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In an action to recover damages for legal malpractice and breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lally, J.), dated July 15, 2005, which denied his motion to restore the action to the trial calendar.
Ordered that the order is reversed, on the law, with costs, and the motion is granted.
“A plaintiff seeking to restore a case within one year of it being marked off the calendar need not demonstrate a reasonable excuse, a meritorious action, lack of intent to abandon, or a lack of prejudice to the defendants” (DiPietro v Shen, 12 AD3d 343, 343 [2004]; see Newsome v Akins, 6 AD3d 512, 513 [2004]; Bran*502nigan v Board of Educ. of Levittown Union Free School Dist., 307 AD2d 945, 946 [2003]; Maragos v Getty Petroleum Corp., 303 AD2d 652, 653 [2003]; Mannino v Huntington Hilton Hotel, 295 AD2d 577, 577 [2002]; see also Small v New York City Health & Hosps. Corp., 306 AD2d 269, 270 [2003]; Acheson v Shepard, 297 AD2d 271, 271 [2002]). Thus, the Supreme Court erred in denying the plaintiffs motion to restore the action to the trial calendar, as the motion was made within one year after the action was marked off the calendar (see Maragos v Getty Petroleum Corp., supra at 653; Mannino v Huntington Hilton Hotel, supra at 577; see also Small v New York City Health & Hosps. Corp., supra at 270; Acheson v Shepard, supra at 271).
In light of our determination, we need not address the parties’ remaining contentions. Schmidt, J.E, Krausman, Balkin and McCarthy, JJ., concur. |
Order entered March 31, 1960, which directed inter alia transfer of defendants’ stock in a co-operative apartment, unanimously modified on the law, on the facts and in the exercise of discretion as hereinafter set forth, and as so modified, the order is affirmed, with $20 costs and disbursements to appellant. There shall be inserted after the second ordering paragraph a further and additional paragraph reading as follows: “ ordered, that the defendants, within twenty (20) days after service of a copy of this order, shall, in good faith, take any and all steps necessary to procure the consent of 435 East 57th Street Apartments, Inc. to the transfer and sale of the proprietary lease and stock to the plaintiff, and, in the event such consent be obtained, to deliver up and surrender possession of said apartment 5B to plaintiff as hereinafter directed; and it is further ”. The fourth ordering paragraph of the order appealed from is modified by insertion of the words “and surrender possession to the plaintiff of” after the word “vacate”, so that such paragraph shall read as follows: “ordered, that in the event such consent is obtained the defendants shall vacate and surrender possession to the plaintiff of Apartment 5B, 435 East 57th Street, New York, New York, within ninety (90) days after the delivery of the said certified check to the said defendants’ attorneys, Bijur & Herts, Esqs.; and it is further ”. The fifth ordering paragraph of the order appealed from is modified by insertion of the *458words “ and surrender of possession to plaintiff ” immediately after and following the word “ apartment ”, so that such paragraph shall read as follows: “ ordered, that, immediately upon defendants’ removal from said apartment and surrender of possession to plaintiff, plaintiff’s attorney, Phineas Toby, Esq., shall deliver the said certificates of stock held by him in escrow to the plaintiff; and it is further”. The order appealed from is further modified by the insertion of an additional ordering paragraph following the sixth ordering paragraph therein, in the language following: “ ordered, that, if the consent of 435 East 57th Street Apartments, Inc., as aforesaid, cannot, in good faith, be obtained, the defendants, within ten (10) days following the expiration of the twenty (20) day period above, may, upon proper written proof of defendants’ inability to perform by reason of the withholding of such consent, make application for a modification of the judgment herein, and pending the determination thereof proceedings for punishment shall be stayed; and it is otherwise further.” Settle order on notice. Concur.— Botein, P. J., Rabin, Stevens and Eager, JJ. |
In a consolidated action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Douglass, J.), dated September 27, 2005, as granted that branch of the motion of the plaintiffs Edelle Marcel and Jean Claude Marcel, and the separate motion of the plaintiff Carlo Jean-Louis, which were for summary judgment on the issue of liability.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
This action arises from a motor vehicle accident in which a truck owned by the defendant Chief Energy Corp. and operated by the defendant Michael V Fausto collided with a school bus operated by the plaintiff Carlo Jean-Louis at an intersection in Queens. The plaintiff Edelle Marcel was riding as a passenger on the school bus.
Both sets of plaintiffs established their prima facie entitle*503ment to judgment as a matter of law. Fausto, operating his vehicle on a street governed by a stop sign, was required to bring his vehicle to a stop, and once having done so, to yield to vehicles on the intersecting thoroughfare operating with the right-of-way (see Vehicle and Traffic Law § 1142 [a]). His failure to do so constituted negligence as a matter of law (see Friedberg v Citiwide Auto Leasing, Inc., 22 AD3d 522, 523 [2005]). The fact that Fausto brought his truck to a stop before proceeding into the intersection does not absolve the defendants of liability, as Fausto was required to stop and remain stationary until it was clear to proceed across the intersection (see Friedberg v Citiwide Auto Leasing, Inc., supra; McNamara v Fishkowitz, 18 AD3d 721, 722 [2005]).
In opposition, the defendants failed to raise a triable issue of fact as to comparative negligence on the part of Jean-Louis. There was no evidence to support the defendants’ conclusory allegation that Jean-Louis was speeding (see McNamara v Fishkowitz, supra at 722).
The defendants, having violated the terms of the preliminary conference order by failing to appear at the plaintiffs’ depositions and physical examinations, cannot now be heard to argue that the summary judgment motions were premature because there was outstanding discovery. In any event, the mere expression of hope that discovery would reveal something helpful to the defense provides no basis for denial of the motions (see Grodski v Greenpoint Bank, 16 AD3d 623, 624 [2005]).
We decline to reach the issue, improperly raised for the first time on appeal, that the motions should have been denied because the plaintiffs failed to append a copy of the pleadings to their respective motion papers (see generally Murray v Palmer, 229 AD2d 377 [1996]). Rivera, J.P., Skelos, Dillon and Covello, JJ., concur. |
Judgment unanimously reversed, upon the law and upon the facts, the verdict vacated and a new trial ordered, with costs to the appellant. Defendant was entitled to a charge, as requested, that if the jury found that plaintiff was to give testimony in consideration for the percentage agreement, then such agreement was illegal and defendant was entitled to a verdict. Defendant was also entitled to a charge, as requested, that if the jury found that plaintiff had not made a disclosure to Harold Indursky of plaintiff’s financial interest in any settlement that then, too, the agreement would be an illegal one designed to exploit a confidential relationship and, in that event, defendant was entitled to a verdict. Apart from the failure to grant the requests to charge which requires a new trial, a new trial is also merited because the verdict is contrary to the weight of the credible evidence. There was insufficient to show that plaintiff caused or contributed to the settlement with Harold Indursky or that the agreement was as alleged and testified. On the contrary, the proof strongly suggests that plaintiff’s part in the family dispute was quite different from that which she testified. Concur — Breitel, J. P., Rabin, Stevens and Eager, JJ. |
In a shareholders’ derivative action, the plaintiff Elizabeth Margrabe appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Donovan, J.), entered September 1, 2004, as granted those branches of the motion of nonparty, Sexter & Warmflash, EC., which were to fix an attorneys’ lien on certain settlement proceeds and to direct the escrow agent to pay over to it the sum of $121,659.74, together with any accrued interest.
Ordered that the appeal is dismissed, without costs or disbursements.
*504The appeal from so much of the order entered September 1, 2004, as granted those branches of the motion of the nonparty, Sexter & Warmflash, EC., which were to fix an attorney’s lien on certain settlement proceeds and to direct the escrow agent to pay over to Sexter & Warmflash, EC., the sum of $121,659.74, together with any accrued interest, must be dismissed, as the order appealed from has been superseded by an order of the same court entered October 29, 2004. The order entered October 29, 2004, expressly “vacat[ed] the lien and the direction that the escrowed funds be paid over” and directed that a hearing be held.
The issues raised by the appellant regarding the reasonableness of legal fees and her usury defense to the payment of any fees appear to be interwoven with all issues that the Supreme Court will be addressing at the hearing.
Motion by nonparty-respondent, Sexter & Warmflash, EC., inter alia, to dismiss an appeal from an order of the Supreme Court, Westchester County, entered September 1, 2004, on the ground that the order appealed from was superseded by an order of the same court entered October 29, 2004. By decision and order on motion of this Court dated December 2, 2005, the branch of the motion which was to dismiss the appeal was held in abeyance and referred to the panel of Justices hearing the appeal upon the argument or submission thereof.
Upon the motion and the papers filed in response thereto, and upon the argument of the appeal, it is
Ordered that the branch of motion which is to dismiss the appeal is denied as academic in light of our determination on the appeal (see Margrabe v Rusciano, 38 AD3d 503 [2007] [decided herewith]). Miller, J.E, Florio, Dillon and Angiolillo, JJ., concur. |
Order, entered April 8, 1960, granting motion of plaintiff to examine the defendant before trial for the purpose of enabling the plaintiff to frame a complaint, unanimously reversed, on the law, on the facts, and in the exercise of discretion, with $20 costs and disbursements to the appellant, and the motion denied, with $10 costs, with leave, however, to renew such application upon proper and sufficient papers. It is understandable that a plaintiff who sues for damage to his property as the result of blasting would have difficulty in framing a complaint setting forth specific acts of negligence with the required particularity. Upon a sufficient showing in other respects, an examination to enable the plaintiff to frame a complaint in such a case would be quite proper even though the affidavits in support of such application do not set forth specific acts of negligence provided the damage claimed is proximately related to the blasting and is of such extent as negligence might be inferred. The affidavits in support of this motion we find to be wholly insufficient. No more than the barest conclusions are presented to the court. There is no information given as to the time and place of blasting; the distance from the place of blasting to the location of the plaintiff’s premises; when the damage was sustained; the nature and extent of the damage to the plaintiff’s property and other details which should be in the knowledge of the plaintiff. Such details should be given together with other information which is in the possession of the plaintiff to enable the court to determine whether in the circumstances it would be proper to grant the plaintiff’s motion. Concur — Botein, P. J., Rabin, Stevens and Eager, JJ. |
In an action to recover damages for medical malpractice, etc., the defendants appeal from an order of the Supreme Court, Queens County (Kitzes, J.), entered March 8, 2006, which denied their motion to dismiss the complaint for failure to serve a timely notice of claim.
Ordered that the order is reversed, on the law, with costs, and the defendants’ motion to dismiss the complaint for failure to serve a timely notice of claim is granted.
Erior to commencing this action to recover damages for medi*505cal malpractice, the plaintiffs neither served a timely notice of claim upon the defendants, as required by statute, nor sought leave, within the relevant one-year-and-90-day limitations period, to serve a late notice of claim (see McKinney’s Unconsolidated Laws of NY § 7401 [2]; General Municipal Law §§ 50-e [5]; 50-i; Pierson v City of New York, 56 NY2d 950 [1982]; Urena v New York City Health & Hosps. Corp., 35 AD3d 446 [2006]; Maxwell v City of New York, 29 AD3d 540 [2006]). Thus, the Supreme Court should have granted the defendants’ motion to dismiss the complaint.
The plaintiffs’ contention, raised before the Supreme Court, that the relevant period of limitations was tolled by the continuous treatment doctrine, is without merit (see Allende v New York City Health & Hosps. Corp., 90 NY2d 333 [1997]).
The plaintiffs’ remaining contentions are without merit (see e.g. Wade v New York City Health & Hosps. Corp., 16 AD3d 677 [2005]; Cappadonna v New York City Tr. Auth., 187 AD2d 691 [1992]). Ritter, J.E, Santucci, Skelos and Dickerson, JJ., concur. |
*506In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated February 1, 2006, as denied that branch of its motion which was for summary judgment dismissing the plaintiff’s Labor Law § 240 (1) cause of action and granted that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability on his Labor Law § 240 (1) cause of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff was employed by Structural Improvements, Inc., a contractor hired by the defendant to remove and replace bricks and stones on the exterior of a building owned by the defendant. While he and a coworker were standing on a scaffold and attempting to remove some large stones from the facade of the building, a stone, secured by a rope, fell and struck the plaintiff in the head. No other equipment was present that could have prevented the stone from falling from above and injuring the plaintiff. He commenced this action against the defendant, alleging causes of action pursuant to Labor Law § 240 (1); § 241 (6); § 200, and to recover damages for common-law negligence.
The Supreme Court, inter alia, denied that branch of the defendant’s motion which was for summary judgment dismissing the plaintiff’s Labor Law § 240 (1) cause of action and granted that branch of the plaintiffs cross motion which was for summary judgment on the issue of liability on his Labor Law § 240 (1) cause of action. We affirm.
Contrary to the defendant’s assertion, the plaintiff was engaged in the type of elevation-related work, as defined by Labor Law § 240 (1), that requires the use of adequate safety devices (see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). The plaintiff met his burden of demonstrating that *507the stone fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute (see Narducci v Manhasset Bay Assoc., supra at 268; Bornschein v Shuman, 7 AD3d 476, 478 [2004]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 621 [2003]; Outar v City of New York, 286 AD2d 671, 672 [2001], affd 5 NY3d 731 [2005]). In opposition, the defendant failed to raise an issue of fact by offering evidence that would demonstrate that there was no height differential between the stone and the plaintiffs head. The defendant’s contention that there was no height differential, or that the injury was caused by an ordinary construction risk not contemplated by the statute, is unavailing because the plaintiff established that he had to stand below a large stone weighing between 60 to 80 pounds that could not be supported by him, his coworker, and the rope (see Salinas v Barney Skanska Constr. Co., supra). Therefore, the court properly granted that branch of the plaintiffs cross motion which was for summary judgment on the issue of liability on his Labor Law § 240 (1) cause of action and denied that branch of the defendant’s motion which was for summary judgment dismissing the plaintiffs Labor Law § 240 (1) cause of action. Miller, J.E, Schmidt, Ritter and Angiolillo, JJ., concur. |
Order, entered April 8, 1960, as denies plaintiff’s motion for an open commission to examine William A. Fasolo, a nonresident, as a witness unanimously reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to the appellant, and the motion for issuance of an open commission in New Jersey to examine William A. Fasolo as a witness is granted, with $10 costs. In this action to recover brokerage commissions, jurisdiction of the defendant, May Fasolo, was obtained by service outside the State after a warrant of attachment had issued. However, the plaintiff was unable to obtain jurisdiction or serve the other named defendant, William A. Fasolo, who resides in New Jersey and is the son of May Fasolo. Therefore, the plaintiff obtained an order discontinuing the action against him. The application before us now seeks to examine the said William A. Fasolo as a. witness to determine whether the acts of the defendant alleged in the complaint were in fact done by him acting as his mother’s agent. The specific denial by the defendant of the critical issue of any authorization to William A. Fasolo, the letters from the said Fasolo, the nature of the action, and circumstances of the ease as revealed by the record, establish that the information sought is material and necessary, and that such special circumstances exist as warrant granting of the relief sought pursuant to article 29 of the Civil Practice Act. Settle order on notice. Concur — Botein, P. J., Rabin, Stevens and Eager, JJ. |
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (LaCava, J.), entered June 28, 2005, which, upon a jury verdict on the issue of liability, and upon the denial of her motion pursuant to CPLR 4404 (a) to set aside the verdict and for judgment as a matter of law, or alternatively, to set aside the verdict as against the weight of the evidence and for a new trial, is in favor of the defendants and against her dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
For a court to determine that a jury verdict is not supported by legally sufficient evidence, it must conclude that there is “no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Additionally, a jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744 [1995]; Nicastro v Park, 113 AD2d 129, 134 [1985]). Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, *508but rather requires a discretionary balancing of many factors (see Cohen v Hallmark Cards, supra; Nicastro v Park, supra at 133). It is for the trier of fact to make determinations as to the credibility of the witnesses, and great deference is accorded to the fact finder, who had the opportunity to see and hear the witnesses (see Bertelle v New York City Tr. Auth., 19 AD3d 343 [2005]; Corcoran v People’s Ambulette Serv., 237 AD2d 402, 403 [1997]).
Here, viewing the evidence in the light most favorable to the defendants, sufficient evidence was presented from which the jury could rationally conclude that the plaintiff’s negligent operation of her vehicle was the sole proximate cause of the accident (see Cohen v Hallmark Cards, supra; Chepel v Meyers, 306 AD2d 235, 237 [2003]). Moreover, the verdict was not against the weight of the evidence (see Nicastro v Park, supra). Mastro, J.E, Rivera, Dillon and Garni, JJ., concur. |
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (O’Donoghue, J.), dated March 17, 2006, which denied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.
A landowner has a duty to maintain its premises in a reasonably safe manner (see Basso v Miller, 40 NY2d 233 [1976]). However, it has no duty to protect or warn against an open and obvious condition which is not inherently dangerous as a matter of law (see Fitzgerald v Sears, Roebuck & Co., 17 AD3d 522 [2005] ; Orlando v Audax Constr. Corp., 14 AD3d 500 [2005]; Capozzi v Huhne, 14 AD3d 474 [2005]; Jang Hee Lee v Sung Whun Oh, 3 AD3d 473 [2004]; Cupo v Karfunkel, 1 AD3d 48 [2003]). The defendant established, prima facie, its entitlement to judgment as a matter of law by demonstrating that the display racks with which the plaintiffs shopping cart collided were open and obvious, known to her, and not inherently dangerous (see Mastellone v City of New York, 29 AD3d 540 [2006] ; Lamia v Federated Dept. Stores, 263 AD2d 498 [1999]; Weiner v Saks Fifth Ave., 266 AD2d 390 [1999]; Sewer v Fat Albert’s Warehouse, 235 AD2d 414 [1997]). In opposition, the *509plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint. Miller, J.E, Schmidt, Ritter and Angiolillo, JJ., concur. |
In an action, inter alia, to recover damages for breach of contract, the defendants appeal from (1) an order of the Supreme Court, Orange County (McGuirk, J.), dated January 11, 2005, which granted the plaintiff’s motion for summary judgment, (2) so much of an order of same court dated March 24, 2005, as denied their motion for leave to reargue, and (3) a judgment of the same court entered August 4, 2005, which, upon the order dated January 11, 2005, is in favor of the plaintiff and against them in the principal sum of $263,232.
Ordered that the appeals from the orders are dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order dated January 11, 2005, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from that order are brought up for review and have been considered on the appeal from the judgment (see CFLR 5501 [c]). The appeal from the order dated March 24, 2005, must be dismissed because no appeal lies from an order denying a motion for leave to reargue (see Fryar v First Student, Inc., 21 AD3d 525 [2005]).
On the plaintiffs motion for summary judgment, she established, prima facie, her entitlement to judgment as a matter of law, and the defendants failed to raise a triable issue of fact in opposition. The Supreme Court properly determined that since the defendants were not beneficiaries of the G. Everett Gaillard Revocable Trust, they lacked standing to challenge the actions of the plaintiff as its trustee (see Matter of McManus, 47 NY2d 717 [1979]; Cashman v Petrie, 14 NY2d 426, 430 [1964]; cf. Zeff v Weissman, 209 AD2d 612, 613 [1994]).
The defendants’ remaining contentions are without merit.
Motion by the respondent on appeals from two orders of the *510Supreme Court, Orange County, dated January 11, 2005, and March 24, 2005, respectively, and a judgment of the same court entered August 4, 2005, to dismiss the appeal from the order dated March 24, 2005, on the ground that no appeal lies from an order denying reargument. By decision and order on motion of this Court dated November 9, 2005, the motion was held in abeyance and referred to the Justices hearing the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeals, it is
Ordered that the motion is denied as academic in light of our determination on the appeals (see Naversen v Gaillard, 38 AD3d 509 [2007] [decided herewith]). Santucci, J.E, Goldstein, Cami and McCarthy, JJ., concur. |
Resettled order, entered October 23, 1959, adjudging the third-party appellant in contempt and imposing a fine of $3,410.51, unanimously reversed, on the law, on the facts and in the exercise of discretion, and the matter remitted to Special Term for proceedings not inconsistent herewith, with costs to abide the event. The third-party subpoena herein, dated June 3, 1958, was served on June 4, 1958. The existence on June 4, 1958 of the construction contract between the third-party appellant and the judgment debtor and the indebtedness thereunder of the former involved factual issues resolved by the Official Referee in favor of the appellant. It appears from respondent’s affidavit in support of his motion to disaffirm the Referee’s report that minutes of the hearing were taken but the submission of a transcript thereof with the report was waived. Where, however, the findings of fact of the Referee are disputed, Special Term may not make an order on the report without having before it “ the testimony in some form or agreement by the parties as to its substance sufficient to permit the court to pass upon a challenge made to the sufficiency of the evidence.” (Aron v. Aron, 280 N. Y. 328, 330; see, also, Matter of Tillman, 232 App. Div. 575.) Concur — Rabin, J. P., Valente, McNally, Stevens and Eager, JJ. |
In an action, inter alia, to recover damages for employment *511discrimination pursuant to Executive Law § 296, the plaintiffs appeal from an order of the Supreme Court, Queens County (Satterfield, J.), dated July 26, 2005, which denied their motion to vacate a prior order of the same court dated January 7, 2005, granting the defendants’ renewed motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying the plaintiffs’ motion to vacate a prior order entered upon their default in opposing the defendants’ renewed motion for summary judgment. A party seeking to vacate a default must demonstrate both a reasonable excuse for the default and the existence of a meritorious claim (see CPLR 5015 [a] [1]; Yurteri v Artukmac, 28 AD3d 545 [2006]; Philippi v Metropolitan Transp. Auth., 16 AD3d 654, 655 [2005]; Kumar v Yonkers Contr. Co., Inc., 14 AD3d 493, 494 [2005]). The plaintiffs’ attorneys’ proffered excuse failed to adequately explain the default in this case. Notwithstanding the fact that the plaintiffs’ attorneys had recently been substituted in the case, the alleged error, miscalendaring the case by one day, cannot account for their inaction for six months when they had full knowledge of the pending motion. “While CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature’s intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse” (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553 [2001]; see De Vito v Marine Midland Bank, 100 AD2d 530, 531 [1984]). Furthermore, the plaintiffs failed to demonstrate that their surviving claims were meritorious.
Motion by the respondents on an appeal from an order of the Supreme Court, Queens County, dated July 26, 2005, inter aha, to strike certain portions of the record on appeal on the ground that they contain material dehors the record. By decision and order on motion of this court dated August 21, 2006, the motion was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is,
Ordered that the motion is denied. Spolzino, J.P., Skelos, Covello and Balkin, JJ., concur. |
*512In an action, inter alia, to recover damages for breach of an insurance contract, the defendant appeals from stated portions of an order of the Supreme Court, Westchester County (Jamie-son, J.), entered April 3, 2006, which, among other things, denied those branches of its motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (5), or in the alternative, to dismiss, pursuant to CPLR 3211 (a) (7), the claims alleging breach of the covenant of good faith and to recover consequential and punitive damages.
Ordered that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendant’s motion which were to dismiss, pursuant to CPLR 3211 (a) (7), the claims alleging breach of the covenant of good faith and to recover consequential and punitive damages and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
In this case, it is undisputed that the defendant established that the two-year limitations period set forth in the insurance policy had expired when the action was commenced (see Assad v City of New York, 238 AD2d 456, 456-457 [1997]). To overcome this bar, the plaintiffs invoked the doctrine of estoppel, “which provides that a defendant may be estopped from pleading the statute of limitations when the ‘plaintiff was induced by fraud, misrepresentations, or deception to refrain from filing a timely action’ ” (Garcia v Peterson, 32 AD3d 992, 992 [2006], quoting Simcuski v Saeli, 44 NY2d 442, 448-449 [1978]). To rely on this doctrine and defeat those branches of the defendant’s motion which were to dismiss the complaint as time-barred, the plaintiffs assumed the burden to “adequately plead[ ] facts which, if proven, would establish the existence of an equitable estoppel” (Doe v North Shore Univ. Hosp., 28 AD3d 603, 604 [2006]; Vigliotti v North Shore Univ. Hosp., 24 AD3d 752, 754-755 [2005]). Here, the plaintiffs satisfied their burden.
The plaintiffs’ claim predicated on a breach of the implied *513covenant of good faith is duplicative of the breach of contract claim. Since there is no separate tort for bad faith refusal to comply with an insurance contract, this claim should have been dismissed (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 318-320 [1995]; Johnson v Allstate Ins. Co., 33 AD3d 665 [2006]; Zawahir v Berkshire Life Ins. Co., 22 AD3d 841, 842 [2005]). Contrary to the plaintiffs’ contentions, they do not have a claim for consequential damages beyond the limits of the policy for the claimed breach of contract (cf. Acquista v New York Life Ins. Co., 285 AD2d 73, 82 [2001]).
Since there is no basis for determining that the defendant’s conduct constituted a tort independent of the contract, the plaintiffs’ demand for punitive damages also should have been dismissed (see New York Univ. v Continental Ins. Co., supra at 319-320; Teig v First Unum Ins. Co., 282 AD2d 669, 669-670 [2001]; Logan v Empire Blue Cross & Blue Shield, 275 AD2d 187, 194 [2000]). Further, the plaintiffs failed to allege sufficient facts warranting punitive damages to vindicate a public right (see New York Univ. v Continental Ins. Co., supra at 315; Johnson v Allstate Ins. Co., supra).
To the extent that the plaintiffs raise issues concerning the dismissal of the second cause of action, we note that the plaintiffs did not cross appeal from the portion of the order concerning that cause of action. Mastro, J.E, Rivera, Dillon and Garni, JJ., concur. |
In an action to recover damages for personal injuries, the defendants MTA and New York City Transit Authority appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated February 1, 2006, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion for summary judgment dismissing the complaint insofar as asserted against the defendants MTA and New York City Transit Authority is granted.
The plaintiff commenced this action against the MTA, and New York City Transit Authority (hereinafter collectively the *514Transit Authority), and the City of New York to recover damages for personal injuries she sustained as the result of being criminally assaulted while waiting on a subway platform. The plaintiff alleged that the Transit Authority was negligent in failing to fence off the end of the platform where the assailants were able to climb a ladder onto the platform and in failing to provide adequate lighting. The Transit Authority moved for summary judgment dismissing the complaint insofar as asserted against it arguing that it was entitled to governmental immunity for its alleged negligence since the plaintiff was unable to establish that she had a special relationship with the Transit Authority. The motion was denied and the Transit Authority appeals. We reverse.
The Transit Authority established its prima facie entitlement to summary judgment by showing that the alleged acts and omissions implicated a governmental function and that there was no special relationship between the parties (see Clinger v New York City Tr. Auth., 85 NY2d 957 [1995]; Weiner v Metropolitan Transp. Auth., 55 NY2d 175 [1982]). In opposition, the plaintiff failed to raise a triable issue of fact as to the existence of a special relationship. Accordingly, the Transit Authority’s motion for summary judgment should have been granted (see Duffy v New York City Tr. Auth., 210 AD2d 197 [1994]; Genovese v New York City Tr. Auth., 204 AD2d 116 [1994]; Calero v New York City Tr. Auth., 168 AD2d 659 [1990]; Farber v New York City Tr. Auth., 143 AD2d 112 [1988]). Miller, J.E, Schmidt, Ritter and Angiolillo, JJ., concur. |
Order, entered on August 26, 1960, denying defendant-appellant’s motion to dismiss the complaint for lack of prosecution, and order entered on September 21, 1960, granting plaintiff’s motion for an extension of time to file a note of issue, unanimously reversed, on the law, on the facts, and in the exercise of discretion, with $20 costs and disbursements to the appellant, plaintiff’s motion for an enlargement of time to file a note of issue is denied and defendant-appellant’s motion to dismiss the complaint for lack of prosecution is granted, with $10- costs, with leave to the plaintiff to move to vacate the dismissal upon proper papers, including an affidavit of merits. The separate appeals are considered together for reasons of convenience. It may well be that it was reasonable to delay the New York proceeding until the determination of the action in the United States District Court. Plaintiff, however, may not be relieved of the obligation to establish a meritorious claim. We have repeatedly held that the failure to prosecute an action requires its dismissal in the absence of a showing of merits by one having personal knowledge of the facts. (De Long v. J. Rich Steers, Inc., 10 A D 2d 705.) Should an application to vacate be made, the parties may, if so advised, incorporate by reference any of the papers submitted on this motion. Concur — Rabin, J. P., Valente, McNally, Stevens and Eager, JJ. |
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Futnam County (O’Rourke, J.), dated August 4, 2006, which granted the defendant’s motion for summary judgment dismissing the complaint. The appeal brings up for review so much of an order of the same court dated September 5, 2006, as, upon reargument, adhered to the original determination (see CFLR 5517 [b]).
Ordered that the appeal from the order dated August 4, 2006, is dismissed, as that order was superseded by the order dated September 5, 2006, made upon reargument; and it is further,
Ordered that the order dated September 5, 2006, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
*515The plaintiff allegedly was injured when she tripped and fell while leaving the defendant’s premises. After the plaintiff commenced the instant action, the Supreme Court granted the defendant’s motion for summary judgment dismissing the complaint and, upon reargument, adhered to the original determination. We affirm.
To establish a prima facie case of negligence in a premises liability action, a plaintiff must demonstrate the existence of a dangerous or defective condition that caused his or her injuries, and that the defendant either created or had actual notice or constructive notice of the condition (see Caldwell v Pathmark Stores, Inc., 29 AD3d 847 [2006]; Cruceta v Funnel Equities, Inc. 18 AD3d 693 [2005]; Goldman v Waldbaum, Inc., 248 AD2d 436 [1998]; Thomas v Phillips, 246 AD2d 531 [1998]). Here, the defendant established that it did not create or have notice of the alleged defective condition prior to the plaintiffs accident. The plaintiffs papers in opposition were insufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Jordan v City of New York, 23 AD3d 436 [2005]; Kleeberg v City of New York, 305 AD2d 549 [2003]; Billordo v E.P. Realty Assoc., 300 AD2d 523 [2002]). Accordingly, the Supreme Court correctly granted summary judgment dismissing the complaint and, upon reargument, correctly adhered to its original determination.
The parties’ remaining contentions are without merit or have been rendered academic in light of our determination. Spolzino, J.E, Skelos, Covello and Balkin, JJ., concur. |
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated November 4, 2005, as granted that branch of the motion of the defendants RKO Century Warner Theatres, Inc., incorrectly sued herein as RKO Century Warner Theatres, Inc., individually and doing business as Cineplex Odeon Fresh Meadows, Loews Cineplex Entertainment Corp., and Loews Cineplex Theatres, Inc., which was for summary judgment dismissing the complaint insofar as asserted against them.
*516Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly slipped while she was descending a carpeted staircase at the Cineplex Odeon Fresh Meadows movie theater complex in Queens. She stated in her deposition that she had been to that theater in the past and had previously used the same stairway, under the same conditions, without any difficulty. She further asserted that on the day of the accident, she saw no debris or obstructions on the staircase. She attributed her fall to the pattern of the carpet that confused her and to inadequate lighting. She subsequently commenced this action, inter alia, against the operator of the theater, the defendant RKO Century Warner Theatres, Inc., incorrectly sued herein as RKO Century Warner Theatres, Inc., individually and doing business as Cineplex Odeon Fresh Meadows, as well as against the affiliated defendants Loews Cineplex Entertainment Corp. and Loews Cineplex Theatres, Inc. (hereinafter collectively RKO). RKO successfully moved for summary judgment dismissing the complaint insofar as asserted against it. We affirm.
Contrary to the plaintiff’s contention, RKO established its prima facie entitlement to judgment as a matter of law by demonstrating, through competent evidence, that the lighting in the area of the accident was adequate and that the stairs, under the circumstances, presented an open and obvious condition that was not inherently dangerous (see Jones v Presbyterian Hosp. in City of N.Y., 3 AD3d 225, 226 [2004]; Gibbons v Lido & Point Lookout Fire Dist., 293 AD2d 646, 647 [2002]). In opposition, the plaintiff failed to raise a triable issue of fact. “The affidavit submitted by the plaintiff[’s] expert was conclusory and unsubstantiated, and therefore insufficient to defeat summary judgment” (Trummer v Niewisch, 17 AD3d 349, 350 [2005]). Accordingly, the Supreme Court properly granted RKO’s motion for summary judgment dismissing the complaint insofar as asserted against it. Mastro, J.E, Fisher, Angiolillo and McCarthy, JJ., concur. |
*517In three related actions to recover damages for personal injuries, etc., (1) the plaintiff in action No. 3 appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Orange County (Owen, J.), dated September 15, 2005, as, upon a jury verdict and upon the denial of that branch of her motion which was pursuant to CPLR 4404 (a) to set aside so much of the verdict as was in favor of the defendants Rosa E Sena and Elner Sena and against her as against the weight of the evidence and for a new trial, dismissed the complaint in action No. 3 insofar as asserted against those defendants and Rosa E Sena and Elner Sena, the plaintiffs in action No. 1 and defendants in action No. 3, cross-appeal from the same judgment, and (2) the plaintiff in action No. 3 appeals, as limited by her brief, from so much of a judgment of the same court dated November 25, 2005, as, upon the jury verdict and upon the denial of that branch of her motion which was pursuant to CPLR 4404 (a) to set aside so much of the verdict as was in favor of the defendants Yvonne Negron, Daniel Negron, and Hann Auto Trust and against her as against the weight of the evidence and for a new trial, dismissed the complaint in action No. 3 insofar as asserted against those defendants, and Rosa E Sena and Elner Sena separately appeal, as limited by their brief, from so much of the same judgment as, upon the jury verdict and upon the denial of their separate motion pursuant to CPLR 4404 (a) to set aside the verdict as against the weight of the evidence and for a new trial, is in favor of the defendants Yvonne Negron, Daniel Negron, and Hann Auto Trust and against them dismissing the complaint in action No. 1 and dismissing their cross claims against those defendants in action No. 3.
Ordered that the cross appeal by Rosa E Sena and Elner Sena from the judgment dated September 15, 2005, is dismissed, as they were not aggrieved by the judgment cross-appealed from (see CPLR 5511); and it is further,
Ordered that the judgments are reversed insofar as appealed from, on the law, the motion of the plaintiff in action No. 3 pursuant to CPLR 4404 (a) to set aside the verdict as against the weight of the evidence and for a new trial is granted, the complaint in action No. 3 is reinstated, the motion of Rosa E Sena and Elner Sena pursuant to CPLR 4404 (a) to set aside the verdict as against the weight of the evidence and for a new *518trial is granted, the complaint in action No. 1 and the cross claims asserted by Rosa E Sena and Elner Sena in action No. 3 against the defendants Yvonne Negron, Daniel Negron, and Hann Auto Trust are reinstated, and the matter is remitted to the Supreme Court, Orange County, for a new joint trial on the issue of liability consistent herewith; and it is further,
Ordered that one bill of costs is awarded to abide the event of the new trial.
On December 11, 2002, Jaime Jerez was traveling in a vehicle (hereinafter the Sena vehicle) driven by her mother, Rosa Sena, which was involved in a head-on collision with a vehicle (hereinafter the Negron vehicle) driven by Yvonne Negron. Sena had been traveling north on Route 208 while Negron had been driving south on Route 208.
In action No. 1, Sena and the owner of the Sena vehicle (hereinafter the Sena parties) commenced an action against Negron, the registered owner of the Negron vehicle and the lessor, Hann Auto Trust (hereinafter the Negron parties). A separate action, action No. 2, was commenced by the Negron parties against the Sena parties which action was joined for trial with action No. 1. Action No. 3 was commenced on behalf of passenger Jerez against the Sena parties and the Negron parties. Action No. 3 also was joined with action No. 1 for the purpose of trial. After the trial, the jury returned a verdict finding that neither the Sena parties nor the Negron parties were negligent. Jerez and the Sena parties separately moved pursuant to CPLR 4404 (a) to set aside the verdict as against the weight of the evidence and for a new trial. The court denied the motions. By judgment dated September 15, 2005, the complaint and the cross claims asserted against the Sena parties in action No. 3 were dismissed. By judgment dated November 25, 2005, the complaint in action No. 1 and the complaint and cross claims in action No. 3 asserted against the Negron parties were dismissed.
It has repeatedly been held that a driver who crosses over a double yellow line into opposing traffic, unless justified by an emergency not of the driver’s own making, violates the Vehicle and Traffic Law and is guilty of negligence as a matter of law (see Vehicle and Traffic Law § 1126 [a]; Foster v Sanchez, 17 AD3d 312, 313 [2005]; Gadon v Oliva, 294 AD2d 397 [2002]; Haughey v Noone, 262 AD2d 284 [1999]).
Here, the evidence presented at trial demonstrated that the statute was violated by either Sena or Negron. Neither party presented a nonnegligent explanation for the accident. Rather, each defendant claimed that although it had been raining and/or sleeting for some time, she did not lose control of her vehicle. In *519any event, the adverse weather conditions were foreseeable and would not have provided a nonnegligent excuse for the collision (see Caristo v Sanzone, 96 NY2d 172, 175 [2001]; Marsicano v Dealer Stor. Corp., 8 AD3d 451, 452 [2004]). Since the evidence established a violation of Vehicle and Traffic Law § 1126 (a) without a nonnegligent explanation for the collision proffered by either the Sena parties or the Negron parties, a finding of negligence against at least one of them was warranted. Consequently, the verdict was not supported by a fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Harris v Marlow, 18 AD3d 608, 610 [2005]), and a new trial must be held on the issue of liability and the apportionment of fault between the Sena parties and the Negron parties to determine if either the Sena parties or the Negron parties are 100% liable or whether liability must be apportioned between these parties.
Jerez’s remaining contention is without merit. Spolzino, J.E, Skelos, Covello and Balkin, JJ., concur. |
In a matrimonial action in which the parties were divorced by judgment entered May 5, 2003, the plaintiff appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Queens County (Lebowitz, J.), entered April 28, 2005, as, upon an order of the same court dated January 18, 2005, inter alia, granting her application for child support arrears in the principal sum of $11,403, and denying her application for unreimbursed medical expenses and attorney’s fees, is in favor of her and against the defendant in the principal sum of only $11,403.
Ordered that the judgment is affirmed insofar as appealed from, without costs or disbursements.
Relying upon a stipulation of settlement that was incorporated, but not merged, into the parties’ judgment of divorce, the plaintiff sought, among other things, a judgment against the defendant for alleged child support arrears and unreimbursed medical expenses for the children, as well as the attorneys’ fees incurred by the plaintiff to enforce the stipulation. A stipulation of settlement that is not merged in the judgment of divorce is a contract and is enforceable as such (see Matter of Meccico v Meccico, 76 NY2d 822, 823-824 [1990]; Lang v Lang, 20 AD3d 396 [2005]; Douglas v Douglas, 7 AD3d 481, 482 [2004]), as is a provision in such a stipulation providing that the defaulting party is responsible for the attorneys’ fees incurred in its enforcement (see Sieratzki v Sieratzki, 8 AD3d 552, 554 [2004]; Matter of Tito v Tito, 276 AD2d 559, 560 [2000]). Nevertheless, the *520Supreme Court properly denied, for lack of evidence, those branches of the plaintiffs motion which were for unreimbursed medical expenses (see Matter of Mayer v Strait, 251 AD2d 713, 715 [1998]) and attorneys’ fees (see Matter of Rahmey v Blum, 95 AD2d 294, 300-301 [1983]; Lung v Lung, 13 AD2d 1014 [1961]).
The plaintiffs contention that the defendant failed to provide proof that he maintained a life insurance policy naming the plaintiff as trustee for the children as irrevocable beneficiaries is not properly before us on this appeal, as it was not raised in the motion that was decided in the underlying order dated January 18, 2005. The defendant’s arguments with respect to the denial of his request for attorneys’ fees are not properly before this Court since the defendant did not file a notice of appeal from the judgment (see CPLR 5515; Matter of Kirdahy v Scalia, 301 AD2d 525 [2003]; Bruenn v Pawlowski, 292 AD2d 856 [2002]).
The plaintiff’s remaining contentions are without merit. Miller, J.P, Spolzino, Ritter and Lifson, JJ., concur. |
Motion by the appellant for leave to reargue an appeal from a judgment of the Supreme Court, Queens County (Hollie, J.), dated January 27, 2005, which was determined by decision and order of this Court dated October 24, 2006.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the motion for leave to reargue is granted, and upon reargument, the decision and order of this Court dated October 24, 2006 (Shi Pei Fang v Heng Sang Realty Corp., 33 AD3d 904 [2006]), is recalled and vacated, and the following decision and order is substituted therefor:
In an action to recover damages for personal injuries, the defendant Heng Sang Realty Corporation appeals from a judgment of the Supreme Court, Queens County (Hollie, J.), dated January 27, 2005, which, upon a jury verdict awarding the plaintiff, inter alia, the principal sums of $122,640 for past loss of earnings, $220,000 for future loss of earnings over a period of 12 years, $750,000 for past pain and suffering, and $1,250,000 for future pain and suffering, and upon an order of the same court dated June 6, 2003, which, inter alia, granted that branch of the motion of the defendant Heng Sang Realty Corporation *521which was, in effect, for a new trial on the issue of damages for past pain and suffering and future pain and suffering unless the plaintiff stipulated to reduce the verdict for damages for past pain and suffering to the principal sum of $300,000 and for future pain and suffering to the principal sum of $750,000, is in favor of the plaintiff and against it.
Ordered that the judgment is affirmed, with costs.
“Whether or not expert testimony is admissible on a particular point is a mixed question of law and fact addressed primarily to the discretion of the trial court. As a general rule the expert should be permitted to offer an opinion on an issue which involves a ‘professional or scientific knowledge or skill not within the range of ordinary training or intelligence’ ” (Selkowitz v County of Nassau, 45 NY2d 97, 101-102 [1978], quoting Dougherty v Milliken, 163 NY 527, 533 [1900]). “The opinion testimony of an expert must be based on facts in the record or personally known to the witness” (Quinn v Artcraft Constr., 203 AD2d 444, 445 [1994], citing Cassano v Hagstrom, 5 NY2d 643, 646 [1959]). “An expert may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion” (id.). Contrary to the contention of the defendant Heng Sang Realty Corporation, the testimony of the plaintiffs expert was based on facts in the record and his own analysis, not speculation.
“A jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence. Great deference is accorded to the fact-finding function of the jury, and determinations regarding the credibility of witnesses are for the fact-finders, who had the opportunity to see and hear the witnesses” (Kinney v Taylor, 305 AD2d 466, 467 [2003] [citations omitted]; see Nicastro v Park, 113 AD2d 129, 134 [1985]). In the instant case, the jury verdict regarding liability was based on a fair interpretation of the evidence.
Under the circumstances of this case, the damages awarded to the plaintiff, as reduced by the Supreme Court and upon stipulation of the plaintiff, did not deviate materially from what would be reasonable compensation (see CPLR 5501 [c]; Keefe v E & D Specialty Stands, 272 AD2d 949 [2000]; Van Deusen v Norton Co., 204 AD2d 867 [1994]; Villa v City of New York, 148 AD2d 699 [1989]).
The defendant’s argument that the plaintiff should not be permitted to recover lost wages because of his status as an illegal alien is without merit (see Balbuena v IDR Realty LLC, 6 NY3d 338, 358 [2006]). Moreover, the verdict regarding lost *522wages was supported by sufficient evidence (see Majlinger v Cassino Contr. Corp., 25 AD3d 14, 30 [2005], affd sub nom. Balbuena v IDR Realty LLC, supra; Hernandez v M/V Rajaan, 848d 498, 500 [1988]). Crane, J.P., Rivera, Ritter and Lunn, JJ., concur. |
*523In an action, inter alia, pursuant to Insurance Law § 3420 (a) to recover an unsatisfied judgment against the defendants’ insured, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Ambrosio, J.), dated March 31, 2006, as granted his motion for summary judgment only to the extent of awarding him the sum of $25,000.
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff’s contention, the Supreme Court properly limited the amount of his recovery from the defendant insurance companies to $25,000. Insurance Law § 3420 (a) (2) permits a plaintiff who holds an unsatisfied judgment against an insured individual to maintain an action against the insured’s carrier to collect the judgment. An action pursuant to § 3420 (a) (2) can be commenced following a 30-day waiting period after service upon the insurance company of notice of entry of the judgment. However, the statute does not permit the plaintiff’s recovery to exceed “the amount of the applicable limit of coverage” under the subject insurance policy (Insurance Law § 3420 [a] [2]; see Kleynshvag v GAN Ins. Co., 21 AD3d 999 [2005]; Bennion v Allstate Ins. Co., 284 AD2d 924 [2001]; Burgos v Allcity Ins. Co., 272 AD2d 195 [2000]).
Here, the plaintiff alleged in his amended complaint that the subject automobile liability policy had a limit of $25,000, and the certified copy of the policy and declarations page produced by the defendants in opposition to the motion for summary judgment confirmed that the coverage limit for bodily injury was $25,000 per person, and $50,000 per occurrence. Although the certification statement annexed to the policy, which was signed outside of New York State, was not accompanied by a certificate authenticating the authority of the notary who administered the oath (see CPLR 2309 [c]), this omission was not a fatal defect (see CPLR 2001; Sparaco v Sparaco, 309 AD2d 1029 [2003]; Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833 [1989]; see also Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2309:3, at 348).
The plaintiff’s remaining contentions are without merit. Mastro, J.E, Rivera, Dillon and Cami, JJ., concur. |
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated August 10, 2005, which denied its motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff Viktor Sinyuts sustained serious personal injuries, requiring the amputation of his right leg, when he was struck by a subway train as he lay on the tracks of the “N” fine in Brooklyn, which, at the subject location, runs in an exposed trench below street level. He and his wife commenced the present action, alleging, inter alia, that the motorman’s failure to stop the train in time to avoid the accident constituted negligence on the part of the defendant.
The Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. “Where a motorman of a subway train sees a person lying on the tracks abutting a subway station platform, from such a distance and under such other circumstances as to permit him, in the exercise of reasonable care, to stop before striking the person, the motorman’s failure to avoid the accident may be found to be negligence” (Coleman v New York City Tr. Auth., 37 NY2d 137, 140 [1975]). Furthermore, “[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The defendant’s submissions failed to eliminate all issues of fact as to whether the motorman could have stopped the train in time to avoid an accident. The defendant’s remaining contention is without merit. Spolzino, J.E, Skelos, Covello and Balkin, JJ., concur. |
*524In an action to recover damages for personal injuries and wrongful death, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Murphy, J.), entered October 7, 2005, as granted the defendants’ motion for summary judgment dismissing the complaint and denied her cross motion for summary judgment on the issue of liability on her causes of action alleging violations of Labor Law §§ 200, 202, and 240 (1), and common-law negligence.
Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants’ motion which was for summary judgment dismissing the causes of action alleging violations of Labor Law § 240 (1), and substituting therefor a provision denying that branch of the defendants’ motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.
The plaintiff’s decedent sustained injuries from which he later died when he fell while cleaning second-floor exterior windows at a building owned by the defendant 499 Fashion Tower, LLC. The defendant Block Buildings, LLC, managed the building, and the defendant Kaufman/Adler Realty Company, LLC, was the “leasing and managing agent.” There were no witnesses to the accident, which happened on a Sunday. The ladder from which the decedent fell was never recovered.
The Supreme Court properly dismissed the causes of action alleging violations of Labor Law § 200 and common-law negligence. Labor Law § 200 codifies the common-law duty of an owner or employer to provide employees with a safe place to work (see Jock v Fien, 80 NY2d 965, 967 [1992]; Brown v Brause Plaza, LLC, 19 AD3d 626, 628 [2005]; see also Ross v Curtis-*525Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]). “An implicit precondition to this duty ‘is that the party charged with that responsibility have the authority to control the activity bringing about the injury’ ” (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993], quoting Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]; see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]). “Where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200” (Comes v New York State Elec. & Gas Corp., supra at 877; see Lombardi v Stout, 80 NY2d 290, 295 [1992]; Rosenberg v Eternal Mems., 291 AD2d 391, 392 [2002]).
The defendants established their prima facie entitlement to summary judgment dismissing the causes of action alleging violations of Labor Law § 200 and common-law negligence by demonstrating that they did not supply the decedent, an independent contractor who used his own tools and equipment, with the ladder he was using when he fell and did not control his use of the ladder or any part of his work cleaning the windows (see Giambalvo v Chemical Bank, 260 AD2d 432, 434 [1999]; Jassal v Long Is. Mdse. Mart, 244 AD2d 460, 460 [1997]; Douglas v Beckstein, 210 AD2d 680, 682 [1994]; Cruz v City of New York, 207 AD2d 858, 859 [1994]). In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiffs contention, the mere fact that the building superintendent told the decedent which windows to clean and directed the time he was to perform the work did not raise a triable issue of fact as to the defendants’ supervision and control over the decedent’s work (see Carty v Port Auth. of N.Y. & N.J., 32 AD3d 732, 732 [2006]; Dalanna v City of New York, 308 AD2d 400, 400 [2003]; Loiacono v Lehrer McGovern Bovis, 270 AD2d 464, 465 [2000]).
Labor Law § 240 (1) imposes absolute liability upon owners and contractors who fail to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards (see Misseritti v Mark IV Constr. Co., 86 NY2d 487, 490 [1995]). A “defendant may be granted summary judgment if the record establishes conclusively that no Labor Law § 240 (1) violation was shown to have been a proximate cause of the accident and that the accident was therefore caused solely by plaintiffs conduct” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 [2003]). A defendant may be held liable under Labor Law § 240 (1) even where, as here, the injured worker fell from his own ladder (see Harmon v Sager, 106 AD2d 704, 705 [1984]; Larson v Herald, 96 AD2d 1137, 1137 [1983]; see also Calla v Shulsky, 148 AD2d 60, 62 [1989]).
*526The Supreme Court improperly granted that branch of the defendants’ motion which was for summary judgment dismissing the causes of action alleging violations of Labor Law § 240 (1). The defendants failed to demonstrate their prima facie entitlement to summary judgment (see Blake v Neighborhood Hous. Servs. of N.Y. City, supra; see also GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965 [1985]; cf. Costello v Hapco Realty, 305 AD2d 445 [2003]; Olberding v Dixie Contr., 302 AD2d 574 [2003]; Garieri v Broadway Plaza, 271 AD2d 569 [2000]). Accordingly, it is unnecessary to consider the sufficiency of the plaintiffs opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
The parties’ remaining contentions are without merit. Santucci, J.E, Goldstein, Garni and McCarthy, JJ., concur. |
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of a judgment of *527the Supreme Court, Nassau County (Woodard, J.), entered May 26, 2005, as, upon a decision dated August 13, 2004, and an order dated March 2, 2005, awarded him the sum of only $86,748.46 as his distributive share of the proceeds of the sale of the marital residence.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The parties’ stipulation of settlement provided that the Supreme Court would determine the value of the marital residence and distribute the proceeds from its sale. Having stipulated to have the valuation and distribution decided on the basis of affidavits, without the benefit of a hearing, the defendant waived a hearing on these issues (see Devivo v Devivo, 2 AD3d 483 [2003]). Furthermore, the defendant failed to establish fraud so as to warrant vacatur of the stipulation of settlement (see generally Christian v Christian, 42 NY2d 63 [1977]; Cruciata v Cruciata, 10 AD3d 349 [2004]; Ernst v Ernst, 8 AD3d 331 [2004]; Linder v Linder, 297 AD2d 710 [2002]).
In valuing and distributing the proceeds of the sale of the marital residence, the Supreme Court properly considered the relevant factors (see Domestic Relations Law § 236 [B] [5]; Hasegawa v Hasegawa, 290 AD2d 488 [2002]; Coleman v Coleman, 284 AD2d 426 [2001]; Guneratne v Guneratne, 214 AD2d 871 [1995]).
The defendant’s remaining contentions are without merit. Mastro, J.E, Fisher, Angiolillo and McCarthy, JJ., concur. |
In an action for an accounting, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated November 15, 2005, as denied his motion for summary judgment dismissing the complaint and granted that branch of the plaintiffs cross motion which was to dismiss the affirmative defense that he was not a proper party to the action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant’s submissions in support of his motion for summary judgment failed to demonstrate his entitlement to judgment as a matter of law. Therefore, the motion was properly denied, regardless of the sufficiency of the papers submitted in opposition (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Santos v City of New York, 15 AD3d 564 [2005]; Mariaca-Olmos v Mizrhy, 226 AD2d 437 [1996]).
Under the circumstances of this case, the court also properly granted that branch of the plaintiffs cross motion which was to dismiss the affirmative defense that the defendant was not a proper party to the action (see generally St. Teresa’s Nursing Home v Vuksanovich, 268 AD2d 421 [2000]; Grace Plaza of Great Neck v Heitzler, 2 AD3d 780 [2003]). Santucci, J.E, Goldstein, Garni and McCarthy, JJ., concur. |
In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Jamieson, J.), entered August 19, 2005, as granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
This action arises from an accident that occurred at Sound Shore Hospital. The plaintiff, an employee of the hospital, was *528delivering food to one of the patients, when she slipped and fell, injuring herself in the process. As she lay on the floor, she noticed a puddle of water and a “wet floor” sign behind a door leaning against the wall. As a result of the accident, the plaintiff collected workers’ compensation benefits from her employer and then commenced this personal injury action against, among others, the defendant Crothall Healthcare, Inc., which managed the hospital’s housekeeping department.
After discovery, the defendants moved for leave to amend their answer to add the defense that the plaintiffs exclusive remedy was under the Workers’ Compensation Law and then for summary judgment dismissing the complaint upon that ground. The plaintiff opposed the motion arguing that the housekeeping staff members were “special employees” of the defendants, and as such, the defendants would not have immunity from this suit under the Workers’ Compensation Law. The Supreme Court, inter alia, granted the defendants’ motion, and the plaintiff now appeals from so much of the order as granted summary judgment to the defendants.
A general employee of one employer may also be a special employee of another employer (see Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557 [1991]). Further, the general employment is presumed to continue and this presumption can be rebutted only upon “clear demonstration of surrender of control by the general employer and assumption of control by the special employer” (Thompson v Grumman Aerospace Corp., supra at 557). Here, the hospital did not surrender control of the employees as it paid their wages, provided them with workers’ compensation insurance, and made the final decision to hire, discipline, or fire them. Since the members of the housekeeping staff are general employees of the hospital, the plaintiff is precluded by the exclusivity provision of the Workers’ Compensation Law from bringing this action against the defendants (see Cronin v Perry, 244 AD2d 448, 449 [1997]). In opposition to the defendants’ establishment of their prima facie entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact. Accordingly, that branch of the defendants’ motion which was for summary judgment dismissing the complaint was properly granted.
The plaintiffs contentions with respect to discovery are not properly before this Court as her notice of appeal limited the scope of the appeal to the granting of that branch of the defendants’ motion which was for summary judgment dismissing the complaint only (see Vias v Rohan, 119 AD2d 672 [1986]).
The plaintiff’s remaining contentions are without merit. Prudenti, EJ., Krausman, Dillon and McCarthy, JJ., concur. |
In a stakeholder’s interpleader action pursuant to CPLR 1006 (f), the plaintiff appeals from an order of the Supreme Court, Westchester County (Tolbert, J.), dated October 30, 2006, which denied its motion to be discharged from all further liability under an annuity upon the payment of the proceeds of the annuity into court, and for an award of an attorney’s fee and costs.
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Westchester County, for a determination of the amount of the attorney’s fees and costs to be awarded.
The plaintiff commenced this interpleader action after being subjected to conflicting claims to an annuity (see CPLR 1006). In support of that branch of its motion which was to be discharged from all further liability under the annuity upon the payment of the proceeds of the same into the court, the plaintiff demonstrated that it was a neutral stakeholder with no interest in the disputed annuity (see CPLR 1006 [f]; American Intl. Life Assur. Co. of N.Y. v Ansel, 273 AD2d 421 [2000]; Republic Natl. Bank of N.Y. v Lupo, 215 AD2d 467 [1995]). In opposition, no *530claimant raised an issue of an independent liability of the plaintiff (see CPLR 1006 [e]; cf. Inovlotska v Greenpoint Bank, 8 AD3d 623 [2004]). Because the plaintiff is a neutral stakeholder forced to participate in the dispute between the claimants over the annuity, an award of an attorney’s fee and costs is warranted (see CPLR 1006 [f]; American Intl. Life Assur. Co. of N.Y. v Ansel, supra; Republic Natl. Bank of N.Y. v Lupo, supra). Miller, J.P, Schmidt, Ritter and Angiolillo, JJ., concur. |
In an action, inter alia, to recover damages for defamation, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Maraño, J.H.O.), entered September 20, 2005, which, upon an order of the same court dated December 8, 2004, denying his motion to set aside a determination in a transcript of the same court dated June 3, 2004, made after a hearing, that the service of process upon the defendant was improper, or for a new hearing, and upon an amended order of the same court dated July 19, 2005, granting the defendant’s motion to vacate a judgment of the same court (Johnson, J), entered April 24, 2003, upon his default, and to dismiss the complaint, dismissed the complaint.
Ordered that the judgment is reversed, on the law and the facts, with costs, the plaintiffs motion to set aside the determination that service of process upon the defendant was improper is granted, the defendant’s motion to vacate the default judgment entered April 24, 2003, and to dismiss the complaint is denied, the default judgment entered April 24, 2003, is reinstated, and the order and the amended order are modified accordingly.
The plaintiff sustained his burden of proving, by a preponderance of the evidence, that the defendant was personally served with process, with the testimony of the process server (see Vega v City of New York, 194 AD2d 537 [1993]). We agree with the plaintiff that since the defendant’s evidence at the hearing was riddled with inconsistencies and contradictions (see Mohen v Mooney, 205 AD2d 670 [1994]; Loughlin v City of New York, 186 AD2d 176 [1992]), it was error to deny the plaintiffs motion to set aside the determination that service of process upon the defendant was improper and to grant the defendant’s motion to *531vacate the default judgment entered against him and dismiss the complaint.
The defendant’s remaining contentions are without merit or are not properly before us on this appeal. Spolzino, J.E, Skelos, Covello and Balkin, JJ., concur. |
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (O’Connell, J.), entered October 5, 2005, which granted the defendant’s motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly slipped and fell on wet moss on an exterior staircase of the defendant’s premises during a light rain. The staircase was made out of wooden railroad ties. Contrary to the plaintiffs contention, he failed to submit evidence sufficient to raise a triable issue of fact in opposition to the defendant’s demonstration of its entitlement to judgment as a matter of law (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The plaintiff never alleged that the staircase itself was inherently slippery or that the slippery nature of the staircase caused him to fall. Hence, the statement of the plaintiffs expert that the accident was proximately caused by the defendant’s failure to apply nonslip material on the surface of the staircase was speculative and insufficient to raise a triable issue of fact (see Cappolla v City of New York, 302 AD2d 547, 550 [2003]). Moreover, the plaintiff failed to raise a triable issue of fact as to whether the absence of a second handrail was a proximate cause of the accident (see Poncella v County of Suffolk, 16 AD3d 566 [2005]; Piatek v New York City Tr. Auth., 14 AD3d 685 [2005]; Hyman v Queens County Bancorp, 307 AD2d 984 [2003], affd 3 NY3d 743 [2004]). Mastro, J.E, Fisher, Angiolillo and McCarthy, JJ., concur. |
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated October 29, 2004, which denied their motion pursuant to CPLR 5015 (a) (1) to vacate their default in appearing for trial, to vacate the dismissal of the action pursuant to 22 NYCRR 202.27 (b), and to restore the action to the trial calendar.
Ordered that the order is affirmed, with costs.
The instant action was commenced in 1996. In May 2003, the plaintiffs filed a note of issue certifying that the case was ready for trial. On or about April 26, 2004, the plaintiffs asked that the action be removed from the trial calendar. The request was denied and the case was scheduled for a “firm trial date” of May 17, 2004.
On May 17, 2004, the plaintiffs’ trial attorney failed to appear on the ground that he “was sent out today ... to pick a jury on a medical malpractice action.” The court held the plaintiffs in *533default, and directed the dismissal of the action pursuant to 22 NYCRR 202.27 (b) on the ground that the plaintiffs’ counsel had not alerted the trial court or the judge in the medical malpractice part of the conflict so a schedule could be worked out. The trial court stated that the plaintiffs’ counsel was using the medical malpractice case as a “pretext” for a delay. The plaintiffs’ motion, inter alia, to vacate the default was denied. We affirm.
To vacate the default, the plaintiffs were required to demonstrate a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015 [a] [1]; Echevarria v Waters, 8 AD3d 330, 331 [2004]). Under the circumstances of this case, the engagement of counsel in another case was not a reasonable excuse for the default (see 22 NYCRR 125.1 [c]).
Moreover, the plaintiffs failed to demonstrate that they had a meritorious cause of action against the defendants. At his deposition, the injured plaintiff testified that, after he and the other passengers left a bus at the direction of the bus operator and the bus was taken out of service, he re-entered the bus through the rear door, sat on the top portion of a seat in the back of the bus, and leaned against a window which served as an emergency exit. The accident occurred when the window swung open and he fell out of the bus onto the pavement. Under the circumstances, the injured plaintiff’s conduct was the sole proximate cause of the accident (see Rice v Fuller, 267 AD2d 292 [1999]; Shahzaman v Green Bus Lines Co., 214 AD2d 722 [1995]).
Accordingly, the Supreme Court properly denied the plaintiffs’ motion to vacate their default in appearing for trial, to vacate the dismissal of the action pursuant to 22 NYCRR 202.27 (b), and to restore the action to the trial calendar. Mastro, J.E, Goldstein, Lifson and Garni, JJ., concur. |
In an action for a divorce and ancillary relief, the plaintiff husband appeals from so much of an order of the Supreme Court, Orange County (Horowitz, J.), dated February 6, 2006, as granted those branches of the motion of the defendant wife which were to adjudicate him in contempt and for an award of an attorney’s fee.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion which were to adjudicate the plaintiff in contempt and for an award of an attorney’s fee are denied.
The plaintiff husband’s concession that he had not complied with the order of the Supreme Court awarding the defendant wife arrears in support and counsel fees on a prior pendente lite application, which order had been reduced to a judgment, established, prima facie, a willful violation of the court mandates (cf. Popelaski v Popelaski, 22 AD3d 735 [2005]). The burden thus shifted to the plaintiff husband to offer competent, credible evidence of his inability to make the payments as Ordered (see Matter of Powers v Powers, 86 NY2d 63 [1995]; see also Matter of Musarra v Musarra, 28 AD3d 668).
The hearing testimony established that the plaintiff husband was making current payments under the pendente lite order. The remainder of the plaintiff husband’s net income, some $1,100 per month, went toward meeting his reasonable needs. *535There was no proof of the existence of any additional source of funds to satisfy the judgment, other than funds held in a Schwab investment account. As access to that account was frozen by order of the Supreme Court, those funds were unavailable to the plaintiff husband (cf. Orange County Commr. of Social Servs. [Fraser] v Green, 35 AD3d 745).
The plaintiff husband met his burden of showing his inability to comply with the judgment (cf. Kainth v Kainth, 36 AD3d 915 [2007]). “In the absence of proof of an ability to pay, an order of commitment for willful violation of a judgment in a matrimonial action may not stand [citations omitted]” (Bisnoff v Bisnoff, 27 AD3d 606, 607 [2006]).
In light of our determination on the issue of willfulness, the award of an attorney’s fee must necessarily be denied as the award was made pursuant to the provisions of Domestic Relations Law § 237 (c), which mandate such an award upon a finding of willfulness. Miller, J.E, Spolzino, Florio and Angiolillo, JJ., concur. |
In an action for specific performance of a contract for the sale of real property, the defendant appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated March 27, 2006, which granted the plaintiffs motion for summary judgment directing specific performance of the contract.
Ordered that on the court’s own motion, the defendant’s notice of appeal from a decision of the same court dated March 8, 2006, is deemed a premature notice of appeal from the order (see CPLR 5520 [c]); and it is further,
Ordered that the order is affirmed, with costs.
The plaintiff entered into a contract to purchase certain residential rental property from the defendant. The contract contained a mortgage contingency clause which provided that the contract was “subject to the Purchaser, at his own cost and expense, securing a conventional first mortgage for 25/30 years, *536at the prevailing rate of interest in the sum of $598,500.” The plaintiff had 45 days from receipt of a fully executed contract “to provide Seller’s attorney with a proper firm written commitment,” and the contract recited that time was of the essence. In the event the plaintiff was “unable to secure said mortgage by the aforementioned date” the defendant’s options were to cancel the contract or to extend the plaintiffs time to obtain a mortgage commitment.
On March 1, 2005, the plaintiff asked for an extension of time, until March 21, 2005, to secure a mortgage commitment. The defendant’s attorney acknowledged that he did not respond to this request because he was unable to reach the defendant.
On or about July 14, 2005, the plaintiff forwarded, to the defendant, two mortgage commitments from one lender, Power Express, to wit, (1) a commitment for a loan in the amount of $500,000 for a term of 30 years secured by a first mortgage on the subject property, and (2) a commitment for a loan in the amount of $98,500 for a term of 30 years secured by a second mortgage on the subject property.
The plaintiff commenced the instant action seeking specific performance of the contract on the ground that the defendant refused to schedule a closing of title. In his answer, the defendant claimed that he never extended the plaintiff’s time to secure a mortgage commitment, and instead “elected to cancel said contract.” The defendant counterclaimed for damages in the sum of $25,000, based upon the plaintiffs alleged “inaction . . . in being unable to secure a firm mortgage commitment with the time allotted by the Contract of Sale.” The plaintiff moved for summary judgment on the ground that the defendant never elected to cancel the contract or to extend the plaintiffs time to secure a mortgage. In opposition, the defendant contended that the mortgage commitments were untimely and did not comply with the terms of the mortgage contingency clause. The Supreme Court granted the plaintiffs motion for summary judgment directing specific performance of the contract. We affirm.
Despite the provisions of the mortgage contingency clause, the defendant neither cancelled the contract nor extended the plaintiffs time to secure a mortgage commitment. His purported cancellation, contained in his answer to the plaintiffs complaint, was untimely since the cancellation was made after the plaintiff tendered the mortgage commitments and sought to close title (see Schatten v Briedis, 163 AD2d 379 [1990]). The undisputed fact that the defendant refused to close title constituted an anticipatory breach of the contract obviating a need by the *537plaintiff to tender performance prior to commencement of the instant action (see Huntington Min. Holdings v Cottontail Plaza, 60 NY2d 997 [1983]).
The plaintiff established, prima facie, that he was ready, willing, and able to perform. The defendant’s contentions that the plaintiff did not specifically comply with the mortgage contingency clause do not raise a triable issue of fact as to whether the plaintiff was ready, willing, and able to perform (see Ober v Bey, 266 AD2d 441, 442 [1999]).
Accordingly, the Supreme Court properly granted the plaintiffs motion for summary judgment directing specific performance of the contract. Santucci, J.E, Goldstein, Garni and McCarthy, JJ., concur. |
Order and judgment affirmed, with costs to the respondent. Concur — Breitel, J. P., Rabin, Valente and McNally, JJ.;Eager, J., dissents in part in the following memorandum: I concur in the affirmance of the order and judgment appealed from insofar as it dismisses the first cause of action. Upon the defendant’s motion for summary judgment, the plaintiff was bound to come forward and present facts and details in support of such cause of action. He was bound to show that his claim is real and capable of being established upon a trial (see Iannarelli v. Carvel Stores of New York, 18 Misc 2d 930, 932; May v. Prudential Ins. Co., 93.N. Y. S. 2d 579, 581), including a factual showing that he rendered professional services as alleged; and this he did not do. It does appear, however, that there are triable issues of fact with respect to the second cause of action. It appears that the plaintiff was retained by Toombs, the de facto archbishop of the defendant Church to bring the declaratory judgment action in 1954. While it appears that the action was brought mainly in the interest of individual plaintiffs, the Church was properly a party to such action and it appears that the plaintiff herein appeared of record as attorney for the Church (as well as for other plaintiffs) throughout the action, including on a trial and on an appeal. Inasmuch as the Church was a party to the 1954 declaratory judgment action and properly so, the plaintiff’s right to compensation for alleged services rendered to the Church therein would depend upon whether or not he was expressly or impliedly authorized to represent it in the action. Under all the circumstances, there are in my opinion triable issues as to whether or not the plaintiff was so authorized and as to whether or not he rendered services in the action for the Church. In support of plaintiff’s claim that he was authorized to represent the Church in the action, it appears that (1) he was retained in its behalf by one who was purporting at the time to act as head of the Church; (2) he was in fact attorney of record for the Church throughout the entire litigation; and (3) those persons having authority to act for the Church in the matter were parties defendant to the action and their attorneys of record; and they did not at any time during the litigation question the propriety of the Church becoming and continuing as a party to the action nor the authority of the plaintiff to appear for it as a party therein. Under the circumstances, I would reverse the order and judgment insofar as it grants
*466summary judgment dismissing the second cause of action and deny defendant’s motion for summary judgment with respect thereto. [22 Misc 2d 522.] |
In two related proceedings pursuant to Social Services Law § 384-b, inter alia, to terminate parental rights on the grounds of mental illness and mental retardation, the mother appeals from an order of fact-finding and disposition of the Family Court, Queens County (Richardson, J.), dated January 9, 2006, which, after a fact-finding hearing, found that she is unable to provide proper and adequate care for the subject children by reason of her mental illness and mental retardation, terminated her parental rights, and transferred guardianship and custody of the subject children jointly to the petitioner New York Foundling Hospital and the Commissioner of Social Services of the City of New York for the purpose of adoption.
Ordered that the order of factfinding and disposition is affirmed, without costs or disbursements.
Contrary to the mother’s contention, the Family Court properly found that there was clear and convincing evidence that she is presently and for the foreseeable future unable, by *538reason of mental illness and mental retardation, to provide proper and adequate care for the subject children (see Social Services Law § 384-b [4] [c]; Matter of Andrew U., 22 AD3d 926 [2005]; Matter of Karyn Katrina D., 19 AD3d 592, 592-593 [2005]). The Family Court’s determination should not be disturbed unless clearly unsupported by the record (see Matter of Imelda R., 32 AD3d 519 [2006]).
Two Family Court Mental Health Services psychologists interviewed the mother, reviewed records pertaining to her history of mental illness and retardation, and reviewed records of a prior neglect proceeding in which the subject children were removed from her care and placed in foster care. One evaluated her for mental retardation, and one for mental illness. Both found that, by reason of her mental disabilities, if the children were returned to her they would be at risk of being neglected in the present and for the foreseeable future.
A third psychologist testified for the mother, and opined that she was not mentally ill or mentally retarded, and that she could, in the future, adequately parent her children.
Contrary to the mother’s contention, the Family Court properly credited the opinions of the two Mental Health Services psychologists over that of the mother’s expert (see Matter of Damion S., 300 AD2d 1039 [2002]; Matter of Kimberly J., 216 AD2d 940 [1995]). As a trier of fact, the Family Court’s determination regarding the credibility of the witnesses is entitled to great weight on appeal (see Matter of Ford v Pitts, 30 AD3d 419, 420 [2006]).
Further, the Family Court did not err in drawing the “strongest possible negative inference” against the mother that the record would allow for her failure to testify (see Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d 137, 141 [1983]; Matter of Damion S., supra at 1040, quoting Matter of Shawna U, 277 AD2d 731, 733 [2000]). Mastro, J.P., Fisher, Angiolillo and McCarthy, JJ., concur. |
Order, entered March 30, 1960, denying, without a hearing, defendant’s motion in the nature of a writ of error coram nobis to vacate a judgment rendered April 15, 1957 convicting appellant upon his plea of guilty of the crime of manslaughter in the second degree and sentencing him to serve a term of not less than 10 years nor more than 11 years in State prison, unanimously reversed, on the law, and the matter remitted to the County Court, Bronx County, for a hearing. Appellant claimed that he had been assigned inadequate and incompetent counsel, was coerced by the court into pleading guilty, and that false evidence was presented to the Grand Jury in procuring the indictment. We agree with the County Court that there is no merit to the contentions of inadequate counsel and the infirmity of the evidence before the Grand Jury. However, as to the claim of coercion of the County Court, the record is not entirely satisfactory as to all of the circumstances under which the plea of guilty was entered. Appellant contends he was threatened by the court with a more severe sentence if he did not plead guilty and that the court manifested a general belligerent attitude indicating lack of impartiality. There has been enough presented, in the record statements made at the time of the plea, and before it was entered, to require a hearing of all the circumstances to determine whether appellant was coerced by the Judge in entering the plea of guilty. ( See People v. Farina, 2 N Y 2d 454; People v. Picciotti, 4 N Y 2d 340.) Concur — Botein, P. J., Rabin, Valente, McNally and Eager, JJ. |
Order entered on October 28, 1958, granting defendant’s motion for summary judgment dismissing the complaint, reversed on the law and on the facts, with $20 costs and disbursements to the appellant, and defendant’s motion for summary judgment is denied, with $10 costs. It is questionable whether the decree of divorce obtained in Mexico is valid (see Heine v. Heine, 10 A D 2d 864; Alfaro v. Alfaro, 5 A D 2d 770, affd. 7 N Y 2d 949), and there are in our opinion issues of fact in that connection to be resolved upon a trial. If the decree is void, the provisions of the agreement between the parties, dated December 24,1956, would not have the effect of estopping the plaintiff from alleging its invalidity (see Caldwell v. Caldwell, 298 N. Y. 146, 151). In any event, there is a question to be resolved on the trial of whether or not, under all the circumstances, the court should entertain this action and give the plaintiff declaratory relief, that is, bearing in mind that the granting of relief by means of a declaratory judgment action is discretionary (Rules Civ. Prac., rule 212) and may be withheld in the interests of justice and equity (see Guibord v. Guibord, 2 A D 2d 34, 36). Concur—Rabin, McNally and Eager, JJ.; Botein, P. J., and Valente, J., dissent in the following memorandum by Valente, J.: I would affirm the order insofar as it dismisses the complaint but I would rest such dismissal on the ground that the court declines to pronounce a declaratory judgment because of the conduct of plaintiff following the Mexican divorce obtained by his wife. In other words, I would exercise the discretion given the courts by rule 212 of the Rules of Civil Practice to dismiss the action without passing upon the merits of the suit. Although plaintiff may have created a triable issue as to the circumstances under which he executed the power to permit a Mexican attorney to appear for him in his wife’s suit for divorce in Mexico, there is no bona fide dispute about plaintiff’s execution of an agreement on December 24, 1956 — after the Mexican divorce was obtained — in which plaintiff acknowledged the institution of the divorce proceeding, his appearance therein, and that the divorce had been granted. *467Under that agreement, plaintiff received a substantial sum of money from defendant, Mary J. Percy. In view of these facts, plaintiff should not be permitted to invoke the aid of the court to obtain relief by way of a declaratory judgment. To exercise a favorable discretion, under the circumstances, would amount to an abuse of discretion as a matter of law. Hence the complaint was properly dismissed. Since the dismissal should be predicated on rule 212, there is no necessity for any adjudication as to the validity of the Mexican divorce or as to its effect on the marriage of the parties. The last two decretal paragraphs of the order of Special Term should therefore be eliminated. |
*539In a child protective proceeding pursuant to Family Court Act article 10, (1) the father and the mother separately appeal from an order of the Family Court, Dutchess County (Forman, J.), entered July 9, 2004, which found that they derivatively neglected the subject child, (2) the father appeals from an order of fact-finding and disposition of the same court, entered October 13, 2004, which, inter alia, found that the subject child was a derivatively neglected child within the meaning of Family Court Act § 1012 (f) (i) (B), placed the father under the petitioner’s supervision for a period of up to 12 months effective August 25, 2004, and placed the subject child in the petitioner’s custody for a period of up to 12 months effective August 25, 2004, and (3) the mother appeals from an order of fact-finding and disposition of the same court, also entered October 13, 2004, which, inter alia, found that the subject child was a derivatively neglected child within the meaning of Family Court Act § 1012 (f) (i) (B), placed the mother under the petitioner’s supervision for a period of up to 12 months effective August 25, 2004, and placed the subject child in the petitioner’s custody for a period of up to 12 months effective August 25, 2004.
Ordered that the appeals from the order entered July 9, 2004, are dismissed, without costs or disbursements, as the order was superseded by the orders of fact-finding and disposition; and it is further,
Ordered that the appeals from so much of the orders of fact-finding and disposition as placed the parents under the petitioner’s supervision for a period of up to 12 months and placed the subject child in the petitioner’s custody for a period of up to 12 months, effective August 25, 2004, are dismissed as academic, without costs or disbursements; and it is further,
Ordered that the orders of fact-finding and disposition are affirmed insofar as reviewed, without costs or disbursements.
The appeals from so much of the orders of fact-finding and disposition as placed the parents under the petitioner’s supervision for a period of up to 12 months and placed the subject child in the petitioner’s custody for a period of up to 12 months, effective August 25, 2004, must be dismissed as academic, as those portions of the orders have expired by their own terms (see Matter of Daqwuan G., 29 AD3d 694, 695 [2006]; Matter of Regina P., 19 AD3d 698, 699 [2005]; Matter of Dareth O., 304 AD2d 667, 668 [2003]). However, the adjudications of derivative ne*540gleet constitute stigmas which might indirectly affect the parents’ status in any future proceedings. Therefore, the appeals from so much of the orders of fact-finding and disposition as determined that the respective parents derivatively neglected the subject child are not academic (see Matter of Daqwuan G., supra; Matter of Regina P., supra; Matter of Dareth O., supra).
“In a child protective proceeding pursuant to Family Court Act article 10, a finding that a child is abused or neglected must be supported by a preponderance of the evidence” (Matter of Maithsa Edourd S., 27 AD3d 475, 476 [2006]; see Family Court Act § 1046 [b] [i]; Matter of Tammie Z., 66 NY2d 1, 3 [1985]). “[P]roof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the respondent” (Family Court Act § 1046 [a] [i]). “Even in the absence of direct evidence of actual abuse or neglect of a second child, a derivative finding of neglect should be made where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care, thereby making such a child neglected under Family Court Act § 1012 (f) (i) (B)” (Matter of Dutchess County Dept. of Social Servs. [Noreen K.], 242 AD2d 533, 534 [1997]; see Matter of Ramsay M., 17 AD3d 678, 679 [2005]). “The focus of the inquiry to determine whether derivative neglect is present is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood” (Matter of Dutchess County Dept. of Social Servs. v Douglas E., 191 AD2d 694, 694 [1993]; see Matter of Diamond K., 31 AD3d 553, 554 [2006]; Matter of Maithsa Edourd S., supra; Matter of Jasmine A., 18 AD3d 546, 549 [2005]). Where the nature of the neglect, notably its duration and the circumstances surrounding its commission “ evidence [s] fundamental flaws in the respondent’s understanding of the duties of parenthood . . . the derivative finding may be justified if the prior finding was so proximate in time to the derivative proceeding, that it can reasonably be concluded that the condition still exists” (Matter of Hannah UU., 300 AD2d 942, 944 [2002] [internal quotations omitted]; see Matter of Baby Boy W., 283 AD2d 584, 585 [2001]; Matter of Cruz, 121 AD2d 901, 902-903 [1986]). “ Tn such a case, the condition is presumed to exist currently and the respondent has the burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future’ ” (Matter of Baby Boy W., supra at 585, quoting Matter of Cruz, supra at 903; see Matter of Hannah UU, supra at 944).
The mother and the father admitted to neglecting the subject *541child’s four siblings in September and November 2002 respectively, based, inter alia, on their failure to maintain a safe and sanitary home and their failure to ensure that one of the children attended school. These admissions demonstrated a “fundamental defect in the parent’s understanding of the duties of parenthood” (Matter of Dutchess County Dept. of Social Servs. v Douglas E. III, supra at 694; see Matter of Diamond K., supra at 554; Matter of Maithsa Edourd S., supra at 476; Matter of Jasmine A., supra at 549). As the findings of neglect were entered nine and seven months, respectively, prior to the subject child’s birth and the commencement of this derivative neglect proceeding, “the prior finding was so proximate in time to the derivative proceeding, that it can reasonably be concluded that the condition still exists” (Matter of Hannah UU., supra at 944; see Matter of Baby Boy W., supra at 585). Thus, the condition “is presumed to exist currently and [the parents] ha[d] the burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future’ ” (Matter of Baby Boy W., supra at 585, quoting Matter of Cruz, supra at 903; see Matter of Hannah UU., supra at 944). While the evidence established that the parents did improve the condition of their home, they failed to meet their burden of demonstrating that the circumstances leading to the prior findings “cannot reasonably be expected to exist currently or in the foreseeable future’ ” (Matter of Baby Boy W., supra at 585, quoting Matter of Cruz, supra at 903; see Matter of Hannah UU., supra at 944). Additionally, the parents’ failure to complete the programs required of them by the prior orders of disposition and the recommendations made following the resulting evaluations support the Family Court’s determination (see Matter of Jocelyn S., 30 AD3d 273, 273 [2006]; Matter of Hunter YY., 18 AD3d 899, 899-900 [2005]; Matter of Sharonda S., 301 AD2d 532, 534 [2003]; Matter of Daequan FF., 243 AD2d 922, 922-923 [1997]; see also Matter of Marquise EE., 257 AD2d 699, 701 [1999]; cf. Matter of Keith JJ., 295 AD2d 644, 647 [2002]).
The appellants’ remaining contentions are unpreserved for appellate review or without merit. Crane, J.E, Krausman, Fisher and Dickerson, JJ., concur. |
Judgment of conviction reversed and a new trial ordered. (People v. Oak, 283 App. Div. 1018; People v. Pierson, 279 App. Div. 509; People v. Harris, 1 A D 2d 821.) In view of this disposition we find it unnecessary to pass on any other question. Concur — Breitel, J. P., McNally and Stevens, JJ.; Valente, J., dissents and votes to affirm in the following memorandum: I dissent and would affirm the conviction. People v. Oak (283 App. Div. 1018) would superficially seem to be controlling in its requirement that a qualified expert explain the facts underlying his opinion that certain transactions constituted wagers on mutuel race horse policy. But in People v. Oak the conviction was based solely on the testimony of an officer who overheard the defendant accepting policy wagers, but did not find any policy slips on the defendant’s person. In the instant case, the basis of the crime charged was the possession of policy slips, and when the officer.— qualified as an expert on mutuel policy — testified that the slips were policy slips, further explanation of mutuel policy was wholly unnecessary. But even if this court could not distinguish People v. Oak, I think that the time has been reached to overrule that case. |
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Queens County (Hunt, J.), dated May 15, 2006, which, upon a fact-finding order of the same court dated April 5, 2006, made after a hearing, finding that the appellant had committed an act which, if committed by an adult, would have constituted *542the crime of assault in the third degree, adjudged him to be a juvenile delinquent, and placed him on probation for a period of 12 months, with the directive, inter alia, that he perform 100 hours of community service. The appeal from the order of disposition brings up for review the fact-finding order dated April 5, 2006.
Ordered that the order of disposition is affirmed, without costs or disbursements.
Viewing the evidence in the light most favorable to the presentment agency (see Matter of David H., 69 NY2d 792, 793 [1987]; Matter of Jonathan D., 33 AD3d 996, 997 [2006]; Matter of Carl F., 25 AD3d 696 [2006]), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the appellant committed an act which, if committed by an adult, would have constituted the crime of assault in the third degree (see Penal Law § 120.00 [1]; Matter of Crystal R., 10 AD3d 397 [2004]; Matter of Gregory B., 242 AD2d 295 [1997]; Matter of O’Shanna T., 238 AD2d 287, 288 [1997]). The evidence was also legally sufficient to disprove the appellant’s justification defense beyond a reasonable doubt (see Penal Law § 35.15 [1]; Matter of Y.K., 87 NY2d 430, 433 [1996]; Matter of Luis S., 290 AD2d 337 [2002]). Upon the exercise of our factual review power, we are satisfied that the Family Court’s fact-finding determination was not against the weight of the evidence (see Family Ct Act § 342.2 [2]; Matter of Anthony S., 305 AD2d 689, 690 [2003]; cf. CPL 470.15 [5]). Santucci, J.P, Goldstein, Garni and McCarthy, JJ., concur. |
Judgment unanimously reversed on the law and on the facts and a new trial ordered, with costs to abide the event. Plaintiff, in support of his theory of negligence in the design, manufacture and repair of the power press, offered expert opinion. There is substantial contradictory expert opinion adduced by defendant. We are, however, unable to determine from the evidence or from the defendant’s exhibit of the clutch latch assembly whether the bases offered by the experts in support of their respective opinions are valid, or how the experts reach their contradictory views. The precise question is whether it was possible for the hook of the rolling key to fail to engage the latch while the latch assembly was laterally displaced in its housing because of the backing off — for some reason — of the castellated nut that was supposed to fix its position. The evidence fails to establish a sufficient basis for a resolution of that issue. It may be that the defendant can demonstrate mechanically that it is impossible for the rolling key to fail to engage the latch when the nut is backed off a given number of threads. This record does not warrant our so finding. On the other hand, the plaintiff has not shown this possibility since his expert has not sufficiently developed the basis for his opinion because of his references to “possibilities” and “other factors”. Concur — Breitel, J. P., Valente, McNally and Stevens, JJ. |
In a proceeding pursuant to CPLR article 78 to review a determination of the Planning Board of the Town of Cortlandt, dated August 3, 2004, which, after a hearing, denied the petitioners’ application for a preliminary subdivision approval and various permits pursuant to the Town Code of the Town of Cortlandt, the petitioners appeal from a judgment of the Supreme Court, Westchester County (Zambelli, J.), entered May 19, 2005, which denied the petition and dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
The petitioners applied to the Planning Board of the Town of Cortlandt (hereinafter the Planning Board) for approval to subdivide approximately 128 acres of previously undeveloped *543property located in the Town. The petitioners proposed to subdivide the property into 30 lots in order to build 30 single-family residences and to install the associated infrastructure, including a lengthy dead-end roadway, driveways, drainage facilities, and a sewage treatment plant. Pursuant to the Town Code of the Town of Cortlandt (hereinafter Town Code), the petitioners needed approval from the Planning Board to build the dead-end road because it exceeded 500 feet in length (see Town Code § 265-17 [F]). In addition, the petitioners sought the appropriate permits to build on environmentally sensitive portions of the property, which included steep slopes, wetlands, and “specimen tree[s]” (Town Code § 283-3) (see Town Code §§ 179-1 et seq., 259-1 et seq., 283-1 et seq.). The Planning Board considered whether to issue these permits in connection with its environmental review pursuant to the State Environmental Quality Review Act (ECL art. 8 [hereinafter SEQRA]). The Planning Board denied the permits for the project, and thus, the petitioners commenced the instant CPLR article 78 proceeding.
Contrary to the petitioners’ contentions, the Planning Board’s decision to deny the necessary permits was rational, and not arbitrary and capricious (see Matter of Halperin v City of New Rochelle, 24 AD3d 768, 772 [2005]; Matter of Sasso v Osgood, 86 NY2d 374 [1995]; Matter of McKennett v Hines, 289 AD2d 246, 247 [2001]; cf. Matter of Bower Assoc. v Planning Bd. of Town of Pleasant Val., 289 AD2d 575 [2001]). Moreover, the Planning Board complied with the procedural and substantive requirements of SEQRA. The Planning Board identified the relevant areas of environmental concern, took a “ ‘hard look’ ” at them, and made a “ ‘reasoned elaboration’ ” of the basis for its determination to disapprove the project (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986], quoting Aldrich v Pattison, 107 AD2d 258, 265 [1985]). Spolzino, J.P, Skelos, Covello and Balkin, JJ., concur. |
In a proceeding pursuant to RPAPL 1921, inter alia, to direct the mortgagee to accept a specific sum in full satisfaction of the mortgage debt and to issue a satisfaction of mortgage to the *544mortgagor, the mortgagee appeals from an order of the Supreme Court, Nassau County (Woodard, J.), entered April 17, 2006, which granted the petition.
Ordered that the order is affirmed, with costs.
Contrary to the mortgagee’s contention, the mortgagor’s tender of payment of the entire mortgage principal plus interest to the scheduled date of closing in response to her acceleration of the debt upon default did not constitute a “prepayment” of the debt within the meaning of the prepayment clause set forth in the mortgage. Accordingly, absent a contractual provision to the contrary, the mortgagee was precluded from assessing a prepayment penalty (see Kilpatrick v Germania Life Ins. Co., 183 NY 163, 168 [1905]; 3C Assoc. v IC & LP Realty Co., 137 AD2d 439, 440 [1988]; Northwestern Mut. Life Ins. Co. v Uniondale Realty Assoc., 11 Misc 3d 980, 985 [2006]; George H. Nutman, Inc. v Aetna Bus. Credit, 115 Misc 2d 168, 169 [1982]). In any event, even if the imposition of a prepayment penalty had been permissible, the mortgage failed to specify any such penalty.
The mortgagee’s remaining contention regarding the acceleration clause is not properly before this Court because it is raised for the first time in her reply brief (see e.g. Bailey v Brookdale Univ. Hosp. & Med. Ctr., 27 AD3d 677 [2006]; Cappiello v Johnson, 21 AD3d 921 [2005]; Workers’ Compensation Bd. of State of N.Y. v Rizzi, 14 AD3d 608 [2005]). Mastro, J.E, Fisher, Angiolillo and McCarthy, JJ., concur. |
In a proceeding pursuant to CFLR article 75 to permanently stay arbitration of an uninsured motorist claim, the petitioner appeals from a judgment of the Supreme Court, Queens County (Rios, J.), entered July 13, 2006, which denied the petition and dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
The respondents were passengers in a vehicle owned by the petitioner, ELRAC, Inc., doing business as Enterprise Rent a Car (hereinafter ELRAC), a self-insured car rental company, and operated by a nonparty to whom the vehicle had been rented. The subject vehicle was involved in a collision with an uninsured motorist and, approximately SVa years later, the *545respondents served ELRAC with a demand for arbitration. ELRAC commenced this proceeding to permanently stay arbitration on the ground that the demand for arbitration was time-barred under the applicable three-year statute of limitations (see CPLR 214 [2]). The Supreme Court, upon determining that the claim was governed by the six-year statute of limitations contained in CPLR 213 (2), denied the petition and dismissed the proceeding. We affirm.
From an injured claimant’s perspective, “[t]he right to obtain uninsured motorist protection from a self-insurer is no less than the corresponding right under a policy issued by an insurer” (Matter of Country-Wide Ins. Co. [Manning], 96 AD2d 471, 472 [1983], affd 62 NY2d 748 [1984]; see Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818, 820 [1980]). ELRAC contends that while an injured claimant unquestionably has six years to assert an uninsured motorist claim against an insured owner’s carrier (see e.g. Jenkins v State Farm Ins. Co., 21 AD3d 529, 530 [2005]), that person has only three years to assert an identical claim against a self-insured owner. We disagree. The respondents’ claim for uninsured motorist benefits against a self-insured vehicle owner, while statutorily mandated, remains “contractual rather than statutory in nature” (Matter of Manhattan & Bronx Surface Tr. Operating Auth. v Evans, 95 AD2d 470, 472 [1983]; cf. Matter of De Luca [Motor Veh. Acc. Indem. Corp.], 17 NY2d 76, 79 [1966]) and, as such, is subject to the six-year statute of limitations (see Matter of New York City Health & Hosps. Corp. [Degorter], 133 Misc 2d 93, 97 [1986]). Accordingly, the petition was properly denied, and the proceeding was properly dismissed. Crane, J.P, Krausman, Fisher and Dickerson, JJ., concur. |
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Village of Greenwood Lake dated November 18, 2004, which, after a hearing, denied the petitioners’ application for several area vari*546anees, the petitioners appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Orange County (Horowitz, J.), dated November 30, 2005, as denied the petition and dismissed the proceeding as to two of those area variances.
Ordered that the judgment is modified, on the law, by deleting the provision thereof denying that branch of the petition which was to annul the denial of the application for a variance from the minimum lot size requirement for proposed lot one and substituting therefor a provision granting that branch of the petition; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Zoning Board of Appeals of the Village of Greenwood Lake for further proceedings in accordance herewith.
“In determining whether to grant an area variance, a zoning board of appeals is required by Village Law § 7-712-b (3) to engage in a balancing test weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted” (Matter of Rivero v Ferraro, 23 AD3d 479, 479-480 [2005]; see Matter of Sasso v Osgood, 86 NY2d 374 [1995]; Matter of Berk v McMahon, 29 AD3d 902, 902 [2006]). “The zoning board is also required to consider whether (1) an undesirable change will be produced in the character of the neighborhood, or a detriment to nearby properties will be created by the granting of the area variance, (2) the benefit sought by the applicant can be achieved by some other method, other than an area variance, feasible for the applicant to pursue, (3) the required area variance is substantial, (4) the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district, and (5) the alleged difficulty was self-created” (Matter of Rivero v Ferraro, supra at 480; see Village Law § 7-712-b [3]; Matter of Ifrah v Utschig, 98 NY2d 304, 307-308 [2002]; Matter of Berk v McMahon, supra at 902-903).
“Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion” (Matter of Rivero v Ferraro, supra at 480; see Matter of Ifrah v Utschig, supra at 308; Matter of Sasso v Osgood, supra at 384; Matter of Berk v McMahon, supra at 903). “Thus, the determination of a zoning board should be sustained, upon judicial review if it had a rational basis, [and] was not arbitrary and capricious” (Matter of Rivero v Ferraro, supra at 480; see Matter of Ifrah v Utschig, supra).
Contrary to the petitioners’ contentions, in denying their ap*547plication for a variance from Village of Greenwood Lake Zoning Code § 120-18 (C) (2) to permit them to build on slopes in excess of 25% the Zoning Board of Appeals of the Village of Greenwood Lake engaged in the required balancing test and considered the relevant statutory factors, and its determination had a rational basis and was not arbitrary or capricious (see Village Law § 7-712-b [3]; Matter of Berk v McMahon, supra at 903; Matter of Rivero v Ferraro, supra at 480; see also Matter of Ifrah v Utschig, supra; Matter of Sasso v Osgood, supra; Matter of Pasceri v Gabriele, 29 AD3d 805, 806 [2006]; Matter of Martino v Board of Zoning Appeals of Inc. Vil. of Great Neck Plaza, 26 AD3d 382, 383-384 [2006]).
With regard to the variance pertaining to the minimum lot size requirement for proposed lot one, although the evidence established that the variance sought was substantial, there was little, if any, evidence presented to demonstrate that granting the variance would have an undesirable effect on the character of the neighborhood, adversely impact on physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community (see Matter of Beyond Bldrs. Inc. v Pigott, 20 AD3d 474, 475 [2005]; Matter of Crystal Pond Homes v Prior, 305 AD2d 595, 596 [2003]). Therefore, the denial of this variance was arbitrary and capricious (see Matter of Beyond Bldrs., Inc. v Pigott, supra at 475; Matter of Crystal Pond Homes v Prior, supra at 596).
The petitioners failed to establish that the application of Village of Greenwood Lake Zoning Code § 120-18 (C) (2) to their property constituted an unconstitutional taking without compensation (see Matter of Khan v Zoning Bd. of Appeals of Vil. of Irvington, 87 NY2d 344, 352 [1996]; see also Matter of Mangan v Cianciulli, 19 AD3d 598, 599 [2005]; Matter of Milburn Homes v Trotta, 7 AD3d 531, 532 [2004]; Matter of Allt v Zoning Bd. of Appeals of Town of Hyde Park, 255 AD2d 311, 312 [1998]).
The petitioners’ remaining contentions are not properly before this Court or are without merit. Mastro, J.P., Fisher, Angiolillo and McCarthy, JJ., concur. |
*548In a proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian for the person and property of Nellie G., an alleged incapacitated person, Joyce G.D. appeals, as limited by her letter dated December 20, 2006, from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Thomas, J.), entered December 29, 2005, as, after a hearing, appointed an independent guardian for the property of Nellie G. and revoked a power of attorney dated September 21, 1995.
Ordered that the order and judgment is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.
On September 21, 1995, Nellie G. executed a so-called “springing durable power of attorney” in favor of her daughter, Joyce G.D. In that power of attorney, Nellie G. indicated that in the event that she became disabled, Joyce G.D. would have the power to make decisions with respect to, among other things, her property. The power of attorney also stated that if Nellie G. were subsequently found to be incapacitated, the powers granted to Joyce G.D. would not be affected.
In April 2003, Nellie G., who was then almost 89 years old, suffered a stroke. As a result, she became seriously disabled. At that point, the power of attorney became effective, and Joyce G.D. began managing Nellie G.’s property.
On May 17, 2005, Nellie G. suffered a second stroke, which rendered her totally bedridden and uncommunicative. She was taken to Queens Hospital Center (hereinafter the Hospital), where she remained for several months, until her condition stabilized. She was then transferred to a rehabilitation center, where she also remained for several months, until she was transferred to a nursing home.
In August 2005, the Hospital commenced the instant proceeding pursuant to article 81 of the Mental Hygiene Law, seeking, inter alia, to have an independent guardian appointed for the property of. Nellie G. Joyce G.D. opposed the petition, asserting that there was no need for an independent guardian because the power of attorney was in place.
After a hearing, the Supreme Court properly determined that the Hospital had established, by clear and convincing evidence, *549that Nellie G. was incapacitated (see Mental Hygiene Law § 81.02 [b]; Matter of Mary J., 290 AD2d 847, 848-850 [2002]). The Supreme Court, stating that Joyce G.D. had “misused” the power of attorney, determined that were no “available resources that could act as alternatives to guardianship” (see Mental Hygiene Law § 81.02 [a] [2]; § 81.03 [e]), appointed an independent guardian for the property of Nellie G., and revoked the power of attorney dated September 21, 1995.
Although the Supreme Court was concerned about Joyce G.D.’s fitness to manage Nellie G.’s property in light of certain transactions that Joyce G.D. had entered into involving real property owned by Nellie G. (cf. Matter of Ardelia R., 28 AD3d 485, 487 [2006]), under the circumstances, these transactions, from which Joyce G.D. did not profit, and which did not harm Nellie G.’s interests in any way, did not warrant the appointment of an independent guardian for Nellie G.’s property, which should only be done as a “last resort” (Matter of Albert S., 286 AD2d 684, 684 [2001]). Accordingly, the court improvidently exercised its discretion in appointing an independent guardian for Nellie G.’s property, and in not allowing Joyce G.D. to continue to manage that property pursuant to the power of attorney (see Matter of Isadora R., 5 AD3d 494 [2004]; Matter of O’Hear [Rodriquez], 219 AD2d 720, 722 [1995]; cf. Matter of Chase, 264 AD2d 330, 332-333 [1999]).
In light of the foregoing, it is necessary that the property of Nellie G. that is still in the possession of the guardian be restored to her (see Mental Hygiene Law § 81.36 [e]), that the guardian file a final report and accounting of his management of Nellie G.’s financial affairs (see Mental Hygiene Law § 81.33), and that the Supreme Court fix the compensation, if any, of the guardian (see Mental Hygiene Law § 81.28), which shall be paid by the petitioner. Upon the conclusion of these proceedings, the guardian should petition for his release and discharge (see Mental Hygiene Law § 81.34).
In light of our determination, Joyce G.D.’s remaining contention has been rendered academic. Prudenti, EJ., Krausman, Dillon and McCarthy, JJ, concur. |
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County (McLeod, J.), dated February 7, 2006, which, upon a fact-finding order of the same court dated December 15, 2005, made after a hearing, finding that the appellant committed acts which, if committed by an adult, would have constituted the crimes of attempted gang assault in the *550first degree, attempted assault in the first degree (two counts), assault in the second degree (two counts), attempted assault in the second degree, menacing in the second degree (two counts), criminal possession of a weapon in the fourth degree (two counts), assault in the third degree, attempted assault in the third degree, menacing in the third degree, criminal possession of stolen property in the fifth degree, and petit larceny, adjudged him to be a juvenile delinquent and placed him on probation for a period of 15 months. The appeal brings up for review the fact-finding order dated December 15, 2005.
Ordered that the order of disposition is affirmed, without costs or disbursements.
The appellant failed to preserve for appellate review his contention regarding legal sufficiency of the evidence (see Matter of Bryan C., 23 AD3d 652 [2005]; Matter of Ricky A., 11 AD3d 532, 533 [2004]). In any event, viewing the evidence in the light most favorable to the presentment agency (see Matter of David H., 69 NY2d 792 [1987]; Matter of Dan H., 26 AD3d 438 [2006]), we find that it was legally sufficient to establish beyond a reasonable doubt that the appellant committed acts which, if committed by an adult, would have constituted the crimes charged, either personally or as an accessory (cf. Penal Law § 20.00).
Moreover, resolution of issues of credibility is primarily a matter to be determined by the trier of fact, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see Matter of Christian M., 37 AD3d 934 [2007]). Upon the exercise of our factual review power (cf. CPL 470.15 [5]), we are satisfied that the Family Court’s fact-finding determination was not against the weight of the evidence (cf. People v Romero, 7 NY3d 633 [2006]).
The appellant’s remaining contention is without merit. Mastro, J.P, Fisher, Angiolillo and McCarthy, JJ., concur. |
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Queens County (Hunt, J.), dated May 2, 2006, which, upon a fact-finding order of the same court dated March 22, 2006, made after a hearing, finding that the appellant had committed an act which constituted the crime of unlawful possession of weapons by persons under 16 and an act which, if committed by an adult, would have constituted the crime of criminal possession of a weapon in the fourth degree, adjudged *551him to be a juvenile delinquent and, inter alia, placed him on probation under the supervision of the Probation Department of the County of Queens for a period of 18 months upon stated terms and conditions. The appeal brings up for review the fact-finding order dated March 22, 2006.
Ordered that the order of disposition is modified, on the law, (1) by deleting from the first decretal paragraph thereof the provision adjudicating the appellant a juvenile delinquent based upon the finding that he committed an act which, if committed by an adult, would have constituted the crime of criminal possession of a weapon in the fourth degree and substituting therefor a provision dismissing that count of the petition, and (2) by deleting the second and third decretal paragraphs thereof placing the appellant on probation under the supervision of the Probation Department of the County of Queens for a period of 18 months upon stated terms and conditions; as so modified, the order of disposition is affirmed, without costs or disbursements, the fact-finding order is modified accordingly, and the matter is remitted to the Family Court, Queens County, for a new disposition on the adjudication of juvenile delinquency on the crime of unlawful possession of weapons by persons under 16.
As correctly conceded by the presentment agency, there was a failure to prove all the elements of the first count of the petition, that the appellant committed an act which, if committed by an adult, would have constituted criminal possession of a weapon in the fourth degree. That crime requires proof the individual possessed a rifle, shotgun, or firearm. An air gun is not a firearm (see People v Layton, 302 AD2d 408 [2003]; People v Jones, 54 AD2d 740 [1976]).
The second count of the petition charged the appellant with unlawful possession of weapons by persons underl6 pursuant to Penal Law § 265.05. That section specifically prohibits the possession of an air gun by a person under the age of 16.
Viewing the evidence in the light most favorable to the presentment agency (see Matter of David H., 69 NY2d 792, 793 [1987]; Matter of Quanel M., 8 AD3d 386 [2004]), we find that it was legally sufficient to establish beyond a reasonable doubt that the appellant violated Penal Law § 265.05. Moreover, resolution of issues of credibility is primarily a matter to be determined by the trier of fact, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see Matter of Christian M., 37 AD3d 834 [2007]). Upon the exercise of our factual review power (cf. CPL 470.15 [5]), we are satisfied that the findings of fact with respect to the *552second count of the petition were not against the weight of the evidence (cf. People v Romero, 7 NY3d 633 [2006]). Santucci, J.E, Goldstein, Garni and McCarthy, JJ., concur. |
In related proceedings pursuant to Family Court Act article 10 and Social Services Law § 384-b, the mother appeals from (1) so much of an order of fact-finding and disposition of the Family Court, Suffolk County (Freundlich, J.), dated January 5, 2005, as, after a hearing, found that she had abused and neglected Krista L. and derivatively neglected Darlene L., Guy L., Jennifer L., Nicholas L., and Vincent L., and placed the children in the custody of the Suffolk County Department of Social Services for a period of nine months, (2) an order of fact-finding and disposition of the same court dated September 30, 2005, which, af*553ter a hearing, inter alia, extended the placement of the children for one year and established, as the permanency goal for the subject children, their placement for adoption, and (3) so much of six orders of disposition (one paper as to each child) of the same court all dated March 1, 2006, as, after a hearing, found that the father had permanently neglected the children, placed them in the guardianship and custody of the Suffolk County Department of Social Services for the purpose of adoption, and freed them for adoption, and the father separately appeals from (1) so much of the order of fact-finding and disposition dated January 5, 2005, as, after a hearing, found that he had abused and neglected Krista L. and derivatively neglected Darlene L., Guy L., Jennifer L., Nicholas L., and Vincent L., and placed the children in the custody of the Suffolk County Department of Social Services for a period of nine months, (2) so much of an order of fact-finding and disposition of the same court dated February 28, 2006, as, after a hearing, terminated his parental rights as to the subject children and placed the children in the guardianship and custody of the Suffolk County Department of Social Services for the purpose of adoption, and (3) so much of the six orders of disposition (one paper as to each child) of the same court all dated March 1, 2006, as, after a hearing, found that he had permanently neglected the children, placed them in the guardianship and custody of the Suffolk County Department of Social Services for the purpose of adoption, and freed them for adoption.
Ordered that on the court’s own motion, the notices of appeal from a decision of the same court dated January 3, 2005, are deemed premature notices of appeal from the order of fact-finding and disposition dated January 5, 2005 (see CPLR 5520 [c]), and the mother’s notice of appeal from the order of fact-finding and disposition dated February 28, 2006, is deemed a premature notice of appeal from the six orders of disposition dated March 1, 2006 (see CPLR 5520 [c]); and it is further,
Ordered that the appeals from the order of fact-finding and disposition dated January 5, 2005, are dismissed, as that order was superseded by the order of fact-finding and disposition dated February 28, 2006; and it is further,
Ordered that the appeal from the order dated September 30, 2005, is dismissed, as the portion of that order which extended the placement of the children has been rendered academic, and the remainder of that order has been superseded by the order of fact-finding and disposition dated February 28, 2006; and it is further,
Ordered that the appeal from the order of fact-finding and *554disposition dated February 28, 2006, is dismissed, as that order has been superseded by the six orders of disposition dated March 1, 2006; and it is further,
Ordered that the mother’s appeal from so much of the six orders of disposition (one paper as to each child) dated March 1, 2006, as found that the father had permanently neglected the children is dismissed, as the mother is not aggrieved thereby; and it is further,
Ordered that the six orders of disposition dated March 1, 2006, are affirmed insofar as appealed from by the father, and affirmed insofar as reviewed with respect to the appeal by the mother, without costs or disbursements.
We decline to review the parents’ arguments regarding the emergency hearing held on August 20, 2004, pursuant to which the petitioner Suffolk County Department of Social Services sought the temporary removal of their children pursuant to Family Court Act § 1022, because the parents consented to the temporary removal of the children at a hearing held five days later pursuant to Family Court Act § 1027, thereby effectively waiving any issues with respect to the hearing held pursuant to Family Court Act § 1022. Since no appeal was taken from the ensuing order, dated August 20, 2004, directing the temporary removal of the children (see Matter of G. Children, 293 AD2d 470, 471 [2002]; Family Court Act § 1113), and the children were in fact temporarily removed, those issues have been rendered academic in any event.
Contrary to the parents’ contentions, the petitioner met its burden of establishing, by a preponderance of the evidence, that a plan to change the permanency goal to adoption was in the children’s best interests (see Matter of Amanda C., 309 AD2d 744 [2003]). Great deference is accorded the Family Court, which saw and heard the witnesses, and its findings will not be disturbed unless they lack a substantial basis in the record (see Eschbach v Eschbach, 56 NY2d 167 [1982]). Here, the record supports the Family Court’s finding that the physician of the child Krista provided assistance to the mother in obtaining a second opinion regarding the course of treatment for Krista, but the mother failed to schedule the necessary tests. In addition, the offensive odor and filthy state of the parents’ home, along with the serious medical condition and lack of hygiene from which Krista suffered at the time she was rushed to the hospital on August 17, 2004, support the'Family Court’s determination.
In a proceeding to terminate parental rights based upon permanent neglect, the threshold consideration is whether the agency discharged its statutory obligation to exercise diligent ef*555forts to encourage and strengthen the parental relationship (see Social Services Law § 384-b [7]; Matter of Gregory B., 74 NY2d 77, 86 [1989]; Matter of Jamie M., 63 NY2d 388, 390 [1984]; Matter of Sheila G., 61 NY2d 368, 383 [1984]). Here, the petitioner’s caseworker testified regarding the numerous efforts she made on behalf of the petitioner to strengthen the relationship between the parents and the children, including providing the parents with a list of psychotherapy agency referrals, arranging for them to have a mental health evaluation, putting in a referral for homemaking services provided by the petitioner, and arranging for supervised visitation once a week. This testimony satisfied the statutory requirement that the agency make reasonable attempts to assist, develop, and encourage a meaningful relationship between the parents and the children (see Matter of Star Leslie W., 63 NY2d 136, 145 [1984]; Matter of Regina M.C., 139 AD2d 929, 930 [1988]).
In addition, Social Services Law § 384-b (7) (a) and (c) require a parent to substantially plan for the future of his or her children (see Matter of Star Leslie W., supra at 142-143). Where a parent fails to take advantage of the services and resources made available to him or her, and repeatedly disregards the advice of the agency, a court may find that a parent has not met his or her obligation to plan for the future of the children (see Social Services Law § 384-b [7] [c]; Matter of Gregory Michael M., 167 AD2d 469, 470-471 [1990]; Matter of June Y., 128 AD2d 538, 539 [1987]). Here, while the parents, particularly the mother, took some steps to comply with the programs, her efforts frequently were not carried through to completion. Moreover, her continued attempt to cast primary blame for Krista’s condition upon Krista’s physician is consistent with her lack of insight into the reason the children were removed from her home. Under these circumstances, the Family Court properly found that the parents had permanently neglected their children and, on that basis, terminated their parental rights (see Matter of Nathaniel T., 67 NY2d 838, 842 [1986]; Matter of Joseph ZZ., 245 AD2d 881, 883 [1997]).
The parents’ remaining contentions are without merit. Schmidt, J.E, Spolzino, Krausman and Balkin, JJ., concur. |
Determination of the Commissioner of Health annulled on the law, on the facts and in the exercise of discretion, without costs. It does appear that there were irregularities in the conduct of the petitioner in connection with her duties as a licensed practical nurse, but there is no support for the determination by the Commissioner of Health that she violated the provisions of section 3351 (subd. 1, par. [b]; subd. 1, par. [a], el. [1]) of the Public Health Law, Such determination of the Commissioner is *470stated to be made “ after due consideration and deliberation upon the findings, conclusions and recommendations of the Hearing Officer ”, but the findings of fact and conclusions of the hearing officer do not show violations by petitioner of the particular subdivisions. Furthermore, the determination by the Commissioner of violations by the petitioner of the particular subdivisions of section 3351 of the Public Health Law does not appear to be supported by substantial evidence. It appears that the entries made and signed by the petitioner in the narcotic record book of the Caledonian Hospital for demerol for patients Greenspan and McGowan, were made some time before the administering of demerol to those patients. Thus, the entries were not in fact statements of the quantity of drug administered. They were in fact entries for demerol taken by petitioner from the hospital’s supply before the administering of the same and, as of the time made, were correct in that she did actually thereupon receive 100 milligrams of demerol for the account of each of said patients. Further, she states that, following her receipt of the 100 milligrams of demerol for each of said patients and on administering only 75 milligrams of demerol to each of said patients, she did correctly enter in the bed chart of each patient the amount of demerol actually administered; and her statement in this connection is not controverted. Under these circumstances, the determination of the Commissioner that she did “ wilfully make false statements ” in the narcotic record book in violation of said section 3351 (subd. 1, par. [b]) of the Public Health Law is not sustainable. Further, the determination of alleged violations by petitioner of said section 3351 (subd. 1, par. [a], cl. [1]) of the Public Health Law is not supportable in that such determination is also based upon the premise that she did falsely state in the hospital records that she had administered 100 milligrams of demerol to her patients Greenspan and McGowan. The determination of this court is without prejudice to such other or further proceedings as may be pending or may be taken in connection with any alleged misconduct of the petitioner other than specifically based upon alleged violations of said section 3351 (subd. 1, par. [b]; subd. 1, par. [a], cl. [1]) of the Public Health Law for the alleged withdrawal and the administering of demerol to the patients Greenspan and McGowan. Concur — Botein, P. J., Stevens, Eager and Bastow, JJ.; McNally, J., dissents and votes to confirm in the following memorandum: I dissent and vote to confirm the determination. Although imprecise, the findings made in the light of the admissions of petitioner sustain the charges. On April 28, 1957, the petitioner, a licensed practical nurse employed by Caledonian Hospital, recorded in its narcotic record book, at 4:00 p.m., the withdrawal of 100 milligrams of demerol for administration to a patient named Greenspan; at 6:30 p.m., on the same day petitioner also recorded the withdrawal of 100 milligrams of demerol for administration to a patient named McGowan. Instead of administering the specified quantities of the drugs to said patients, the petitioner in each case administered 75 milligrams to the patient and 25 milligrams to herself by injection. The narcotic record book of Caledonian Hospital under the legend “ Record of Narcotics Administered ” shows the following:
Date Time Name of Patient Drug Dose
4/28/57 4:00 Greenspan Demerol 100 mg 4/28/57 6:30 McGowan Demerol 100 mg In petitioner’s own statement marked in evidence the following appears:
“ On April 28,1957 at about 4:30 p.m. while employed as a nurse at Caledonia Hospital, I made an entry in the narcotic record book, charging patient Greenspan, second floor, with having received 100 mg. Demerol. I gave the patient *471Greenspan 75 mg. of Demerol and used the balance for myself due to pain in the gall bladder region. “ On the same date, April 28, 1957, at about 6:30 p.m. I made an entry in the narcotic record book, charging patient McGowan of the second floor, with 100 mg. Demerol. I gave patient McGowan 75 mg. and used the balance for myself. On both of these occasions I charted the patients as having received 75 mg.” The first charge is that petitioner willfully made false statements in the narcotic records required to be kept at the Caledonian Hospital; the second charge is that petitioner obtained narcotic drugs by fraud, deceit, misrepresentation and/or subterfuge. The third and fourth charges have been dismissed. The hearing officer before whom the charges were heard found: “Respondent, by her own admission, has violated her position of trust as a Licensed Practical Nurse. * * * her self-administration of narcotic drugs from the hospital supply was inexcusable.” It is implicit in the findings made that at the time of the making of the entries the petitioner did not intend to administer dosages of 100 milligrams and instead intended to administer dosages of 75 milligrams to the patients and to appropriate and administer to herself the remainder. These facts sustain the charges of violation of section 3351 (subd. 1, par. [a], cl. [1]; subd. 1, par. [b]) of the Public Health Law. |
Order entered on September 14, 1959 dismissing the amended complaint as against the defendant Local No. 210 unanimously reversed on the law, with $20 costs and disbursements to the appellant and the motion denied, with $10 costs. As against Local No. 210 the amended complaint sets forth three causes of action. We find the first cause of action to be sufficient. It seeks to recover from Local No. 210 funds which it claims belong to the plaintiff. It is alleged that Local No. 8 collected those funds for and on behalf of the plaintiff and therefore became indebted to the plaintiff in the amounts collected. It fixes liability on Local No. 210 on the theory that it assumed that debt upon its affiliation with Local No. 8. Paragraphs Seventeenth and Eighteenth of the complaint sufficiently plead such assumption and agreement to pay. Anything additional that could be pleaded in support of that allegation would only be of an evidentiary nature and therefore is not required in the complaint. We likewise find the second *472cause of action to be sufficient. In this cause of action the plaintiff alleges that Local No. 210 consolidated with Local No. 8 for the purpose of acquiring for itself the moneys in the possession of Local No. 8 belonging to the plaintiff and which were wrongfully converted by Local No. 8. It alleges the transfer of such moneys by Local No. 8 to Local No. 210. It fixes knowledge of such conversion in Local No. 210. There is sufficient alleged to support a conclusion that the specific moneys alleged to have been converted were transferred to Local No. 210. The appropriation by Local No. 210 to its own use of such moneys and the refusal to turn these over to the plaintiff on demand are sufficient to sustain this cause of action. In cause of action No. 3 directed against Local No. 210, it is alleged that Local No. 210 “has and is deliberately destroying and secreting ” the books of Local No. 8 for the purpose of defeating the claim of the plaintiff. The relief asked in connection with this cause of action is that an injunction be issued to prevent these acts. If, in fact, Local No. 210 is destroying such records as is charged by the plaintiff, a sufficient cause of action is stated. We note that while the first and second causes are in law, the relief sought in connection therewith is equitable in nature. However, the relief sought does not affect their sufficiency. The trial court will no doubt fashion the proper relief depending upon the proof should the plaintiff be successful. Concur — Botein, P. J., Rabin, Valente, Eager and Bastow, JJ. |
In a family offense proceeding pursuant to Family Court Act article 8, Louis F. Russo appeals from an order of protection of the Family Court, Suffolk County (Genchi, J.), dated October 31, 2005, which, after a hearing and upon finding that Louis F. Russo committed the family offenses of harassment in the second degree and stalking in the fourth degree, directed him, inter alia, to stay away from the petitioner and to observe the conditions set forth in the order of protection for a period of one year.
Ordered that the appeal from so much of the order of protection as directed the appellant, inter alia, to stay away from the petitioner and to observe the conditions set forth in the order of protection for a period of one year is dismissed as academic; and it is further,
Ordered that the order is affirmed insofar as reviewed, without costs or disbursements.
Although the appeal from so much of the order of protection as directed the appellant, inter alia, to stay away from the petitioner and to observe the conditions set forth in the order of protection for a period of one year has been rendered academic by the passing of the time limits therein, the appeal from so much of that order as adjudicated the appellant to be an offender has not been rendered academic, in light of the enduring consequences which may flow from an adjudication that a party has committed a family offense (see Matter of Kravitz v Kravitz, 18 AD3d 874 [2005]; Matter of Zieran v Marvin, 2 AD3d 870 [2003]).
*557“The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court” (Matter of Lallmohamed v Lallmohamed, 23 AD3d 562, 562 [2005]; see Matter of Fiore v Fiore, 34 AD3d 803 [2006]; Matter of Kraus v Kraus, 26 AD3d 494, 495 [2006]), and where the Family Court is confronted with issues of credibility, its findings are accorded great weight on appeal (see Matter of Ford v Pitts, 30 AD3d 419, 420 [2006]; Matter of Wissink v Wissink, 13 AD3d 461, 462 [2004]; Matter of St. Denis v St. Denis, 1 AD3d 370 [2003]). On the record presented here, we find no basis to disturb the Family Court’s determination. Spolzino, J.E, Skelos, Covello and Balkin, JJ., concur. |
In a proceeding pursuant to General Municipal Law § 50-e (5) to deem a notice of claim timely served or, in the alternative, for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated April 28, 2006, which denied the petition and dismissed the proceeding.
Ordered that the order is affirmed, with costs.
The petitioner commenced this proceeding, inter alia, to deem her notice of claim timely, although it was served more than 16 years after the expiration of the statute of limitations applicable to the underlying wrongful death claim (see General Municipal Law § 50-i [1]). Her contention that the respondents should be equitably estopped from relying on the expiration of the statute of limitations is without merit. The petitioner produced no evidence indicating that the respondents’ personnel who investigated the death of her son either made any affirmative, knowingly false misrepresentation to her upon which she reasonably relied in forgoing the commencement of a timely lawsuit (see generally Matter of Eberhard v Elmira City School Dist., 6 AD3d 971 [2004]; Fuchs v New York Blood Ctr., 275 AD2d 240 [2000]; *558Matter of Gross v New York City Health & Hosps. Corp., 122 AD2d 793 [1986]), or intentionally concealed relevant information from her prior to the expiration of the limitations period, notwithstanding the existence of a fiduciary relationship requiring that such information be disclosed to her (see generally Doe v Holy See [State of Vatican City], 17 AD3d 793 [2005]; Mars v Diocese of Rochester, 6 AD3d 1120 [2004]; Gleason v Spota, 194 AD2d 764 [1993]). The wholly conclusory and unsubstantiated allegations by the petitioner’s attorney in this regard possessed no probative value (see Blumenfeld v DeLuca, 24 AD3d 405 [2005] ; Mohen, Craig & Treacy v Collura, 287 AD2d 552 [2001]). Therefore, the Supreme Court properly determined that it was without discretion to grant the petition (see Pierson v City of New York, 56 NY2d 950 [1982]; Matter of Eberhard v Elmira City School Dist., supra; Jones v City of New York, 300 AD2d 359 [2002]).
In any event, even if the petitioner had succeeded in establishing an equitable toll of the limitations period, she failed to timely serve her notice of claim once the true facts allegedly became known to her, nor did she establish a reasonable excuse for her delay and a lack of prejudice to the respondents so as to warrant permission to serve a late notice of claim (see General Municipal Law § 50-e [5]; see generally Matter of Henriques v City of New York, 22 AD3d 847 [2005]; Matter of Pico v City of New York, 8 AD3d 287 [2004]; Alexander v City of New York, 2 AD3d 332 [2003]; Matter of Landa v City of New York, 252 AD2d 525 [1998]; Matter of Ealey v City of New York, 204 AD2d 720 [1994]).
The petitioner’s contentions with regard to CPLR 215 (8) and EPTL 5-4.1 (2) similarly lacked the requisite factual allegations and evidentiary support (see generally N.X. v Cabrini Med. Ctr., 97 NY2d 247 [2002]; Campos v City of New York, 32 AD3d 287 [2006] ; Schilt v New York City Tr. Auth., 304 AD2d 189 [2003]; Ray v Metropolitan Transp. Auth., 221 AD2d 613 [1995], cert denied sub nom. Ray v Willett 519 US 822 [1996]) and, in any event, were without legal basis (see Villanueva v Comparetto, 180 AD2d 627 [1992]; Jordan v Britton, 128 AD2d 315 [1987]).
The petitioner’s remaining contentions are without merit. Mastro, J.P, Rivera, Dillon and Garni, JJ., concur. |
Judgment entered May 2, 1960, in the sum of $25,998.50 entered on a verdict for $46,227.75, which was conditionally reduced by the trial court to $22,500, and, as so reduced, assented to by the plaintiff, reversed, on the law, the facts having been considered, and the complaint dismissed, with costs to defendant-appellant. The action originally commenced against both the owner and operator of the truck abated against the latter by reason of his death during the pendency of the action. There is no evidence to support the finding implicit in the verdict that the deceased’s contact with the truck was due to negligence in the operation of the truck. The “X” mark referred to in the dissenting memorandum does not evidence the fact that immediately prior to the occurrence plaintiff’s decedent was on the roadway. The brother of the deceased who placed the “ X ” mark on the diagram testified the deceased was standing to the left of the barricade which would place him on a line *473between the southerly side of the barricade and the northerly end of the mall. On the argument of this appeal counsel for plaintiff stated this claim was not made on plaintiff’s summation as is evident from the transcript thereof in the record on appeal. Concur — Breitel, J. P., Yalente and McNally, JJ.; Rabin and Eager, JJ., dissent and vote to affirm in the following memorandum by Rabin, J.: I dissent and vote to affirm. I believe that in this death action there was sufficient proven to support the jury’s verdict. There was a conflict as to the location of the boy just before he was struck. The driver in his deposition testified that he saw him standing within the barricade. However, one of the witnesses for the plaintiff testified that the boy was standing to the left of the barricade. But it could be reasonably argued that such testimony does not make clear whether the boy was within the barricade or on the roadway outside of it. However, the witness marked with an “X” on one of the exhibits the place where he last saw the boy before the accident. This mark would put the boy outside the barricade on the roadway. In the circumstances the jury had the right to disregard that portion of the testimony of the driver in his deposition as would place the boy within the barricade and to make a finding that the boy was on the roadway outside the barricade just before the accident. Such a finding, coupled with the testimony of the driver that he did see the boy just before the accident, was' sufficient to meet the burden imposed upon a plaintiff in a death action where, as here, there are no witnesses who actually saw how the accident occurred (Noseworthy v. City of New York, 298 N. Y. 76, 80). “ The management and control of the thing which has produced the injury [was] exclusively vested in the defendant ” and in the circumstances it became the defendant’s burden to explain the occurrence (Noseworthy v. City of New York, supra). This the defendant failed to do. |
*559In a probate proceeding, the objectant Carmela Ortolano appeals from an order of the Surrogate’s Court, Richmond County (Fusco, S.), dated September 28, 2005, which granted that branch of the motion of the petitioner Joseph Richichi which was for summary judgment determining that certain bank and brokerage accounts are assets of the decedent’s estate.
Ordered that the order is affirmed, with costs.
In July 1989, the decedent opened a joint bank account and a joint brokerage account with her daughter, Carmela Ortolano, using the decedent’s own funds and funds the decedent received after her husband’s death. In October 1989 the decedent executed a will which provided that the joint accounts she had established with her children had been created “solely for convenience,” and that her entire estate, including the jointly held assets, should be distributed in equal shares to all four of her children. In 1998 all of the decedent’s children signed an agreement acknowledging that the decedent’s accounts held jointly with her children had been established “as a convenience.” After the decedent’s death in 2003, Ortolano claimed ownership of the funds in the two joint accounts bearing her name. The Surrogate’s Court granted that branch of the motion of Joseph Richichi, the decedent’s son and the co-executor of her estate, which was for summary judgment determining that the subject accounts are assets of the decedent’s estate. We affirm.
Generally, the deposit of funds into a joint account constitutes prima facie evidence of an intent to create a joint tenancy (see Banking Law § 675). The presumption created by Banking Law § 675 can be rebutted “ ‘by providing direct proof that no joint tenancy was intended or substantial circumstantial proof that the joint account had been opened for convenience only’ ” (Fragetti v Fragetti, 262 AD2d 527, 527 [1999], quoting Wacikowski v Wacikowski, 93 AD2d 885, 885 [1983]; see Matter of Friedman, 104 AD2d 366 [1984], affd 64 NY2d 743 [1984]).
Contrary to Ortolano’s contention, Joseph Richichi rebutted the presumption of joint tenancy through clear and convincing evidence, including the decedent’s will and the 1998 agreement signed by her children, both of which expressly stated that the joint accounts had been established for the sake of convenience. *560Moreover, permitting Ortolano to retain the balance of the brokerage account, which represented the bulk of the decedent’s estate, would frustrate the decedent’s intention, clearly expressed in her will, that all four of her children share equally in her estate (see Matter of Camarda, 63 AD2d 837, 839). In response to Joseph Richichi’s demonstration of his entitlement to judgment as a matter of law, Ortolano failed to offer competent evidence raising a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Prudenti, EJ., Schmidt, Krausman and Balkin, JJ., concur. |
Judgment, entered on December 15, 1959, dismissing plaintiff’s complaint on the merits and dismissing the cross complaints of defendants 2570 Broadway Corp. and the City of New York against defendant Central Petroleum Corp., unanimously reversed, on the law and on the facts, and a new trial ordered, with costs to abide the event. Plaintiff’s claim of negligence is that he was caused to fall because of a hole in the sidewalk and a greasy condition on or about an oil intake valve in front of the premises of defendant 2570 Broadway Corp. We hold the court erroneously failed to charge in response to the inquiry of the jury that liability may be grounded on the bases alleged and established by the evidence if they substantially and proximately caused the occurrence although concurrently and to a lesser extent caused by the presence of snow. In addition, we conclude the plaintiff did not have a fair trial. During the progress of the trial there were interruptions and unnecessary criticisms of plaintiff’s counsel to such an extent that in our opinion the calm, dispassionate and deliberate consideration of the facts by the jury was unduly impeded. We are mindful of the fact that a Trial Judge is not reduced to such constraint that he may not make remarks on occurrences during the trial. (Devlin v. New York City Ry. Co., 116 App. Div. 894.) The Trial Judge should, however, at all times maintain an impartial attitude and exercise a high degree of patience and forbearance. The development of the facts in the presence of a jury so far as is humanly possible should be uncomplicated by personalities and acrimony. (Kamen Soap Prods. Co. v. Prusansky & Prusansky, 11 A D 2d 676; Cohon & Co. v. Pennsylvania Coal & Coke Corp., 10 A D 2d 667; Bowen v. Mahoney Coal Corp., 256 App. Div. 485; People v. Di Carlo, 242 App. Div. 328.) Concur — Botein, P. J., Rabin, Valente, McNally and Eager, JJ. |
In a proceeding pursuant to Social Services Law § 384-b to terminate parental rights on the ground of mental illness, the mother appeals from an order of fact-finding and disposition of the Family Court, Kings County (Elkins, J.), dated December 2, 2005, which, after a hearing, inter alia, terminated her parental rights and transferred guardianship and custody of the subject child to the Jewish Child Care Association of New York and the Commissioner of Social Services of the City of New York for the purpose of adoption.
Ordered that the order of fact-finding and disposition is affirmed, without costs and disbursements.
Contrary to the mother’s contention, the Family Court properly found that there was clear and convincing evidence that she is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for the subject child (see Social Services Law § 384-b [4] [c]; Matter of Dederia S.C., 26 AD3d 375 [2006]; Matter of Karyn Katrina D., 19 AD3d 592, 592-593 [2005]; Matter of Erica D., 294 AD2d 435, 436 [2002]). After interviewing the mother and reviewing her medical records, a psychologist testified that the mother suffers from “schizoaffective disorder, bipolar type” and “personality disorder, not otherwise specified.” The psychologist opined that due to the nature of the illness, the mother’s lack of insight about her illness, and her inability to act in accordance with her child’s needs due to her illness, the child, if *561returned to the mother, would be at risk of being neglected in the present and in the foreseeable future. This evidence supported the Family Court’s findings (see Matter of Karyn Katrina D., supra at 593; Matter of Winston Lloyd D., 7 AD3d 706, 707 [2004] ; Matter of Danielle C., 6 AD3d 530, 531 [2004]; Matter of Heather Rose R., 301 AD2d 530 [2003]).
The mother’s remaining contentions are without merit. Spolzino, J.E, Skelos, Covello and Balkin, JJ., concur. |
Order, entered on June 20, 1960, granting plaintiffs’ motion for leave to amend their bill of particulars is unanimously reversed, on the law, on the facts, and in the exercise of discretion, with $20 costs and disbursements to the appellant, and the motion denied, with $10 costs. The accident upon which the action is predicated occurred on September 13, 1952. The case came on for trial in January, 1958, and resulted in a verdict in favor of the plaintiffs. This court reversed the judgment and ordered a new trial on July 1, 1958 (McCormick v. West Tremont Estates, 6 A D 2d 105). We then said (p. 107): “ There was neither evidence as to any defect in the construction or maintenance of the box nor was there proof of any actual or constructive notice of any defect. To establish defendants’ liability it was incumbent on plaintiffs to prove some defect in the box or in its maintenance which caused its toppling over.” It was not until almost two years later that plaintiffs moved to amend their bill of particulars so as to allege that between 1946 and 1952 two tenants had complained to the defendant’s superintendent about the condition of the box upon which the plaintiff, Anna McCormick, claimed she had fallen. The granting of that motion was improvident for a number of reasons. In the first place, plaintiffs were guilty of inexcusable and prejudicial laches in seeking to add new matter in the action, eight years after the occurrence of the accident and two years since the reversal. The passage of between 8 and 14 years, since the alleged complaints were made to the defendant’s superintendent, clearly makes proper investigation extremely difficult, if not impossible. Secondly, as to the two instances in which the tenants are supposed to have notified the superintendant, one is too remote in time while the other is too indefinite in substance. Finally, there is no necessity for the proposed amendment. Under the present bill of particulars, plaintiffs may attempt to prove the existence of a defect by these witnesses. Concur — Rabin, J. P., Valente, McNally, Stevens and Eager, JJ. |
Interlocutory judgment, entered on June 20, 1960, directing defendants to account to the plaintiff,' unanimously reversed, on the law and on the facts, and the amended complaint dismissed, with costs to defendants-appellants. This action is one for damages for breach of a contract of employment as salesman on a commission basis for the period September 1,1954 to June 30, 1955. On the trial the parties stipulated the sole questions to be determined by the court were (1) whether as alleged in the amended complaint the contract of employment was for the term from September 1, 1954 to June 30, 1955; and (2) whether plaintiff was wrongfully discharged on January 17, 1955. The trial court rendered a decision for the plaintiff on the theory that the contract of employment was one from year to year, a theory not advanced by plaintiff in his complaint or at the trial. The evidence fails to establish employment for any definite period, and we find the employment was one at will. In a nonjury ease this court should enter the judgment the trial court should have entered. (Mintz v. Clavin & Co., 4 A D 2d 635, affd. 4 N Y 2d 886.) The defendants’ motion to dismiss the amended complaint should have been granted. Settle order on notice. Concur — Breitel, J. P., Valente, McNally and Stevens, JJ. |
Order entered July 27, 1960, annulling determination of appellant State Liquor Authority and remanding the matter *475for further investigation and reconsideration unanimously reversed, on the law and the facts, the petition is dismissed, and the determination of the State Liquor Authority is reinstated and confirmed, with $20 costs and disbursements to appellants. This is a proceeding under article 78 of the Civil Practice Act brought by three neighboring retail liquor store dealers, who seek to annul and set aside the determination of the State Liquor Authority approving appellant Feilbert’s application for a retail liquor store license. Feilbert had previously operated a store at another premises for 15 years, but had been required to vacate when the property was acquired for a public purpose. The action under review herein involves the Authority’s approval of Feilbert’s application to remove his retail liquor store license to premises in the area where the three petitioners operate liquor stores. Upon this record it cannot be held, as was stated at Special Term, that the Authority based its determination exclusively on the volume of sales in the neighborhood where it had licensed Feilbert to open his store or on the economic prospects of the licensees in that neighborhood. The conclusion of the Authority was that it would serve public convenience and advantage to permit the removal requested by Feilbert. Upon this appeal, limited as we are to a consideration of whether the determination of the Authority was arbitrary or capricious, we cannot say that the record leaves no scope for the proper exercise of its discretion within the statutory requisites for the issuance of licenses (Matter of Restaurants, Longchamps v. O’Connell, 271 App. Div. 684, affd. 296 N. Y. 888; Matter of John J. King, Inc. v. O’Connell, 280 App. Div. 852). Concur — Botein, P. J., Breitel, Rabin, McNally and Stevens, JJ. |
In a custody proceeding pursuant to Family Court Act article 6, the father appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Joseph, J.), dated December 9, 2005, as, upon granting his petition for a change of custody of the parties’ children, directed him to provide a residence for the mother and pay ex*562penses related thereto, and awarded visitation to the maternal grandmother and the maternal aunt.
Ordered that the order is reversed insofar as appealed from, on the law, with costs.
Upon granting the father’s petition for a change of custody, the Supreme Court erred in directing the father to provide a residence for the mother and pay expenses related thereto. The parties were never married, the children will no longer be residing with the mother, and this relief was never requested by the mother. Moreover, the Supreme Court erred in awarding visitation to the maternal grandmother and the maternal aunt, since neither relative was a party to this proceeding, and neither applied for such relief (see Nir v Nir, 172 AD2d 651 [1991]; see also Martinez v Dushko, 7 AD3d 584, 585 [2004]; Matter of McAteer v Condon, 296 AD2d 412 [2002]). Miller, J.E, Spolzino, Goldstein and McCarthy, JJ., concur. |
In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund, dated March 18, 2004, denying the petitioner’s applications for disability retirement benefits, the petitioner appeals from a judgment of the Supreme Court, Kings County (Schneier, J.), dated March 17, 2005, which denied the petition and dismissed the proceeding.
Ordered that the judgment is modified, on the law, by deleting the provision thereof denying that branch of the petition which was to annul the medical findings of the Medical Board of the New York City Fire Department, Article 1-B Pension Fund, with regard to the petitioner’s application for ordinary disability retirement benefits and substituting therefor a provision granting that branch of the petition; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the respondent Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund, for further proceedings in accordance herewith.
The issue of whether a firefighter is disabled is determined by *563the Medical Board of the New York City Fire Department, Article 1-B Pension Fund (hereinafter the Medical Board), and its “determination ... is conclusive if it is supported by some credible evidence and is not irrational” (Matter of Rodriguez v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 3 AD3d 501, 501 [2004]; see Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756, 760 [1996]; Matter of Hession v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 23 AD3d 468 [2005]; Matter of Kuczinski v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 8 AD3d 283, 284 [2004]). Credible evidence is “evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered” (Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 147 [1997]).
Here, the medical findings support the determination of the Medical Board that the petitioner was not entitled to accidental disability retirement benefits. However, the medical findings do not sustain the determination of the Medical Board with regard to the application for ordinary disability retirement benefits and, thus, that determination is irrational (see Matter of Rodriguez, supra at 501-502). The impartial neurosurgeon, who, upon the request of the Medical Board, reviewed a magnetic resonance image, reported to the Medical Board that evidence existed of chronic degenerative cervical disc and arthritic changes. The neurosurgeon, however, failed to discuss whether this evidence affected his earlier findings of no disability. The Medical Board did not inquire further. Accordingly, we modify the judgment and grant that branch of the petition which was to annul the findings of the Medical Board with regard to the petitioner’s application for ordinary disability retirement benefits and remit the matter to the respondent Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund (hereinafter the Board of Trustees), for new medical reports and new findings by the Medical Board and a new determination by the Board of Trustees with regard to the application for ordinary disability retirement benefits. Santucci, J.P, Goldstein, Garni and McCarthy, JJ., concur. |
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.), rendered March 27, 2003, convicting him of criminal possession of a weapon in the second degree and assault in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of *564that branch of the defendant’s omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The hearing court properly denied the defendant’s request to call the complainant or his girlfriend as witnesses at the hearing. The defendant did not raise any substantial issues regarding the constitutionality of the identification, the People’s evidence was not notably incomplete, and the defendant did not otherwise establish a need for this testimony (see People v Gant, 26 AD3d 516 [2006]; People v Scott, 290 AD2d 522 [2002]).
The defendant’s contention that the prosecutor’s remarks during summation constituted reversible error is unpreserved for appellate review because he either failed to object, or raised only general objections, to the challenged remarks (see CPL 470.05 [2]; People v Rivera, 19 AD3d 620 [2005]; People v Chellel, 307 AD2d 974 [2003]). In any event, the challenged remarks were either fair comment on the evidence or a fair response to the defense summation (see People v Ashwal, 39 NY2d 105 [1976]; People v Rhodes, 11 AD3d 487 [2004]).
We need not address the defendant’s contention that postrelease supervision should not be a part of his sentence. Neither the sentencing minutes nor the court’s order of commitment mentioned the imposition of any period of postrelease supervision. Therefore, the sentence actually imposed by the court never included, and does not now include, any period of postrelease supervision (see Hill v United States ex rel. Wampler, 298 US 460 [1936]; People v Smith, 37 AD3d 499 [2007]; Earley v Murray, 451d 71 [2006], rearg denied 462d 147 [2006]; but see People v Sparber, 34 AD3d 265 [2006]).
The defendant’s remaining contentions are without merit. Schmidt, J.R, Rivera, Covello and Balkin, JJ., concur. |
Appeal by the defendant from a judgment of the Supreme Court, Kings County *566(Marrus, J.), rendered September 7, 2004, convicting her of murder in the second degree (three counts), robbery in the first degree (two counts), robbery in the second degree, robbery in the third degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon her plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant’s various contentions in her supplemental pro se brief challenging the validity of her plea of guilty have not been preserved for appellate review (see People v Toxey, 86 NY2d 725 [1995]; People v Lopez, 71 NY2d 662 [1988]; People v Pellegrino, 60 NY2d 636 [1983]; People v Thompson, 28 AD3d 498 [2006]; People v Bevins, 27 AD3d 572 [2006]; People v Matos, 27 AD3d 485 [2006]), or have been forfeited by her plea of guilty (see People v Iannone, 45 NY2d 589 [1978]; People v Gerber, 182 AD2d 252 [1992]; People v Holt, 173 AD2d 644 [1991]). In any event, those contentions are without merit (see People v Moore, 71 NY2d 1002 [1988]; People v Harris, 61 NY2d 9 [1983]; People v Reels, 17 AD3d 488 [2005]).
Furthermore, the record demonstrates that the defendant received meaningful representation of trial counsel (see People v Benevento, 91 NY2d 708 [1998]; People v Ford, 86 NY2d 397 [1995]), and that the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant’s remaining contentions raised in her supplemental pro se brief are without merit. Santucci, J.E, Goldstein, Garni and McCarthy, JJ., concur. |
Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered April 19, 2005, convicting him of criminal possession of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant pleaded guilty to criminal possession of a controlled substance in the fifth degree after cocaine was observed on the driver’s seat next to him during a traffic stop. At the time of the stop, the defendant was driving the car. A computer check of the car’s license plate, done just before the stop, revealed that the car’s registration was suspended. The defendant contends that the court erred in denying suppression of the physical evidence.
“Issues of credibility are primarily for the hearing court and its findings are to be accorded great weight unless they are clearly erroneous. As we perceive no basis to overturn the hearing court’s determination, we conclude that suppression of the contraband . . . was properly denied” (People v Harley, 139 AD2d 665 [1988] [citations omitted]; see People v Baldanza, 138 AD2d 722, 724 [1988]; cf. People v Lastorino, 185 AD2d 284, 285 [1992]).
The defendant’s contention that the traffic stop was improper and merely pretextual is also without merit. “The stop was based upon information from a police computer run that the defendant was driving a vehicle with a suspended registration . . . Under such circumstances, the police officer had probable cause to arrest the defendant (see Vehicle and Traffic Law § 512)” (People v Brown, 306 AD2d 291 [2003]). Crane, J.P., Krausman, Fisher and Dickerson, JJ., concur. |
. Motion to dismiss petition as a matter of law denied, with leave to the respondent to serve and file an answer to the petition. The petitioner is directed to file with the Clerk of this court five additional copies of the petition, notice of motion and the exhibits annexed thereto, except Exhibit D, on or before December 6, 1960. The respondent is directed to serve one copy of his answer upon the attorney for the petitioner and file the original and five additional copies thereof with this court within 10 days after service of a copy of the order herein, with notice of entry thereof, upon his attorney. This proceeding is added to the Enumerated Calendar of this court for the January 1961 Term, to be argued or submitted when reached. The petitioner is directed to serve one typewritten copy of petitioner’s points upon the attorney for the respondent and file six typewritten copies thereof with this court, together with a notice of argument for the January 1961 Term, on or before December 12, 1960. The respondent is directed to serve one typewritten copy of the respondent’s points upon the attorney for the petitioner and file six typewritten copies thereof with this court on or before December 27, 1960. Concur — Rabin, J. P., Valente, McNally, Stevens and Eager, JJ. |
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Katz, J.), rendered December 1, 2003, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and sentencing him to indeterminate terms of imprisonment of 25 years to life on the conviction of murder in the second degree and 5 to 15 years on the conviction of criminal possession of a weapon in the second degree, to run concurrently with each other. The appeal brings up for review the denial, after a hearing (Hanophy, J.), of that branch of the defendant’s omnibus motion which was to suppress identification testimony.
*567Ordered that the judgment is modified, on the law, by (1) reducing the sentence imposed on the conviction of murder in the second degree from an indeterminate term of imprisonment of 25 years to life to an indeterminate term of imprisonment of 15 years to life, and (2) reducing the sentence imposed on the conviction of criminal possession of a weapon in the second degree from an indeterminate term of imprisonment of 5 to 15 years to an indeterminate term of imprisonment of 3 to 9 years; as so modified, the judgment is affirmed.
The defendant claims that he was deprived of a fair trial by prosecutorial misconduct during trial and on summation. However, the defendant’s contentions are unpreserved for appellate review (see CPL 470.05 [2]; People v Medina, 53 NY2d 951, 953 [1981]). In any event, his claims are without merit as any error was harmless in light of the overwhelming evidence of his guilt (see People v Crimmins, 36 NY2d 230, 242 [1975]).
The defendant contends that the prosecutor erred in not representing the case for indictment to the grand jury because the eyewitness recanted his original grand jury testimony that he knew the defendant from neighborhood encounters. The defendant does not have the right to have this issue reviewed on appeal from a judgment of conviction that was based on legally sufficient trial evidence (see CPL 210.30 [6]; People v Nealy, 32 AD3d 400, 402 [2006]; People v Perry, 19 AD3d 619, 619-620 [2005] ; People v Bryant, 234 AD2d 605 [1996]; People v Cosme, 228 AD2d 515 [1996]).
Contrary to the defendant’s contentions, the prosecution proved by clear and convincing evidence that the eyewitness to the crime identified the defendant in court based on his independent observations during the shooting (see People v Brown, 293 AD2d 686 [2002]; People v Radcliffe, 273 AD2d 483, 484 [2000]; People v Fuentes, 240 AD2d 511 [1997]; People v Johnson, 211 AD2d 730, 731 [1995]; People v Hyatt, 162 AD2d 713, 714 [1990]; People v Androvett, 135 AD2d 640, 642 [1987]; People v Washington, 111 AD2d 418 [1985]). Furthermore, under the circumstances of this case, the hearing court properly denied the defendant’s application to call an expert witness on the matter of eyewitness identification (see People v Young, 7 NY3d 40, 46 [2006] ; People v Lee, 96 NY2d 157, 162-163 [2001]; People v Brown, 97 NY2d 500, 505 [2002]; People v Mims, 30 AD3d 539, 540 [2006]).
However, the Supreme Court erred in enhancing the sentence originally imposed upon the defendant, which sentence was vacated upon federal habeas corpus review (see Jenkins v Artuz, 294d 284 [2002]). The record is devoid of any objective infor*568mation sufficient to rebut the presumption of vindictiveness that arose from the court’s imposition of a sentence greater than that imposed after the initial conviction (see United States v Goodwin, 457 US 368, 372 [1982]; People v Young, 94 NY2d 171, 176 [1999]; People v Van Pelt, 76 NY2d 156, 162 [1990]; People v Moye, 4 AD3d 488, 489 [2004]).
The defendant’s remaining contentions are without merit. Schmidt, J.E, Krausman, Covello and Balkin, JJ., concur. |
Decree unanimously affirmed, with costs to all parties filing briefs payable out of the estate. The express provisions of the will of the decedent were that the trustee should collect the income from the trust fund and pay the same over “to and for the use, maintenance and support of my children Esther Weinstein, Edith Epstein and Herman Gardner * * * equally share and share alike, until the death of my granddaughters, Rosie Epstein and Miriam Gardner, and upon the death of my said two granddaughters, to render and pay over the principal of such trust fund to my children Esther Weinstein, Edith Epstein and Herman Gardner in equal shares and parts and to the then living issue of the said Esther Weinstein, Edith Epstein and Herman Gardner, if any of my said children be then deceased, per stirpes and not per capita.” By virtue of these provisions, the term expressly stipulated for the duration of the trust was a period to continue until the death of the named granddaughters. The testator, at the time of the making of his will, necessarily had in mind that his said two granddaughters, Rosie Epstein and Miriam Gardner, aged respectively 11 and 4, were considerably younger than his children and that his three named children would in all probability die before the two younger granddaughters. Nevertheless, he expressly specified that the trust fund should be paid over on the death of the two granddaughters. Furthermore, the testator expressly provided that, upon the death *478of his two granddaughters, the remainder should be paid over to his said three named children and to the “then living issue” of any of the same who were “ then ” deceased. Thus, as was pointed out by the learned Surrogate below, the testator created a contingent remainder in “issue” with the persons entitled to take as such determinable as of the time of the death of the last of the two granddaughters. Therefore, the court may not terminate the trust prior to the death of the two granddaughters, for to do so would amount to the unlawful acceleration of a contingent remainder (see Matter of Fischer, 307 N. Y. 149) and tend to thwart the plainly expressed directions of the testator. It appears that the testator’s three named children, who were designated as the primary beneficiaries of the trust, have now all died, the last to die being Edith Epstein, who died on May 15, 1955. By virtue of these circumstances the granddaughters sought a determination declaring the trust at an end notwithstanding the term provided for by the testator for its duration has not yet ended. The granddaughters contend that the natural term of the trust was the lives of the primary beneficiaries thereof, namely, the lives of the testator’s said three children, and that the stipulated term for the ending of the trust was subject to the shortening thereof on the expiration of such alleged natural term. The granddaughters cite Provost v. Provost (70 N. Y. 141); Crooke v. County of Kings (97 N. Y. 421); Kahn v. Tierney (135 App. Div. 897, affd. 201 N. Y. 516) and Whitman v. Terry (196 App. Div. 282). As pointed out, however, by the learned Surrogate below, in each of the cited cases, excepting Whitman v. Terry (supra) the primary question before the court had to do with the initial validity of the particular trust which was assailed on the ground that the stipulated term therefor worked an unlawful suspension of the power of alienation; and, the holding of the court in each of such cases, excepting in Whitman v. Terry (supra) that the particular trust would in any event terminate on the ending of an alleged natural term therefor was a holding arrived at in order to sustain the validity of the trust. In any event, the cited decisions, including the decision in Whitman v. Terry (supra) certainly do not warrant the termination of a testamentary trust at the end of the lives of the specifically named life beneficiaries where, as here, such a holding is unnecessary to the sustaining of the validity of the trust and would operate to terminate the trust contrary to the term expressly fixed by the testator for its duration and, particularly, where, as here, such holding would operate to terminate the trust as of a time prior to the time fixed by the testator for the determination of a class of persons who may be entitled to share in the remainder. (Cf. Matter of Thorne, 9 Misc 2d 126, affd. 6 A D 2d 783, affd. 6 N Y 2d 967.) As bearing upon the determination of the persons entitled to or who may be entitled to take the remainder of the trust fund, the testamentary provision, as noted aforesaid, was that “upon the death ” of the two granddaughters, the remainder was to be paid over “ to my children Esther Weinstein, Edith Epstein and Herman Gardner in equal shares and parts and to the then living issue of the said Esther Weinstein, Edith Epstein and Herman Gardner, if any of my said children be then deceased, per stirpes and not per capita”. Clearly, these provisions effected a present gift of the remainder to the three named children, they being persons in being at the time of testator’s death, subject, however, to be divested as to any one of them by his or her failing to survive the duration of the trust “ if, but only if, such remaindermen leaves issue or decedents surviving”. (Matter of Krooss, 302 N. Y. 424, 429, and cases cited; also, Matter of Campbell, 307 N. Y. 29, 33; Matter of Ablett, 3 N Y 2d 261.) Concur —Breitel, J. P., Rabin, McNally and Eager, JJ. [4 Misc 2d 435.] |
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J), rendered March 30, 2005, convicting him of attempted robbery in the first degree and attempted robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Grosso, J), of those branches of the defendant’s omnibus motion which were to suppress physical evidence and identification testimony.
Ordered that the matter is remitted to the Supreme Court, Queens County, for a de novo suppression hearing and a report thereafter, on those branches of the defendant’s omnibus motion which were to suppress physical evidence and identification testimony, and the appeal is held in abeyance in the interim; the Supreme Court shall file its report with all convenient speed.
A pretrial suppression hearing was held to determine the legality of the defendant’s showup identification by Police Officer Christopher Forino, the defendant’s subsequent arrest, and the recovery of the defendant’s ski mask. At the hearing, Officer Forino testified that he discovered the ski mask the defendant allegedly wore while attempting to commit a gunpoint robbery of the complainant only after the complainant identified the defendant, and after the defendant had been placed under arrest. At trial, the complainant testified that Officer Forino had shown her the ski mask prior to her identification of the defendant. After this testimony was elicited, the defendant moved to reopen the suppression hearing pursuant to CPL 710.40 (4). The trial judge instructed the defense counsel to *569make an application to the hearing court. After the defendant’s motion to reopen the hearing was denied by the hearing court on the ground that it was a trial issue, the trial judge denied the motion, ruling that the decision of the hearing court was “the law of the case,” and that “as a Judge of equal jurisdiction,” he was bound by that determination. This determination constituted error.
Initially, the trial judge erred in concluding that he did not have the discretion to reopen the suppression hearing conducted by another judge because that determination was the “law of the case.” A trial judge has the discretion to reopen a hearing conducted by another judge (see People v Figliolo, 207 AD2d 679, 681 [1994]). Further, the law of the case doctrine was not applicable to the issue presented here because the hearing court never rendered a determination on the merits of the application to reopen the hearing, but merely concluded that it was a trial issue to be decided by the trial judge (see People v Bilsky, 95 NY2d 172, 175 [2000]; cf. People v Guin, 243 AD2d 649 [1997]).
A trial court has the discretion to reopen a suppression hearing if the defendant proffers new facts, which were not discoverable with reasonable diligence before the determination of the motion and which are pertinent to the suppression issue (see GPL 710.40 [4]). Here, the defendant met his burden by proffering new facts which could not have been discovered with reasonable diligence before the determination of the suppression motion, and which were pertinent to the suppression issue, in that they may well have affected the hearing court’s ultimate determination of probable cause (see People v Velez, 39 AD3d 38 [2007]). The testimony of the complainant directly implicated the hearing court’s finding of probable cause, and raised more than a question of credibility (id.). Further, even though the defendant could be presumed to know the chronology of the officer’s conduct prior to his arrest, this Court cannot presume that he knew what conduct led to the identification (id.).
Accordingly, we remit the matter to the Supreme Court, Queens County, for a de novo suppression hearing and to report on those branches of the defendant’s omnibus motion which were to suppress physical evidence and identification testimony, and the appeal is held in abeyance in the interim (id.). We decide no other issues at this time. Spolzino, J.P, Skelos, Covello and Balkin, JJ., concur. |
*570Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered December 20, 2004, convicting him of robbery in the first degree, robbery in the second degree, endangering the welfare of a child, and menacing in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Grosso, J.), after a hearing (O’Dwyer, J.H.O.), of that branch of the defendant’s omnibus motion which was to suppress certain identification testimony.
Ordered that the judgment is affirmed.
The defendant contends that testimony concerning a pretrial lineup identification procedure should have been suppressed because a detective informed the complainant that the suspect he had previously selected from a photographic array would be in the lineup. However, that fact, in and of itself, did not render the lineup impermissibly suggestive where, as here, the identification procedure followed in the lineup was proper (see People v Martinez, 151 AD2d 786 [1989]; People v Ballard, 140 AD2d 529, 530 [1988]; People v Wiredo, 138 AD2d 652, 653 [1988]; People v Hammond, 131 AD2d 876, 877 [1987]; People v Jerome, 111 AD2d 874 [1985]; cf. People v Davis, 169 AD2d 508 [1991]). We further note that the complainant selected the defendant from the lineup two months after selecting his photograph from the array. In addition, the complainant’s sister, who witnessed the incident giving rise to the charges in this case, separately selected the defendant’s photograph from the array and separately identified him in the lineup. Accordingly, the Supreme Court properly denied that branch of the defendant’s omnibus motion which was to suppress the identification testimony. For the same reasons, contrary to the defendant’s contention, the Supreme Court did not err in failing to determine whether there was an independent source for the complainant’s in-court identification of the defendant. Miller, J.E, Schmidt, Ritter and Angiolillo, JJ., concur. |
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