendered on or about November 27, 2001 (under Ind. No. 1991/01)withdrawn; appeal from judgment of said court rendered on orabout May 3, 2002 (under Ind. No. 4657/00) remains extant.Lippman, P.J., Tom, Mazzarelli, Andrias, Saxe, JJ.M-1113 People v Bermudez, GuillermoM-1117 People v Lanfranco, Jose, also known asLanFranco, JoseM-1118 People v Owens, JosephM-1119 People v Hinds, CurtisM-1120 People v Torain, CharlesUpon the Court’s own motion, counsel substituted; poorperson relief previously granted continued, as indicated.Lippman, P.J., Tom, Mazzarelli, Andrias, Saxe, JJ.M-5428 (DC #10) People v Canty, DavidUpon the Court’s own motion, appeal deemed perfectedfor the May 2008 Term.Lippman, P.J., Tom, Mazzarelli, Andrias, Saxe, JJ.M-5411 (DC #3) People v Aguilar, Jose, also known asAguilar, Jose LuisUpon the Court’s own motion, time to perfect appealenlarged to the September 2008 Term.M-02

Lippman, P.J., Tom, Mazzarelli, Andrias, Saxe, JJ.M-5414 (DC #4) People v Andrade, MiguelM-5437 (DC #15) People v Coston, AnthonyM-5438 (DC #16) People v Crawford, Rasheen, also known asCrawford, Ra-SheenM-5466 (DC #24) People v Fisher, JosephUpon the Court’s own motion, time to perfect appealsenlarged to the September 2008 Term.Lippman, P.J., Tom, Mazzarelli, Andrias, Saxe, JJ.M-5449 (DC #20) People v DiMatteo, JohnM-5677Upon the Court’s own motion and upon papers filed,enlargement of record on appeal granted; time to perfect appealenlarged to the September 2008 Term.Lippman, P.J., Andrias, Williams, Buckley, JJ.M-702 Wigaysire v New York City Housing AuthorityReargument denied. Clerk directed to accept no furthermotions on behalf of petitioner with respect to this dismissedappeal without prior permission of the Court.Lippman, P.J., Mazzarelli, Saxe, Nardelli, Buckley, JJ.M-616 People v Hyatt, Anthony, also known asLayten, Hyatt, also known asHyatt, Layten Garth AnthonyReinstatement and other relief denied.M-03

Lippman, P.J., Gonzalez, Sweeny, Catterson, JJ.M-751 Cicero v Great American Insurance CompanyStay granted.Tom, J.P., Friedman, Nardelli, Catterson, Moskowitz, JJ.M-871 Sanko v MarkM-1111Dismissal of appeal denied, without prejudice toraising issues in respondent’s brief, as indicated; appealadjourned to the June 2008 Term.Tom, J.P., Friedman, Nardelli, Catterson, Moskowitz, JJ.M-913 Kremen v Benedict P. Morelli & Associates, PC,also known as Morelli Ratner PCStay granted.Tom, J.P., Andrias, Nardelli, Sweeny, JJ.M-918 Kokonozi v Beth Israel Medical Center, Inc.- Beth Israel Medical CenterStay of trial granted.Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.M-484 People v Gutierrez, OmanNotice of appeal deemed timely filed; leave toprosecute appeal as a poor person granted, as indicated.M-04

Tom, J.P., Buckley, Sweeny, Moskowitz, JJ.M-720 People v Serrano, JuanLeave to file pro se supplemental brief granted on orbefore July 7, 2008 for the September 2008 Term, to which Termappeal adjourned, as indicated.Tom, J.P., Saxe, Friedman, Gonzalez, McGuire, JJ.M-131 People v Weems, Kevin, also known asBanks, JeffreyLeave to file pro se supplemental brief granted on orbefore July 7, 2008 for the September 2008 Term, to which Termappeal adjourned, as indicated.Mazzarelli, J.P., Saxe, Friedman, Nardelli, JJ.M-719 Beecham v New York City Transit AuthorityTerm.Time to perfect appeal enlarged to the September 2008Mazzarelli, J.P., Saxe, Friedman, Nardelli, JJ.M-728 Gaston v The City of New YorkTime to perfect appeal from judgment entered on May 31,2007 enlarged to the September 2008 Term; appeal from orderentered March 8, 2007 dismissed as subsumed in the appeal fromthe judgment.M-05

Mazzarelli, J.P., Saxe, Gonzalez, Acosta, JJ.M-617 Vera v The City of New York(And third-party actions)Time to perfect appeal and cross appeal enlarged to theSeptember 2008 Term; stay of trial previously granted continued.Mazzarelli, J.P., Saxe, Gonzalez, Acosta, JJ.M-111 In the Matter of Walters v HernandezEnlargement of time to perfect proceeding denied;proceeding dismissed.Mazzarelli, J.P., Saxe, Gonzalez, Acosta, JJ.M-259 Segan v Pandozy, also known as MartiniAppeal deemed timely filed; appeal dismissed unlessperfected for the September 2008 Term, as indicated.Mazzarelli, J.P., Saxe, Friedman, Catterson, Acosta, JJ.M-189APeople v Aviles, AngelNotice of appeal and order of assignment amended, asindicated. The order of this Court entered on February 28, 2008(M-189) recalled and vacated.Andrias, J.P., Friedman, Buckley, McGuire, JJ.M-302 Long v SowandeStay granted on condition appellants perfect appeal forthe September 2008 Term, as indicated.M-06

Andrias, J.P., Nardelli, Williams, McGuire, Acosta, JJ.M-175 In the Matter of M., Christy A.; M., Herbert, Jr.–- The Children’s Aid SocietyLeave to prosecute appeal as a poor person granted, asindicated. (See M-175A, decided simultaneously herewith).Acosta, J.M-175AIn the Matter of M., Christy A.; M., Herbert, Jr.–- The Children’s Aid SocietyStay denied. (See M-175, decided simultaneouslyherewith).Saxe, J.P., Nardelli, Williams, McGuire, JJ.M-113 People v Dixon, Echo, also known asDixon, Edio, also known asDixon, Echo WestleyReargument denied.Saxe, J.P., Gonzalez, Buckley, Acosta, JJ.M-962 Abra Construction Corp. v 112 Duane Associates, LLCM-910Time to perfect appeal and cross appeal enlarged to theSeptember 2008 Term.M-07

Nardelli, J.P., Williams, Sweeny, Catterson, JJ.M-661 Esteva v Nash(And a third-party action)Appeals consolidated; time to perfect same enlarged tothe September 2008 Term.Nardelli, J.P., Williams, Sweeny, Catterson, JJ.M-714 In the Matter of Feliz v New York City Department ofHousing Preservation and DevelopmentLeave to prosecute proceeding as a poor person grantedto the extent indicated; petitioner directed to perfectproceeding on or before July 7, 2008 for the September 2008 Term.Saxe, J.M-361 People v Washington, DexterLeave to appeal to this Court denied.Mazzarelli, J.P., Saxe, Friedman, Nardelli, Williams, JJ.In the Matter of Attorneys Who Are in Violationof Judiciary Law Section 468-a:M-1157 Mark J. Bolender, admitted on 6-15-1987,at a Term of the Appellate Division,First DepartmentRespondent reinstated as an attorney and counselor-atlawin the State of New York, effective the date hereof. Noopinion. All concur.M-08

Mazzarelli, J.P., Saxe, Friedman, Nardelli, Williams, JJ.In the Matter of Attorneys Who Are in Violationof Judiciary Law Section 468-a:M-941 Alla G. Brunstein, admitted on 1-25-1994,at a Term of the Appellate Division,First DepartmentRespondent reinstated as an attorney and counselor-atlawin the State of New York, effective the date hereof. Noopinion. All concur.Mazzarelli, J.P., Friedman, Gonzalez, Sweeny, Catterson, JJ.M-3362 In the Matter of Armando A. Crescenzi,(admitted as Armando Anthony Crescenzi),a suspended attorney:Respondent disbarred and his name stricken from theroll of attorneys and counselors-at-law in the State of New York,nunc pro tunc to February 1, 2006. Opinion Per Curiam. Allconcur.The Following Orders Were Entered And Filed On March 6, 2008:Lippman, P.J., Friedman, Williams, Acosta, JJ.M-400 People v Gonzalez, Romualdo, also known asM-707 Gonzalez, RomuoldoLeave to prosecute appeal as a poor person denied;appeal dismissed.M-09

Tom, J.P., Friedman, Nardelli, Catterson, Moskowitz, JJ.M-987 In the Matter of The City of New York v HealthcareSubrogation Group, LLCLeave to file brief amici curiae granted, as indicated.Mazzarelli, J.P., Andrias, Williams, Buckley, Acosta, JJ.M-832 Hotel 71 Mezz Lender LLC v Falor - MitchellAppellant directed to perfect appeal for the June 2008Term, motion otherwise denied. Appellant’s record and brief areto be served and filed on or before March 24, 2008; respondent’spoints are to be served and filed on or before April 23, 2008;and reply brief, if any, to be served and filed on or beforeMay 2, 2008.M-10