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https://www.courtlistener.com/api/rest/v3/opinions/4534622/
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/15/2020 08:07 AM CDT
- 726 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
State of Nebraska, appellee, v.
Jessica Jo Lang, appellant.
___ N.W.2d ___
Filed May 8, 2020. No. S-19-275.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment pro-
tection is a question of law that an appellate court reviews independently
of the trial court’s determination.
2. Mental Competency: Appeal and Error. A trial court’s determination
of competency will not be disturbed on appeal unless there is insuf-
ficient evidence to support the finding. But a trial court’s decision
not to order a competency evaluation or hold a competency hearing is
reviewed for an abuse of discretion.
3. Effectiveness of Counsel: Appeal and Error. In reviewing claims of
ineffective assistance of counsel on direct appeal, an appellate court
decides only whether the undisputed facts contained within the record
are sufficient to conclusively determine whether counsel did or did not
provide effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance.
4. Investigative Stops: Motor Vehicles: Time. A lawful traffic stop can
become unlawful if it is prolonged beyond the time reasonably required
to complete the mission of the stop.
5. ____: ____: ____. When the mission of an investigative stop is address-
ing a suspected traffic violation, the stop may last no longer than is
necessary to effectuate that purpose, and authority for the seizure ends
when tasks tied to the traffic infraction are, or reasonably should have
been, completed.
6. Controlled Substances: Investigative Stops: Motor Vehicles:
Police Officers and Sheriffs. Because of marijuana’s legal status as
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STATE v. LANG
Cite as 305 Neb. 726
contraband, a trained officer who detects the odor of marijuana emanat-
ing from a vehicle in Nebraska has firsthand information that provides
an objectively reasonable basis to suspect contraband will be found in
the vehicle.
7. Constitutional Law: Search and Seizure. Both the Fourth Amendment
to the U.S. Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures.
8. Warrantless Searches: Motor Vehicles. Searches without a valid war-
rant are per se unreasonable, subject only to a few specifically estab-
lished and well-delineated exceptions. Among the established excep-
tions to the warrant requirement is the automobile exception.
9. Search and Seizure: Warrantless Searches: Probable Cause: Motor
Vehicles. The automobile exception to the warrant requirement applies
when a vehicle is readily mobile and there is probable cause to believe
that contraband or evidence of a crime will be found in the vehicle.
10. Search and Seizure: Probable Cause: Words and Phrases. Probable
cause to search requires that the known facts and circumstances are
sufficient to warrant a person of reasonable prudence in the belief that
contraband or evidence of a crime will be found.
11. Controlled Substances: Search and Seizure: Warrantless Searches:
Motor Vehicles: Probable Cause. Assuming a vehicle is readily mobile,
the odor of marijuana alone provides probable cause to search the vehi-
cle under the automobile exception to the warrant requirement.
12. Search and Seizure: Motor Vehicles: Probable Cause. If probable
cause justifies the search of a lawfully stopped vehicle, it justifies
the search of every part of the vehicle and its contents that may con-
ceal the object of the search. This includes all containers within the
vehicle.
13. Courts: Trial: Mental Competency. The question of competency to
stand trial is one of fact to be determined by the court, and the means
employed in resolving the question are discretionary with the court. The
trial court may cause such medical, psychiatric, or psychological exami-
nation of the accused to be made as it deems necessary.
14. Mental Competency. An explicit competency determination is neces-
sary only when the court has reason to doubt the defendant’s compe-
tence, and if proceedings do not provide the court with reason to doubt
a defendant’s competence, it does not err by not conducting a compe-
tency hearing.
15. Trial: Pleas: Mental Competency. A person is competent to plead or
stand trial if he or she has the capacity to understand the nature and
object of the proceedings against him or her, to comprehend his or her
own condition in reference to such proceedings, and to make a ratio-
nal defense.
- 728 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
16. Mental Competency. There are no fixed or immutable signs of incom-
petence, and a defendant can meet the modest aim of legal competency,
despite paranoia, emotional disorders, unstable mental conditions, and
suicidal tendencies.
17. Effectiveness of Counsel: Proof: Words and Phrases. Generally, to
prevail on a claim of ineffective assistance of counsel under Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
the defendant must show that his or her counsel’s performance was
deficient and that this deficient performance actually prejudiced the
defendant’s defense.
18. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record. Otherwise, the issue will be
procedurally barred in a subsequent postconviction proceeding.
19. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved on direct appeal. The deter-
mining factor is whether the record is sufficient to adequately review the
question. The record is sufficient if it establishes either that trial coun-
sel’s performance was not deficient, that the appellant will not be able to
establish prejudice, or that trial counsel’s actions could not be justified
as a part of any plausible trial strategy.
20. Mental Competency: Final Orders. A trial court’s decision to overrule
a motion for a competency evaluation is not a final, appealable order.
21. Trial: Effectiveness of Counsel: Appeal and Error. Trial counsel is
afforded due deference to formulate trial strategy and tactics, and an
appellate court will not second-guess trial counsel’s reasonable strategic
tactics when reviewing claims of ineffective assistance of counsel.
Appeal from the District Court for Hall County: Mark J.
Young, Judge. Affirmed.
Gerard A. Piccolo, Hall County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
- 729 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
Stacy, J.
After a stipulated bench trial, Jessica Jo Lang was convicted
of possessing methamphetamine and marijuana. In this direct
appeal, she argues the district court erred in overruling her
motion to suppress and her motions seeking a competency
evaluation. Lang, who is represented by new appellate counsel,
also claims her trial counsel provided ineffective assistance.
Finding no error, we affirm.
I. BACKGROUND
1. Traffic Stop
On August 16, 2017, Officer Bret Renz of the Grand Island
Police Department was on patrol. At approximately 10:45 p.m.,
his radar detected a vehicle traveling more than 10 miles per
hour over the posted speed limit and he activated his patrol
car’s overhead emergency lights and initiated a traffic stop.
The driver of the vehicle was Omega Fristoe, and the sole pas-
senger was Lang.
Renz gathered Fristoe’s information and returned to his
patrol car to run a record check and complete a traffic cita-
tion. As he did this, Officer Chris Marcello of the Grand Island
Police Department arrived on the scene to assist.
After Renz completed the citation form, both officers
approached Fristoe’s vehicle. Renz approached on the driver’s
side, and Marcello approached on the passenger’s side. The
front passenger window was rolled down 4 to 6 inches, and
as Marcello approached, he detected an odor of marijuana
coming from the passenger window. He saw Lang look up
at him and then reach into her purse. He watched Lang get a
cigarette from her purse and light it, after which Lang blew
smoke around the cabin of the vehicle and then continued to
“go through her purse.”
Marcello got Renz’ attention, and the officers met at the
back of the vehicle to speak privately. At that point, Renz
had not issued the citation to Fristoe. Marcello told Renz he
smelled marijuana coming from the passenger window, and
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
the officers decided to expand their investigation. Renz placed
his ticket book, with the citation still attached, on the trunk
of Fristoe’s vehicle, and then the officers reapproached the
vehicle and asked the occupants to step out. Both Fristoe and
Lang complied.
When Lang stepped out of the vehicle, she brought her purse
with her. She was directed to place the purse on the hood of
Fristoe’s vehicle, which she did. The officers told Fristoe and
Lang that the odor of marijuana had been detected coming
from inside their vehicle. During the course of the investiga-
tion, Marcello searched Lang’s purse and discovered a green
leafy substance in a baggie that field-tested positive for mari-
juana, a white crystalline substance in a baggie that field-tested
positive for methamphetamine, some nonnarcotic pills, and
drug-related paraphernalia.
2. Motion to Suppress
Lang was charged with (1) possession of a controlled sub-
stance, methamphetamine (a Class IV felony); (2) possession
of marijuana, less than an ounce (an infraction); and (3) pos-
session of drug paraphernalia (an infraction). She pled not
guilty.
Lang filed a motion to suppress the evidence found in her
purse, arguing it was obtained as the result of an unconsti-
tutional search. At the suppression hearing, both Renz and
Marcello testified to the events as summarized above. In addi-
tion, Renz testified that before Marcello alerted him to the odor
of marijuana coming from the passenger window, he had not
smelled marijuana either time he approached the driver’s side
of the vehicle.
At the conclusion of the evidence, the district court over-
ruled Lang’s motion to suppress. It found there was probable
cause for the traffic stop because the vehicle was observed
speeding. It reasoned the smell of marijuana coming from
inside the vehicle gave the officers probable cause for a war-
rantless search of the vehicle and containers in the vehicle,
including Lang’s purse. The court found Marcello’s testimony
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305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
about smelling marijuana coming from the passenger window
was credible, and it rejected Lang’s argument to the contrary.
Lang’s case was set for trial.
3. Trial
(a) First Request for
Competency Evaluation
On the morning of September 24, 2018, Lang appeared in
court with her attorney for jury selection. Outside the presence
of the prospective jurors, Lang’s counsel told the court he was
concerned that Lang’s emotional state may interfere with jury
selection and trial. The court construed this as an oral motion
for a competency evaluation, and it took the matter up on
the record.
No evidence was offered, but Lang’s attorney informed the
court that Lang suffered from post-traumatic stress disorder
as a result of a prior work-related assault and that she had
been unable to afford her anxiety medication for more than a
year. Counsel explained that Lang had been frightened during
all of her court appearances, but that her emotional state that
day was “extreme.” Counsel told the court that Lang “does
understand what is going on and understands what we are say-
ing,” but that he was concerned about her sobbing in court,
explaining:
I am having trouble getting communication back from her
that I understand or that the jury will understand in part
due to her inability to control her depression.
She also has informed me that for the past couple three
weeks, she has seriously considered issues of suicide and
self-harm because of this situation and her lack of medi-
cation. She has not known how to resolve it.
She states to me that she has in fact sought help from
governmental entities in regards to her mental health, but
because she is pending a worker’s compensation claim
against the State of Nebraska, those entities have said that
the State should be responsible for paying that and they
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305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
have not provided treatment. Her worker’s comp trial is
not scheduled for another couple of months.
....
. . . Your Honor, I think if we were to go to jury selec-
tion and trial today, I don’t believe the jury would be able
to get past the emotional condition that my client is in
for purposes of actually addressing and listening to the
facts that may be presented at the time of trial or that they
would be able to even understand Ms. Lang should she
elect to testify, if she was able to testify at all.
The State took no position on the issue other than advising
it was ready for trial. The district court, with counsel’s permis-
sion, spoke with Lang directly:
THE COURT: Ms. Lang, we’re here today to select a
jury that will ultimately decide whether or not you are
guilty or not guilty of the charges that have been filed
against you. Do you understand that Ms. Lang?
THE DEFENDANT: Yes.
THE COURT: Ms. Lang, it’s important that the jury
reach a decision based upon the facts of the case and not
their impressions, positive or negative, about you or any-
one else. Do you understand that?
THE DEFENDANT: Yeah.
THE COURT: Ms. Lang, will you control yourself dur-
ing the courtroom proceedings?
THE DEFENDANT: I can try my best. I apologize.
THE COURT: Ms. Lang, are there any accommoda-
tions that the Court can provide that would allow you to
calm yourself?
THE DEFENDANT: No.
....
THE COURT: At this point, it appears that Ms. Lang
understands the nature of these proceedings and that Ms.
Lang suffers, by her statements and by counsel’s state-
ments, from some traumatic issues that don’t involve
this case.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
I find Ms. Lang is competent to proceed to trial. We
will attempt at least to begin voir dire today as the second
case to be chosen. We’ll see how things go.
I’ll be willing to listen to any comments by either
counsel.
Our record does not include jury selection, but it does show
that the next day, the district court commented favorably on
Lang’s composure during jury selection.
(b) Second Request for
Competency Evaluation
On the first day of trial, outside the presence of the jury,
the State requested a reciprocal order of witness sequestra-
tion, which the court granted. Fristoe, who was present in the
courtroom and a possible witness for the defense, was told
he would have to step out once the trial began. At that point,
Lang covered her face and began sobbing. Lang’s counsel told
the court that Fristoe was a strong emotional support for Lang,
who was still having anxiety issues.
The court spoke again with Lang about the importance of
a fair trial and controlling her emotions and behavior during
trial. Lang replied to the court, “I cannot control my mental
illness. I am sorry.” The court replied:
I don’t mean to belittle your emotional situation, but I
have not received any evidence that would support a
claim that you cannot carry on appropriately or behave
yourself.
I would note you did a great job at jury selection yes-
terday. I would note that no tears appear to be falling off
when you are making the sobbing noises.
Lang’s counsel then offered exhibit 8, a psychological evalu-
ation from December 2014 conducted as part of Lang’s work-
ers’ compensation case. The exhibit was received without
objection. The State again advised the court it was ready to try
the case and opposed additional delays.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
The court asked Lang’s counsel to clarify whether he was
seeking a continuance or seeking a competency evaluation.
Counsel replied:
[R]ight now, I do not know — well, how can I put this —
if Ms. Lang can understand what’s going on.
I believe that her emotional condition, her anxiety reac-
tion, and her depression have made it such that she cannot
control her physical condition. As she has presented in the
courtroom, it’s making it difficult to verbally communi-
cate and appropriately provide an appearance to the jury
which may jeopardize their ability to render an impartial
decision. That’s my concern.
The court asked again, “[A]re you asking for a competency
evaluation, [counsel]?” to which counsel replied, “I will ask
for a competency evaluation to see if she’s capable of par-
ticipating in her current psychological condition.” The court
took a recess to review exhibit 8 and then went back on the
record and made the following ruling outside the presence of
the jury:
Based upon review of Exhibit 8 and the Court’s obser-
vations from yesterday and today, I am overruling the
motion for a competency evaluation. There’s nothing in
the record indicating Ms. Lang is incapable of understand-
ing the proceedings or communicating with counsel.
I will, however, in an attempt to accommodate Ms.
Lang, continue this matter until one p.m. so that Ms. Lang
may have a chance to get some fresh air and to come back
and hopefully be ready to participate or be ready to be
attentive during the trial of this case.
....
Ms. Lang, this is an unusual step, but I am giving you
a chance to take a little more time to compose yourself. In
reviewing Exhibit 8, the mental health reports from three
and four years ago, it appears that you have had some
coping skills you need to be utilizing.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
(c) Change of Plea
When the parties returned at 1 p.m. to begin trial, Lang’s
counsel advised that his client wanted to enter a no contest
plea to the charges in the information. Lang confirmed that was
her desire.
The court went through the standard plea colloquy with
Lang, and Lang consistently indicated that she understood her
rights and the consequences of her pleas. After the State recited
the factual basis, the court asked Lang whether she understood
that if the court accepted her pleas, she would be giving up her
right to appeal the overruling of her motion to suppress. Lang
indicated she was not aware of that fact and told the court it
may affect her decision. A recess was taken so Lang could talk
with her attorney.
After the recess, Lang’s counsel advised the court that in
order to preserve her right to appeal the suppression ruling,
Lang now wanted to withdraw her no contest pleas, enter not
guilty pleas, waive a jury, and have the matter tried to the
bench on “the facts as submitted to the Court in the hearing
on the motion to suppress.” Lang confirmed that was how she
wanted to proceed.
The court allowed Lang to withdraw her no contest pleas and
enter not guilty plea and then discussed the waiver of a jury
trial with Lang. Lang stated she had discussed the matter with
her attorney and wanted to waive a jury trial. She told the court
that no one had made any threats, used any force, or made any
promises to get her to waive a jury. The court accepted Lang’s
jury waiver, expressly finding it was made freely, voluntarily,
knowingly, and intelligently. The jury was dismissed, and the
matter proceeded immediately to a bench trial.
(d) Stipulated Bench Trial
The parties stipulated that the court should take judicial
notice of the evidence presented at the motion to suppress
hearing and that the court should consider it as evidence in the
bench trial. Lang’s counsel renewed his objection to the evi-
dence seized from Lang’s purse on the ground it was obtained
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305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
through an unconstitutional search, and the objection was
overruled. The State then offered, without objection, a copy of
the laboratory report containing test results for the substances
found in Lang’s purse, and the parties stipulated that one of the
items described in the laboratory report was the white crystal-
line substance found in Lang’s purse, which tested positive for
methamphetamine, weighing 3.5 grams.
After the presentation of evidence, the district court found
the State had met its burden of proof as to counts I and II
of the information and found Lang guilty. The court found
the State had failed to prove count III, possession of drug
paraphernalia, and dismissed that count. The court ordered a
presentence investigation and asked the parties whether they
wanted to request “any other . . . evaluations.” The State and
Lang both declined. Lang was ordered to appear at sentencing
on February 5, 2019.
(e) Sentencing and Third Request
for Competency Evaluation
Lang did not appear for sentencing on February 5, 2019, but
new defense counsel appeared on her behalf and requested a
continuance. Sentencing was continued to February 14.
At the sentencing hearing, Lang’s new counsel moved for a
competency evaluation, arguing he did not think Lang had been
able to effectively assist her prior counsel. The State argued
that a competency evaluation was unnecessary and opposed a
continuance for that purpose.
In support of the request for a competency evaluation,
defense counsel asked the court to take judicial notice of the
presentence investigation report and offered exhibits 10 and
11, both of which had been prepared in connection with Lang’s
workers’ compensation case. Exhibit 10 was a medical report
dated October 20, 2018, which summarized Lang’s diagnoses
of generalized anxiety disorder, post-traumatic stress disorder,
and major depressive disorder. Exhibit 11 was a report of psy-
chological testing performed on September 18, 2018, which
generally agreed with the diagnoses set forth in exhibit 10 and
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
added diagnoses of panic disorder without agoraphobia and of
avoidant personality disorder. Exhibits 10 and 11 were received
without objection.
After reviewing the exhibits, the district court denied Lang’s
third motion for a competency evaluation. The court acknowl-
edged evidence of Lang’s traumatic work-related injury and her
mental health diagnoses. But it also observed that throughout
the criminal proceedings, Lang had been able to confer with
counsel and make decisions regarding her defense, including
the decision to withdraw her pleas of no contest and proceed
with a stipulated bench trial to preserve her right to appeal the
suppression ruling and her decision to hire new counsel for
the sentencing phase. The court concluded that Lang under-
stood the nature of the proceedings and her rights within those
proceedings and that a formal competency evaluation was
not necessary.
After an opportunity for allocution, Lang was sentenced
to 12 months’ probation on count I and was fined $300 on
count II. She timely appealed, and we moved the appeal to our
docket on our own motion.
II. ASSIGNMENTS OF ERROR
Lang assigns that the district court erred in (1) overrul-
ing her motion to suppress and (2) overruling her motions to
determine competency. Lang also assigns that her trial counsel
provided ineffective assistance in several respects.
III. STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protection is a question of
law that an appellate court reviews independently of the trial
court’s determination. 1 When a motion to suppress is denied
1
State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441 (2019).
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305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
pretrial and again during trial on renewed objection, an appel-
late court considers all the evidence, both from trial and from
the hearings on the motion to suppress. 2
[2] A trial court’s determination of competency will not be
disturbed on appeal unless there is insufficient evidence to sup-
port the finding. 3 A trial court’s decision not to order a compe-
tency evaluation or hold a competency hearing is reviewed for
an abuse of discretion. 4
[3] In reviewing claims of ineffective assistance of counsel
on direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to
conclusively determine whether counsel did or did not provide
effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. 5
IV. ANALYSIS
1. Motion to Suppress
In seeking to suppress evidence obtained from the search
of her purse, Lang argues (1) the search was unlawful because
it occurred after the purpose of the traffic stop had been com-
pleted and (2) the search of her purse was not justified by the
automobile exception to the warrant requirement. We address
each argument in turn and reject both.
(a) Traffic Stop Not
Impermissibly Extended
[4,5] A lawful traffic stop can become unlawful if it is
prolonged beyond the time reasonably required to complete
2
Id.
3
State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
4
See State v. Cortez, 191 Neb. 800, 218 N.W.2d 217 (1974) (failure to
hold hearing on defendant’s mental capacity to stand trial not abuse of
discretion). See, also, U.S. v. Turner, 644 F.3d 713 (8th Cir. 2011) (district
court’s decision not to order competency evaluation or hold competency
hearing reviewed for abuse of discretion).
5
State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
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Cite as 305 Neb. 726
the mission of the stop. 6 When the mission of an investiga-
tive stop is addressing a suspected traffic violation, the U.S.
Supreme Court has instructed that the stop may last no longer
than is necessary to effectuate that purpose, and authority for
the seizure ends when tasks tied to the traffic infraction are, or
reasonably should have been, completed. 7
Here, Fristoe was stopped for exceeding the speed limit.
Lang does not challenge the stop itself, but she argues that by
the time the odor of marijuana was detected, the traffic stop
was already complete. 8 We disagree.
The record shows that near the end of the traffic stop, while
one officer was in the process of explaining the speeding cita-
tion to the driver but before the citation had been issued, the
other officer smelled marijuana coming from the passenger
window. The district court made an express factual finding that
the odor of marijuana was detected before the traffic citation
had been issued to the driver. This factual finding is supported
by the record and is not clearly erroneous.
There is no evidence that officers took any longer than nec-
essary to investigate the speeding violation or to prepare the
resulting citation. And because the citation had not yet been
issued to Fristoe, the purpose of the traffic stop had not yet
been effectuated when the smell of marijuana was detected
coming from the vehicle.
[6] Because of marijuana’s legal status as contraband, a
trained officer who detects the odor of marijuana emanating
from a vehicle in Nebraska has firsthand information that
provides an objectively reasonable basis to suspect contraband
will be found in the vehicle. 9 The smell of marijuana provided
officers with reasonable suspicion to expand the traffic stop
6
State v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 (2018).
7
Rodriguez v. U.S., 575 U.S. 348, 135 S. Ct. 1609, 191 L. Ed. 2d 492
(2015).
8
See id.
9
State v. Seckinger, 301 Neb. 963, 920 N.W.2d 842 (2018).
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Cite as 305 Neb. 726
to include investigation of possible criminal activity involving
controlled substances. 10 Moreover, because the vehicle was
readily mobile, the odor of marijuana alone provided officers
with probable cause to search the vehicle under the automobile
exception to the warrant requirement. 11 We discuss that excep-
tion next.
(b) Automobile Exception
[7,8] Both the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution guarantee
against unreasonable searches and seizures. 12 Searches with-
out a valid warrant are per se unreasonable, subject only to a
few specifically established and well-delineated exceptions. 13
Among the established exceptions to the warrant requirement
is the automobile exception. 14
[9-11] This exception applies when a vehicle is readily
mobile and there is probable cause to believe that contraband
or evidence of a crime will be found in the vehicle. 15 Probable
cause to search requires that the known facts and circumstances
are sufficient to warrant a person of reasonable prudence in the
belief that contraband or evidence of a crime will be found. 16
Assuming the vehicle is readily mobile, the odor of marijuana
alone provides probable cause to search the vehicle under the
automobile exception to the warrant requirement. 17
Lang does not contest that Fristoe’s vehicle was readily
mobile, and she generally concedes the officers had probable
cause to search the vehicle after smelling marijuana. But Lang
argues the automobile exception did not justify the warrantless
10
See State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011).
11
Seckinger, supra note 9.
12
Id.
13
Id.
14
Id.
15
Id.
16
Id.
17
Id.
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Cite as 305 Neb. 726
search of her purse, because when the purse was searched, it
was no longer inside the vehicle. On this record, we are not
persuaded that makes a difference.
[12] The U.S. Supreme Court has held that if probable cause
justifies the search of a lawfully stopped vehicle, it justifies
the search of every part of the vehicle and its contents that
may conceal the object of the search. 18 This includes all con-
tainers within the vehicle. 19
The district court made a factual finding that Lang was
seated inside the vehicle with the purse on her lap when the
officer detected the smell of marijuana. Lang was seated in the
passenger seat, and the smell of marijuana was coming from
the passenger window. After noticing the smell, the officer
observed Lang repeatedly “go through her purse,” and when
Lang was asked to step out of the vehicle, she brought the
purse with her.
Officers instructed her to set the purse on the hood of the
vehicle, and she complied. On this record, the location of the
purse at the time it was searched does not change its character
as a container that was inside the vehicle when officers devel-
oped probable cause to search the vehicle. 20 The district court
properly overruled Lang’s motion to suppress.
2. Competency Rulings
Lang’s trial counsel moved for a competency evaluation
three times during the course of this case—before jury selec-
tion, before the presentation of evidence, and before sentenc-
ing. She argues the court erred in overruling those motions.
18
Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408
(1999).
19
Id.
20
See, e.g., State v. Furrillo, 274 Or. App. 612, 362 P.3d 273 (2015)
(passenger’s backpack properly searched after he removed it from vehicle
upon exiting after drug dog alerted to vehicle); State v. Smith, 152 Idaho
115, 266 P.3d 1220 (Idaho App. 2011) (backpack in vehicle at time officer
observed marijuana pipe in vehicle properly searched even though driver
removed it from vehicle upon exiting).
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STATE v. LANG
Cite as 305 Neb. 726
[13,14] The question of competency to stand trial is one of
fact to be determined by the court, and the means employed
in resolving the question are discretionary with the court. 21
The trial court may cause such medical, psychiatric, or psy-
chological examination of the accused to be made as it deems
necessary. 22 But an explicit competency determination is neces-
sary only when the court has reason to doubt the defendant’s
competence, and if proceedings do not provide the court with
reason to doubt a defendant’s competence, it does not err by
not conducting a competency hearing. 23
[15,16] A person is competent to plead or stand trial if he
or she has the capacity to understand the nature and object of
the proceedings against him or her, to comprehend his or her
own condition in reference to such proceedings, and to make
a rational defense. 24 We have recognized there are no fixed
or immutable signs of incompetence, and a defendant can
meet the modest aim of legal competency, despite paranoia,
emotional disorders, unstable mental conditions, and suicidal
tendencies. 25
We find no abuse of discretion in the trial court’s decision
to overrule Lang’s motions for a competency evaluation. On
appeal, Lang does not contend she was unable to understand or
comprehend the proceedings against her. She argues only that
“[h]er mental illness before jury selection and presentation of
evidence prevented [her] from presenting a rational defense.” 26
She does not explain why this is so, and we see nothing in the
record to support this argument.
Despite Lang’s mental health diagnoses and her occasional
emotional responses in the courtroom, the record contains
21
State v. Lassek, 272 Neb. 523, 723 N.W.2d 320 (2006).
22
See, State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016); Cortez, supra
note 4. See, also, Neb. Rev. Stat. § 29-1823 (Cum. Supp. 2018).
23
See State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007).
24
Grant, supra note 22.
25
State v. Hessler, 282 Neb. 935, 807 N.W.2d 504 (2011).
26
Brief for appellant at 15.
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STATE v. LANG
Cite as 305 Neb. 726
nothing that would provide the court with a reason to doubt
her competence.
The trial court had the opportunity to observe and inter-
act with Lang during jury selection, during the plea hearing,
during the bench trial, and during sentencing. During those
interactions, Lang consistently demonstrated an understanding
of the criminal proceedings and her rights in relation to those
proceedings, as well as the ability to assist in her own defense.
On this record, there was no abuse of discretion in overruling
Lang’s motions for a competency evaluation.
3. Ineffective Assistance
of Counsel
[17] Lang assigns that her trial counsel, who was different
from her appellate counsel, provided ineffective assistance.
Generally, to prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, 27 the defendant must
show that his or her counsel’s performance was deficient and
that this deficient performance actually prejudiced the defend
ant’s defense. 28
[18] When a defendant’s trial counsel is different from his
or her counsel on direct appeal, the defendant must raise on
direct appeal any issue of trial counsel’s ineffective perform
ance which is known to the defendant or is apparent from the
record. Otherwise, the issue will be procedurally barred in a
subsequent postconviction proceeding. 29
[19] The fact that an ineffective assistance of counsel claim
is raised on direct appeal does not necessarily mean that it
can be resolved on direct appeal. 30 The determining factor
is whether the record is sufficient to adequately review the
27
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
28
State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).
29
Id.
30
Id.
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STATE v. LANG
Cite as 305 Neb. 726
question. 31 We have said the record is sufficient if it establishes
either that trial counsel’s performance was not deficient, that
the appellant will not be able to establish prejudice, or that
trial counsel’s actions could not be justified as a part of any
plausible trial strategy. 32
Lang’s brief argues that her trial counsel was deficient
in three respects: (a) failing to preserve appellate review of
the court’s rulings on the competency motions, (b) failing
to move for a continuance, and (c) stipulating that evidence
received at the suppression hearing could be considered by the
court during the bench trial. We conclude the record is suffi-
cient to resolve all of Lang’s claims, and we find them all to
be meritless.
(a) Preserving Appellate Review
Lang argues that to preserve appellate review of the court’s
rulings on her motions for a competency evaluation, trial
counsel should have taken an immediate interlocutory appeal
from the court’s rulings. Lang is mistaken, as is perhaps best
illustrated by the fact that we reviewed those rulings in this
direct appeal.
[20] It is true that a proceeding to determine competency
to stand trial is a special proceeding within the meaning of
Neb. Rev. Stat. § 25-1902 (Reissue 2016) and that an order
finding an accused incompetent to stand trial and ordering the
accused confined until such time as he or she is competent is a
final order from which an appeal may be taken. 33 But no such
order was entered here, because competency proceedings were
deemed unnecessary by the court. The trial court’s decisions
overruling Lang’s motions for a competency evaluation were
not final, appealable orders, 34 and Lang’s trial counsel was
31
Id.
32
Id.
33
See State v. Jones, 258 Neb. 695, 605 N.W.2d 434 (2000).
34
See id.
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Cite as 305 Neb. 726
not deficient in waiting until direct appeal of the judgment to
assign error to those interlocutory rulings.
(b) Failing to Move
for Continuance
Lang argues her trial counsel performed deficiently when he
moved for competency evaluations prior to jury selection and
prior to trial, rather than moving to continue trial. She argues
that as between the two motions, “the correct motion was to
continue the trial, as it would be easier to prove.” 35 To prevail
on such a claim, Lang would need to show both that counsel’s
decision to move for a competency evaluation rather than a
continuance fell below an objective standard of reasonableness
and that if a motion to continue had been made, a reasonable
probability exists that the result of the trial would have been
different. 36 She can show neither.
[21] Trial counsel is afforded due deference to formu-
late trial strategy and tactics, and an appellate court will not
second-guess trial counsel’s reasonable strategic tactics when
reviewing claims of ineffective assistance of counsel. 37 As
such, counsel does not render deficient performance merely
by failing to present the motion that is “easier to prove.”
Moreover, Lang does not argue, and we see nothing in the
record, suggesting that if a motion to continue had been made
and sustained, the result of trial in this case would have been
any different. This claim has no merit.
(c) Stipulating to Evidence
Lang argues her trial counsel was ineffective for stipulating,
during the bench trial, that the court could consider evidence
received at the suppression hearing. The record affirmatively
refutes her claim that trial counsel performed deficiently in
this regard.
35
Brief for appellant at 16.
36
See State v. Nolt, 298 Neb. 910, 906 N.W.2d 309 (2018).
37
State v. Manijikian, 303 Neb. 100, 927 N.W.2d 48 (2019).
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Cite as 305 Neb. 726
At the plea hearing, Lang told the court that in order to
preserve her right to appeal the suppression ruling, she wanted
to waive a jury and have a stipulated bench trial. At the time,
Lang’s counsel explained that Lang was asking to “try this
matter based upon the facts as submitted to the Court in the
hearing on the motion to suppress.” The court accepted Lang’s
jury waiver and proceeded directly to the stipulated bench trial.
As is typical in such a proceeding, trial counsel stipulated to
the admission of certain evidence while preserving the argu-
ments raised in the motion to suppress, then the district court
determined whether that evidence was sufficient to convict
Lang of the crime charged. 38
The record shows that Lang agreed to a stipulated bench
trial to preserve her right to appeal the suppression ruling and
that she did so after discussing this strategy with trial counsel
and with the understanding that counsel would stipulate to
the admission of the evidence received during the suppres-
sion hearing. On these facts, Lang cannot show trial counsel
performed deficiently in stipulating to that evidence during the
bench trial.
V. CONCLUSION
For the foregoing reasons, the judgment of the district court
is affirmed.
Affirmed.
38
See, e.g., State v. Saylor, 294 Neb. 492, 883 N.W.2d 334 (2016); Howard,
supra note 10.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD RAY PALMER, No. 21-15020
Plaintiff-Appellant, D.C. No. 2:19-cv-05031-MTL-
MHB
v.
STATE OF ARIZONA; CHARLES L. MEMORANDUM*
RYAN; DOUG DUCEY, Governor; DAVID
SHINN, Director of ADOC,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Submitted June 15, 2022**
Before: SILVERMAN, WATFORD, and FORREST, Circuit Judges.
Arizona state prisoner Donald Ray Palmer appeals pro se from the district
court’s order denying Palmer’s post-judgment motion for reconsideration in
Palmer’s 42 U.S.C. § 1983 action regarding his parole eligibility. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Sch.
Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir.
1993). We vacate and remand.
The district court dismissed Palmer’s initial complaint without leave to
amend as barred by Heck v. Humphrey, 512 U.S. 477 (1994), and later denied
Palmer’s motion for reconsideration for the same reason. In his initial complaint,
Palmer sought monetary damages and resentencing. However, in his motion for
reconsideration, Palmer argued he would be wrongfully denied parole eligibility
despite having been given a sentence of imprisonment that included the possibility
of parole after 25 years. See Chaparro v. Shinn, 459 P.3d 50, 51 (Ariz. 2020)
(discussing Arizona’s elimination of parole for offenses committed on or after
January 1, 1994 and holding that a sentence entered after the elimination of parole
that imposes “life without the possibility of parole for 25 years” entitles the
prisoner to parole after serving 25 years imprisonment); see also Wilkinson v.
Dotson, 544 U.S. 74, 76 (2005) (allowing claims challenging parole procedures to
proceed under § 1983 because the injunctive and declaratory relief that plaintiffs
sought would not necessarily result in speedier release). Because Heck does not
bar Palmer’s claims challenging his parole eligibility, it is not “absolutely clear”
that any deficiencies could not be cured by amendment. See Lucas v. Dep’t of
Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“Unless it is absolutely clear that no
2 21-15020
amendment can cure the defect . . . a pro se litigant is entitled to notice of the
complaint’s deficiencies and an opportunity to amend prior to dismissal of the
action.”). Accordingly, we vacate the judgment and remand for the district court to
provide Palmer with an opportunity to amend.
Palmer’s motion to appoint counsel (Docket Entry No. 5) is denied.
VACATED and REMANDED.
3 21-15020
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Heterocyclic compounds.
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Order of the Supreme Court, Bronx County (John P. Collins, J.), entered October 2, 1987, which granted defendant’s motion for dismissal of the indictment No. 2773/87, with leave to re-present to the Grand Jury, is unanimously reversed, on the law, and the indictment reinstated.
Justo Cesar Madern testified before the Grand Jury that on August 7, 1985, he observed defendant and another, while riding in a car driven by defendant, chase after and shoot one Philip Yuan. Mr. Yuan later died as a result of injuries sustained in the shooting. Mr. Madern testified he had known defendant for about five years by both his true name, Jorge Medina Colon, and by his nickname, "Papo One”.
After inspecting the Grand Jury minutes, Criminal Term dismissed the indictment on the grounds "[t]he minutes are unclear as to whether this defendant was ever identified as the perpetrator of the crimes alleged”.
*441Review of a motion to dismiss an indictment is limited to a determination of whether the evidence was legally sufficient (People v Jennings, 69 NY2d 103, 115). The defendant has the burden of clearly establishing the legal insufficiency of the evidence before the Grand Jury, and the evidence must be examined in a light most favorable to the People (see, People v Richards, 128 AD2d 387, 388). Here, defendant failed to meet that burden.
Criminal Term’s ground for dismissal, i.e., that it was unclear whether defendant was identified as the perpetrator of the crimes alleged since there was no confirmatory identification, was erroneous. The finding did not relate to the sufficiency of the evidence but rather to whether there was reasonable cause to believe defendant committed the crimes charged. "[0]n a motion to dismiss an indictment under CPL 210.20 (1) (b), the inquiry of the reviewing court is limited to the legal sufficiency of the evidence; the court may not examine the adequacy of the proof to establish reasonable cause, since that inquiry is exclusively the province of the Grand Jury” (People v Jennings, supra, at 115).
The identification evidence before the Grand Jury herein was not legally insufficient (see, People v Brewster, 63 NY2d 419; People v Yip, 118 AD2d 472) and, therefore, we reinstate the indictment. Concur—Kupferman, J. P., Asch, Milonas, Rosenberger and Ellerin, JJ.
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Judgment of the Supreme Court, Bronx County (Martin B. Klein, J.), rendered March 15, 1985, convicting defendant, after trial by jury, of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, respectively, to two concurrent terms of imprisonment of from 6 to 12 years and to a definite term of one year, to be served concurrently, is unanimously modified, on the law, to the extent of vacating defendant’s conviction of criminal possession of a controlled substance in the seventh degree and dismissing that count, and otherwise affirmed.
Under the facts herein, criminal possession of a controlled substance in the seventh degree was an inclusory concurrent count of criminal possession of a controlled substance in the third degree. Therefore, as the People concede, it should have been dismissed pursuant to CPL 300.40 (3) (b) (see, People v Holman, 117 AD2d 534).
We have examined the other contentions raised by defendant and find them to be without merit. Concur—Sandler, J. P., Ross, Asch, Milonas and Rosenberger, JJ.
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Order, Supreme Court, New York County (Seymour Schwartz, J.), entered March 31, 1987, which granted petitioner-respondent’s motion for reargument of a prior order of said court entered November 7, 1983, which had denied and dismissed the petition to annul respondents-appellants’ determination of October 21, 1982, denying petitioner’s application for accident disability retirement benefits, and, upon reargument, inter alia, granted the petition to the extent of remanding the matter to respondents, unanimously modified, on the law, to vacate that portion of the order which remanded the matter to respondents, to reinstate respondents’ determination, to deny and dismiss the petition, and otherwise affirmed, without costs.
Supreme Court, upon reargument, adopted the argument advanced by petitioner that remand was warranted based on the ruling in Matter of Lowcher v New York City Teachers’ Retirement Sys. (54 NY2d 373 [1981]). There, the doctor chosen as the independent psychiatrist to examine the petitioner and report to the Medical Board was later appointed as the third member of the Medical Board which reviewed the petitioner’s *447claim for accident disability retirement benefits. The Court of Appeals found it was "improper for an impartial reviewer of an issue of fact to sit in review of his own prior determination of fact” and the court ordered the matter remanded to the Medical Board (54 NY2d, supra, at 377). Matter of Lowcher is, however, distinguishable from the case now before us. Here, Dr. Schneck was a member of the Medical Board when he conducted the examination of petitioner. Section 13-519 (c) of the Administrative Code of the City of New York provides that the medical examination of an applicant for accident disability retirement "shall be made by the medical board or by a physician or physicians designated by the medical board”. In this case, Dr. Schneck was not asked to serve as an impartial reviewer of an issue on which he had already expressed an opinion as an independent medical consultant. Dr. Schneck acted at all times as a member of the review board which comprises three medical experts.
It is significant that in Matter of Lowcher (supra) the Court of Appeals did not find fault with the fact that two members of the Medical Board who had previously reviewed the petitioner’s application again sat in review of the matter on remand. Indeed, the court noted that had the Medical Board not included a doctor who had previously acted as an independent consultant in the matter "we would be unable to find any legal defect with that determination” (supra, at 377). The proceeding herein did not violate due process and, therefore, remand is not warranted. Concur—Sandler, J. P., Ross, Asch, Milonas and Rosenberger, JJ.
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Judgment, Supreme Court, New York County (Albert Williams, J.), rendered on June 27, 1986, unanimously reversed, on the law, and the matter remanded for a new trial. (See, People v Owens, 69 NY2d 585.) No opinion. Concur—Murphy, P. J., Ross, Carro, Kassal and Ellerin, JJ.
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— Judgment affirmed, with costs. Opinion by
Learned, P. J.
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Upon the court’s own motion, its order entered on January 28, 1988 and memorandum decision filed therewith [136 AD2d 512] amended to substitute docket No. P11566/83 for docket No. P16566/83. Concur—Murphy, P. J., Kupferman, Sandler, Kassal and Smith, JJ.
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/15/2020 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
SCHAEFER SHAPIRO v. BALL
Cite as 305 Neb. 669
Schaefer Shapiro LLP, a Nebraska limited
liability partnership, appellant,
v. Rodien Ball, appellee.
___ N.W.2d ___
Filed April 23, 2020. No. S-19-547.
1. Garnishment: Appeal and Error. Garnishment is a legal proceeding.
To the extent factual issues are involved, the findings of a garnishment
hearing judge have the effect of findings by a jury and, on appeal, will
not be set aside unless clearly wrong.
2. Courts: Appeal and Error. The district court and higher appellate
courts generally review appeals from the county court for error appear-
ing on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable.
4. Garnishment: Social Security. As a general rule, Social Security pay-
ments to a recipient on deposit with a bank are exempt from garnish-
ment under both federal and state law.
5. ____: ____. Exempt funds such as Social Security payments remain
exempt from garnishment, even when commingled with nonexempt
funds, so long as the source of the exempt funds is reasonably traceable.
6. Garnishment: Attachments: Proof. One who seeks exemption from
attachment and garnishment should prove entitlement to the exemption.
7. Verdicts: Appeal and Error. In determining the sufficiency of the evi-
dence to sustain a verdict in a civil case, an appellate court considers the
evidence most favorably to the successful party and resolves evidential
conflicts in favor of such party, who is entitled to every reasonable
inference deducible from the evidence.
Appeal from the District Court for Douglas County, Leigh
Ann Retelsdorf, Judge, on appeal thereto from the County
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305 Nebraska Reports
SCHAEFER SHAPIRO v. BALL
Cite as 305 Neb. 669
Court for Douglas County, Lawrence E. Barrett, Judge.
Judgment of District Court affirmed.
James E. Riha and Michael J. Wilson, of Schaefer Shapiro,
L.L.P., for appellant.
No appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
A judgment creditor sought to garnish the judgment debtor’s
bank account, which at one time contained funds both exempt
and nonexempt from garnishment. We hold that funds exempt
from garnishment remain exempt, even when commingled with
nonexempt funds, so long as the source of exempt funds is rea-
sonably traceable. Because competent evidence supported the
county court’s finding that the bank account consisted solely of
exempt funds, we affirm.
BACKGROUND
Schaefer Shapiro LLP (Schaefer) obtained a judgment
against Rodien Ball. On December 26, 2018, Schaefer filed
an affidavit and praecipe for summons in garnishment, assert-
ing that the judgment against Ball totaled $1,994.99 and that a
bank held assets of Ball.
The bank answered garnishment interrogatories indicating
that Ball’s account contained funds other than wages in excess
of $1,994.99. Upon Schaefer’s application to deliver nonex-
empt funds, the court ordered that “the non-exempt earnings,
property, credits, or money withheld by the garnishee in the
amount of $1,994.99 be transferred to the Court.”
Ball requested a hearing, claiming that the funds were
exempt from garnishment. At the January 2019 hearing, Ball
testified that he received $1,790 in Social Security every month
and that the only funds in his garnished account were Social
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305 Nebraska Reports
SCHAEFER SHAPIRO v. BALL
Cite as 305 Neb. 669
Security payments. He estimated that the total balance in the
garnished bank account was “[$]30,000, probably.” In October
2017, Ball sold real estate and received “[p]robably about a
hundred thousand.” Although Ball deposited those proceeds
into the same bank account as his Social Security payments, he
testified: “[I]t’s all gone. Been spent, and I owed bills.” Ball
iterated that he spent the sale proceeds but did not spend Social
Security funds. The county court ruled from the bench: “Show
that the testimony’s been given that the funds are exempt. They
are ruled exempt.”
Upon Schaefer’s appeal, the district court affirmed the county
court’s judgment. The district court highlighted the absence of
evidence regarding how much money was in the bank account
in October 2017, or anytime thereafter, aside from Ball’s esti-
mation. And there was no evidence as to how much money was
in the account before any commingling occurred or at the time
the interrogatories were completed. The district court observed
that the county court apparently found Ball to be credible, and
the district court found no error by the county court appearing
on the record.
Schaefer appealed, and we moved the case to our docket. 1
ASSIGNMENT OF ERROR
Schaefer assigns that the lower courts erred because the
act of depositing and commingling otherwise exempt Social
Security funds into the same bank account as nonexempt pro-
ceeds from the sale of real estate removes the exempt status,
thereby allowing garnishment of the Social Security funds
unless the garnishee proves the exempt status of the funds.
STANDARD OF REVIEW
[1] Garnishment is a legal proceeding. To the extent factual
issues are involved, the findings of a garnishment hearing
judge have the effect of findings by a jury and, on appeal, will
not be set aside unless clearly wrong. 2
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
2
ML Manager v. Jensen, 287 Neb. 171, 842 N.W.2d 566 (2014).
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SCHAEFER SHAPIRO v. BALL
Cite as 305 Neb. 669
[2,3] The district court and higher appellate courts generally
review appeals from the county court for error appearing on
the record. 3 When reviewing a judgment for errors appearing
on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable. 4
ANALYSIS
[4] As a general rule, Social Security payments to a recipi-
ent on deposit with a bank are exempt from garnishment under
both federal and state law. 5 In an earlier case decided by this
court, 6 there was no dispute that the bank account consisted
solely of checks directly deposited by the Social Security
Administration. This appeal presents a twist: What is the
effect, if any, on exempt funds when commingled with nonex-
empt funds?
[5] The majority of federal 7 and state 8 courts have deter-
mined that Social Security benefits maintain their exempt
status, even if commingled with nonexempt funds. A Virginia
court took the contrary view, 9 but the continued validity of that
3
Houser v. American Paving Asphalt, 299 Neb. 1, 907 N.W.2d 16 (2018);
Millard Gutter Co. v. Farm Bureau Prop. & Cas. Ins. Co., 295 Neb. 419,
889 N.W.2d 596 (2016).
4
Id.
5
See, Philpott v. Essex County Welfare Board, 409 U.S. 413, 93 S. Ct.
590, 34 L. Ed. 2d 608 (1973) (implementing 42 U.S.C. § 407(a) (2018));
Havelock Bank v. Hog Confinement Systems, 214 Neb. 783, 335 N.W.2d
765 (1983).
6
Havelock Bank v. Hog Confinement Systems, supra note 5.
7
See, S & S Diversified Services, L.L.C. v. Taylor, 897 F. Supp. 549 (D.
Wyo. 1995); NCNB Financial Services, Inc. v. Shumate, 829 F. Supp. 178
(W.D. Va. 1993); In re Lichtenberger, 337 B.R. 322 (C.D. Ill. 2006); In re
Moore, 214 B.R. 628 (D. Kan. 1997).
8
See, In re Estate of Merritt, 272 Ill. App. 3d 1017, 651 N.E.2d 680, 209
Ill. Dec. 502 (1995); Dean v. Fred’s Towing, 245 Mont. 366, 801 P.2d 579
(1990); General Motors Acceptance Corp. v. Deskins, 16 Ohio App. 3d
132, 474 N.E.2d 1207 (1984).
9
Bernardini v. Central Nat. Bank, Etc., 223 Va. 519, 290 S.E.2d 863 (1982).
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SCHAEFER SHAPIRO v. BALL
Cite as 305 Neb. 669
decision has been questioned due to later legislation. 10 Most
courts, however, require that the exempt source of the funds
be traceable. 11 We now hold that exempt funds such as Social
Security payments remain exempt from garnishment, even
when commingled with nonexempt funds, so long as the source
of the exempt funds is reasonably traceable.
[6] When there is a dispute about whether funds are exempt,
which party carries the burden of proof becomes key. One
who seeks exemption from attachment and garnishment should
prove entitlement to the exemption. 12 This is in accord with the
general rule that the burden of proving an exemption rests on
the party claiming it. 13 It is also in line with the teaching of a
treatise concerning Social Security: “[O]nce it is determined
that an account contains commingled funds, the burden shifts
to the claimant to prove that the remaining funds constitute
exempt social security funds.” 14 Ball, as the party claiming
that the funds were exempt, had the burden to prove that they
were exempt.
[7] In considering whether Ball met his burden, we are
constrained by our standard of review. The county court deter-
mined that all of the funds in the bank account were exempt.
And the findings of the county court have the effect of findings
10
See, In re Delima, 561 B.R. 647 (E.D. Va. 2016); In re Meyer, 211 B.R.
203 (E.D. Va. 1997).
11
See, In re Lichtenberger, supra note 7; In re Moore, supra note 7; In re
Estate of Merritt, supra note 8; Dean v. Fred’s Towing, supra note 8;
General Motors Acceptance Corp. v. Deskins, supra note 8.
12
See Novak v. Novak, 2 Neb. App. 21, 508 N.W.2d 283 (1993), affirmed in
part and in part reversed and remanded 245 Neb. 366, 513 N.W.2d 303
(1994). See, also, Scottsbluff Nat. Bank v. Pfeifer, 126 Neb. 852, 254 N.W.
494 (1934); Stull v. Miller, 55 Neb. 30, 75 N.W. 239 (1898).
13
See, State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015) (exemption
to criminal nonsupport); Hamilton Cty. EMS Assoc. v. Hamilton Cty., 291
Neb. 495, 866 N.W.2d 523 (2015) (Industrial Relations Act exemption);
Fort Calhoun Bapt. Ch. v. Washington Cty. Bd. of Eq., 277 Neb. 25, 759
N.W.2d 475 (2009) (tax exemption).
14
2A Social Security Law and Practice § 34:8 (2019).
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305 Nebraska Reports
SCHAEFER SHAPIRO v. BALL
Cite as 305 Neb. 669
by a jury—they will not be set aside unless clearly wrong. 15
With respect to a jury verdict, we have stated that it is suffi-
cient if there is competent evidence presented to the jury upon
which it could find for the successful party. 16 And in determin-
ing the sufficiency of the evidence to sustain a verdict in a civil
case, an appellate court considers the evidence most favorably
to the successful party and resolves evidential conflicts in favor
of such party, who is entitled to every reasonable inference
deducible from the evidence. 17
Viewing the evidence most favorably to Ball and giving
him the benefit of every reasonably inference, we cannot say
that the county court’s finding was clearly wrong. Ball testi-
fied that the bank account contained only his Social Security
payments and that he spent all of the nonexempt money that
had been deposited in the account. The county court accepted
this testimony.
Schaefer argues that it is “mathematically impossible” for
the $30,000 balance in the account to consist solely of exempt
Social Security funds. 18 According to Schaefer, it would take
at least 17 months for the account balance to go from $0 to
$30,000 at $1,790 per month, but that only 14 months passed
from the commingling of the funds in October 2017 to the
filing of the garnishment in December 2018. Presumably,
then, it would be mathematically possible for Ball’s account
to contain $25,060 as of December 2018 (time of service of
garnishee summons) or $26,850 as of January 2019 (time
of hearing).
The county court was not bound to accept Ball’s estima-
tion of the account balance. The question posed at the hear-
ing was, “And how much is in the account?” The question
inquired about the present balance of the account rather than
the balance at the time of the garnishment filing, although that
15
See ML Manager v. Jensen, supra note 2.
16
See Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013).
17
Id.
18
Brief for appellant at 5.
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305 Nebraska Reports
SCHAEFER SHAPIRO v. BALL
Cite as 305 Neb. 669
hearing occurred approximately 3 weeks later. Ball answered,
“I don’t know. Thirty — 30,000, probably.” The county court
may have believed that the account contained an amount lesser
than $30,000.
Schaefer further argues that federal law should govern a
bank’s review of an account to determine whether an exempt
benefit was paid during the 2-month lookback period. 19 Under
federal regulations, a financial institution must issue a notice to
the account holder named in the garnishment order where (1)
a benefit agency deposited a benefit payment into an account
during the lookback period, (2) the balance in the account on
the date of the account review was above $0 and the finan-
cial institution established a protected amount, and (3) there
are funds in the account in excess of the protected amount. 20
Schaefer asserts that applying the 2-month lookback period to
Ball’s Social Security benefits would leave any amount in the
bank account over $3,580 ($1,790 per month × 2 months) sub-
ject to being garnished.
It is not clear from the record whether the federal regu-
lations apply here. The federal regulations were added “to
implement statutory provisions that protect Federal benefits
from garnishment by establishing procedures that a financial
institution must follow when served a garnishment order
against an account holder into whose account a Federal
benefit payment has been directly deposited.” 21 The regula-
tions specify:
Benefit payment means a Federal benefit payment
referred to in § 212.2(b) paid by direct deposit to an
account with the character “XX” encoded in positions 54
and 55 of the Company Entry Description field and the
number “2” encoded in the Originator Status Code field
of the Batch Header Record of the direct deposit entry. 22
19
See 31 C.F.R. § 212.3 (2018).
20
31 C.F.R. § 212.7(a) (2018).
21
31 C.F.R. § 212.1 (2018) (emphasis supplied).
22
31 C.F.R. § 212.3 (emphasis omitted) (emphasis supplied).
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305 Nebraska Reports
SCHAEFER SHAPIRO v. BALL
Cite as 305 Neb. 669
Because our record contains no evidence that Ball’s Social
Security payments were directly deposited into his account,
we cannot speak to whether the federal regulations apply. But
even if they did apply, exempt funds remain exempt, 23 and
Ball testified that his account contained only Social Security
funds.
The parties presented scant evidence to the county court.
But Ball’s testimony that the account contained only exempt
funds, if believed, provided a basis for the county court to rule
accordingly. We cannot say that the county court’s finding was
clearly wrong. Like the district court, we see no error appear-
ing on the record.
CONCLUSION
Because the county court’s decision conforms to the law,
is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable, we affirm the decision of the dis-
trict court affirming the judgment of the county court.
Affirmed.
23
See, 42 U.S.C. § 407(a); Tuan Thai v. Ashcroft, 366 F.3d 790 (9th Cir.
2004) (federal regulation cannot empower action prohibited by federal
statute).
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Appeal from a judgment of the Supreme Court (Feldstein, J.), entered October 26, 2012 in Franklin County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner’s request for parole release.
In 1989, petitioner was convicted of two counts of robbery in the first degree and was sentenced to concurrent prison terms of 20 years to life. In 2010, following a retrial, petitioner was convicted of assault in the second degree (two counts), assault in the third degree and criminal mischief in the third degree, and was sentenced to a controlling determinate term of four years in prison, to be followed by five years of postrelease supervision, to run consecutively to the sentence he was then serving. In May 2011, he appeared before the Board of Parole seeking to be released to parole supervision. At the conclusion of the hearing, his request was denied and he was ordered held an additional 24 months. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging it. Following joinder of issue, Supreme Court dismissed the petition and petitioner now appeals.
It is well settled that parole release decisions are discretionary and will not be disturbed so long as the Board complied with the statutory requirements of Executive Law § 259-i (see Matter of Vaughn v Evans, 98 AD3d 1158, 1159 [2012]; Matter of Nicoletta v New York State Div. of Parole, 74 AD3d 1609, 1609 [2010], lv dismissed 15 NY3d 867 [2010]). Here, the record discloses that the Board complied with the statutory requirements by considering not only the serious nature of petitioner’s crimes, but also his criminal history, extensive prison disciplinary record, program participation and postrelease plans (see Matter of Vigliotti v State of N.Y. Exec. Div. of Parole, 98 AD3d 789, 790 [2012]; Matter of Valentino v Evans, 92 AD3d 1054, 1055 [2012]). Petitioner claimed in his administrative appeal that the Board erroneously relied upon disciplinary violations that had been reversed and expunged from his institutional rec*1054ord, but the record discloses that petitioner had numerous disciplinary infractions, notwithstanding the expungement of a few, and the Board’s conclusion that he “had a poor record of adjustment while in prison” was well supported. The remaining contentions raised in petitioner’s memoranda to Supreme Court have not been preserved, due to his failure to raise them in his administrative appeal (see Matter of Santos v Evans, 81 AD3d 1059, 1060 [2011]; Matter of Nicoletta v New York State Div. of Parole, 74 AD3d at 1610). Therefore, as the Board’s decision does not exhibit “ ‘irrationality bordering on impropriety’ ” (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]), we decline to disturb it.
Mercure, J.P., Rose, Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.
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Judgment, Supreme Court, New York County (Peter McQuillan, J.), rendered on May 18, 1983, unanimously affirmed, without prejudice to a motion brought pursuant to CPL 440.10 where the issue of ineffective assistance of counsel may be addressed. No opinion. Concur—Kupferman, J. P., Sullivan, Carro, Kassal and Ellerin, JJ.
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Order of the Appellate Term, First Department (Sandifer, Parness, Ostrau, JJ.), entered on September 30, 1986, which modified an order of the Civil Court, New York County, entered on October 4, 1985, dismissing petitioner’s nonpayment petition without prejudice, to the extent of denying respondents’ motion for summary judgment and reinstating the petition, is unanimously reversed on the law and the petition dismissed without prejudice, without costs or disbursements.
Respondents-appellants Dr. Stanley Bonime and Dr. Seymour Bushelow are dentists who have occupied certain premises at 601 West 160th Street in Manhattan since 1947. The last lease, which commenced on November 1, 1975 and expired on October 31, 1985, stated, in pertinent part, that the "demised premises shall be used by the tenants as and for their dwellings for themselves and their families and the said premises may also be used by the tenants as and for dental offices”. In addition to the basic rental amount, the lease provided for an annual adjustment, beginning in 1980, keyed *449to the cost of living index. The instant nonpayment proceeding, brought in April of 1985, seeks to recover, in part, arrearages allegedly due under the cost of living adjustment.
In an order entered on October 4, 1985, the Civil Court dismissed the petition without prejudice on the ground that petitioner landlord had not obtained an order under former section 13 of the New York City Rent and Eviction Regulations (now 9 NYCRR 2200.11) to decontrol the premises in question. Petitioner appealed, and, in an order entered on September 30, 1986, the Appellate Term, First Department, modified the Civil Court order to the extent of denying respondents’ motion for summary judgment and reinstating the petition. Recognizing that "questions remain concerning the true nature of tenants’ occupancy”, the Appellate Term nonetheless held that since there is some evidence in the records that respondents maintain their residences elsewhere, the petition should not have been summarily dismissed. According to the Appellate Term, "[i]n circumstances where previously controlled units have been let and/or utilized for exclusively commercial use, it has been held that the absence of a section 13 order of exemption is not fatal to the maintenance of summary proceedings against the commercial tenant.” In an order entered on April 2, 1987, this court granted respondents’ motion for leave to appeal.
Section 2200.11 of the Rent and Eviction Regulations of the Division of Housing and Community Renewal (DHCR) provides that: "Any housing accommodation subject to these regulations which, on or after May 1, 1955, was or may be rented for commercial or professional use shall continue to be subject to control, unless the State Rent Commission issued an order exempting it from control during the periods of occupancy by the tenant, or an order is issued by the administrator exempting the housing accommodation from these regulations during the period of occupancy by the tenant. Such order shall be issued by the administrator where he finds the renting complies with the requirements of law and of city agencies having jurisdiction, and was made in good faith without any intent to evade the Rent Law or these regulations”.
It is respondents’ contention that an order of decontrol must be obtained from the DHCR regardless of whether the apartment is being used for residential or professional purposes, citing Matter of Sipal Realty Corp. (Bankers) (8 AD2d 355, mod 8 NY2d 319), Reichman v Brause Realty (34 AD2d 338), and Confederated Props, v Nosek (2 AD2d 383). Petitioner, on *450the other hand, argues that its failure to procure an order of decontrol prior to commencing this nonpayment proceeding amounts to nothing more than noncompliance with a purely ministerial direction. In that connection, petitioner relies upon Berkley Assocs. v Jordon (NYLJ, Feb. 1, 1980, at 5, col 1, affd 78 AD2d 782), which held that the absence of an order of decontrol is not fatal to the maintenance of summary proceedings against a commercial tenant. However, in contrast to the present matter, Berkley involved premises leased solely for professional use. Where, as in the situation herein, there is a question of fact concerning whether the premises at issue are being utilized solely for professional purposes or for mixed residential and commercial use, the matter must be referred to the consideration of DHCR. As the court declared in Confederated Props, v Nosek (supra, at 384), "[w]hether the dual uses of the premises are severable, and if not which is predominant, must be determined in the first instance by the Rent Administrator”. In Matter of Sipal Realty Corp. (Dankers) (supra), the Court of Appeals found that the predecessor provision to section 2100.11, section 13 of the State Rent and Eviction Regulations, applies even to residential space actually converted to commercial use and that such premises continue to be subject to administrative jurisdiction until an exemption is issued by the Rent Administrator. Consequently, the Appellate Term was in error in remanding this proceeding to the Civil Court for a fact finding on the question of the use to which respondents have put the subject apartment. Concur —Murphy, P. J., Kupferman, Sullivan, Carro and Milonas, JJ.
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Filed 6/27/22 P. v. Marquez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077816
v. (Super. Ct. No. INF2000143)
SERGIO JUAN MARQUEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge.
Affirmed in part, reversed in part, and remanded with directions.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Anthony Da Silva, Deputy
Attorney General, for Plaintiff and Respondent.
1
I.
INTRODUCTION
A jury found defendant and appellant Sergio Marquez guilty of first degree
1
premediated attempted murder (Pen. Code, §§ 664/187, subd. (a); count 1); discharging
a firearm at an inhabited and occupied dwelling (§ 246; count 2); assault by means of
force likely to cause great bodily injury (§ 245, subd. (a)(4); count 3); corporal injury on
a former spouse (§§ 273.5, subd. (a), 243, subd. (f)(10); count 4). The jury found true
that defendant personally discharged a firearm proximately causing great bodily injury in
the commission of counts 1 and 2 (§ 12022.53, subd. (d)); that defendant personally used
a firearm in the commission of count 3 (§ 12022.5, subd. (a)); and that defendant caused
great bodily injury in the commission of count 4 (§ 12022.7, subd. (a)). Defendant was
sentenced to seven years to life on count 1, plus 25 years to life for the firearm
enhancement attached to that count; midterm sentences were imposed, but stayed
pursuant to section 654, on counts 2 through 4 and its attendant enhancements.
Defendant was awarded appropriate custody credits and ordered to pay various fines and
fees.
After defendant appealed from the judgment, appointed counsel filed a brief under
the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967)
386 U.S. 738, requesting this court to conduct an independent review of the record.
Thereafter, defendant filed a personal supplemental letter brief. We subsequently
1
All future statutory references are to the Penal Code unless otherwise stated.
2
reviewed the record, vacated submission of the case, and directed the parties to brief the
issue of whether we should reverse and remand the matter for a new sentencing hearing
in light of Assembly Bill No. 518 (Assembly Bill 518) and other relevant sentencing laws
that went into effect on January 1, 2022.
Assembly Bill 518 amended section 654 to give trial courts the authority to
impose sentence for any offense, not just the greatest offense, when that section applies to
preclude multiple punishment for crimes that were based upon a single act or omission.
(2021-2022 Reg. Sess.) In his letter brief, defendant argues the sentence should be
reversed and the matter remanded for a new sentencing hearing in light of Assembly Bill
518. The People agree. Because the judgment in this case is not yet final, we agree with
the parties that defendant is entitled to the benefit of Assembly Bill 518. Therefore, we
reverse defendant’s sentence and remand the matter for a new sentencing hearing. In all
other respects, we affirm the judgment.
II.
FACTUAL BACKGROUND
For approximately three months in early 2019, defendant and Jane Doe were in a
relationship. During that time, defendant often stayed at Jane’s apartment with her, and
they slept in Jane’s bedroom. Jane’s 13 year old daughter lived with her, and on occasion
her daughter’s cousin and her mother stayed with them. Jane’s bedroom had a sliding
glass door that opened onto the patio, and her bed was two to three feet from the sliding
glass door.
3
After a month into their relationship, defendant began to accuse Jane of cheating
on him and seeing other people. In March 2019, Jane told him she wanted to end the
relationship. Defendant did not take the break up well and began to stalk and harass Jane.
He constantly called, texted, confronted, and watched Jane, to the point where Jane had to
obtain a temporary restraining order against defendant. In April 2019, defendant sent
Jane a text, stating that she’d “‘better watch [her] ass.’” In May 2019, defendant texted
Jane a photograph of a gun. In the end of May, he confronted Jane at her apartment
around 10:00 p.m., questioning her about her alleged new relationship with another man.
Jane told defendant to leave and that he was not welcome. Defendant left in a black Kia.
Later that night, defendant repeatedly texted Jane, asking her who she had been talking to
on FaceTime.
On the evening of June 7, 2019, Jane’s daughter and her cousin were in the
apartment with Jane when Jane awoke at 2:00 a.m. with pain in her leg. Jane’s leg was
bleeding heavily and the lights would not turn on. It was later discovered that defendant
had tampered with Jane’s electricity panel. Jane yelled to her daughter to call 911 and
crawled to the living room. After paramedics and police arrived, Jane was taken to the
hospital where she learned she had suffered a gunshot wound. The bullet had penetrated
her artery and lodged in her bladder. The bullet eventually came out in her urine.
4
Officers discovered that Jane’s bedroom’s sliding glass door that led to the patio
had been shattered and that the blinds of the sliding glass door had been damaged. A .45
caliber live round and a spent casing were found on the patio near the sliding glass door.
In August 2019, defendant’s black Kia was repossessed, and during a search of the
vehicle, the tow truck driver found a black subcompact, semiautomatic handgun inside
the center console of the vehicle. The tow truck driver photographed the gun and
informed the Palm Springs Police Department. Because they did not have any officers
available to pick up the gun, the tow truck driver removed the gun’s magazine, which
was loaded, removed the round that was in the chamber and brought it in to the police
station himself. After defendant was notified of his car being towed, he retrieved the
property from the vehicle. When the tow truck driver informed defendant about the
firearm in the vehicle and gave him a card the police had provided, defendant did not
deny ownership of the gun and did not appear to be upset that it had been turned over to
the police.
Following a lengthy investigation, officers suspected defendant of committing the
crime and arrested him. Defendant had repeatedly told his new girlfriend that he wanted
to hire someone to shoot Jane. On the night of the shooting, defendant was staying with
his new girlfriend and left around 10:00 p.m. with a gun. Defendant returned very late,
around 3:00 a.m. He appeared stressed and was pacing back and forth. Defendant asked
his girlfriend to get her friends to drive to Jane’s apartment and shoot her through the
sliding glass door to her bedroom that faced the courtyard. Video surveillance from a
5
nearby hotel near Jane’s apartment complex showed a black car similar to defendant’s
Kia driving away from Jane’s apartment complex with the lights off at 2:15 a.m. The 911
call was placed at 2:11 a.m.
After defendant was advised of his constitutional rights under Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda), two officers interviewed defendant. Defendant
2
voluntarily spoke with the officers. Defendant denied shooting Jane or having driven the
car in May or June 2019. He admitted that he had seen the gun in the glove
compartment, but denied that it belonged to him. He maintained that he was extremely
inebriated and that sometimes he blacked out. He stated that if the police had evidence
proving he was at the scene of the crime, then he must have been there, but he had no
memory of it and did not recall being at the scene.
III.
DISCUSSION
Prior to its amendment by Assembly Bill 518 (2021-2022 Reg. Sess.), section 654
provided: “An act or omission that is punishable in different ways by different provisions
of law shall be punished under the provision that provides for the longest potential term
of imprisonment, but in no case shall the act or omission be punished under more than
one provision.” (§ 654, former subd. (a).)
2
The recording of the interview was played for the jury and the transcript of the
interview was admitted at trial.
6
Assembly Bill 518 amended section 654 effective January 1, 2022, to provide, in
relevant part: “An act or omission that is punishable in different ways by different
provisions of law may be punished under either of such provisions, but in no case shall
the act or omission be punished under more than one provision.” (§ 654, subd. (a).)
Thus, a trial court is no longer required to impose a sentence under the offense providing
for the longest possible sentence but may sentence a defendant under any one of the
applicable offenses. Assembly Bill 518 “provides the trial court new discretion to impose
a lower sentence.” (People v. Mani (2022) 74 Cal.App.5th 343, 379 (Mani).) The People
concede Assembly Bill 518 applies retroactively to defendant’s case. (See Mani, supra,
at p. 379; In re Estrada (1965) 63 Cal.2d 740, 744-746.)
The parties agree the matter must be remanded for full resentencing in light of
Assembly Bill 518. (See People v. Buycks (2018) 5 Cal.5th 857, 881.) They are correct.
(Mani, supra, 74 Cal.App.5th at p. 379.) Under the amended version of section 654 now
in effect, the trial court is no longer required to impose sentence on count 1 (the
conviction providing the longest potential term of imprisonment) and its attendant
enhancement and to stay execution of the sentences and enhancements on counts 2, 3 and
4. Instead, the court may punish defendant “under either provision.” (Mani, supra, at p.
351.) Accordingly, we reverse the sentence and remand the matter to the trial court so
that it may exercise its newly afforded discretion under amended section 654.
7
IV.
DISPOSITION
The sentence is reversed, and the matter is remanded for full resentencing
consistent with Assembly Bill 518. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
8
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Per Curiam.
Respondent was admitted to practice by this Court in 1984. She was admitted to practice in Tennessee that same year, where she maintains an office for the practice of law.
By order dated August 31, 2012, the Supreme Court of Tennessee suspended respondent from the practice of law for 11 months and 29 days, with the first 60 days active suspension and the remainder on probation. The suspension order was conditioned upon respondent’s performance of 40 hours of pro bono work during the probationary period. She was also directed to pay the costs associated with the disciplinary proceedings against her. The order of the Supreme Court of Tennessee was based upon entry of a conditional guilty plea by respondent in which she admitted having engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, as well as failing to properly safeguard trust account funds. The misconduct arose in connection with respondent’s improper transfer of third-party funds from her firm’s trust account into its operating account to pay firm expenses.
As a result of the discipline imposed in Tennessee, petitioner moves for an order imposing discipline pursuant to this Court’s rules (see 22 NYCRR 806.19). Respondent has filed a responsive affidavit, which we conclude has failed to establish any of the available defenses to the imposition of discipline (see 22 NYCRR 806.19 [d]), and we therefore grant petitioner’s motion.
*1055Under the circumstances presented and in the interest of justice, we conclude that respondent should be suspended from the practice of law for a period of one year. However, we stay the suspension on condition that respondent fully comply with the conditions placed upon her by the Supreme Court of Tennessee. Respondent may apply to terminate the suspension after one year from the date of this decision. Any such application shall include documentation of respondent’s successful completion of the probationary suspension in Tennessee, as well as her good standing in Tennessee, and must be served upon petitioner, which may be heard thereon (see e.g. Matter of Feldman, 51 AD3d 1209 [2008]).
Peters, P.J., Mercure, Rose, Garry and Egan Jr., JJ., concur. Ordered that petitioner’s motion is granted; and it is further ordered that respondent is suspended from the practice of law for a period of one year, effective immediately, and until further order of this Court, which suspension is stayed upon the terms and conditions set forth in this Court’s decision.
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Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered July 6, 1987, denying petitioner’s motion to stay arbitration on the ground that it was untimely made, unanimously reversed, on the law and on the facts, without costs or disbursements, the motion granted and the petition remanded for consideration of the merits.
Having been involved, on July 12, 1986, in a motor vehicle accident in which the other driver, operating a stolen vehicle, fled the scene, respondent Juliette Metayer, insured by Allstate under an automobile liability policy containing the statutory insured motorist endorsement, served, by certified mail, a demand for arbitration on April 15, 1987. The demand was mailed from New York City to Allstate’s office in Farmingdale in Suffolk County. By certified mail postmarked May 6, 1987, Allstate petitioned for a stay of arbitration. On joinder of issue, the motion court denied the stay application as untimely. Since the petition for a stay was timely served as a matter of law, we reverse and remand for consideration of the matter on the merits.
*455The law is well settled that the 20-day period provided in CPLR 7503 (c) is to be computed from the time the demand for arbitration is received, not from the time it is mailed. (Matter of Knickerbocker Ins. Co. [Gilbert], 28 NY2d 57, 64; cf., Matter of Allstate Ins. Co. v Bonilla, 116 AD2d 571.) In calculating the time in which a stay application is to be made, the day on which the demand is received is not included. (Matter of Knickerbocker Ins. Co. [Gilbert], supra.) Since, as all parties agree, the demand was not mailed until April 15, 1987, the earliest it could have been received in Suffolk County would have been April 16. Thus, even under a best-case scenario, as far as respondent is concerned, the 20-day statutory period would not have expired until May 6, 1987, the date on which the petition to stay arbitration was mailed, and it was clear error to find otherwise. In any event, however, a recently furnished, more legible copy of the stamp, "received”, on the envelope containing the demand for arbitration shows that it was received on April 17, 1987. Thus, the issue is factually beyond any dispute. Concur—Kupferman, J. P., Sullivan, Ross, Asch and Ellerin, JJ.
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Judgment, Supreme Court, New York County (Elliott Wilk, J.), entered February 9, 1987, which, upon a jury verdict, awarded plaintiff the sum of $101,575, is unanimously modified, on the law, to the extent of reducing the judgment by $50,000, to a total sum of $51,575, and, otherwise affirmed, without costs.
Plaintiff commenced this action to recover damages for personal injuries, which were sustained as a result of a collision between two motor vehicles. After trial, the jury returned a verdict in favor of plaintiff, which included an award of $6,500 for past medical expenses, and an award of $50,000 for future medical expenses.
Following our review of the record, we find that, since this was a personal injury action between two persons who were covered under Insurance Law § 5102 (a) (1) and § 5104 (a), the jury award of $56,500 for the past and future medical expenses must be reduced by $50,000, as the first $50,000 in medical expenses constitute basic economic loss, which is not recoverable (see, Hughes v Ryder Truck Rental, 125 AD2d 177, 178 [1st Dept 1986], lv denied 69 NY2d 609 [1987]).
Accordingly, we modify the judgment. Concur—Sandler, J. P., Ross, Kassal and Smith, JJ.
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01-13-2022
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— Motion denied.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129342/
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— Judgment of County Court affirmed, with costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902246/
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Per Curiam.
Respondent was admitted to practice by this Court in 1984. She was admitted to practice in Tennessee that same year, where she maintains an office for the practice of law.
By order dated August 31, 2012, the Supreme Court of Tennessee suspended respondent from the practice of law for 11 months and 29 days, with the first 60 days active suspension and the remainder on probation. The suspension order was conditioned upon respondent’s performance of 40 hours of pro bono work during the probationary period. She was also directed to pay the costs associated with the disciplinary proceedings against her. The order of the Supreme Court of Tennessee was based upon entry of a conditional guilty plea by respondent in which she admitted having engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, as well as failing to properly safeguard trust account funds. The misconduct arose in connection with respondent’s improper transfer of third-party funds from her firm’s trust account into its operating account to pay firm expenses.
As a result of the discipline imposed in Tennessee, petitioner moves for an order imposing discipline pursuant to this Court’s rules (see 22 NYCRR 806.19). Respondent has filed a responsive affidavit, which we conclude has failed to establish any of the available defenses to the imposition of discipline (see 22 NYCRR 806.19 [d]), and we therefore grant petitioner’s motion.
*1055Under the circumstances presented and in the interest of justice, we conclude that respondent should be suspended from the practice of law for a period of one year. However, we stay the suspension on condition that respondent fully comply with the conditions placed upon her by the Supreme Court of Tennessee. Respondent may apply to terminate the suspension after one year from the date of this decision. Any such application shall include documentation of respondent’s successful completion of the probationary suspension in Tennessee, as well as her good standing in Tennessee, and must be served upon petitioner, which may be heard thereon (see e.g. Matter of Feldman, 51 AD3d 1209 [2008]).
Peters, P.J., Mercure, Rose, Garry and Egan Jr., JJ., concur. Ordered that petitioner’s motion is granted; and it is further ordered that respondent is suspended from the practice of law for a period of one year, effective immediately, and until further order of this Court, which suspension is stayed upon the terms and conditions set forth in this Court’s decision.
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Order, Supreme Court, New York County (Edward J. Greenfield, J.), entered August 18, 1987, which granted defendant’s motion to dismiss the amended complaint pursuant to CPLR 3211 (a) (5) and (7) on grounds of the Statute of Limitations and failure to state a cause of action, unanimously modified, on the law, to the extent of denying the motion as to those portions of the first and second causes of action based upon the covenant contained in the *457deed conveying the property and reinstating those portions of said causes of action and, except as thus modified, affirmed, without costs or disbursements.
This action arises out of defendant’s sale of a 13-story apartment house located at 255 West 90th Street to plaintiff, a tenant-formed corporation which purchased the building, consisting of 39 residential units and five ground-floor storefronts, to initiate a tenant-sponsored cooperative conversion offering plan. The contract of sale, executed on August 9, 1979, provided that in the event the offering plan was not declared effective, plaintiff had no obligation to consummate the sale. It was expressly agreed that defendant would not be subjected to any liability under the plan or be deemed the sponsor thereof. The contract of sale further provided that an attached exhibit contained a true and complete list of all leases to the premises, their rentals, and the expiration date of each lease. In crucial part this exhibit stated that the lease for Argo Restaurant was to expire on November 30, 1987 and called for a rental of $2,000 per month, which was to increase to $2,167 during the last five years. In fact, this representation was false since it omitted the terms of a 1974 modification which extended the term of the lease TVs years to March 31, 1995. In return for such extension, defendant obtained a rent increase of several hundred dollars between April 1980 and the original expiration date of November 1987 and further rent increases thereafter culminating in a $3,000 per month rental for the years 1992-1995. Apparently, this commercial space would bring a much greater return in the present market had the lease expired, as warranted, on November 30, 1987.
The contract did not contain any provision which would carry these lease representations beyond the closing. The contract of sale also provided that defendant would give plaintiff a bargain and sale deed with covenant against grant- or’s acts conveying title "free from all encumbrances except as herein stated”, referring to, inter alia, the exhibit containing the list of outstanding leases. Since the Attorney-General’s acceptance of the offering plan for filing was unexpectedly delayed, closing of title did not take place until January 6, 1981, at which time a standard form bargain and sale deed with covenant against grantor’s acts was delivered. The covenant stated, inter alia, that the seller "had not done or suffered anything whereby the said premises have been encumbered in any way whatsoever, except as aforesaid.” Plaintiff concedes that it learned of the restaurant lease modification in February 1982. For whatever reason, however, it did *458not commence this action until October 28, 1986, over 4 Vi years later.
The complaint, as amended, states four causes of action: breach of the contract of sale (the representation with respect to the expiration of the restaurant lease); fraud and violations of article 23-A of the General Business Law, the Martin Act, in defendant’s alleged false representation in the offering plan that, to his knowledge, there were no inaccuracies in the plan; violation of General Business Law § 352-c for fraud and deception in connection with the offering of securities; and violation of General Business Law § 349 for deceptive acts in the conduct of a business. Two million dollars in compensatory, as well as punitive, damages were sought. Without answering, defendant moved to dismiss pursuant to CPLR 3211 (a) (5) and (7) on the grounds of Statute of Limitations and failure to state a cause of action. An amendment of the complaint, which was calculated to meet defendant’s challenge, added to the first two causes of action alleging breach of contract and fraud the theories that defendant was under a continuing duty to disclose the true terms of the restaurant lease, as modified; that the delivery of the deed with covenant against grantor’s acts constituted a further breach of contract and perpetration of fraud; and added to the Martin Act and General Business Law § 352-c causes of action the theory that defendant was a "sponsor ex officio” of the conversion plan. Thus, plaintiff argued, all the causes of action accrued at the January 1981 closing, and the action was timely commenced within the applicable six-year Statute of Limitations. The motion court dismissed the complaint. We modify only to the extent of reinstating those portions of the first and second causes of action alleging breach of contract and fraud based upon the deed’s covenant against grantor’s acts.
The motion court properly dismissed the breach of contract and fraud claims based on the contract representations. "In contract cases, the cause of action accrues and the Statute of Limitations begins to run from the time of the breach” (Kassner & Co. v City of New York, 46 NY2d 544, 550). The representation as to the terms of the restaurant lease was false when made. Thus, the breach occurred at the time of the execution of the contract. While plaintiff presumably could not have sought damages for the loss of 1987-1995 increased rent until it took title in 1981, it could have sued for rescission in 1979 or 1980. Thus, at the time of breach plaintiff had a remedy. (See, Matter of Queensborough Community Coll. v State Human Rights Appeal Bd., 49 AD2d 766, affd 41 NY2d *459926; Aetna Life & Cos. Co. v Nelson, 67 NY2d 169, 175.) Moreover, the contract claim is conclusively disproven by the contract of sale, which did not provide for a survival after delivery of the deed of the representation as to the restaurant lease. That representation merged into the conveyance. (See, 6A Powell, Real Property ]f 893.) The fraud element of the claim based upon the contract representation is not so barred, however, since fraud is a recognized exception to the merger doctrine (ibid.), although it is subject to dismissal on Statute of Limitations grounds. Applying either the six-year limitation from the date of the fraud itself (see, CPLR 213 [8]), or the alternate two-year time limit from date of discovery (see, CPLR 203 [f]), the claim is stale.
Without elaboration, the motion court found that defendant’s conveyance pursuant to a bargain and sale deed with covenant against grantor’s acts failed to change the accrual date. That finding was erroneous since a deed with such a covenant constitutes, in a sense, not only a reaffirmation of the earlier contractual representation, but it also represents a new and different commitment. The covenant construed in Real Property Law § 253 (6) is an agreement of indemnification (see, Rasch, Real Property §§ 1211, 1216; 6A Powell, Real Property |f 898) of a type not contained in the contract of sale. Thus, plaintiffs right to indemnification arose for the first time upon delivery of the deed at closing. (See, 6A Powell, Real Property j[ 898.) Nor is there any doubt that the restaurant lease is one of the types of encumbrances against which the covenant was designed to protect. (Ibid.) Since the action was commenced within six years of delivery of the deed, those portions of the first and second causes of action based on the deed and its covenant assert viable contractual and fraud claims and should be reinstated.
As for the statutory claims, which are based on the representation in the offering plan to the effect that defendant had read the plan and that there were no material inaccuracies in the factual data contained therein, they too are barred by the six-year Statute of Limitations, since the plan was dated and published more than six years before the commencement of the action. Plaintiff’s argument that these causes of action accrued only upon delivery of the deed is neither factually nor logically supportable. Moreover, and in any event, they are without substantive merit. General Business Law § 352-c does not provide a private right of action. (CPC Intl. v McKesson Corp., 70 NY2d 268.) Furthermore, by providing in the contract of sale that defendant was not a promoter or sponsor *460and would not be subjected to any liability under the plan, plaintiff waived any such claim. Apparently, plaintiff had abandoned its claim under General Business Law § 349. Thus, those portions of the second cause of action relating to a statutory claim and the entirety of the third and fourth causes of action were properly dismissed. Concur—Sandler, J. P., Sullivan, Carro, Milonas and Smith, JJ.
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Motion granted only to extent of referring matter to Departmental Disciplinary Committee for the First Judicial Department to hear and report on movant’s compliance with order of suspension and fitness to return to practice of law and, pending such hearing and *461report, application for reinstatement held in abeyance. Concur —Kupferman, J. P., Ross, Rosenberger and Ellerin, JJ.
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https://www.courtlistener.com/api/rest/v3/opinions/6495489/
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-30230
Plaintiff-Appellee, D.C. No. 2:18-cr-00034-TOR-1
v.
MICHAEL D. MILLER, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Submitted June 15, 2022**
Before: SILVERMAN, WATFORD, and FORREST, Circuit Judges.
Michael D. Miller appeals from the district court’s order denying his motion
for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). We have
jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion, see United
States v. Keller, 2 F.4th 1278, 1281 (9th Cir. 2021), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Miller contends that the district court abused its discretion because it
incorrectly concluded that he would be at equal risk from COVID-19 if he were
released, gave insufficient weight to the health risks created by his incarceration,
and improperly considered his rehabilitation separately from the 18 U.S.C.
§ 3553(a) factors. The record does not support Miller’s claims. The district court
correctly observed that Miller’s medical conditions would exist even outside of
prison and that COVID-19 continues to spread within the community. Moreover,
it considered the risks posted by Miller’s particular health conditions. It did not
abuse its discretion in concluding that, because Miller’s health conditions were
stable and being monitored and treated, he had previously recovered from COVID-
19, and he had received two doses of the vaccine, he had not shown extraordinary
and compelling reasons for compassionate release. See United States v. Robertson,
895 F.3d 1206, 1213 (9th Cir. 2018) (district court abuses its discretion only if its
decision is illogical, implausible, or without support in the record). Moreover, the
court considered Miller’s rehabilitative efforts and reasonably concluded that,
though his efforts were commendable, they did not support compassionate release
given the nature and circumstances of his offense and significant criminal history.
See Keller, 2 F.4th 1284.
AFFIRMED.
2 21-30230
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06-27-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902252/
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Judgment, Supreme Court, Bronx County (Daniel Sullivan, J.), rendered on December 9, 1981, unanimously affirmed.
Application by appellant’s counsel to withdraw as counsel is granted. (See, Anders v California, 386 US 738; People v Saunders, 52 AD2d 833.) We have reviewed this record and agree with appellant’s assigned counsel that there are no nonfrivolous points which could be raised on this appeal. Concur—Murphy, P. J., Sandler, Carro, Rosenberger and Smith, JJ.
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01-13-2022
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— Motion for reargument denied.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902254/
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Order, Supreme Court, New York County (Walter Schackman, J.), entered on or about September 23, 1987, unanimously affirmed, without costs and without disbursements. Defendant-respondent’s motion to strike appellant’s reply brief is denied. No opinion. Concur—Murphy, P. J., Sandler, Carro, Rosenberger and Smith, JJ.
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Order, Supreme Court, New York County (Louis Grossman, J.), entered December 4, 1986, which granted defendants’ motion for partial summary judgment on their third counterclaim, and denied plaintiff’s cross motion for partial summary judgment on the first, second and fourth causes of action of the complaint, is unanimously modified, on the law, on the facts, and in the exercise of discretion, to the extent of staying execution of partial summary judgment, and, except as thus modified, otherwise affirmed, without costs.
*465In May 1983, Mr. Michael Levy (Mr. Levy), a financial analyst with Oppenheimer & Co., entered into an agreement with Mr. Robert L. Renck, Jr. (Mr. Renck, Jr.), R. L. Renck & Co., an Illinois limited partnership, and R. L. Renck & Co., Inc., which is an Illinois corporation.
The terms of the subject agreement, which was dated and executed May 6, 1983, in substance, provided that Mr. Levy would become comanaging partner with Mr. Renck, Jr. of the limited partnership; the name of the limited partnership would be changed from R. L. Renck & Co. to Renck, Levy & Co.; Mr. Levy would receive the same compensation as Mr. Renck, Jr. (note: It is alleged that Mr. Renck, Jr.’s compensation was $150,000 per year); Mr. Renck, Jr., would have the right to involuntarily remove, with notice, Mr. Levy from office, upon Mr. Renck, Jr.’s personal payment to Mr. Levy of at least $250,000; Mr. Levy would have the right to voluntarily withdraw, with notice, from the limited partnership, and receive the amount in his working interest account; and, Mr. Levy would be required to make a $150,000 capital contribution, in the form of two demand promissory notes, which were to be executed by Mr. Levy in the amounts of $125,000 and $25,000.
Subsequently, in November 1985, Mr. Levy (plaintiff) commenced action against Mr. Renck, Jr. and Renck, Levy & Co. (defendants) for alleged breach of the agreement. Specifically, the plaintiff seeks in his first cause of action, which is only brought against defendant Mr. Renck, Jr., $150,000 in unpaid compensation, and $12,500 in unreimbursed expenses; in the second cause of action, which is only brought against Renck, Levy & Co., the identical amount of damages sought in the first cause of action; in the third cause of action, which is only brought against Mr. Renck, Jr., $250,000, based upon plaintiff’s involuntary withdrawal from the limited partnership and, in the fourth cause of action, which is brought against all of the defendants, an accounting concerning plaintiff’s working interest account. Defendants’ answer, in substance, denies they breached the agreement, and also contains certain counterclaims.
Thereafter, defendants moved for partial summary judgment upon the third counterclaim, which is predicated upon the demand promissory note, mentioned supra, executed by plaintiff in the amount of $125,000, with interest. In response, plaintiff moved for partial summary judgment on the first, second and fourth causes of action. While the IAS court *466granted defendants’ motion for partial summary judgment, it denied plaintiff’s cross motion for the same relief.
Since the amount of the unsettled causes of action of the complaint is in excess of the amount of the defendants’ third counterclaim, we find, after reviewing the record, that failure to stay execution of partial summary judgment, pending the resolution of the unsettled claims, could result in possible financial prejudice to the plaintiff should "[plaintiff] subsequently prevail on the unsettled claims (see Siegel, New York Practice, § 285)” (Stigwood Org. v Devon Co., 44 NY2d 922, 923 [1978]). Accordingly, we exercise our discretion (CPLR 3212 [e] [2]), and stay execution of partial summary judgment. Concur —Kupferman, J. P., Ross, Asch, Kassal and Ellerin, JJ.
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Stein, J.
Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered May 3, 2010 in Schenectady County, convicting defendant upon her plea of guilty of the crime of criminal possession of a weapon in the second degree.
Defendant was charged with various crimes arising out of two incidents in 2009 during which she stole the victim’s cellular telephone and, the following day, fired a shot into a vehicle containing the same victim and others, including a five-year-old girl. In satisfaction of the charges, defendant pleaded guilty to criminal possession of a weapon in the second degree and waived her right to appeal. County Court thereafter imposed the agreed-upon sentence of 10 years in prison, to be followed by *1057five years of postrelease supervision. Defendant now appeals, arguing that her appeal waiver was invalid and that her sentence was harsh and excessive.
We affirm. Contrary to her argument, we find that defendant knowingly and voluntarily waived her right to appeal. During the plea colloquy, County Court distinguished the right to appeal from the rights forfeited by the guilty plea and explained to defendant the ramifications of the waiver (see People v Lopez, 97 AD3d 853, 853 [2012], lv denied 19 NY3d 1027 [2012]). Defendant affirmed that she had discussed the waiver with counsel, and the court confirmed that defendant had executed a written appeal waiver, which acknowledged that she was voluntarily waiving the right to appeal her conviction and sentence (see People v Tolliver, 92 AD3d 1024, 1024 [2012]; People v McDuffie, 89 AD3d 1154, 1156 [2011], lv denied 19 NY3d 964 [2012]). Further, contrary to defendant’s contention, we find nothing coercive or unfair concerning the negotiated plea bargain that would render the waiver unenforceable (see People v Holman, 89 NY2d 876, 878 [1996]; People v Seaberg, 74 NY2d 1, 11 [1989]; People v Redden, 246 AD2d 391, 391 [1998], lv denied 91 NY2d 1011 [1998]). As a result of defendant’s valid waiver of the right to appeal her conviction and sentence (see People v Maracle, 19 NY3d 925 [2012]), her contention that her sentence is harsh and excessive is precluded from our review (see People v Gertzberg, 94 AD3d 1293, 1293 [2012]; People v Cano, 93 AD3d 994, 994 [2012], lv denied 19 NY3d 995 [2012]).
Rose, J.P., Spain and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
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No opinion. Appeal from decision dismissed, with costs. Judgment affirmed, with costs. Order filed.
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09-09-2022
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Order, Supreme Court, New York County (C. Beauchamp Ciparick, J.), entered on February 11, 1987, and order of said court, entered on August 5, 1987, which was modified by an order of said court, entered on or about August 20, 1987, unanimously affirmed, without costs and without disbursements. No opinion. Concur—Murphy, P. J., Sandler, Carro, Rosenberger and Smith, JJ.
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Order, Supreme Court, New York County (Alvin Klein, J.), entered on June 15, 1987, unanimously affirmed, without costs and without disbursements. The appeal from the order of said court, entered on October 7, 1987, unanimously dismissed as nonappealable without costs and without disbursements. No opinion. Concur —Kupferman, J. P., Ross, Rosenberger, Ellerin and Smith, JJ.
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McCarthy, J.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered February 24, 2011, which revoked defendant’s probation and imposed a sentence of imprisonment.
The background facts of this case are more fully set forth in the companion case involving defendant (People v Secore, 102 AD3d 1059 [2013] [decided herewith]). As is relevant here, defendant was sentenced in 2008 to a five-year term of probation upon his plea of guilty to the crime of grand larceny in the *1058fourth degree arising from his unauthorized use of a credit card. While on probation, he was charged with additional crimes, including forgery in the second degree. He subsequently pleaded guilty to the forgery charge as well as to violating the conditions of his probation, and waived his right to appeal. In return, he was accepted into the judicial diversion program (see CPL art 216), which required him to participate in an intensive drug and alcohol treatment program in lieu of being sentenced to prison. Defendant, however, did not successfully complete the program, admitted his violations and waived his right to a hearing. As a result, County Court, among other things, revoked his probation and resentenced him as a second felony offender to lVs to 4 years in prison. The court also ordered him to pay restitution in the amount of $1,967.55, plus a 10% collection surcharge of $196.76 for a total of $2,164.31. Defendant now appeals.
Defendant challenges the validity of his plea of guilty to violating the conditions of his probation and County Court’s award of restitution as well as the 10% surcharge. Initially, defendant entered into the same waiver of his right to appeal with respect to the probation violation that he did with respect to the forgery charge. As we note in the companion case, the waiver was not valid because it is not clear from the record that defendant fully understood that such right was separate and distinct from the other rights he was forfeiting by his guilty plea (see People v Lopez, 6 NY3d 248, 256-257 [2006]; People v Secore, supra). Accordingly, the waiver does not preclude him from raising his claims here.
Nevertheless, inasmuch as the record fails to indicate that defendant moved to vacate the judgment of conviction or withdraw his plea of guilty to the probation violation, he has not preserved his challenge to the voluntariness of his guilty plea (see People v Lewis, 69 AD3d 1232, 1234 [2010]; People v Banks, 305 AD2d 812, 812 [2003], lv denied 100 NY2d 578 [2003]). Moreover, the exception to the preservation requirement is inapplicable insofar as defendant did not make statements that were inconsistent with his guilt or that cast doubt on the voluntariness of his plea (see People v Lewis, 69 AD3d at 1234).
Similarly, defendant’s challenge to the amount of restitution awarded is not preserved for our review due to his failure to request a hearing or otherwise contest the amount of restitution awarded at resentencing (see People v Nickel, 97 AD3d 983, 984 [2012]; People v Planty, 85 AD3d 1317, 1318 [2011], lv denied 17 NY3d 820 [2011]). Significantly, defendant had many opportunities to dispute the amount of restitution in prior *1059proceedings on the matter but failed to do so. The St. Lawrence County Probation Department submitted an affidavit in accordance with Penal Law § 60.27 (8) supporting the imposition of the 10% collection surcharge to be included in the restitution amount (see People v Boyzuck, 72 AD3d 1530, 1531 [2010]). Given that defendant did not object or otherwise challenge this surcharge, he has failed to preserve this claim as well (see People v Snyder, 38 AD3d 1068, 1069 [2007]).
Mercure, J.P., Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
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Order of the Supreme Court, New York County (Shirley Fingerhood, J.), entered November 13, 1987, which preliminarily enjoined the respondents from transferring any prisoners or staff to Pier 36 or to the barge, The Bibby Venture, and which set the matter down for an evidentiary hearing as to whether an emergency situation exists and as to whether the use of the pier and barge is and will be of a temporary nature, reversed, on the law and facts, and in the exercise of discretion, and petitioners’ motion for preliminary injunctive relief denied, without costs or disbursements.
Respondents selected Pier 36 for the temporary mooring of a prison barge to alleviate overcrowding elsewhere. Petitioners commenced this proceeding to compel respondents to comply with Uniform Land Use Review Procedure (ULURP), State Environmental Quality Review (SEQRA) and City Environmental Quality Review (CEQR) procedures and also to preliminarily and permanently enjoin further action with respect to the preparation of the pier for the mooring of the barge.
Since petitioners have failed to show the applicability of ULURP, SEQRA or CEQR to the actions of the respondents, *468the grant of a preliminary injunction by the IAS court was an abuse of discretion. Furthermore, petitioners did not establish their likelihood of success on the merits, irreparable harm to them absent the grant of the relief sought, nor a balance of the equities in their favor (see, Grant Co. v Srogi, 52 NY2d 496, 517).
Petitioners’ position that the use and preparation of Pier 36 for the temporary mooring of the prison barge requires ULURP review since it is, first, a disposition of city-owned property (NY City Charter § 197-c [a] [10]) and, second a site selection for a capital project (NY City Charter § 197-c [a] [5]), is not persuasive.
The employment of Pier 36 to moor a prison barge, temporarily, has not changed its preexisting use. The pier shed and accompanying wharf property will improve the use of the pier and not change its character as a pier. The Commissioner of the Department of Ports, International Trade and Commerce issued a permit for the use and occupancy of the pier for the period October 25, 1987 through October 24, 1988. The granting of such a license, terminable by the grantor upon 30 days’ written, notice, is not a "lease” which would constitute a disposition of city property pursuant to section 197-c (a) (10), so as to trigger the application of ULURP (Mauldin v New York City Tr. Auth., 64 AD2d 114). Similarly, the Court of Appeals has held that the issuance by the Federal Government of a revocable license to the city to renovate and temporarily occupy a former naval facility as a medium-security prison site, pending possible sale to the city, was not a disposition of real property within the meaning of New York City Charter § 197-c (a) (10) (see, Matter of Gerges v Koch, 62 NY2d 84, 92).
Paragraph (5) of section 197-c (a) of the New York City Charter brings "[s]ite selection for capital projects” within the ambit of ULURP review. In Matter of Gerges v Koch (supra), the Court of Appeals found that the execution of the license for occupancy of the Brig did constitute a site selection for a capital project. However, in that case, over $20 million in contracts had been approved for the project and specifically allocated to line items in the capital budget. Here, on the other hand, only $1.6 million have been allocated from the general expense budget for the Correction Department, for minor repairs and improvements on Pier 36. Significantly, even though the Court of Appeals found that the expenditure was a capital one, that court approved the project.
Second, petitioners claim that the intended use of Pier 36 *469constitutes action which may significantly affect the environment and which, hence, must be reviewed under ECL article 8 (SEQRA), its implementing regulations under 6 NYCRR part 617, and SEQRA’s local counterpart, Mayoral Executive Order No. 91 of 1977, which establishes standards for City Environmental Quality Review.
However, the SEQRA regulations specifically exempt from such environmental review all "emergency actions which are immediately necessary on a limited and temporary basis for the protection or preservation of life, health, property or natural resources, provided that such actions are directly related to the emergency and are performed to cause the least change or disturbance, practicable under the circumstances, to the environment” (6 NYCRR 617.2 [q] [4]). "[Ajctions which are immediately necessary on a limited emergency basis for the protection or preservation of life * * * property or natural resources” are likewise exempt from the CEQR provisions (CEQR § 4 [h]). The temporary mooring of the prison barge is an emergency taken to ameliorate the Correction Department’s urgent need for additional beds to comply with the orders of the Federal District Court in a pending action. The IAS court abused its discretion in ordering a hearing to determine whether an emergency exists.
"The standard of review is not whether we or the courts below would conclude that a limited emergency exists; it is rather whether the determination by the Commissioner of Correctional Services that such an emergency exists was irrational or arbitrary or capricious. In our view the commissioner could reasonably find that the * * * project represents emergency action within the meaning of the applicable regulation, sufficient to provide some dispensation from the requirements generally governing environmental statements.
"The petitioners urge that the regulation was only 'intended to allow immediate steps to be taken during a limited emergency such as blocking off a water source when a dam breaks’. Concededly the case now before us does not present the classic example where immediate action is required to meet an emergency in which the effect of the action may be immediately realized. There is apparently no quick solution which will immediately eliminate the problems of overcrowded jails. But that does not mean that there is no crisis or that there is no need to take immediate action to lay the foundation for a program which may provide relief in the near future. State officials confronted with an ever increasing influx of inmates into a prison system, already filled to well over 100% of *470capacity, can hardly be said to be acting irrationally if they conclude that some action must be taken immediately to avert in the future the violence which has occurred in the past.
"Neither can it be said that the decision to take immediate action at this time is unreasonable because prison overcrowding is a problem of long standing in this State. Emergencies are often precipitated by the failure to take needed action in the past despite adequate warning. Certainly in the example provided by the petitioners no one would suggest there was no emergency and that public officials would be required to file an environmental impact statement before they could divert a water source in the face of a bursting dam if the potential defect in the dam had long been a matter of common knowledge.” (Matter of Board of Visitors—Marcy Psychiatric Center v Coughlin, 60 NY2d 14, 20; see also, Midtown S. Preservation & Dev. Comm. v City of New York, 130 AD2d 385, 387-388.)
The court cannot substitute its own discretion for that of the Commissioner and decide, on the basis of its own research, or findings after testimony, that there is no emergency. It is limited to finding whether the declaration of emergency issued by the Correction Commissioner was rationally based and not arbitrary or capricious.
Perhaps the Mayor’s solution does not represent our solution of choice. But we are not the chief executive. The narrow legal question with which this court is presented is whether the Mayor of New York City has fulfilled his legal responsibility under law. And this legal question has been answered by the Court of Appeals of New York.
The Court of Appeals has held, in Matter of Gerges v Koch (supra), a case very similar to the one before us and one in which the movant showed an even greater right to injunctive relief than the petitioners herein, that such relief should be denied in the exercise of responsible judicial discretion. The Court of Appeals in Gerges, as are we, was faced with an emergency of compelling and dangerous dimension. It found that:
"The determination of the availability of such relief depends not alone on the right of the party seeking it but as well on the appropriateness of its issuance in the circumstances in which it is sought.
"We turn then to the present circumstances in which petitioners seek injunctive relief at our hands. The City’s license of the Brig is an accomplished fact, fully recognized by both *471the City and the Federal Government. Similarly, we are informed that renovation of the Brig for the receipt of 200 prisoners has now been completed and that their transfer is held up only in consequence of the outstanding stay issued by our court on May 10, 1984. We take note that respondents are confronted, in consequence of orders of the Federal courts and otherwise, with an emergency of compelling and dangerous dimension and seriousness. That this emergency might have been foreseen and that municipal officials may have been derelict in not earlier having made appropriate provision for its resolution and having assured the availability of adequate detention facilities does not negate the existence of the present crisis. Inaction of the past may have been justifiable or at least explainable; in any event the calendar cannot be turned back. It would serve no appropriate or useful purpose now to fashion relief as a sanction for action and inaction beyond recall.
"Focusing on the present compelling need of the City to make additional detention facilities immediately available and the evident desire on all sides to avoid a repetition of the premature release in November, 1983 of 613 detainees, it would be an abuse of discretion on our part to preclude the immediate use by the City of detention facilities which are now ready and available. For us to mandate that such facilities stand vacant pending resolution of the continuing controversy between the parties would be judicially irresponsible in view of the dangerously close approach of the inmate population to mandated limits. We recognize the fact that 'the dynamics and freedom of decision-making with respect to a proposal to rescind a prior action are significantly more constrained than when the action is first under consideration for adoption’ (Matter of Tri-County Taxpayers Assn. v Town Bd., 55 NY2d 41, 46), and that full and fair evaluation of the merits of any project may be more difficult after that project has been permitted to progress through substantial implementation. Nonetheless, in the singular circumstances with which we are all confronted on this appeal, we conclude that injunctive relief should be denied and petitioners relegated to seek such judicial review and relief as they may desire and as may be available” (Matter of Gerges v Koch, supra, at 95-96).
These considerations in Gerges (supra) must apply, a fortiori, to our case. Concur—Asch, J. P, Milonas, Rosenberger and Smith, JJ.
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McCarthy, J.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered February 24, 2011, which revoked defendant’s probation and imposed a sentence of imprisonment.
The background facts of this case are more fully set forth in the companion case involving defendant (People v Secore, 102 AD3d 1059 [2013] [decided herewith]). As is relevant here, defendant was sentenced in 2008 to a five-year term of probation upon his plea of guilty to the crime of grand larceny in the *1058fourth degree arising from his unauthorized use of a credit card. While on probation, he was charged with additional crimes, including forgery in the second degree. He subsequently pleaded guilty to the forgery charge as well as to violating the conditions of his probation, and waived his right to appeal. In return, he was accepted into the judicial diversion program (see CPL art 216), which required him to participate in an intensive drug and alcohol treatment program in lieu of being sentenced to prison. Defendant, however, did not successfully complete the program, admitted his violations and waived his right to a hearing. As a result, County Court, among other things, revoked his probation and resentenced him as a second felony offender to lVs to 4 years in prison. The court also ordered him to pay restitution in the amount of $1,967.55, plus a 10% collection surcharge of $196.76 for a total of $2,164.31. Defendant now appeals.
Defendant challenges the validity of his plea of guilty to violating the conditions of his probation and County Court’s award of restitution as well as the 10% surcharge. Initially, defendant entered into the same waiver of his right to appeal with respect to the probation violation that he did with respect to the forgery charge. As we note in the companion case, the waiver was not valid because it is not clear from the record that defendant fully understood that such right was separate and distinct from the other rights he was forfeiting by his guilty plea (see People v Lopez, 6 NY3d 248, 256-257 [2006]; People v Secore, supra). Accordingly, the waiver does not preclude him from raising his claims here.
Nevertheless, inasmuch as the record fails to indicate that defendant moved to vacate the judgment of conviction or withdraw his plea of guilty to the probation violation, he has not preserved his challenge to the voluntariness of his guilty plea (see People v Lewis, 69 AD3d 1232, 1234 [2010]; People v Banks, 305 AD2d 812, 812 [2003], lv denied 100 NY2d 578 [2003]). Moreover, the exception to the preservation requirement is inapplicable insofar as defendant did not make statements that were inconsistent with his guilt or that cast doubt on the voluntariness of his plea (see People v Lewis, 69 AD3d at 1234).
Similarly, defendant’s challenge to the amount of restitution awarded is not preserved for our review due to his failure to request a hearing or otherwise contest the amount of restitution awarded at resentencing (see People v Nickel, 97 AD3d 983, 984 [2012]; People v Planty, 85 AD3d 1317, 1318 [2011], lv denied 17 NY3d 820 [2011]). Significantly, defendant had many opportunities to dispute the amount of restitution in prior *1059proceedings on the matter but failed to do so. The St. Lawrence County Probation Department submitted an affidavit in accordance with Penal Law § 60.27 (8) supporting the imposition of the 10% collection surcharge to be included in the restitution amount (see People v Boyzuck, 72 AD3d 1530, 1531 [2010]). Given that defendant did not object or otherwise challenge this surcharge, he has failed to preserve this claim as well (see People v Snyder, 38 AD3d 1068, 1069 [2007]).
Mercure, J.P., Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
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In an action for a judgment declaring the invalidity of purported amendments to two trust agreements, the defendant Eugenia C. Sanchez appeals from (1) so much of an order of the Supreme Court, Westchester County (Cerrato, J.), dated September 25, 1986, as granted the plaintiff’s motion to compel her to undergo a mental health examination by a psychiatrist appointed by the court and (2) an order of the same court, entered April 3, 1987, which denied her motion for summary judgment dismissing the complaint.
Ordered that the order dated September 25, 1986, is affirmed insofar as appealed from and the order entered April 3, 1987, is affirmed, with one bill of costs.
The defendant Eugenia Sanchez is the grantor and sole beneficiary of two inter vivos trust agreements created in 1957 and 1972, respectively. The provisions of the trusts are essentially identical in that Ms. Sanchez is the sole lifetime beneficiary and may receive whatever part of the principal the trustees deem necessary and both trusts are termed "irrevocable.”
On April 7, 1984, Sanchez attempted to amend the trusts by appointing Key Trust Company in the place of the plaintiff as corporate trustee and the codefendant Antonin Tutter as individual trustee. Legal action ensued for a declaratory judgment concerning the validity of the new appointments and resulted in a stipulation and order dated October 15, 1984, which stated that the plaintiff’s continuance as corporate trustee was in the defendant Sanchez’s best interest and that Tutter and the plaintiff would serve as cotrustees.
*474By written instrument dated January 4, 1985, Sanchez again attempted to amend both trusts, inter alia, by granting Tutter complete managerial control over investment and withdrawal of the principal. Upon receiving these amendments, the plaintiff commenced the instant action attempting to have the amendments nullified on the ground that Tutter was benefiting by them and unduly influencing Sanchez to make them. It was further alleged that the amendments constituted an improper delegation of the trustees’ responsibilities and duties, an imprudent dealing and investment of trust assets, and an obstruction of the original intent of the trust instruments. The plaintiff also asked that Tutter be removed as trustee and that its legal expenses be paid out of the trust principal. The plaintiff moved for and was granted an order to compel Sanchez to undergo a psychiatric examination to determine whether she was able to handle her own financial affairs and whether the amendments to the trust agreements were the product of undue influence by Tutter and/or others.
In response, Sanchez executed amendments to both trust agreements which, inter alia, revoked the amendments of January 4, 1985, and designated Norstar Trust Company as coequal trustee with Tutter in the place of the plaintiff. The defendant Sanchez moved for summary judgment, claiming that the invalidation of the January 4, 1985, amendment and designation of a new corporate trustee as cotrustee with equal say in all investment and withdrawal decisions rendered the plaintiff’s complaint moot. The motion was denied. The defendant Sanchez appeals from this order and the order compelling her to undergo a psychiatric examination.
We agree with the Supreme Court, Westchester County, that Sanchez’s mental capacity is sufficiently "in controversy” to warrant a psychiatric determination. "[I]n controversy” under CPLR 3121 is defined as "necessary for the alleged impairment—physical or mental—to relate to, contribute to, or in some way attempt to mitigate the claims for damage or other relief sought by the plaintiff” (3A Weinstein-KornMiller, NY Civ Prac |J 3121.01, at 31-413). Here, a determination of Sanchez’s ability to make decisions and a possible determination of undue influence obviously relates to and contributes to the outcome of the case.
We also find sufficient triable issues of fact remaining which preclude a granting of summary judgment (Sillman v Twentieth Century-Fox Film, Corp., 3 NY2d 395). Although the plaintiff’s claim of unequal delegation of fiduciary powers may have been mooted by the new trust amendments, the issue of undue *475influence remains unresolved, which, if found to have existed, would void the amendments ab initio (see, Kreindler v Irving Trust Co., 23 NY2d 785; Matter of Waxman, 110 AD2d 644). Furthermore, the issues of whether the 1986 amendments were in the best interest of Sanchez and whether those amendments violate the provisions of the original trust agreements and the court-ordered stipulation of October 1984 are still undecided and require factual determination. Mangano, J. P., Brown, Harwood and Balletta, JJ., concur.
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In a proceeding pursuant to CPLR article 75 to confirm an arbitration award which granted the petitioner the sum of $85,000 in uninsured motorist benefits, the appeal is from a judgment of the Supreme Court, Queens County (Berkowitz, J.), dated September 22, 1986, which granted the application and confirmed the award.
Ordered that the judgment is affirmed, with costs.
CPLR 7511 (b) provides, inter alia, that a party who participated in an arbitration may obtain a vacatur of the arbitration award if the rights of that party were prejudiced by the failure to follow the procedures prescribed in CPLR article 75. This avenue of relief is, however, forfeited where the party applying to vacate the award continued with the arbitration with notice of the defect and without interposing an objection thereto (see, CPLR 7511 [b] [1] [iv]).
With reference to the facts of this case, inasmuch as the appellant insurance company proceeded with the arbitration, without objection, its belated claim that the award should now be vacated on the ground that it never received a demand for arbitration, is without merit.
Equally unavailing is the insurer’s challenge to the admissibility of an unsworn medical report which had been prepared by a physician who had examined the insured nearly three years subsequent to the accident. We find, as did the Supreme Court, that the admission of this report into evidence does not constitute sufficient grounds for vacating the award (see, Matter of Sprinzen [Nomberg], 46 NY2d 623; Matter of Pierre [General Acc. Ins.], 100 AD2d 705, lv denied 63 NY2d 601; Dahn v Luchs, 92 AD2d 537).
Finally, the appellant’s contention that the award is excessive was not raised before the Supreme Court and, therefore, not properly preserved for appellate review (see, Matter of Kenner v Coughlin, 105 AD2d 1130, lv dismissed 65 NY2d 603, 760). In any event, "[i]t is well established that an arbitrator *476is not required to justify his award; it must merely be evident that there exists a rational basis for it upon a reading of the record” (see, Dahn v Lucks, supra, at 538). On the basis of the present record, we conclude that the award rendered by the arbitrator was supported by the proof submitted and was, therefore, rational. Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.
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In an action for a divorce and ancillary relief, - the plaintiff husband appeals from stated portions of an order of the Supreme Court, Westchester County (Nastasi, J.), entered April 15, 1987, which, inter alia, granted those branches of the defendant wife’s motion which were to adjudge the plaintiff in contempt of court for failure to comply with a pendente lite order of the same court entered October 16, 1986, as amended on October 20, 1986, for leave to enter money judgments, and for counsel fees, and denied those branches of his cross motion which were for a hearing on his financial ability to comply with the pendente lite order, and for downward modification of the pendente lite order, and cancellation of the accrued arrears.
Ordered that the order, as amended, is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a hearing and new determination in accordance herewith.
We agree with the plaintiff’s contention that since he asserted as a defense that he was financially unable to comply with the pendente lite orders, he was entitled to a hearing (see, Domestic Relations Law § 246 [3]). Therefore, the Supreme Court erred in not holding a hearing before it adjudged *478him to be in contempt (see, Rogers v Rogers, 94 AD2d 764, lv denied sub nom. Elizabeth R. v John R., 63 NY2d 604; Pirrotta v Pirrotta, 42 AD2d 715).
We also find that the Supreme Court erred in summarily denying the plaintiffs cross motion for modification of the pendente lite order (see, De Paolo v De Paolo, 104 AD2d 631). Since this issue is inextricably involved with the issue of contempt, both issues should be determined after a full evidentiary hearing (see, Ciaschi v Ciaschi, 49 AD2d 991).
Finally, while the defendant was entitled to an award of counsel fees (see, Domestic Relations Law § 237 [c]), we find that, under the circumstances, the making of the award on the basis of affirmations alone was improper (see, Price v Price, 115 AD2d 530). Mangano, J. P., Brown, Rubin and Harwood, JJ., concur.
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McCarthy, J.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered February 24, 2011, convicting defendant upon his plea of guilty of the crime of forgery in the second degree.
In 2009, defendant was charged with the crimes of forgery in the second degree, grand larceny in the fourth degree and identity theft in the second degree as a result of his unlawful use of a public assistance benefit card belonging to his estranged girlfriend. At the time, he was serving a term of probation upon his conviction of grand larceny in the fourth degree. In connection with the 2009 crimes, defendant waived indictment and agreed to be prosecuted by a superior court information charging him with only forgery in the second degree.
Thereafter, defendant entered into a negotiated agreement regarding the disposition of both the forgery charge and the violation of probation. Under its terms, he would be received into the judicial diversion program (hereinafter JDP) (see GPL art 216) in lieu of being sentenced to prison and, in exchange, would plead guilty to the forgery charge as well as the violation of probation, waive his right to appeal and pay restitution. However, if he did not successfully complete the JDR he would be sentenced to a term of imprisonment that could be as much as four years on the violation of probation and seven years on the forgery charge, which terms could run consecutively. Defendant proceeded to enter his plea of guilty, admit to the probation violations and waive his right to appeal. In addition, he also executed a JDP contract that, among other things, set forth
*1060the conditions of his participation in a drug and alcohol treatment program. Pursuant to this contract, if defendant successfully completed the JDfj he would receive five years of probation on the forgery conviction and probation would be continued on the grand larceny conviction, with the potential of one year of credit for the completion of interim probation.
Defendant participated in the JDP for approximately 11 months with varying degrees of success, but was ultimately terminated for, among other things, lying to the court about his employment. He waived his right to a hearing and admitted to the violations of the JDP contract. Thereafter, his probation was revoked and he was resentenced to U/s to 4 years in prison on the grand larceny conviction. In addition, he was ordered to pay restitution. With respect to the forgery conviction, defendant was sentenced to 21h to 5 years in prison, to run consecutively to the grand larceny conviction. Defendant now appeals from the forgery conviction.
Defendant contends that his guilty plea was not voluntary and that his termination from the JDP was an abuse of discretion. As an initial matter, we do not find that these claims are precluded by defendant’s waiver of the right to appeal. The waiver was invalid inasmuch as the record does not disclose that defendant understood that this right was separate and distinct from the other rights he forfeited by pleading guilty (see People v Lopez, 6 NY3d 248, 256-257 [2006]; People v Cianfarani, 81 AD3d 998, 999 [2011]; People v Mosher, 79 AD3d 1272, 1273 [2010], lv denied 16 NY3d 834 [2011]). Nevertheless, his challenge to the voluntariness of his guilty plea is not preserved for our review as the record fails to indicate that he moved to withdraw the plea or vacate the judgment of conviction (see People v Wicks, 83 AD3d 1223, 1224 [2011], lv denied 17 NY3d 810 [2011]; People v Naumowicz, 76 AD3d 747, 748 [2010]; People v Abrams, 75 AD3d 927, 928 [2010], lv denied 15 NY3d 918 [2010]). The narrow exception to the preservation requirement is not applicable inasmuch as defendant did not make any statements inconsistent with his guilt or that call into question the voluntariness of his plea (see People v Wicks, 83 AD3d at 1224; People v Abrams, 75 AD3d at 928). As for defendant’s termination from the JDP we do not find that this was an abuse of discretion (see People v Dawley, 96 AD3d 1108, 1109 [2012], lv denied 19 NY3d 1025 [2012]). Defendant has a history of serious substance abuse problems, experienced numerous difficulties complying with the terms of the JDP contract over the 11-month period and freely admitted to violating its terms. Under these circumstances, we find no reason to disturb the judgment of conviction.
*1061Mercure, J.P., Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
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In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County (Shaw, J.), entered March 24, 1987, as dismissed his second cause of action for legal insufficiency.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff, a fireman, allegedly injured his back while extinguishing a fire in the defendants’ vacant building on October 8, 1982. The complaint alleged, in the first cause of action, that the plaintiff "was injured while fighting a fire” at the subject premises, and was based on alleged common-law negligence by the owners. The third cause of action alleged that the "defendants’ wanton, willful and reckless conduct, exhibiting a total disregard for human life and safety”, caused the plaintiffs injury, and it requested punitive damages. The second cause of action sought recovery under General Municipal Law § 205-a for unspecified statutory violations.
General Municipal Law § 205-a confers a cause of action upon firemen injured by the failure of a person to comply with the requirements of statutes, ordinances, rules, orders and requirements of the Federal, State, county or local governments or any of the departments, divisions and bureaus thereof, thus creating "hazards additional to those that firefighters already face in their profession” (Kenavan v City of New York, 70 NY2d 558, 567).
Prior to the time this case proceeded to trial, the plaintiff never identified any statutes, ordinances, rules, orders and/or *479regulations allegedly violated by the defendants. Nor did the plaintiff do so when requested by the court at the time of the trial. After the jury was sworn, the defendants made a motion to dismiss the second cause of action for legal insufficiency. Initially, the Trial Judge granted the motion to dismiss the statutory cause of action, without prejudice to the plaintiff to replead. However, because the plaintiff’s attorney opted to proceed with the trial of the remaining causes of action, the second cause of action was dismissed, with prejudice. At the conclusion of the plaintiff’s case, the remaining causes of action in the complaint were dismissed on the ground that the plaintiff had failed to establish a prima facie case.
The plaintiff limits this appeal to the question of whether the second cause of action was legally sufficient. We adhere to the view that "a complaint in a special action based on said section 205-a must specify or identify the statutes, ordinances, rules, orders or requirements with which the defendant neglected or failed to comply; the manner in which the injuries or death complained of occurred; together with such ultimate facts as may be necessary in order that it may appear or be inferred that said neglect or failure directly or indirectly caused the injuries or death” (Cramer v Nuccitelli, 2 Misc 2d 508, 510). Neither the complaint nor the bill of particulars here satisfies those requirements; nor does the record before us show that the defendants created any "hazards additional to those that [the] firefighters already face[d] in their profession” (Kenavan v City of New York, supra, at 567). Accordingly, the dismissal of the second cause of action was proper. Bracken, J. P., Kunzeman, Spatt and Sullivan, JJ., concur.
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533 Pa. 283 (1993)
621 A.2d 569
COMMONWEALTH of Pennsylvania, Appellee,
v.
Joan Livingston McDONOUGH, Appellant.
Supreme Court of Pennsylvania.
Submitted October 23, 1992.
Decided March 2, 1993.
*284 William L. McLaughlin, Sr., for appellant.
Nicholas J. Casenta, Jr., Asst. Dist. Atty., for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS and CAPPY, JJ.
*285 ORDER OF COURT
PER CURIAM.
The Court being equally divided, the Order of the Superior Court, 406 Pa.Super. 663, 583 A.2d 833, is affirmed.
MONTEMURO, J., did not participate in the consideration or decision of this case.
LARSEN, J., files an opinion in Support of Affirmance joined by NIX, C.J., and PAPADAKOS, J.
FLAHERTY, J., files an Opinion in Support of Reversal joined by ZAPPALA and CAPPY, JJ.
OPINION IN SUPPORT OF AFFIRMANCE
LARSEN, Justice.
This is an appeal from the Order of the Superior Court of Pennsylvania, affirming the Judgment of Sentence of the Court of Common Pleas of Chester County imposed following appellant's de novo summary trial and conviction for multiple violations of the motor vehicle code. The aggregate penalty was $780 in fines plus the costs of prosecution.
The charges stem from two separate incidents. The first incident occurred on December 7, 1987, when appellant, Joan Livingston McDonough, was involved in an auto accident with an oncoming car as she was making a left turn from a highway into a business driveway. While the driver of the other car went into the business office to call the police and his family, appellant drove away, leaving the scene of the accident. The following day, appellant reported the accident to the police and gave a statement. At that time appellant was asked if she was aware that her driver's license was under suspension; she replied that she was not. As a result of this incident appellant was cited for failure to yield to oncoming traffic while turning left (75 Pa.C.S.A. § 3322), failure to stop at an accident scene to exchange information (75 Pa.C.S.A. § 3743(a)), driving while operating privilege is suspended or revoked/suspension not DUI related (75 Pa.C.S.A. § 1543(a)), driving an unregistered *286 vehicle (75 Pa.C.S.A. § 1301), and violations concerning licenses (75 Pa.C.S.A. § 1571(a)).
The second incident occurred on December 18, 1987, when appellant was stopped and cited for failing to signal a turn (75 Pa.C.S.A. § 3334(b)), driving while operating privilege is suspended or revoked/suspension not DUI related (75 Pa.C.S.A. § 1543(a)), and driving while operating privilege is suspended or revoked/suspension DUI related (75 Pa.C.S.A. § 1543(b)). On January 21, 1988, appellant pleaded guilty in front of a District Justice to all charges stemming from both incidents, except for the violation of driving while operating privilege is suspended or revoked/suspension DUI related (75 Pa.C.S.A. § 1543(b)), which had previously been withdrawn by the officer on January 6, 1988. On February 18, 1988, appellant appealed all of the charges. Appellant's notice of appeal erroneously contained the charge that had been withdrawn.
On April 22, 1988, in the Court of Common Pleas, appellant appeared as requested for disposition of the previously withdrawn citation for driving while operating privilege is suspended or revoked/suspension DUI related (Pa.C.S.A. § 1543(b)) only. The other cases, which had been properly appealed, were scheduled for a trial de novo on a subsequent date. At the hearing, the prosecutor immediately informed the court that the charge at issue had been previously withdrawn by the police officer. Upon review, the court found that "the citation was withdrawn by the prosecuting officer," and held that "[t]herefore, the appeal is not necessary and the defendant is not guilty of these charges." (N.T. 4/22/88, pp. 2-3).[1] In the subsequent trial de novo, appellant was tried for the remaining charges. With respect to the December 7, 1987 incident, appellant was convicted of failure to stop at an accident scene to exchange information (75 Pa.C.S.A. § 3743(a)), failure to yield to oncoming traffic while turning left (75 Pa.C.S.A. § 3322), and driving while operating privilege is suspended or revoked/suspension not DUI related (75 Pa.C.S.A. § 1543(a)). *287 She pleaded guilty to driving an unregistered vehicle (75 Pa.C.S.A. § 1301(a)). Appellant was found not guilty of violations concerning licenses (75 Pa.C.S.A. § 1571(a)). With respect to the December 18, 1987, incident, appellant was found guilty of driving while operating privilege is suspended or revoked/suspension not DUI related (75 Pa.C.S.A. § 1543(a)) and not guilty of failing to signal a turn (75 Pa.C.S.A. § 3334(b)).[2] On further appeal, the Superior Court affirmed the trial court with respect to all charges.
Appellant raises several claims of error in her appeal before this Court, however only two issues warrant our review.[3] Appellant contends that the December 7, 1987, conviction for driving while operating privilege is suspended or revoked/suspension not DUI related (75 Pa.C.S.A. § 1543(a)) must be reversed because the Commonwealth failed to prove actual notice of suspension. Appellant relies on Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975), wherein we held that proof, beyond a reasonable doubt, that defendant had actual notice of suspension of his operator's license is necessary to establish an essential element of the crime of operating a motor vehicle while operator's license is suspended. Proof that notice of suspension was mailed is not sufficient alone to establish notice beyond a reasonable doubt. Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925. In the present case, the Commonwealth presented a certified copy of Pennsylvania Department of Transportation ("PennDot") records indicating that two separate notices of suspension were sent to appellant at her address of record. (N.T. 1/10/89 and 1/11/89, pp. 43-45). Appellant presented unrebutted evidence that she had previously moved from the address to which the suspension notices were mailed. Appellant also testified that she never informed PennDot of her new address. (N.T. 1/10/89 and 1/11/89, pp. 219-220). Appellant's argument must *288 fail because her admitted failure to notify PennDot of her new address violates 75 Pa.C.S.A. § 1515[4] and thus, precludes her reliance on the defense of insufficient notice, where notice was sent to her address of record. Commonwealth v. Heckman, 404 Pa.Super. 335, 590 A.2d 1261 (1991). Commonwealth v. Kane, supra, is inapposite because, in that case, the defendant's notice of suspension was not sent to defendant's address of record with PennDot, but instead, due to a typographical error, was sent to an address at which defendant had never resided. Unlike Kane, in the present case, it was appellant's own conduct which rendered actual notice impossible. We cannot allow appellant to use a violation of one law to circumvent a violation of another law. Therefore, we conclude that, although actual notice of suspension is still a necessary element of the crime of driving while operating privilege is suspended or revoked (75 Pa.C.S.A. § 1543), a defendant's failure to notify PennDot of a change of address pursuant to 75 Pa.C.S.A. § 1515, precludes his or her reliance on the defense of insufficient notice. Accordingly, we would affirm the order of the Superior Court affirming appellant's conviction for driving while operating privilege is suspended or revoked/suspension not DUI related (75 Pa.C.S.A. § 1543(a)) resulting from the December 7, 1987, incident.
Appellant next contends that her conviction for driving while operating privilege is suspended or revoked/suspension not DUI related (75 Pa.C.S.A. § 1543(a)), resulting from the December 17, 1987, incident must be reversed on the grounds that it violates the double jeopardy clause and 18 Pa.C.S.A. § 110. Appellant relies on Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), wherein this Court held that the double jeopardy clause requires a prosecutor to bring, in a single proceeding, all known charges against a defendant arising from a single criminal episode, and 18 Pa.C.S.A. § 110 which provides that a prosecution is barred by a former *289 prosecution if it arose from the same criminal episode, was known to the prosecuting officer and was within the jurisdiction of a single court.[5]
The Commonwealth does not dispute that a defendant cannot be acquitted of a § 1543(b) violation and then retried for a violation of § 1543(a) arising out of the same incident, but argues that the characterization of the proceedings on April 22, 1988, as a "prosecution" is disingenuous, and hence, there could be no acquittal. The Superior Court rejected appellant's argument. That court reasoned that because the charge had been dropped by the officer prior to the April 22, 1988, proceeding, appellant was not called upon to defend herself twice. We agree with the Superior Court.
On April 22, 1988, appellant had appeared before the Common Pleas Court on the charge of driving while operating privilege is suspended or revoked/suspension DUI related (75 Pa.C.S.A. § 1543(b)), at which time it was noted that the charge had been previously withdrawn by the police officer. The sole purpose of that proceeding was to clear the docket of appellant's erroneously having appealed a charge that had been withdrawn at the District Justice level. Thus, this was not a "prosecution," but a deliberate administrative procedure intended to dispose of the charge erroneously appealed. The *290 fact that the court entered an order stating that appellant was found "not guilty"[6] is inconsequential because it was not the judge's intention to resolve the merits of the case but to dispose of the charge for the record. Although the form of the judge's action appeared to result in an adjudication of the matter, the substance of his action did not result in an acquittal. Indeed, in Commonwealth v. Smalis, 331 Pa.Super. 307, 316, 480 A.2d 1046, 1050 (1984), rev'd on other grounds sub nom. Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985), the Superior Court stated that "in determining whether action taken by the trial court has constituted an `acquittal' for double jeopardy purposes, the form of the judge's action is not controlling." "`[W]e must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.'" Commonwealth v. Smalis, 331 Pa.Super. at 316, 480 A.2d at 1050, rev'd on other grounds, Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977)) (emphasis added by Superior Court). We believe that this is the correct approach and that there can be no question that the trial court's resolution of this matter was not intended to, and did not, result in a resolution of any of the factual elements of the offense charged and thus, did not result in appellant's acquittal of the § 1543(b) violation. Hence, there was no violation of Campana or 18 Pa.C.S.A. § 110, because appellant was not being charged with driving while operating privilege is suspended or revoked/suspension DUI related (75 Pa.C.S.A. § 1543(b)). Accordingly, we would affirm the order of the Superior Court affirming appellant's conviction for driving while operating privilege is suspended or revoked/suspension not DUI related (75 Pa.C.S.A. § 1543(a)) resulting from the December 18, 1987, incident.
NIX, C.J., and PAPADAKOS, J., join this Opinion in Support of Affirmance.
*291 OPINION IN SUPPORT OF REVERSAL
FLAHERTY, Justice.
I dissent from that portion of the opinion in support of affirmance which affirms appellant's convictions for driving under suspension, 75 Pa.C.S. § 1543(a).
Despite reaffirming the principle of Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975), that a defendant must have actual notice of suspension before he can be convicted of driving under suspension, the court nevertheless decides that appellant somehow forfeited her right to actual notice. The right to actual notice required by Kane is grounded in the constitutional right to due process of law. Id., 460 Pa. at 585, 333 A.2d at 926, citing Leary v. United States, 395 U.S. 6, 36, 89 S. Ct. 1532, 1548, 23 L. Ed. 2d 57, 81 (1967). As such, it may be waived, but waiver of an important constitutional right must be knowing and voluntary.
The court has decided that appellant forfeited her right to actual notice by violating 75 Pa.C.S. § 1515, which requires every driver to notify the department of transportation in writing of his old and new addresses within fifteen days after moving, an offense which appellant admittedly committed. There is a penalty for the summary offense of violating § 1515 a $25 fine and appellant might justly be subjected to that penalty, though the fifteen-day notification requirement is one which is undoubtedly overlooked by innumerable prudent, law-abiding citizens until called to their attention on application forms for renewal of driver's license or registration.
Instead of a minor fine for omission of her duty to notify the department of a change of address, appellant is deemed to have knowingly waived an important constitutional right, thus forfeiting her right to actual notice of the suspension of her operating privilege, subjecting her to the possibility of imprisonment. See 75 Pa.C.S. § 6503. When loss of liberty is at stake, I would not construe appellant's oversight of her statutory duty of notification of address change as a knowing, voluntary waiver of her constitutional right to due process as *292 manifested in her right to receive actual notice that her operating privilege had been suspended.
Kane, relying on Leary, explained that due process requires all elements of a criminal offense to be proved beyond a reasonable doubt. Actual notice of suspension is an element of an offense under 75 Pa.C.S. § 1543(a), driving under suspension. Proof of mailing, standing alone, is not sufficient evidence to establish beyond a reasonable doubt that a defendant had actual notice of his suspension, at least when there is doubt that the notice was mailed to the correct address. Kane, id. There is no logical or rational relation between appellant's dereliction in notifying the department of her address change and the constitutional requirement that the Commonwealth prove beyond a reasonable doubt that she had actual notice of her suspension, one of the elements of the crime.
I am not prepared to cast the first stone merely because of a failure to sit down within fifteen days after moving and write a letter to the department of transportation to inform the government of the old and new addresses. I would apply the salutary holding of Kane and reverse appellant's convictions under 75 Pa.C.S. § 1543(a) due to the Commonwealth's failure to prove that she received actual notice of the prior suspension of her operating privilege.
ZAPPALA and CAPPY, JJ., join this opinion in support of reversal.
NOTES
[1] The order of court read as follows: "AND NOW, to wit, this 22nd day of April, 1988, after trial de novo upon this summary appeal, we find the defendant NOT GUILTY."
[2] As previously noted, appellant was found not guilty, in a prior proceeding, of driving while operating privilege is suspended or revoked/suspension DUI related (75 Pa.C.S.A. § 1543(b)), by virtue of the fact that the charge had previously been withdrawn by the officer.
[3] Appellant's remaining contentions lack merit in that they are warrantless attacks on the trial court's findings of fact.
[4] Pa.C.S.A. § 1515 provides:
Whenever any person after applying for or receiving a driver's license moves from the address named in the application or in the driver's license issued . . . such person shall, within 15 days thereafter, notify the department in writing of the old and new addresses. . . .
[5] § 110. When prosecution barred by former prosecution for different offense.
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense. . . .
* * * *
18 Pa.C.S.A. § 110.
[6] See, f.n. 3, supra.
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377 Mass. 514 (1979)
386 N.E.2d 1268
SALEM ORTHOPEDIC SURGEONS, INC.
vs.
WILLIAM F. QUINN & another.[1]
Supreme Judicial Court of Massachusetts, Essex.
January 3, 1979.
March 14, 1979.
Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, & WILKINS, JJ.
Stephen A. Moore (Jean F. Farrington with him) for the plaintiff.
William F. Quinn, Jr., for the defendants.
QUIRICO, J.
This case requires us once again to consider the scope of the medical malpractice tribunal statute, G.L.c. 231, §§ 60B-60E, inserted by St. 1975, c. 362, § 5. Salem Orthopedic Surgeons, Inc. (Salem Orthopedic), brought suit against William F. Quinn (Quinn) to recover more than $3,000 in unpaid medical bills on account of services rendered by Richard E. Conway, M.D. (Dr. Conway), *515 a professional employee of Salem Orthopedic, to Quinn's daughter Patricia. Quinn defended and filed a counterclaim on the basis of the alleged breach by Dr. Conway of a promise to produce a specific medical result. Salem Orthopedic moved for an order referring the case to a malpractice screening tribunal pursuant to G.L.c. 231, § 60B. The judge denied this motion and reported the question of law whether this statute applied to Quinn's counterclaim. See Mass. R. Civ. P. 64, 365 Mass. 831 (1974). We granted Salem Orthopedic's petition for direct appellate review. See Mass. R.A.P. 11(a), 365 Mass. 854 (1974). It is our opinion that Quinn's contractual counterclaim is subject to the statute and that it should initially be screened by a malpractice tribunal. We therefore answer the reported question in the affirmative.
We summarize the facts stated in the pleadings and in the answers of the parties to interrogatories, treating uncontradicted statements as true and resolving conflicts in favor of Quinn. In an automobile accident on October 4, 1974, Patricia suffered severe injuries including various lacerations, a cerebral concussion, a ruptured spleen, and a compound fracture of the femur. She was cared for at the North Shore Children's Hospital in Salem by Dr. Conway between that day and December 21, 1974. Dr. Conway operated on Patricia's left thigh and knee on October 21, 1974, in order to repair the fracture of the femur. Owing to extensive comminution of the fracture and ensuing difficulty in seating a metal plate securely, this operation left Patricia's leg noticeably crooked and shorter than her other leg.
On May 14, 1975, Dr. Conway performed a second operation (1975 operation) on Patricia's leg for the purpose of straightening and lengthening it. He originally intended to straighten the bone and fix it with a blade plate. During the course of the operation, however, he determined the bone tissue to be too soft to anchor such a plate. He therefore used a number of pins in conjunction with a bone graft, achieving some, but not complete, improvement in the condition of Patricia's leg.
*516 Surgeons other than Dr. Conway performed two other operations on Patricia during 1976 and 1977 aimed at further improving her leg. Neither was completely successful. At the time this action was brought in June of 1977, some deformity and lateral instability of the knee persisted.
Quinn alleged that he had a conversation with Dr. Conway sometime in December of 1974, the import of which was that Dr. Conway agreed to perform the 1975 operation and stated that it would straighten and lengthen Patricia's leg. Quinn predicates his counterclaim on this statement, which he characterizes as an express promise by Dr. Conway to achieve a particular result. Although Dr. Conway describes his statements as being greatly more equivocal with regard to the likely result of the surgery, we need not resolve this factual dispute to decide the reported question of law. We will, therefore, treat Quinn's characterization as accurate.
The foundation for Quinn's contractual counterclaim was probably laid by our decision in Sullivan v. O'Connor, 363 Mass. 579 (1973). Prior Massachusetts law had recognized a right of action "in tort" to recover for malpractice or "in contract" to recover for breach of a physician's implied promise not to commit malpractice. See, e.g., Riggs v. Christie, 342 Mass. 402, 405-406 (1961); Capucci v. Barone, 266 Mass. 578, 581 (1929); Small v. Howard, 128 Mass. 131, 135 (1880), overruled on other grounds by Brune v. Belinkoff, 354 Mass. 102, 108 (1968). See also Miller, The Contractual Liability of Physicians and Surgeons, 1953 Wash. U.L.Q. 413, 413-416 (tracing development of tort concept of malpractice from implied contractual obligations); Restatement (Second) of Torts § 299A, Comment c (1965) (equating tort duty of physician to implied understanding). Legislative enactments juxtaposing the phrase "tort or contract" with the phrase "malpractice, error or mistake" recognized the similarity of these two theories of recovery. See G.L.c. 231, § 59C, as amended through St. 1960, c. 69; G.L.c. 233, § 79C; G.L. *517 c. 260, § 4. In Sullivan, however, we followed the lead of those other States which allowed recovery against a physician who expressly agrees to produce a certain medical result and then, without fault, fails to do so. 363 Mass. at 581-583. See generally, Annot., 43 A.L.R. 3d 1221 (1972) (collecting cases). The remedy authorized by Sullivan may include compensation for the detriment, including pain and suffering, needlessly incurred in reliance on the physician's promise and for any worsening of condition resuting from the abortive treatment. 363 Mass. at 586-588.
The present controversy involves harmonizing Sullivan with G.L.c. 231, § 60B, which was enacted in 1975 as part of a comprehensive legislative package for averting a crisis in medical malpractice insurance within the Commonwealth. See St. 1975, c. 362, Preamble (emergency declaration). That section provides in relevant part that "[e]very action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal consisting of ... [a judge, a physician, and an attorney], ... at which hearing the plaintiff shall present an offer of proof and said tribunal shall determine if the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff's case is merely an unfortunate medical result." It further provides that a plaintiff may proceed after an adverse tribunal ruling only on filing a $2,000 bond secured by cash or its equivalent to indemnify the defendant for costs, witness and expert fees, and attorney fees in case the defendant prevails at trial.[2]
The narrow question before us is whether an action for breach of contract to produce a medical result is one for "malpractice, error or mistake" within the meaning of *518 § 60B. We reserved decision of this question in Austin v. Boston Univ. Hosp., 372 Mass. 654, 655 n. 4 (1977). For reasons we shall explain, we now conclude that the answer is "yes."
The legislative history of § 60B offers essentially no guidance, suggesting that the Legislature acting in 1975 did not specifically consider the impact of Sullivan on its scheme for controlling malpractice insurance costs. The bill originally filed and the redrafted bill reported out of committee both required screening of "[e]very action of tort or breach of contract for malpractice, error or mistake...." 1975 House Doc. No. 5978, § 6, § 60B. 1975 House Doc. No. 6196, § 6, § 60B. On the suggestion of the House Committee on Bills in the Third Reading, the Legislature later substituted a bill lacking the words "of tort or breach of contract." See 1975 House Doc. No. 6315, § 5, § 60B; 1975 House Journal 2144 (June 10, 1975). This altered language was ultimately enacted. See St. 1975, c. 362, § 5, § 60B.
Although several inferences are possible from the sequence we have stated, the elimination of the express mention of tort and contract actions was probably aimed at conforming the bill to the newly effective Massachusetts Rules of Civil Procedure, under which there is only one form of civil action. The references to contract actions which remained in the enacted bill (see G.L.c. 231, § 60B, third par.; id. § 60D) were probably overlooked. Thus, the wording of the tribunal statutes is inconclusive of the question now before us.[3]
*519 Previous decisions by this court also furnish no guidance. We recently considered the question whether a patient's action under G.L.c. 93A, § 9, alleging that a nursing home committed an unfair or deceptive trade practice by rendering negligent care, was appropriate for tribunal screening. See Little v. Rosenthal, 376 Mass. 573 (1978). In that case, we voiced our belief that "all treatment-related claims were meant to be referred to a malpractice tribunal." Id. at 576. Reasoning that the plaintiff in Little relied on the same factual allegations to support her claim under c. 93A and her claim of malpractice, we concluded that both claims were "treatment related" and properly considered by a § 60B tribunal. Id. at 577.
Little is helpful but not decisive in our disposition of the present case. In theory, an action under Sullivan embraces only the issues (1) whether the physician made an absolute promise, (2) whether he failed to perform the obligation thus assumed, and (3) what damages are traceable to such breach of his contract. Also in theory, it would be irrelevant whether the physician conformed to the appropriate standard of medical care, for his liability on such an action may exist independently of fault. The action is not, therefore, "treatment related" in the sense of Little because it raises factual issues different from those involved in the usual malpractice action based on negligence. Cf. Scandura v. Trombly Motor Coach Serv., Inc., 370 Mass. 612, 618 (1976) (liability under implied contract to use due care no broader than tort liability); Forman v. Wolfson, 327 Mass. 341, 343 (1951) (action on implied promise to use due care barred by judgment in earlier tort malpractice action).
The dissimilarity between an ordinary malpractice action and one based on Sullivan, however, may not become apparent until a late stage in judicial proceedings. That is, because the existence or nonexistence of an express *520 and absolute undertaking will usually be a question of fact, it may be impossible for a trial judge to separate true Sullivan-type claims from claims involving at most breach of the tort-based duty of care before the case is on trial.[4] Thus, a frivolous action alleging breach of contract may have considerable nuisance value, and the bringing of such an action may well induce settlement or defense costs all out of proportion to its merits.
We noted in Sullivan that "[c]onsidering the uncertainties of medical science and the variations in the physical and psychological conditions of individual patients, doctors can seldom in good faith promise specific results. Therefore it is unlikely that physicians of even average integrity will in fact make such promises. Statements of opinion by the physician with some optimistic coloring are a different thing, and may indeed have therapeutic value. But patients may transform such statements into firm promises in their own minds, especially when they have been disappointed in the event, and testify in that sense to sympathetic juries." 363 Mass. at 582. These observations suggest a further reason why actions nominally alleging breach of express contract should be routinely screened pursuant to § 60B. If physicians are unlikely to promise specific results, the great bulk of cases so alleging will actually turn on the ordinary question of negligent treatment. These cases must, therefore, be subject to tribunal screening in order to implement the legislative purpose of discouraging "frivolous claims whose defense would tend to increase premium charges for medical malpractice insurance." Austin v. Boston Univ. Hosp., 372 Mass. 654, 655 n. 4 (1977). Moreover, the insight gained through participation in the screening process may alter a patient's perception of his doctor's language *521 and thereby induce voluntary discontinuance of meritless actions.
One additional problem requires attention. The parties have apparently assumed that, if Quinn's claim were referred to a tribunal, the tribunal would consider the evidence bearing on whether Dr. Conway made an express contract. The statutory function of the tribunal is, however, to separate malpractice claims into two classes: those appropriate for judicial evaluation and those involving merely an unfortunate medical result. G.L.c. 231, § 60B, first par. In performing this function, the tribunal may examine predominately medical evidence. Id. fifth par. The medical focus of a § 60B tribunal is further emphasized by the requirement that one member be a physician or, when the defendant is not himself a physician, a representative of the defendant's field of health care providers. Id. third par. All of these factors are strongly indicative of a legislative intention that a tribunal should evaluate only the medical aspects of a malpractice claim for the purpose of distinguishing between cases of tortious malpractice and those involving "merely an unfortunate medical result."
Thus, the question whether the parties made the agreement as alleged in the counterclaim is beyond the competence of a screening tribunal. However, because the Quinns' claim is based exclusively on an express contract, the question for decision by the tribunal is whether the evidence presented in the offer of proof "is sufficient to raise a legitimate question ... appropriate for judicial inquiry" (id. first par.) on the issue whether the medical result obtained is consistent with the medical result allegedly promised by the health care provider. Such screening is also necessary as a matter of administrative convenience to deal with those cases that superficially seem to involve, but may not in fact involve, express promises.
For the reasons stated, we answer the reported question in the affirmative. An action or counterclaim alleging *522 breach by a physician or other health care provider of an express promise to produce a specific medical result is subject to the screening provisions of G.L.c. 231, § 60B. The case is remanded to the Superior Court for further proceedings consistent with our answer to the question reported. If the tribunal concludes that the medical result achieved by Dr. Conway is consistent with the promise which he allegedly made, the Quinns may thereafter pursue their counterclaim through the usual judicial process only on filing a bond in the form and amount prescribed by the statute.
So ordered.
NOTES
[1] Patricia A. Quinn, daughter of William F. Quinn, was added as a plaintiff in counterclaim following the commencement of this action. See Mass. R. Civ. P. 13(h), 365 Mass. 758 (1974); id. 20(a), 365 Mass. 766 (1974). Because the legal questions raised by Patricia's counterclaim are, despite differences in the damages requested, identical to those raised by Quinn's, we make no further mention of it in this opinion.
[2] We upheld the screening and bonding requirements against a variety of constitutional attacks in Paro v. Longwood Hosp., 373 Mass. 645 (1977), and no constitutional question is presently before us.
[3] Other inconclusive indications of legislative intent include the following. The act adding § 60B also created a joint underwriting association (JUA) to provide malpractice coverage during the crisis period. St. 1975, c. 362, § 6. The JUA provisions envisioned insurance against claims arising from "negligence or malpractice." Id. In addition, the act empowered a special commission to study the problem of malpractice insurance within the Commonwealth and to make recommendations about solutions thereto. Id. § 12. See also St. 1977, c. 474 (extending life of commission to December 31, 1979). The commission evidently conceived its role as limited to investigating negligent malpractice. See Interim Report, 1976 House Doc. No. 4380, at 4 (defining malpractice as "improper treatment or culpable neglect").
[4] Sullivan-type actions may often survive beyond the summary-judgment stage when, as is apt to be typical, they turn primarily on credibility. See 10 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 2727, at 535-536 & n. 81 (1973) (summary judgment inappropriate when credibility of movant's evidence at issue).
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In an action to recover damages for personal injuries, etc., the defendant City of Yonkers appeals from (1) an order of the Supreme Court, Westchester County (Burchell, J.), dated December 12, 1985, which denied its motion to set aside the verdict, and (2) a judgment of the same court, dated February 24, 1986, which, upon a jury verdict, is in favor of the plaintiffs and against it in the principal sum of $254,000.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
*481Ordered that the plaintiffs are awarded one bill of costs.
The appeal from the intermediate order 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). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
Contrary to the appellant’s contention, the testimony of the plaintiffs expert Marcia Knight, a clinical psychologist, was not based on speculation and therefore was properly admitted. The record reveals that she based her opinion on a number of tests administered to the infant plaintiff and not merely on a comparison of the intelligence-quotient-test results. In view of her qualifications, her opinion was entitled to such consideration as the jury chose to give it.
In addition, the court properly charged the jury on the issue of the loss of future earning capacity. It is well settled that although the computation of damages in a case such as this "is necessarily speculative and fraught with difficulties” (Snow v State of New York, 98 AD2d 442, 450, affd 64 NY2d 745) the loss of future earnings of an infant plaintiff is properly compensable (see, Ledogar v Giordano, 122 AD2d 834, appeal withdrawn 68 NY2d 911). In the instant case there was sufficient evidence presented to establish a reasonable basis for the jury to award such damages if it so chose.
Finally, the award of $254,000 in damages was not excessive. Thompson, J. P., Rubin, Fiber and Sullivan, JJ., concur.
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In two consolidated actions to recover damages for personal injuries, Allstate Vehicles, Inc., and Barbara S. Crowder appeal from an interlocutory judgment of the Supreme Court, Westchester County (Dachenhausen, J.), entered March 5, 1987, which, upon a jury verdict on the issue of liability only, found them to be 100% liable for the accident.
Ordered that the interlocutory judgment is affirmed, with one bill of costs.
During the trial on the issue of liability concerning a two-car collision, Luanne Mahoney, a driver of one of the vehicles, and her passenger, Vincentella Conti, testified that they were hit in the rear by a vehicle driven by Barbara Crowder and *482leased from the defendant Allstate Vehicles, Inc. Conti also sued her host Luanne Mahoney.
Crowder testified that the accident was caused when she was hit in the rear by Mahoney. Both vehicles wound up overturned on the side of the highway, so badly damaged that it was not possible to tell from their condition how the accident happened.
At the conclusion of all the evidence relating to liability, the court charged the jury, inter alia, that the conflicting versions were irreconcilable as a matter of law, and that there was no reasonable view of the evidence that would support the conclusion that both drivers had contributed to the happening of the accident. The jury was therefore instructed to determine which of the two versions it accepted, in essence, consigning 100% of the fault to the party with the story it rejected. The jury returned with a unanimous verdict against the appellants. The appellants argue that the court’s charge impermissibly interfered with the jury’s fact-finding function, particularly on the issue of comparative fault. Alternatively, assuming the propriety of the court’s charge, the appellants allege that the verdict was against the weight of the credible evidence.
The appellants’ contentions are without merit. In the case at bar each driver claimed that the accident was caused by the other driver’s striking her vehicle in the rear. No evidence was adduced to indicate that any other action or failure to act precipitated the accident. Since no inference of comparative fault could arise from the evidence presented, and there is no evidence to support an inference of contributory fault, the issue was properly not submitted to the jury (see, Hargraves v Agway Petroleum Corp., 48 AD2d 763). To have instructed the jury differently would have improperly encouraged the jurors to speculate about facts not in evidence (see, Great S. W. Fire Ins. Co. v Long Is. Oil Prods. Co., 60 AD2d 803).
The jury was confronted with questions of credibility which were resolved in favor of the respondents. Great deference must be given to the jury’s findings in this regard. Since its interpretation of the evidence is fair and supports the verdict, we cannot say that the verdict is against the weight of the evidence (see, Nicastro v Park, 113 AD2d 129). Thompson, J. P., Rubin, Eiber and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902278/
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*483In an action to recover damages for personal injuries, etc., the defendant Torossian appeals from an order of the Supreme Court, Suffolk County (Jones, J.), dated February 25, 1987, which denied his motion for partial summary judgment dismissing the claim against him based on his failure to attach the infant plaintiff’s seat belt.
Ordered that the order is affirmed, with costs.
On November 11, 1984, the infant plaintiff sustained serious personal injuries as a result of a motor vehicle accident which occurred when a vehicle driven by the defendant Vincent Márchese crossed over a double yellow line and collided with the vehicle driven by the infant plaintiff’s grandfather, the appellant Robert Torossian, in which the infant was a passenger. The appellant moved for partial summary judgment dismissing so much of the complaint as alleged that he was affirmatively guilty of negligence for his failure to fasten the infant plaintiff’s seat belt. In reliance upon Spier v Barker (35 NY2d 444), the appellant alleged that evidence tending to show nonuse of a safety belt could only be considered by the jury to mitigate damages. The court denied his motion and held that the infant plaintiff has a direct claim of negligent supervision arising out of the appellant’s alleged breach of duty of reasonable care in failing to fasten the child’s seat belt. We agree.
The principle that precludes tort claims against parents for alleged negligent supervision of a child does not extend to immunize a grandparent from such claims when he or she is exercising temporary custody and control of the infant (Broome v Horton, 53 AD2d 1030; see also, Zalak v Carroll, 15 NY2d 753). The infant plaintiff offers evidence that his seat belt was not fastened in an effort to show a breach of this custodial duty by the appellant grandfather, rather than as in Spier where the evidence was offered by the defendant to hold the plaintiff liable for his own culpable conduct. Despite the absence of a statutory mandate requiring seat belt usage at the time of the accident, the failure to fasten the infant’s seat belt prior to operating the vehicle may be found to be a negligent act. Under these circumstances, where the infant plaintiff is asserting a separate claim of liability against the custodial driver of the vehicle, the claim should be allowed to stand (see, Curry v Moser, 89 AD2d 1).
However, under the peculiar facts alleged herein, the claim for negligent supervision is separate from the claim arising from the collision of the two automobiles. In a unitary trial, the jury must first determine the extent of liability of each of *484the two driver defendants for the collision and of the infant plaintiff, if any. The jury must then determine if the appellant was negligent in his supervision of the infant plaintiff. If there is such a finding of negligence, the jury must determine which of the infant plaintiff’s damages, if any, were attributable to the collision and which, if any, were attributable to the failure to supervise. Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6823515/
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Brake piston.
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01-03-2023
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07-23-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902279/
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Egan Jr., J.
Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered March 18, 2011, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.
Defendant was charged in a single-count indictment with promoting prison contraband in the first degree and, pursuant to a negotiated plea agreement, thereafter pleaded guilty to attempted promoting prison contraband in the first degree, a class E felony (see Penal Law §§ 110.00, 110.05, 205.25 [2]). As it was unclear whether defendant would qualify as a second felony offender, the parties agreed that defendant would be sentenced as a first time felony offender to a prison term of 1 to 3 years. County Court imposed the agreed-upon sentence and defendant now appeals.
Defendant’s sole contention on appeal is that his plea was not knowing, intelligent and voluntary because County Court failed to advise him that there was no mandatory minimum sentence for a first time felony offender convicted of a class D or class E felony (see Penal Law § 70.00 [4]). However, the record reveals— and defendant acknowledges—that he failed to preserve this issue for appellate review by moving to withdraw his plea or vacate the judgment of conviction (cf. People v Campbell, 66 AD3d 1059, 1060 [2009]; People v Kopy, 54 AD3d 441, 441 [2008]). Further, as there is nothing in the record to suggest that County Court was inclined to impose a lesser sentence (compare People v Charles, 67 AD3d 698, 699 [2009], lv dismissed 13 NY3d 906 [2009]; People v Rodriguez, 276 AD2d 368, 369 [2000]), we decline defendant’s request to take corrective action as a matter of discretion in the interest of justice. Accordingly, the judgment of conviction is affirmed.
Peters, P.J, Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902280/
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In an action, inter alia, to compel the specific performance of a contract for the sale of real property, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Williams, J.), dated January 12, 1987, which after a nonjury trial, dismissed the complaint due to the plaintiff’s failure to satisfy the requirements of the Statute of Frauds, and (2) a judgment of the same court, dated January 30, 1987, entered thereon.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the defendant is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 *485NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
The parties to this action subscribed to the following memorandum on or about April 17, 1979: "Received of Mr. David Donner $1000 binder for the purchase of house at 976 East 9th Street—purchase price $100,000—It is understood that no commission in the sale is involved in this transaction”. However, at the time this memorandum was created, the parties had not yet agreed on the terms of payment, which is an essential element of a contract for the sale of real property (cf., Ansorge v Kane, 244 NY 395; Villano v G & C Homes, 46 AD2d 907, appeal dismissed 36 NY2d 918, lv dismissed 40 NY2d 806, 959). Nor had they agreed on the status of the tenants, including one who had an existing lease, then residing in the defendant’s home; the date on which the defendant would surrender possession of the house; or a closing date. Indeed, the parties contemplated that these items, and others, would be further negotiated and addressed in a formal contract.
A memorandum, in order to satisfy the requirements of the Statute of Frauds (General Obligations Law § 5-703 [2]), must not only designate the parties, identify and describe the subject matter and be signed by the party to be charged, it must also state all of the essential terms of the parties’ agreement (see, Willmott v Giarraputo, 5 NY2d 250). If at the time a memorandum is created, "an essential element of the contemplated contract * * * is unsettled and left for future negotiations, the agreement is unenforceable under the Statute of Frauds” (Sheehan v Culotta, 99 AD2d 544, 545, citing Willmott v Giarraputo, supra). Consequently, the trial court correctly concluded that the memorandum subscribed to by the parties here did not satisfy the requirements of the Statute of Frauds (see, Sheehan v Culotta, supra; Read v Henzel, 67 AD2d 186, 188).
We note that the trial court’s refusal to allow the plaintiff’s attorney to utilize the defendant’s deposition testimony during the cross-examination of the defendant, while error (see, CPLR 3117 [a] [2]), does not warrant reversal of the judgment and a new trial because the proffered evidence would not have added anything to the plaintiffs case (see, Matter of Schaich, 55 AD2d 914, Iv denied 42 NY2d 802). Bracken, J. P., Kunzeman, Spatt and Sullivan, JJ., concur.
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902281/
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In an action to recover damages for personal injuries, the plaintiff appeals from an order of Supreme Court, Orange County (Ritter J.), dated June 2, 1986, which denied his motion to vacate an order of the same court which granted the defendants’ motion to dismiss the complaint upon the plaintiff’s default in opposing the motion.
Ordered that the order is affirmed, with costs.
The plaintiff failed to establish either proper service on the defendants or that he had a meritorious claim. The plaintiff alleged "nail and mail” service upon the defendants (CPLR 308 [4]). The affidavit of substituted service, on its face, demonstrates a lack of due diligence warranting resort to such service (Kaszovitz v Weiszman, 110 AD2d 117, 120).
Furthermore, the plaintiff failed to establish that he sustained serious injury as required by Insurance Law § 5104 (Licari v Elliott, 57 NY2d 230; Caiazzo v Crespi, 124 AD2d 623). Thompson, J. P., Rubin, Fiber and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902282/
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In an action pursuant to RPAPL article 15, inter alia, for a judgment declaring that the plaintiffs have an easement over a portion of the defendant’s property, the defendant appeals from a judgment of the Supreme Court, Suffolk County (Gerard, J.), entered May 5, 1987, which, inter alia, granted the plaintiffs’ motion for summary judgment and denied the defendant’s cross motion to dismiss the complaint.
Ordered that the judgment is affirmed, with costs.
The parties are the fee owners of adjoining residential lots created by a subdivision map filed by the Suffolk, Nassau and Queens Realty Company in 1903. The filed subdivision map depicts a residential development comprised of 10 lots with three private access roads leading to the nearest public road then in existence. The defendant is the fee owner of both lot 6 and "Lot Avenue”, a private road depicted on the subdivision map as running along the northerly boundary of lots 5 and 6. Lot Avenue is a "paper” road which has never been opened or dedicated as a street. The plaintiffs own lot 5. According to the subdivision map, the northerly boundary of lot 5 abuts Lot Avenue, while the northwest corner thereof abuts another private road designated as Lily Pond Drive.
Lot 5 was originally conveyed by lot number on February 4, 1916, with reference to the filed subdivision map and described as bounded by "a private road 25 feet in width, shown as Lot Avenue on the map”. All subsequent deeds to lot 5, including the plaintiffs’ deed, also refer to the filed subdivision map, the lot number, and the original metes and bounds description. Similarly, lot 6 was conveyed by the grantor with reference to the filed subdivision map, the lot number, and as being bounded by Lot Avenue.
Lot Avenue was originally conveyed to the first owner of lot 5 by a separate deed expressly providing that the conveyance was subject to "the right of way” of the owner of lot 6. In 1929, Lot Avenue was purchased by the owner of lot 6. Henceforth, lot 6 and Lot Avenue were to be conveyed together. Two of the defendant’s immediate predecessors in title took lot 6 and Lot Avenue subject to the "rights, if any” of the owners of lot 5 to use any portion of Lot Avenue "for a roadway”. The defendant’s deed was the first to omit reference to such use.
On April 12, 1916, Lily Pond Drive was deeded to the Town of East Hampton and became a public street known as Lily Pond Lane. Although Lily Pond Lane borders upon the northwest corner of the plaintiffs’ property, they seek more direct *487access to that same road from the northerly side of their property where a small accessory cottage is located. Thus, they have extended a driveway from the cottage over 12 feet of Lot Avenue for the purpose of gaining access to Lily Pond Lane. In turn, the defendant obstructed the plaintiffs’ access to Lot Avenue by constructing a fence giving rise to the instant action.
It is well established that when property is described in a conveyance with reference to a subdivision map showing streets abutting on the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant (see, 1 Rasch, Real Property Law and Practice § 744; see also, 49 NY Jur 2d, Easements, § 62, citing Weil v Atlantic Beach Holding Corp., 1 NY2d 20; Erit Realty Corp. v Sea Gate Assn., 249 NY 52).
At bar, the Supreme Court properly found that the original grantor intended to grant an easement over Lot Avenue for the benefit of lot 5 by the conveyance of that lot with reference to the filed subdivision map of the Suffolk, Nassau and Queens Realty Company (see, Rose v Indian Park Assn., 3 AD2d 274). Although the intention of the grantor is to be determined in light of all the circumstances, the most important indicators of the grantor’s intent are the appearance of the subdivision map and the language of the original deeds (see, e.g., Matter of City of New York [Northern Blvd.], 258 NY 136, 147; Erit Realty Corp. v Sea Gate Assn., 259 NY 466, supra; Rose v Indian Park Assn., supra). Here it may reasonably be inferred from the appearance of the subdivision map and the manner in which the conveyances were effected after its filing that the grantor intended to create an easement over Lot Avenue in favor of lot 5. The fact that at the time of the subdivision the grantor created three private roads providing prospective lot owners with access to and from their property and to the nearest public road is a clear indication that all lots in the development were to be benefitted by easements over the abutting private roads. Moreover, the deeds effecting the original conveyances of lots 5 and 6 referred to the lots by number, described them as bounded by Lot Avenue, and specifically referred to the filed subdivision map. Also indicative of the grantor’s intent to create an easement is the fact that Lot Avenue was sold as a separate parcel to the owner of lot 5 subject to “the right of way” of the owner of lot 6. Similarly, when Lot Avenue was subsequently sold to the owner of lot 6, the deed recognized the right of owners of lot 5 to use Lot Avenue as a roadway. In view of the foregoing, it is *488manifest that the grantor intended to create an easement by grant over Lot Avenue in favor of the abutting lots.
The grantees of lots abutting a street on a filed map are entitled to have the land so demarcated remain as a street forever (see, Lord v Atkins, 138 NY 184) absent its abandonment, conveyance, condemnation, or adverse possession (Gerbig v Zumpano, 7 NY2d 327). Thus, the defendant was properly barred from doing anything to obstruct the right of access of his neighbors (see, Matter of City of New York [Northern Blvd.] supra; Weil v Atlantic Beach Holding Corp., supra).
We reject the defendant’s contention that an easement by grant did not arise because the plaintiffs’ property has direct access to a public road such that the plaintiffs need not traverse Lot Avenue. An easement by grant may be created and continues to exist whether there is other access to public roads and is not to be confused with an easement by necessity (Gerbig v Zumpano, supra; Cox v James, 45 NY 557). Having determined that an easement over Lot Avenue was intended by the grantor to provide lot 5 with access to public roads, we find that the easement was not extinguished when Lily Pond Drive was subsequently deeded to the Town of East Hampton thereby affording lot 5 direct access to a public street. While an implied easement by necessity is extinguished when the necessity ceases (Palmer v Palmer, 150 NY 139), a grantee can be deprived of an implied easement by grant over certain streets only by abandonment, conveyance, condemnation, or adverse possession (Gerbig v Zumpano, supra; O'Hara v Wallace, 83 Misc 2d 383, mod on other grounds 52 AD2d 622).
In addition, the fact that the first deed from the grantor did not expressly convey an easement over Lot Avenue in favor of lot 5 is irrelevant. Where the property is conveyed by deed describing it by reference to a map, the fact that the map shows a lot as bounded by a street may give the grantee an easement of way through the street as shown even where the street is not mentioned in the conveyance (Matter of Mayor of New York [East 178th St.], 188 NY 581; Dalton v Levy, 258 NY 161; Powlowski v Mohawk Golf Club, 204 App Div 200). Lot 5 was repeatedly sold with reference to the subdivision map and Lot Avenue, giving each grantee an easement in Lot Avenue without the need for any express grant in the deeds.
Nor does the fact that Lot Avenue was not open at the time of the making of the grant with reference to the map and was never dedicated or improved, prevent an easement by grant from arising by implication (see, Matter of City of New York *489[Sedgwick Ave.], 213 NY 438; Stupnicki v Southern N. Y. Fish & Game Assn., 41 Misc 2d 266, affd 19 AD2d 921, lv denied 13 NY2d 601).
We note that the defendant erroneously relies on several cases concerning the requirements for implication of easements from an apparent preexisting use on severance of title to land owned by a common grantor (see, e.g., Bigg v Webb Props., 118 AD2d 613; Pastore v Zlatniski, 122 AD2d 840; Buck v Allied Chem. Corp., 77 AD2d 782; Abbott v Herring, 97 AD2d 870, affd 62 NY2d 1028; McQuinn v Tantalo, 41 AD2d 575, lv denied 32 NY2d 610; Hedden v Bohling, 112 AD2d 23, appeal dismissed 67 NY2d 758; 49 NY Jur 2d, Easements, § 91). This precedent is inapplicable to the situation herein whereby a grantor subdivides his property and sells lots bounding on a street shown on the subdivision map giving rise to the implication of an easement by grant.
Finally, we note that the plaintiffs did not raise a defense of estoppel before the Supreme Court, resulting in a waiver of the right to have such issue reviewed on appeal (see, Pastore v Zlatniski, supra; Orellano v Samples Tire Equip. & Supply Corp., 110 AD2d 757). Mangano, J. P., Brown, Rubin and Harwood, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902284/
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In a negligence action to recover damages for personal injuries, the plaintiff and the defendants third-party plaintiffs the Town/Village of Harrison appeal, as limited by the plaintiff’s brief, from so much of an order of the Supreme Court, Westchester County (Palella, J.), entered March 9, 1987, as granted those branches of the motion of the defendant third-party defendant County of Westchester which were for summary judgment dismissing the plaintiff’s amended complaint as against it and dismissing the defendants third-party plaintiffs’ cross claim and third-party complaint as against it.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiffs-appellants and the defendants third-party plaintiffs-appellants appearing separately filing separate briefs.
On May 6, 1983, the plaintiff was injured in a motorcycle accident on Kenilworth Road, a public street located in the coterminous Town/Village of Harrison. He commenced the instant action on or about September 23, 1983, alleging, inter *490alia, that the town/village was negligent in failing to repair and maintain the public streets located within its jurisdiction. The town/village, on or about November 20, 1984, instituted a third-party action for indemnification and contribution against the County of Westchester, claiming that the county had breached its duty to supervise the repair and maintenance of town highways. The plaintiff subsequently amended his complaint to include the county as a defendant. The county thereafter moved for summary judgment in its favor, alleging, inter alia, that inasmuch as Kenilworth Road is a village highway rather than a town or county highway, it had no duty to maintain or to supervise the maintenance of the subject road absent either an agreement with or a written request by the town/village to that effect. By order dated March 6, 1987, the court (Palella, J.), granted the county’s motion. These appeals followed.
The appellants claim that the court erred in finding that Kenilworth Road is a village highway and in granting summary judgment in favor of the county on the basis of that finding. They assert that Kenilworth Road is a town highway and that the county, by statute, had general supervisory responsibility for the maintenance and repair of this highway on the date of the accident (see, Highway Law § 102 [former (1)]; L 1936, ch 63). A county, however, has no such duty with respect to village highways; rather, it is required only to inspect such highways upon the written request of the village (see, Highway Law § 102 [2]). It is undisputed that no such request was made here. Accordingly, it is incumbent upon this court to determine whether Kenilworth Road is a town or village highway.
Village Law § 17-1706 provides, in part, that every village which has been or may hereafter be incorporated to embrace the entire territory of a town, has "all powers and duties granted to or imposed upon the town board of a town, or upon any officer of a town, in relation to any public bridge or bridges, street or streets, highway or highways, wholly or partly within such town, are hereby granted to and imposed upon the board of trustees of such village”. Village Law § 6-602, moreover, provides that "[t]he streets and public grounds of a village constitute a separate highway district and are under the exclusive control and supervision of the board of trustees or other officers of the village when such control is delegated to them by such board” (cf., Highway Law § 3 [5]). The Town of Harrison was incorporated as a village on July 9, 1975, prior to which date Kenilworth Road was a town high*491way. Kenilworth Road therefore became a village highway on the date of incorporation and continued to be a village highway from that date forward. Since it was a village highway on the date of the accident and the county had assumed no duty with respect to its repair and maintenance, the court properly granted summary judgment in favor of the county. Bracken, J. P., Kunzeman, Spatt and Sullivan, JJ., concur.
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https://www.courtlistener.com/api/rest/v3/opinions/5902331/
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Murray, J.), rendered March 8, 1983, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.
*539Ordered that the judgment is affirmed.
The defendant contends that the trial court erred in failing to instruct the jury that the People were required to disprove the defense of justification beyond a reasonable doubt. The defendant, however, failed to object to the court’s charge on this ground, and, therefore, this claim has not been preserved for appellate review (see, GPL 470.05 [2]; People v Thomas, 50 NY2d 467; People v Richburg, 109 AD2d 899).
In any event, the charge, when viewed as a whole, adequately conveyed the appropriate law to the jury and did not deprive the defendant of a fair trial (see, People v Woods, 41 NY2d 279; People v Richburg, supra). Bracken, J. P., Kunzeman, Spatt and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902286/
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Mercure, J.P.
Appeal from a judgment of the County Court of Tompkins County (Rowley, J.), rendered June 3, 2011, convicting defendant upon his plea of guilty of the crime of assault in the second degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to assault in the second degree in full satisfaction of a five-count indictment, and was to be sentenced to a prison term of two years to be followed by three years of postrelease supervision. Prior to sentencing, defendant moved pro se to withdraw his guilty plea, alleging that it was the result of duress. County Court denied defendant’s motion without a hearing and sentenced him as agreed. Defendant now appeals.
Whether a defendant should be permitted to withdraw his or her guilty plea is a determination that rests within the sound discretion of the trial court, and a hearing is warranted only in rare instances (see People v Hayes, 71 AD3d 1187, 1188 [2010], lv denied 15 NY3d 852 [2010]; People v Wyant, 47 AD3d 1068, 1069 [2008], lv denied 10 NY3d 873 [2008]). Generally, a plea may not be withdrawn absent evidence of innocence, fraud or mistake in the inducement (see People v Waters, 80 AD3d 1002, 1003 [2011], lv denied 16 NY3d 858 [2011]; People v Carmona, 66 AD3d 1240, 1241 [2009], lv denied 14 NY3d 799 [2010]). Here, the record reflects that defendant’s plea was informed and voluntary. County Court fully admonished defendant of the rights he was forfeiting by pleading guilty and stressed that he was under no obligation to enter the plea. Defendant affirmed that he understood and wanted to proceed with the plea. Moreover, County Court engaged defendant in a thorough factual allocution whereby he unequivocally admitted to conduct constituting the crime of assault in the second degree as charged in the indictment. Inasmuch as nothing in the record casts doubt upon defendant’s guilt and defendant’s postplea assertions of innocence and undue pressure from counsel are wholly unsubstantiated, County Court properly denied the motion to withdraw the plea without a hearing (see People v Waters, 80 AD3d at 1003; People v Shovah, 67 AD3d 1257, 1258 [2009], lv denied 14 NY3d 773 [2010]; People v Carmona, 66 AD3d at 1241). Finally, counsel’s failure to join in the motion to withdraw the plea did not require County Court to assign new counsel (see People v Murray, 25 AD3d 911, 912 [2006], lv denied 6 NY3d 896 [2006]; People v Lindsey, 283 AD2d 782, 782 [2001], lv denied 96 NY2d 940 [2001]).
Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
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In an action to recover damages for personal injury and breach of warranty, the plaintiff appeals from a judgment of the Supreme Court, Rockland County (Edelstein, J.), dated September 22, 1986, which, upon an order granting summary judgment to the defendant, dismissed the complaint.
Ordered that the judgment is affirmed, with costs.
Although the plaintiffs allegations indicate he has suffered serious emotional trauma due to the defendant’s employee’s antisemitic remarks and his physical defacement of the plaintiffs appliances with swastikas, the judgment summarily dismissing his case was correct.
The law clearly holds employers liable in certain circumstances for the tortious acts of employees under a theory of respondeat superior, when the acts complained of were committed within the scope of their employment (see, Riviello v Waldron, 47 NY2d 297).
However, if the employee’s act was committed for solely personal ends, rather than in furtherance of or as incident to the employer’s business, liability for the acts may not be imputed to the employer (Island Associated Coop. v Hartmann, 118 AD2d 830; Iazetta v State of New York, 115 AD2d 518, lv denied 67 NY2d 605).
In the case at bar, the motivation of the salesman in defacing the plaintiffs appliances with swastikas, though unstated, can logically support only one inference; namely, that it was solely personal to him and in no way related to the furtherance of his employer’s business. As such, no triable issue of fact remained for the jury concerning whether this act fell within the scope of his employment.
The plaintiffs further contentions concerning a cause of action arising under UCC 2-314 (2) (c) for breach of an implied warranty of merchantability are without merit, since under the statute, the merchant warrants only that the goods sold are fit for their ordinary purpose. In this case, the appliances at issue were fit for their ordinary purposes of laundering clothing. Bracken, J. P., Kunzeman, Eiber and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129346/
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Judgment of County Court affirmed, with ten dollars costs and printing disbursements. Opinion by
Boardman, J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902288/
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In an action to recover damages for wrongful death based on medical malpractice, the defendant A. George Fleischer appeals from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated May 7, 1987, which denied his motion for summary judgment.
Ordered that the order is affirmed, with costs.
The plaintiffs’ intestate, a patient at Staten Island Hospital, suffered multiple fractures in his right leg caused by an automobile accident resulting in his undergoing surgery twice within the space of 10 days. Hospital records indicate that, despite the two operations, his fractures showed some displacement. Subsequently, he was given ambulation therapy by the hospital’s physical therapy department on three occasions. On the third occasion the defendant-appellant, Dr. Fleischer, head of the hospital’s physical therapy department, was summoned by the attending physical therapist because the patient began feeling sick. Dr. Fleischer arrived to find the patient sweaty and pale, his blood pressure low and his breathing irregular. The patient was put in a "plant” position, after which he vomited and said he felt better. After permitting him to rest for 5 to 10 minutes, the appellant sent the patient to his room accompanied by a hospital aide and a physical therapist. En route, the patient died of what was diagnosed as a massive pulmonary embolism caused by thrombosis in the veins of the lower right extremity.
A review of the record, including the affirmations of the plaintiff’s expert, reveals that there are triable issues present regarding the conduct of the appellant in the treatment of the patient including his supervision of the patient during this critical time.
Accordingly, the motion for summary judgment was properly denied. Bracken, J. P., Kunzeman, Spatt and Sullivan, JJ., concur.
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https://www.courtlistener.com/api/rest/v3/opinions/5902291/
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In a claim to recover damages for wrongful incarceration, the claimant appeals from a judgment of the Court of Claims (Lengyel, J.), entered April 10, 1987, which, after a nonjury trial, is in favor of the defendant.
Ordered that the judgment is affirmed, with costs.
On February 19, 1984, the claimant was involved in a two-car automobile accident. In his MV-104 form report of this accident the claimant failed to identify the insurance company which provided liability coverage for his vehicle. Later, in June or July of 1984, the New York Department of Motor Vehicles (hereinafter the DMV) notified the claimant and his wife (who owned the subject vehicle) that their nonresident motor vehicle privileges would be revoked unless written proof of insurance coverage for the vehicle, i.e., an SR-21 form, was provided within 10 days. Neither the claimant nor his wife properly responded to this directive.
In November of 1984 the claimant was advised by the DMV that his nonresident motorist privileges would be revoked effective December 17, 1984. He and his wife were again requested to return an SR-21 form. Again, the claimant failed to respond properly, but instead wrote an indignant letter, dated December 10, 1984, threatening legal action. No written proof of insurance coverage was furnished with this letter.
The present action for damages was commenced after the claimant was arrested in the City of Yonkers in February of 1985 and charged with driving the subject vehicle while his privilege to do so had been revoked. The Court of Claims granted judgment in favor of the defendant, and we affirm.
After the accident in February of 1984, the claimant failed *499to include in his MV-104 form the name of the insurance company which covered his vehicle. This constituted some evidence that he was operating a vehicle without insurance (see, Vehicle and Traffic Law § 318 [5], [9]). Given the evidence of the claimant’s deliberate failure to respond, in writing, to the DMV’s subsequent requests for written verification of insurance coverage, the revocation of his privilege to drive within this State was fully justified.
The claimant testified that he did inform the DMV of the proper insurance information during the course of certain telephone conversations. No reference to these conversations is made in the claimant’s letter to the DMV dated December 10, 1984. The employee of the DMV who issued the revocation order could not recall any such conversation. Under these circumstances, we do not credit the testimony of the claimant concerning the supposed telephonic communications with unidentified employees of the DMV.
The claimant has therefore failed to meet his burden of proving negligence on the part of any employee of the State. We need not address the question of whether the State is protected in this case by the doctrine of sovereign immunity (but see, Granger v State of New York, 14 AD2d 645 [decision regarding revocation of driver’s license is governmental function]; see also, Williams v State of New York, 90 AD2d 861). Bracken, J. P., Kunzeman, Spatt and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8076600/
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No opinion. Judgment affirmed, with costs, on opinion of Mr. Justice Kelly at Special Term. 94 N. Y. Supp. 260.
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01-03-2023
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09-09-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902292/
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In a matrimonial action in which the parties were divorced by a judgment entered December 28, 1983, (1) the plaintiff father appeals from so much of an order of the Supreme Court, Nassau County (Kelly, J.), dated December 18, 1986, as, after a hearing, denied his motion for a change in custody of his infant son to him, and (2) the defendant mother cross-appeals, as limited by her brief, from so much of the same order as denied her request for counsel fees.
Ordered that the cross appeal is dismissed, for failure to perfect the same in accordance with the rules of this court (22 NYCRR 670.20 [d], [f]); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the defendant is awarded one bill of costs.
While our authority in matters of custody is as broad as that of the trial court (see, Matter of Louise E. S. v W. Stephen S., 64 NY2d 946), the determination as to whether a custody *500award should be modified depends to a very great extent upon the assessments of the credibility of the witnesses and upon the assessments of the character and temperament of the parents. Accordingly, we treat the findings of the trial court with great respect (see, Eschbach v Eschbach, 56 NY2d 167; Matter of Irene O., 38 NY2d 776; Ira K. v Frances K., 115 AD2d 699). Based thereon and upon a review of the record in light of the factors outlined in Friederwitzer v Friederwitzer (55 NY2d 89), we are satisfied that the trial court correctly determined that the best interests of the child would be served by permitting physical custody to remain with the mother. However, the mother should be aware that interference with the relationship between a child and a noncustodial parent by the custodial parent has been said to be an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent (Daghir v Daghir, 82 AD2d 191, affd 56 NY2d 938).
Finally, while we agree that the trial court should have permitted testimony by a third party as to an expression of hostility toward the father by one of the mother’s witnesses (see, Potter v Browne, 197 NY 288; Brink v Stratton, 176 NY 150; Schultz v Third Ave. R. R. Co., 89 NY 242), under the circumstances of this case, reversal is not warranted. Mangano, J. P., Brown, Harwood and Balletta, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129347/
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— Order affirmed, with ten dollars costs and printing disbursements.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129348/
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— Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. Motion to dismiss appeal denied, without costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129351/
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Judgment of County Court and of justice reversed, with costs, and judgment rendered for defendant, with costs. Mem. by
Learned, P. J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902296/
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In a postjudgment proceeding for modification of a judgment of divorce pursuant to Domestic Relations Law § 240, the plaintiff husband appeals from an order of the Supreme Court, Westchester County (Delaney, J.), entered December 19, 1986, which, after a hearing, denied his application to terminate his obligation to support the parties’ two minor children on the ground that the children were emancipated.
Ordered that the order is affirmed, with costs.
In accordance with a stipulation spread on the record, the judgment of divorce required the plaintiff to pay the defen*503dant child support in a specified amount until the younger of the two minor children "attains the age of 21 years or is sooner fully emancipated and living away from the residence of the Defendant wife” (emphasis supplied). Neither child was 21 at the time of the hearing and neither was living away from the defendant’s residence. The Supreme Court therefore properly declined to terminate the plaintiff’s support obligations. Mangano, J. P., Brown, Harwood and Balletta, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6826228/
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ORDER
MARGOLIS, Judge.
On June 22,1988, this court denied applicants’ motion for leave to intervene as defendants, 15 Cl.Ct. 29. On June 24, 1988, applicants, Aeron Marine Shipping Company, American Shipping, Inc., and Archon Marine Company, moved for a stay pending appeal of the court’s denial of the motion to intervene.
In reviewing a motion to stay proceedings, the court will look to four factors in determining whether the motion should be granted: 1) whether the applicants are likely to succeed on the merits of their appeal; 2) whether applicants will suffer irreparable harm without issuance of the stay; and 3) whether the granting of the stay will cause substantial harm to the other interested parties or 4) to the public interest in this proceeding. Golden Eagle Refining Co. v. United States, 4 Cl.Ct. 622, 623 (1984); see also Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921, 925 (D.C.Cir.1958).
In this case, the court does not believe that it is likely that applicants will prevail in their appeal. As the court stated in its June 22, 1988 order, applicants have only an indirect and contingent economic interest resting solely on the possibility of increased competition and have failed to demonstrate that the defendant will not adequately represent this interest. The court concluded that the applicants have failed to satisfy the requirements for intervention as of right. The court also concluded, in its discretion, that permissive intervention was not appropriate. Only an abuse of the trial court’s discretion will warrant the reversal of a denial of permissive intervention. Sutphen Estates v. United States, 342 U.S. 19, 23, 72 S.Ct. 14, 17, 96 L.Ed. 19 (1951). For these reasons, the applicants are unlikely to prevail on their appeal. Absent this showing, a stay is inappropriate. See Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977); Virginia Petroleum Jobbers, 259 F.2d at 925.
As to the second factor, denial of a stay will not irreparably injure applicants. The court has already concluded that the defendant will adequately represent the interests applicants may have in this case. Therefore, applicants will not suffer harm if foreclosed from participating in these proceedings. Further, if plaintiff prevails in this case, the only injury to applicants is a potential competitive disadvantage. Without the showing of severe economic impact, “[t]he mere existence of competition is not irreparable harm.” Holiday Tours, 559 F.2d at 843. Therefore, not only does this remote harm not constitute an irreparable injury, but applicants’ interests, as this court found, are already adequately represented by the defendant.
Consideration of the third factor also militates against granting applicants a stay pending appeal. Such a stay would unduly delay proceedings between the directly interested parties that are otherwise ready to move forward. Meanwhile, plaintiff would be injured in having to operate its vessel without the subsidy payments to which plaintiff believes it is entitled. In contrast, this court found that applicants face only the possibility of indirect and contingent harm. Therefore, the need to protect the interests of the parties directly involved outweighs the need to guard applicants’ remote interest.
The fourth and final factor, the public interest in settling disputes fairly and efficiently, also favors denial of a stay in this case. Disrupting the proceedings at this time would set a dangerous precedent of *362encouraging the participation of parties with remote interests, such as applicants, when their interests are already adequately protected by one of the parties.
Because the granting of a stay is an extraordinary remedy, applicants should not prevail when all four factors tip heavily towards a denial of the stay. See Brotherhood of Railroad & Steamship Clerks v. National Mediation Board, 374 F.2d 269, 275 (D.C.Cir.1966). Therefore, in light of the balance of the relevant factors in this case, it is
ORDERED, that the applicants’ motion for a stay pending appeal is denied.
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01-03-2023
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07-23-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6826230/
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ORDER
BRUGGINK, Judge.
On January 25, 1988, after a hearing on plaintiff’s motion of December 10, 1987 to compel certain discovery, the court granted the motion and directed production of certain documents and additional responses to interrogatories and created a new discovery schedule. After reviewing status reports on compliance, and after a telephonic conference, the court entered an order on March 15, 1988 directing full compliance with the ordered discovery by April 6, 1988. Defendant was notified that, “[s]hould the court determine that defendant has, without adequate reason, failed to respond to outstanding discovery, the court will consider imposing appropriate financial and evidentiary discovery sanctions under RUSCC 37(b)(2). These sanctions may include an award to plaintiff of its attorney fees....” A hearing was held April 8 to evaluate compliance. For reasons set out in the order of April 19, the court found that evidentiary sanctions pursuant to RUSCC 37(b)(2) were called for, and directed plaintiff to file a statement of expenses incurred due to defendant’s non-compliance with discovery orders. In its response to plaintiff’s statement of fees and costs, defendant challenged only the amount of the claim. The order of June 15,1988 awarded substantially all the fees claimed pursuant to RUSCC 37(a)(4). No costs were sought. On July 26, 1988 plaintiff filed the pending motion for entry of partial judgment. In its motion, plaintiff recites that defendant’s counsel represented to plaintiff’s counsel that defendant would not make payment in the absence of a partial judgment. On August 12, 1988 defendant responded to the motion by taking the position for the first time that this court lacks jurisdiction to enter such a judgment for the award of expenses under RUSCC 37(a)(4). Plaintiff has replied, and for the reasons that follow, plaintiff’s motion is granted.1
DISCUSSION
Defendant has two contentions. First, it contends that there exists no statutory or common law basis for awarding a successful moving party its expenses under Rule 37 when the defendant is the United States. Second, it argues that such an award is beyond the jurisdiction of the court. As to the first point, the Government’s argument is fundamentally flawed because it is premised on the incorrect assumption that authority to award expenses under RUSCC 37 must be found in statutes or case law permitting awards of attorney fees at the conclusion of a case. For that reason, defendant’s contention that recovery is not allowed under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (1982),2 is off the mark. Plaintiff does not seek fees pursuant to the EAJA. For the same reason, defendant’s argument that under common law there must be a showing of bad faith to recover attorney fees is also inapposite. The Supreme Court has made it clear that Rule 37 can be a basis for recovering attorney fees independent of statutory or common law sources. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 763-64, 100 S.Ct. 2455, 2462-63, 65 L.Ed.2d 488 (1980); see also National Lawyers Guild v. Attorney General, 94 F.R.D. 616 (S.D.N.Y.1982); cf. United States v. Kemper Money Market Fund, Inc., 781 F.2d 1268, 1278-79 (7th Cir.1986) (court denied request under Fed.R.Civ.P. 37(a)(4) on the merits).
*364As Wright and Miller put it, “The great operative principle of Rule 87(a)(4) is that the loser [on the motion] pays.” 8 C. Wright & A. Miller, Federal Practice And Procedure § 37.07, at 787 (1970). This result is expressly required in both the rules of this court and the Federal Rules of Civil Procedure:
If the motion [to compel] is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion ... to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorneys’ fees, unless the court finds that the opposition to the motion was substantially justified....
RUSCC 37(a)(4) (Fed.R.Civ.P. 37(a)(4) is identical) (emphasis added). If one party’s conduct or inaction necessitates a motion under Rule 37(a)(4), it is only appropriate that the winning party’s cost and expenses be reimbursed, since they are, by their very nature, wasted expenses. They were incurred only because of the inexcusable or dilatory conduct of the other party. RUSCC 37 is thus distinct from the EAJA, which, as defendant points out, requires the plaintiff to prevail substantially on the merits. A party could theoretically succeed on a Rule 37 motion, but ultimately fail on the merits. Conversely, a party could theoretically be liable for Rule 37 expenses and yet win on the merits and recover attorney fees under the EAJA. Rule 37 serves a totally different function. It is a pretrial procedural device to ensure compliance with discovery rules. Without the sanction element of Rule 37, other discovery rules would have a hollow ring.
Defendant’s primary contention is that since the United States may not be sued without its consent, and since the RUSCC, unlike the Fed.R.Civ.P., has not been adopted by Congress, defendant has not waived its immunity from this type of liability. In short, its position is that Rule 37(a)(4) applies to plaintiffs in the Claims Court, but not to the United States Government. Presumably, to be consistent defendant would have to be advancing the position that none of the expense-shifting rules apply to it. For example, the Government presumably could not be sanctioned under Rule 11 for violation of signature requirements, under Rule 16(f) for failure to abide by a pretrial order, under Rule 26(g) for abusive discovery, under Rule 30(g) for failure to attend a deposition, under Rule 37(c) for improper failure to admit, or under Rule 56(h) for making an affidavit in bad faith.
The real question posed by defendant is whether this court’s rules have to be specifically adopted by Congress in order to carry any fee-shifting implications for defendant. The short answer to the question is no. The fact that Congress has not encoded the court’s rules makes them no less obligatory on the parties. A rule of court, properly adopted, binds the litigants and has the full force and effect of law. Weil v. Neary, 278 U.S. 160, 169, 49 S.Ct. 144, 148, 73 L.Ed. 243 (1929); Rio Grande Irrigation Co. v. Gildersleeve, 174 U.S. 603, 608, 19 S.Ct. 761, 762, 43 L.Ed. 1103 (1899). This is the case even for rules only authorized by statute and not actually adopted by Congress, as for example local federal court rules. Braxton v. Bi-State Develop. Agency, 728 F.2d 1105, 1107 (8th Cir.1984). There is no question that this court was statutorily authorized to adopt Rule 37 by virtue of 28 U.S.C. § 2503(b) (1982): “The proceedings of the Claims Court shall be in accordance with such rules of practice and procedure (other than the rules of evidence) as the Claims Court may prescribe....”
It is no answer to say that a rule of court cannot enlarge or restrict jurisdiction. While that proposition is correct, see United States v. Bink, 74 F.Supp. 603 (D.Or.1947), the rule in question here is not a grant of additional jurisdiction. No additional jurisdiction is required. The relevant substantive grant of jurisdiction in the case at bar comes from the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (1982), and from the Tucker Act, 28 U.S.C. § 1491(a)(1) (1982). The operation of these two statutes gives the court whatever jurisdiction it needs to hear the present case. Through these two provisions, the United States waived sovereign immunity in contract actions. When it directed litigants to *365this court through § 1491(a)(1), Congress made available a complete judicial remedy, which included governing rules on discovery. It would be remarkable to suggest that when it did so, Congress did not fully comprehend that it exposed the United States to the power of the court to enforce its procedural rules against both public and private litigants.3
In Thornton-Trump v. United States, 12 Cl.Ct. 262 (1987), this court confronted essentially the same issue raised here. There the court sanctioned, under RUSCC 26(g), both the plaintiff and his counsel. In responding to the contention that the Tucker Act did not confer jurisdiction to award attorney fees under RUSCC 26, the court responded as follows:
[T]his limitation on our authority has no relevance here. A motion for sanctions under Rule 26(g) is not a statutory claim for monetary damages, but a procedural motion to enforce the court’s rules that may be initiated by any party to litigation properly before the court or by the court itself. To put it another way, imposition of a sanction does not vindicate a legal right of the injured party cognizable under the Tucker Act, but rather vindicates the authority of the court itself to command respect for its rules — both from the parties presently before it and from those who will come after.
Id. at 263.
While not direct support for the result here, it is certainly illuminating in this connection that Fed.R.Civ.P. 37(f) was repealed as part of the EAJA. Prior to repeal, that subparagraph provided: “Expenses Against United States. Except to the extent permitted by statutes, expenses and fees may not be awarded against the United States under this rule.” The Report of the House Committee states that “This change reflects the belief that the United States should be liable for fees the same as other parties when it abuses discovery.” H.R.Rep. No. 96-1418, 96th Cong., 2d Sess., at 19 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 4953, 4984, 4998 (emphasis added). This change and the corresponding legislative comment strongly militate against creating a different result under the RUSCC.
CONCLUSION
Plaintiffs motion for entry of a partial judgment is granted. There being no further cause for delay, the clerk is directed to enter partial judgment for plaintiff in the amount of $21,982.00.4
It is so ORDERED.
. Plaintiff urges that the court reject defendant’s arguments as untimely raised. There is no question that the present statement of defendant’s position comes five months late. It cannot be ignored on that basis, however, since the court’s jurisdiction is challenged.
. The EAJA amended section 2412 in 1980 to allow an award of reasonable fees and costs in civil actions against the United States to the “prevailing party."' 28 U.S.C. § 2412(b). Defendant contends that since plaintiff has not yet prevailed on the merits, it cannot recover its fees. Defendant is correct insofar as plaintiff is not entitled to recover under section 2412. However, that fact does not preclude the award of expenses under RUSCC 37.
. Even if a court lacks jurisdiction over the subject matter of the action, it can still sanction the parties, if necessary. See Hewitt v. City of Stanton, 798 F.2d 1230 (9th Cir.1986); Itel Containers Int'l Corp. v. Puerto Rico Marine Management, Inc., 108 F.R.D. 96 (D.N.J.1985). Courts have inherent authority to assess attorney fees. Roadway Express, 447 U.S. at 765, 100 S.Ct. at 2463 (showing of bad faith required); see Thornton-Trump v. United States, 12 Cl.Ct. 262 (1987); Complaint of Judicial Misconduct, 2 Cl.Ct. 255, 261 n. 9 (1983).
. Plaintiff foreshadows in its brief a future request for additional fees with respect to this latest argument. The court would exercise its discretion to deny the request. Defendant’s argument, while rejected, is not frivolous.
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01-03-2023
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07-23-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902298/
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In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated February 18, 1987, which granted the motion of the defendant New York City Health and Hospitals Corporation to dismiss the complaint insofar as it is asserted against it, as time barred.
Ordered that the order is affirmed, with costs.
The plaintiff’s infant decedent died on August 1, 1981. The plaintiff was appointed as the infant decedent’s personal representative on May 14, 1982. Thereafter, on December 23, 1982, the plaintiff commenced the instant action seeking recovery, inter alia, for wrongful death. The New York City Health and Hospitals Corporation Act (see, McKinney’s Uncons Laws of NY § 7401 [2]) requires that an action against the New York City Health and Hospitals Corporation for the death of a plaintiff’s decedent be commenced within one year and 90 days after the cause of action "shall have accrued”. The accrual date and, therefore, the time for commencement of the action is measured from the date of death of the plaintiff’s decedent (see, Brennan v City of New York, 59 NY2d 791; D'Andrea v Long Is. R. R. Co., 117 AD2d 10, affd 70 NY2d 683; Brann v City of New York, 100 AD2d 504). At bar, it is undisputed that the plaintiff failed to commence her action within one year and 90 days of her decedent’s death. The plaintiff argues that the date of her appointment as administratrix should be deemed to be the accrual date from which the limitations period commences to run. While acknowledging that Brennan v City of New York (supra) and its progeny hold to the contrary, the plaintiff urges this court to hold Brennan inapplicable to the instant action as it was commenced prior to the date of the Brennan determination. We find this argument unpersuasive. Review of the facts in *504Brann v City of New York (supra) reveals that that action was commenced prior to the Brennan decision but that the court followed the Brennan determination. Accordingly, the Supreme Court properly dismissed the complaint insofar as it is asserted against the respondent as untimely. Thompson, J. P., Rubin, Eiber and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902299/
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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Benson, J.), dated October 10, 1986, which dismissed the complaint against both defendants for lack of in personam jurisdiction.
Ordered that the order is modified, on the law, by deleting therefrom the provisions dismissing the complaint as against both defendants and by substituting therefor a provision dismissing the complaint only as against the defendant Frances Gomez; as so modified, the order is affirmed, without costs or disbursements. The time of the defendant Emily Gomez to answer is extended until 20 days after service upon her of a copy of this decision and order, with notice of entry.
The plaintiff was allegedly injured on January 26, 1983, while ice skating on a rink located in Dutchess County which was allegedly owned and operated by the defendants. The plaintiff attempted to commence an action against the defendants by service of process upon them in New York. The plaintiff discovered that the defendants no longer resided in New York State and had moved to Virginia. With the three-year Statute of Limitations about to expire, the plaintiff delivered a copy of the summons and complaint to the Sheriff of Dutchess County. As a result of this act the plaintiff obtained, pursuant to CPLR 203 (b) (5), an additional 60 days from January 28, 1986, to properly serve the defendants. Specifically, CPLR 203 (b) (5) provides:
"§ 203. Method of computing periods of limitation generally * * *
"(b) Claim in complaint. A claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest with him when * * *
"5. The summons is delivered to the sheriff of that county outside the city of New York * * * in which the defendant resides, is employed or is doing business, or if none of the foregoing is known to the plaintiff after reasonable inquiry, then of the county in which the defendant is known to have last resided, been employed or been engaged in business, or in *505which the cause of action arose; or if the defendant is a corporation, of a county in which it may be served or in which the cause of action arose; provided that:
"(i) the summons is served upon the defendant within sixty days after the period of limitation would have expired but for this provision”.
The record indicates that the plaintiff effectuated substituted "nail and mail” service (see, CPLR 308 [4]) upon the defendants at their residence in Richmond, Virginia, on March 5, 1986, and March 6, 1986, respectively, i.e., within the 60-day extension. Specifically, one copy of the summons and complaint was affixed to the front door of, and one copy was mailed to, the Virginia residence.
In dismissing the complaint against both defendants for lack of in personam jurisdiction the Supreme Court, Dutchess County, advanced three reasons: 1. Proof of the substituted service was not timely filed with the appropriate court clerk as required by CPLR 308 (4); 2. The plaintiff did not exercise due diligence to effectuate service of process pursuant to CPLR 308 (1) and (2) before she resorted to substituted service pursuant to CPLR 308 (4); and 3. One copy of process was served, and the process server’s affidavit of service did not "indicate which defendant was served”.
The first two reasons are insufficient to warrant a dismissal of the complaint against the defendants. First, it has been held that the late filing of proof of substituted service pursuant to CPLR 308 (4) is a mere irregularity (Molyneaux v Sevilla, 22 Misc 2d 450; Hudela v Posner, 70 Misc 2d 726). Second, the issue of lack of due diligence was not raised by the defendants in their papers submitted to the Supreme Court and is therefore deemed waived (see, CPLR 3211 [e], [a] [8]). The defendants argue that this issue can be raised for the first time on appeal. However, the cases that they cite in support of that argument are inapposite in that they do not involve the defense of lack of personal jurisdiction.
The failure of the plaintiff" to serve two copies of process is more troubling. Both defendants were individually named in the summons and complaint. Accordingly, contrary to the plaintiff’s argument, the fact that the defendants are husband and wife and lived in the same house did not relieve the plaintiff of affixing two copies of process to the door of the defendants’ home and mailing two copies to the defendants’ home (cf., Continental Bank v White, 112 AD2d 912, appeal dismissed 67 NY2d 938).
*506Nevertheless, the defendant Emily Gomez stated in an affidavit submitted to the Supreme Court that she found the copy of process affixed to her door, and received a copy in the mail. Since the substituted service of the one copy of process was admittedly made upon the defendant Emily Gomez, the complaint should not have been dismissed as against her. However, since a second copy of process was never served on the defendant Frances Gomez, the complaint should have been dismissed against him on the ground of lack of personal jurisdiction (see, Morrison v Foster, 80 AD2d 887). If the defendant Frances Gomez is ultimately served in a proper fashion, he will be able to raise the defense of Statute of Limitations, and a resolution of that issue will depend on whether he is "united in interest” with his wife Emily Gomez, who was timely and properly served, with respect to the instant claim (see, Morrison v Foster, supra).
We have examined the remaining arguments raised by the defendants with respect to alleged defenses to the service of process, and find them to be without merit. Mangano, J. P., Brown, Harwood and Balletta, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129352/
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.Judgment and order affirmed, with costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129354/
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— Judgment affirmed, with costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129356/
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Judgment affirmed, with costs. Mem. by
Learned, P. J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129357/
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Judgment affirmed, without costs. Mem. by
Learned, P. J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129358/
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— Judgment affirmed, with costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902300/
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Spain, J.
Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered July 29, 2011, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.
Defendant was charged in an indictment with attempted bur*1064glary in the second degree after he was caught trying to break into an apartment. He pleaded guilty to this charge. In accordance with the terms of the plea agreement, he was sentenced as a persistent violent felony offender to 12 years to life in prison, along with a five-year period of postrelease supervision. County Court subsequently removed the postrelease supervision provision and resentenced defendant to 12 years to life in prison to be effective as of the date of the original sentencing. Defendant now appeals.
Defendant’s sole contention is that his plea allocution was factually deficient because he never admitted to the specific act of trying to enter the dwelling unlawfully. However, defendant’s challenge to the factual sufficiency of his plea is unpreserved for our review as the record fails to indicate that he moved to withdraw it or to vacate the judgment of conviction (see People v White, 96 AD3d 1299, 1300 [2012], lv denied 19 NY3d 1029 [2012]; People v Flake, 95 AD3d 1371, 1372 [2012], lv denied 19 NY3d 973 [2012]; People v Harris, 82 AD3d 1449 [2011], lv denied 17 NY3d 953 [2011]). Therefore, the judgment must be affirmed.
Rose, J.P., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902301/
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In an action for a judgment declaring that the defendant is not entitled to a lien on the proceeds of any settlement, judgment or recovery by the plaintiff with respect to an accident on January 19, 1985, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Gowan, J.), dated June 2, 1986, which denied his motion for summary judgment on the complaint and to strike the defendant’s affirmative defenses.
Ordered that the order is modified, on the law, by deleting the provisions thereof which denied those branches of the plaintiffs motion which were to strike the defendant’s first and second affirmative defenses, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff, an employee of Entenmanns Bakery, was seriously injured in an automobile accident on January 19, 1985. Although this accident was in no way related to his employment, the plaintiff received weekly disability benefits totaling $3,074 pursuant to an insurance policy held by his employer through the defendant. Subsequently, when the plaintiff settled a lawsuit brought by him as a result of this automobile accident against a third party, the defendant *507served the plaintiff with a "Notice of Final Lien”, whereby the defendant sought, pursuant to the provisions of the "Bakery and Confectionery Workers Local No. 3 Welfare Fund Deed of Trust”, to impose a lien on the proceeds of the plaintiff’s recovery in the action against the third party for the benefits paid to the plaintiff. Thereafter, the plaintiff commenced this action seeking a judgment declaring that the defendant is not entitled to a lien on the proceeds of any settlement, judgment or recovery obtained by him with respect to the accident on January 19, 1985. The defendant, in its answer, in addition to interposing general denials, asserted that the court lacked jurisdiction because of improper service of process and because the action had not been properly brought against the appropriate officer.
The plaintiff moved for summary judgment, alleging that the no-fault benefits received by him had been offset by the amount of disability benefits paid by the defendant, and thus Workers’ Compensation Law § 29 (1-a) and § 227 (1-a) and Insurance Law § 5105 prevented the defendant from obtaining a lien on the proceeds recovered by him in the action against the third party. The plaintiff sought to strike the defendant’s affirmative defenses, and, in support of those branches of his motion, supplied an "Affidavit of Service of Summons” which showed that the defendant’s treasurer had been personally served with process. The court denied the plaintiff’s motion, with leave to renew following the completion of discovery proceedings.
The defendant does not seek to impose a lien granted by statute (see, Workers’ Compensation Law § 29 [lj; § 227 [1]) but rather seeks to impose its lien pursuant to the provisions of the "Bakery and Confectionery Workers Local No. 3 Welfare Fund Deed of Trust”. This document has not yet been made a part of the record; thus, this court is unable to ascertain whether the provisions and restrictions of Workers’ Compensation Law §§ 29 and 227 and Insurance Law § 5105 apply to the facts of this case. Accordingly, the plaintiff is not entitled to judgment at this time.
However, the plaintiff has demonstrated that the defendant’s affirmative defenses are without merit and should be stricken. The plaintiff established through the submission of the "Affidavit of Service of Summons” that service of process was properly made upon the treasurer of the defendant organization. The defendant failed to submit any papers in opposition to the plaintiff’s motion, so there has been no factual issue raised. Since service was in compliance with the require*508ments of General Associations Law § 13, the defendant’s first affirmative defense is stricken. Furthermore, although the plaintiff has brought suit against the defendant using its proper name and has failed to name either the defendant’s president or treasurer, in his or her representative capacity, as a party to this action, as is required by General Associations Law § 13, this error is not jurisdictional and can be corrected (see, Matter of Motor Haulage Co. [International Bhd. of Teamsters], 298 NY 208; Carpentieri v Redmond, 284 App Div 897; Bohl Contr. Co. v IUE, AFL-CIO Dist. No. 3, 73 AD2d 1023, lv dismissed 51 NY2d 704). Accordingly, the defendant’s second affirmative defense is stricken as well. Mangano, J. P., Brown, Harwood and Balletta, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902302/
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In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Luciano, J.), entered April 15, 1987, which denied its motion for summary judgment.
Ordered that the order is affirmed, with costs.
It is alleged in this action that the defendant Ford Motor Company (hereinafter Ford) is liable to the plaintiffs for the injuries suffered by the plaintiff Arthur Narciso after a van manufactured by Ford spontaneously shifted its gear from "park” to "reverse”. Ford made a motion for summary judgment, based upon the supporting affirmation of its counsel, as well as various exhibits, including an affidavit of an engineer. This engineer, in his affidavit, suggested various explanations for how a van such as the one involved in this case could have moved backward, even when the operator of the van thought that the van had been placed in "park”. The court denied the motion and we now affirm.
Ford’s motion for summary judgment is premised on the argument that the "plaintiff cannot establish all the essential elements of his cause of action”. However, the rule has been established that "the existence of a defect may be proven circumstantially” (Brandon v Caterpillar Tractor Corp., 125 AD2d 625, 626; see also, Halloran v Virginia Chems., 41 NY2d 386; Iadicicco v Duffy, 60 AD2d 905). The fact that the defendant might counter the inference that the van had a design or manufacturing defect by suggesting various other explanations for the occurrence does not make the defendant entitled to summary judgment. Such proof merely increases the strength of Ford’s case, and weakens the force of inference that the van in question was defective at the time it left Ford’s hands.
*509The plaintiffs have no duty to lay bare their proof until Ford has made a showing of its entitlement to judgment as a matter of law. "The 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 * * * (see, Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649; Greenberg v Manlon Realty, 43 AD2d 968, 969)” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). In the present case, the defendant Ford, in its motion, focuses on the alleged deficiencies in the plaintiffs’ proof; however, Ford itself never submitted evidence constituting a prima facie showing that, as a matter of law, the van in question was not defective at the time it left Ford’s hands.
For the foregoing reasons, Ford failed to prove its entitlement to judgment as a matter of law, and its motion for summary judgment was properly denied. Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5904368/
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— Judgment unanimously affirmed.
Memorandum: Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference we find that the evidence was legally sufficient to support the defendant’s convictions for criminal mischief in the third degree (Penal Law § 145.05) and attempted grand larceny in the third degree (Penal Law §§ 110.00, 155.30 [1]). Further, defendant’s claims of prosecutorial misconduct are not properly preserved for our review (CPL 470.05 [2]), and we decline to exercise our discretion to review them in the interests of justice (CPL 470.15 [6]). (Appeal from judgment of Onondaga County Court, Burke, J. — criminal mischief, third degree, and attempted grand larceny, third degree.) Present— Doerr, J. P., Boomer, Green, Lawton and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902303/
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Garry, J.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered December 2, 2011, which resentenced defendant following his conviction upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.
Defendant waived indictment and pleaded guilty to a superior court information charging him with attempted criminal sale of a controlled substance in the third degree. Pursuant to the plea agreement, defendant waived his right to appeal and County Court agreed to sentence him to no more than five years in prison followed by three years of postrelease supervision, provided that he abide by the terms of his release to probation supervision pending sentencing. Defendant was ultimately sentenced to a prison term of five years followed by three years of postrelease supervision. Defendant appeals.
We affirm. Although defendant’s argument that his plea was not voluntary is not precluded by his waiver of appeal, the record does not reflect that defendant preserved this argument by making a motion to withdraw the plea or vacate the judgment *1065of conviction (see People v Whitfield, 94 AD3d 1238, 1238 [2012]; People v Jeske, 55 AD3d 1057, 1058 [2008], lv denied 11 NY3d 898 [2008]). As nothing in the plea colloquy casts doubt upon defendant’s guilt, the narrow exception to the preservation requirement is not applicable (see People v Abrams, 75 AD3d 927, 928 [2010], lv denied 15 NY3d 918 [2010]; People v McKeney, 45 AD3d 974, 975 [2007]; People v Rogers, 15 AD3d 682, 682-683 [2005]). Finally, defendant’s claim that the sentence imposed was harsh and excessive is foreclosed by his valid waiver of appeal (see People v Stoff, 74 AD3d 1640, 1641 [2010], lv denied 15 NY3d 810 [2010]; People v Walley, 63 AD3d 1284, 1286 [2009]; People v Rogers, 15 AD3d at 683).
Peters, P.J., Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/4138925/
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01-03-2023
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02-18-2017
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https://www.courtlistener.com/api/rest/v3/opinions/5902304/
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In an action pursuant to RPAPL 861, the defendant third-party plaintiff appeals from a judgment of the Supreme Court, Nassau County (DiPaola, J.), entered May 8, 1986, which is in favor of the plaintiff and against him in the principal sum of $123,000, and dismisses his third-party complaint, and the plaintiff cross-appeals, as limited by its brief, from so much of the same judgment as failed to award prejudgment interest.
Ordered that the judgment is modified by adding thereto a provision awarding prejudgment interest from July 16, 1979; as so modified the judgment is affirmed, with one bill of costs payable to the plaintiff and third-party defendants appearing separately and filing separate briefs, and the matter is remitted to the Supreme Court, Nassau County, for entry of an appropriate amended judgment.
Just prior to July 1979 the defendant James Ying contacted Augustino D’Alonzo, a landscape contractor, with regard to performing work on Ying’s property. D’Alonzo, who was familiar with the area around Ying’s home, informed Ying that the *510property which he wanted cleared belonged to the plaintiff. Ying advised D’Alonzo "Don’t worry about it” but D’Alonzo refused to perform the work. Shortly thereafter, in early July, Ying engaged the services of another landscape contractor, doing business as Port Washington Nursery. Ying informed him that he owned the property in question and actually pointed out the trees he wished to have removed. Thereafter, on Ying’s instructions, Port Washington Nursery’s workers cleared most of the property which prior to July 1979 had been a densely wooded area.
The plaintiff subsequently commenced this action pursuant to RPAPL 861 demanding treble damages as part of the award. At the trial experts testified as to the method and cost of restoring the property to its original condition. The defendant, contending that diminution in value was the proper measure of damages, sought to have his expert give testimony to that effect. The court refused to take this testimony because in determining the value of the property the expert had not taken into account the loss of the trees and other vegetation thereon. In its decision the court found that the defendant alone was liable for the damage to the plaintiff’s property since he had directed the third-party defendants to perform work there. The court placed the cost of restoring the property to its original condition at $41,000 and awarded treble damages because the defendant had failed to prove that his trespass was the result of a "casual” and "involuntary” act.
The defendant contends that the court erred in not allowing his expert to give testimony as to the diminution of value of the property. While it is a "long-established rule that the proper measure of damages for permanent injury to real property is the lesser of the decline in market value and the cost of restoration”, the burden is on the defendant, "to prove that a lesser amount than that claimed by plaintiff will sufficiently compensate for the loss” (Jenkins v Etlinger, 55 NY2d 35, 39; Benavie v Baker, 72 AD2d 541; Hartshorn v Chaddock, 135 NY 116). In determining the value of the plaintiff’s property the defendant’s expert did not consider the most important factor (i.e., the removal of the trees). Therefore any testimony he gave would have been irrelevant in deciding how the removal of the trees had affected the value of the property. Moreover the defendant did not challenge the ruling of the court on this issue and therefore has not preserved this issue for review.
The court’s decision to award treble damages was proper since RPAPL 861 (2) (a) provides that where a plaintiff is *511awarded "any damages, he is entitled to judgment for treble the sum so awarded” unless there is an affirmative finding that the "injury, for which the action was brought, was casual and involuntary”. The burden is on the defendant to prove that the trespass was casual and involuntary and "the result of good-faith negligence” (Whitaker v McGee, 111 AD2d 459, 461). Contrary to the defendant’s assertions, the evidence herein was overwhelming that the injury was caused by the defendant’s intentional and willful actions. Since the defendant told Port Washington Nursery that he owned the subject property and directed it to remove the trees thereon the court was correct in dismissing the third-party complaint and holding the defendant fully liable for the damage (see, Whitaker v McGee, supra, at 462; Horn v State of New York, 31 AD2d 364, 366; Semon v Chasol Constr. Corp., 7 AD2d 1009).
The plaintiff is entitled to prejudgment interest since pursuant to CPLR 5001 (a) the sum awarded was because of an "act * * * depriving or otherwise interfering with title to, or possession or enjoyment of, property”. Since the record reveals that the cause of action accrued on July 16, 1979, interest should be awarded as Of that date. Bracken, J. P., Kunzeman, Spatt and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902305/
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In an action pursuant to RPAPL article 15 to compel the determination of claims to a certain parcel of real property, the defendants appeal from an order of the Supreme Court, Nassau County (Robbins, J.), dated January 6, 1987, which denied their motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The defendants acquired title to the subject property located in East Meadow, New York, by virtue of a foreclosure sale which was conducted on July 27, 1982. Thereafter, a deed dated August 25, 1982, was delivered to the defendants, and on September 9, 1982, that deed was recorded in the Nassau County Clerk’s office.
The plaintiff Antoinette Rizzo claims title to the property by virtue of a deed to her dated September 24, 1959, and recorded on September 30, 1959. In the complaint in the instant action, which was commenced shortly after the foreclosure sale, the plaintiff álleged that the Referee’s deed conveying title to the defendants was void as it was premised upon a series of forged instruments and documents. The defendants *512then sought summary judgment in their favor, asserting, inter alia, that the plaintiff at her examination before trial denied ownership of the subject property and, in any event, acknowledged that her daughter Claire Rizzo, who had allegedly forged the plaintiff’s name to certain documents transferring her interest in the property in question, in fact had her unqualified permission to sign her name. The Supreme Court, Nassau County, denied the motion, finding that triable issues of fact precluded the granting of summary judgment. This appeal ensued.
Upon our review of the record, we conclude that the Supreme Court was in error. In opposing the motion, the plaintiff essentially relied upon the affidavit of her daughter Claire Rizzo. Claire claimed that she had forged her mother’s name to a mortgage note and deed for the subject property and, thereafter, to a second mortgage note and deed. Her mother was not privy to the forgeries and had not consented to the transactions. She had entered a plea of guilty to forgery in the third degree in the County Court, Nassau County, and had been sentenced to three years’ probation, and her mother had never been personally served in the foreclosure action.
The record belies the contentions contained in Claire’s affidavit. In an effort to forestall foreclosure, the plaintiff entered into a conditional stipulation of settlement dated October 13, 1981, which provided that: "The undersigned defendants [in the foreclosure action] wishing to protect the equity of redemption herein foreclosed, acknowledge that they were personally served with copies of the summons and complaint herein”. The stipulation bears the plaintiff’s signature. The plaintiff failed to adhere to the terms of the stipulation so that the foreclosure action went forward. The mortgagee’s attorney in his affidavit of regularity, made reference to the October 13, 1981, stipulation of settlement and reaffirmed that personal service of the summons and complaint had been made upon the plaintiff. Thus, the judgment of foreclosure and sale implicitly held that service upon the plaintiff was proper.
In addition, the forgery conviction to which Claire referred in her affidavit concerns a forgery of a mortgage on a property other than the premises which is the subject of the instant proceeding.
In the foreclosure action, the plaintiff herein moved to vacate her default in appearing in that action. That motion was denied "without prejudice to renewal of same after Peter *513Ippolito, the present fee owner, is joined as a party to this proceeding”. Rather than renewing her motion, the plaintiff then commenced the instant RPAPL article 15 action to determine the claims to the subject premises. In the course of her examination before trial in the instant proceeding the plaintiff controverted the claims made in the complaint. She denied owning the property in issue, and asserted that she had authorized her daughter Claire to sign her name on her behalf, which Claire had done on numerous occasions.
On these facts, we find no triable issues exist which would preclude the granting of summary judgment. The gravamen of both the foreclosure action and the instant action is the validity of the underlying mortgage and the default thereunder. The plaintiff defaulted in the foreclosure action and, thereafter, moved to open her default. However, after the Supreme Court, Nassau County (McCaffrey, J.), denied her motion with leave to renew, the plaintiff instead commenced a new action. It is manifest that under the doctrines of res judicata and collateral estoppel the plaintiff’s present claims are barred by the prior determinations (see, Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485; Romano v Astoria Fed. Sav. & Loan Assn., 111 AD2d 751, appeal dismissed 66 NY2d 916). A judgment by default which has not been vacated bars another action for the same relief (see, Spindell v Brooklyn Jewish Hosp., 35 AD2d 962, affd 29 NY2d 888; see also, 119 Rosset Corp. v Blimpy of N. Y. Corp., 65 AD2d 683, 684; Collins v Bertram Yacht Corp., 53 AD2d 527, affd 42 NY2d 1033) and is conclusive as to any matters actually litigated or that might have been litigated (119 Rosset Corp. v Blimpy of N. Y. Corp., supra, at 684; Schuylkill Fuel Corp. v B. & C. Nieberg Realty Corp., 250 NY 304, 306-307). Thus, the proper procedure to obtain relief from the default judgment entered in the mortgage foreclosure action was the one initially employed by the plaintiff, i.e., a motion pursuant to CPLR 5015 to vacate the default (see, Carlson v Cooper, 122 AD2d 927, lv denied 69 NY2d 602; Levine v Berlin, 46 AD2d 902). A plenary action may not be instituted to obtain such relief (Levine v Berlin, supra). Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902306/
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Garry, J.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered December 2, 2011, which resentenced defendant following his conviction upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.
Defendant waived indictment and pleaded guilty to a superior court information charging him with attempted criminal sale of a controlled substance in the third degree. Pursuant to the plea agreement, defendant waived his right to appeal and County Court agreed to sentence him to no more than five years in prison followed by three years of postrelease supervision, provided that he abide by the terms of his release to probation supervision pending sentencing. Defendant was ultimately sentenced to a prison term of five years followed by three years of postrelease supervision. Defendant appeals.
We affirm. Although defendant’s argument that his plea was not voluntary is not precluded by his waiver of appeal, the record does not reflect that defendant preserved this argument by making a motion to withdraw the plea or vacate the judgment *1065of conviction (see People v Whitfield, 94 AD3d 1238, 1238 [2012]; People v Jeske, 55 AD3d 1057, 1058 [2008], lv denied 11 NY3d 898 [2008]). As nothing in the plea colloquy casts doubt upon defendant’s guilt, the narrow exception to the preservation requirement is not applicable (see People v Abrams, 75 AD3d 927, 928 [2010], lv denied 15 NY3d 918 [2010]; People v McKeney, 45 AD3d 974, 975 [2007]; People v Rogers, 15 AD3d 682, 682-683 [2005]). Finally, defendant’s claim that the sentence imposed was harsh and excessive is foreclosed by his valid waiver of appeal (see People v Stoff, 74 AD3d 1640, 1641 [2010], lv denied 15 NY3d 810 [2010]; People v Walley, 63 AD3d 1284, 1286 [2009]; People v Rogers, 15 AD3d at 683).
Peters, P.J., Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902307/
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In an action to recover damages, inter alia, for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (I. Aronin, J.), dated December 16, 1986, which denied its motion for summary judgment.
*514Ordered that the order is affirmed, with costs.
While the plaintiff has adduced strong evidence in support of its motion for summary judgment, the defendant’s papers in opposition, which included a report prepared by an engineering expert and the EBT testimony of its vice-president, sufficed to raise a triable issue of fact as to whether and to what extent the property damage suffered by the plaintiff was caused by the use of contaminated heating oil. Accordingly, the plaintiff’s motion was properly denied. Thompson, J. P., Rubin, Eiber and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902308/
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In a matrimonial action, the defendant wife’s outgoing firm of attorneys appeals from an order of the Supreme Court, Suffolk County (Fierro, J.), entered December 19, 1986, which, after a hearing, fixed the amount of its lien at $5,000, and directed it to return the defendant’s file to her when the lien was "properly secured”.
Ordered that the order is affirmed, without costs or disbursements.
The relevant factors in the determination of the value of legal services are the nature and extent of the services, the actual time spent, the necessity therefor, the nature of the issue involved, the professional standing of counsel, and the results achieved (see, Randall v Packard, 142 NY 47; Matter of Goldin, 104 AD2d 890; Matter of Burk, 6 AD2d 429, 430; Mandell v Curtis, 205 Misc 856).
In our opinion, the attorney’s fee fixed by the Supreme Court, Suffolk County, was fair and reasonable. Mangano, J. P., Brown, Harwood and Balletta, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5903168/
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In an action to recover damages for breach of warranty, the defendants appeal from an order of the Supreme Court, Nassau County (Kutner, J.), entered September 9, 1986, which granted the plaintiff’s motion to dismiss their affirmative defense that the action is barred by a four-year Statute of Limitations.
Ordered that the order is reversed, on the law, with costs, and the plaintiff’s motion is denied.
In urging that the sale on which this action is premised took place within four years of commencement of this action (see, UCC 2-725), the plaintiff relies only on the allegations of his complaint, which the defendants, by their answer, denied on information and belief. The plaintiff has failed to demonstrate that the defense is without merit (see, CPLR 3211 [b]). His motion, therefore, should have been denied. Kunzeman, J. P., Eiber, Kooper and Harwood, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902309/
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Proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Liquor Authority dated March 20, 1987, which upon the petitioner’s plea of "no contest” to a charge of selling alcoholic beverages to a minor, imposed a penalty of a 52-day suspension of the petitioner’s on-premises liquor license, 45 days forthwith and 7 days deferred, and caused a $1,000 bond forfeiture.
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
The petitioner contends that the penalty imposed by the respondent, i.e., suspension of its liquor license for 52 days *515and a $1,000 bond forfeiture, for a violation of Alcoholic Beverage Control Law § 65 (1) (sale of alcoholic beverages to a minor) was so disproportionate to the offense as to shock one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233). We disagree. In imposing a penalty, the State Liquor Authority is entitled to consider the nature and gravity of the violation and the previous record and history of the licensee and the licensed premises (see, Awrich Rest. v New York State Liq. Auth., 92 AD2d 925, affd 60 NY2d 645, quoting Matter of Johnston v Rohan, 2 AD2d 932). In the latter regard, the record reveals a prior violation of the Alcoholic Beverage Control Law and numerous letters of warning. Under the circumstances, the penalty imposed should not be disturbed (see, Matter of Pell v Board of Educ., supra; Matter of Stolz v Board of Regents, 4 AD2d 361).
We have reviewed the petitioner’s remaining arguments and find them to be without merit. Bracken, J. P., Kunzeman, Spatt and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902310/
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Egan Jr., J.
Appeal from a judgment of the County Court of Cortland County (Ames, J.), rendered September 25, 2009, convicting defendant upon her plea of guilty of the crimes of arson in the third degree and burglary in the third degree.
Defendant previously was convicted of arson in the third degree (two counts) and burglary in the third degree (two counts) after she twice set fire to a residence being constructed by her former paramour. Upon appeal, this Court reversed and dismissed the indictment due to a defect in the grand jury proceedings (48 AD3d 886 [2008]). Defendant was reindicted for the same crimes and, in full satisfaction of that indictment, thereafter pleaded guilty to one count of arson in the third degree and one count of burglary in the third degree and waived her right to appeal. County Court sentenced defendant to the agreed-upon aggregate prison term of 22/s to 8 years, and defendant now appeals.
We affirm. The record reflects that defendant executed a written waiver of the right to appeal, and County Court adequately explained the nature of the rights forfeited thereby. Accordingly, defendant’s challenge to the validity of such waiver—raised for the first time in her reply brief—is meritless (see People v Carbone, 101 AD3d 1232, 1233 [2012]). Although defendant’s challenge to the voluntariness of her plea survives her appeal waiver, the record does not reflect that defendant moved to withdraw her plea or vacate the judgment of conviction; hence, *1066this issue is unpreserved for our review (see People v Empey, 73 AD3d 1387, 1388 [2010], lv denied 15 NY3d 804 [2010]). The narrow exception to the preservation requirement is not implicated here, as nothing in the record casts doubt upon defendant’s guilt or otherwise calls into question the voluntariness of her plea (see People v Abrams, 75 AD3d 927, 928 [2010]; People v Empey, 73 AD3d at 1388). In any event, defendant’s present claim—that she pleaded guilty because she thought she would be sentenced to a prison term of l1 Is to 7 years—is belied by the record. During the plea colloquy, County Court twice recited that the plea included an aggregate sentence of 22/s to 8 years in prison and, each time, defendant affirmatively indicated that she understood the sentence being proposed. Finally, defendant’s challenge to the severity of the agreed-upon sentence is foreclosed by her valid waiver of appeal (see People v Seitz, 67 AD3d 1251, 1252 [2009]).
Mercure, J.P., Spain and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902311/
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In an action, inter alia, for a judgment declaring that the defendant Heather Scala is not entitled to the protection of the Emergency Tenant Protection Act of 1974, as amended by Laws of 1983 (ch 403), the defendant Heather Scala appeals from an order of the Supreme Court, Kings County (Hurowitz, J.), dated June 20, 1986, which (1) denied her motion for summary judgment dismissing the complaint as against her and in her favor on her counterclaims, (2) granted the plaintiff’s cross motion for summary judgment on the complaint as against her and to dismiss her counterclaims, (3) declared that the rights afforded by the Emergency Tenant Protection Act of 1974, as amended, do not apply to the appellant, and (4) directed the appellant to pay use and occupancy charges to the plaintiff.
Ordered that the order is modified, on the law, by (1) deleting therefrom the provisions denying those branches of the appellant’s motion which were for summary judgment dismissing the complaint as against her and on her counterclaim to compel the plaintiff to give the appellant a renewal lease, and granting those branches of the cross motion which were for summary judgment on the complaint and the counterclaim for an order directing the plaintiff to give the appellant a renewal lease, and substituting therefor provisions granting those branches of the motion and denying those *516branches of the cross motion; and (2) deleting therefrom the provision declaring that the Emergency Tenant Protection Act of 1974, as amended, does not apply to the appellant and substituting therefor a provision declaring that the Emergency Tenant Protection Act of 1974, as amended, does apply to the appellant; as so modified, the order is affirmed, with costs to the appellant.
The defendant Heather Scala moved into the Brooklyn Heights apartment in question in December 1983. The building had been acquired by the City of New York in an in rem tax foreclosure proceeding prior to that time. The appellant and another person were issued a lease by the City of New York as landlord on a month-to-month basis. The building was redeemed in 1984 and later conveyed to the plaintiff. The appellant, who is now apparently the sole occupant of the apartment, has made many requests for a renewal lease to be issued to her in her name, but no lease has been given to her.
In 1985, the plaintiff commenced an action seeking, inter alia, a declaration that Heather Scala is not covered by the Emergency Tenant Protection Act of 1974, as amended by Laws of 1983 (ch 403) and is therefore not entitled to a renewal lease as of right. The appellant counterclaimed, requesting, inter alia, that the court compel the plaintiff to give her a lease.
The appellant moved for summary judgment, and the plaintiff cross-moved for the same relief. The Supreme Court found for the plaintiff. It based its decision on Administrative Code of City of New York § 26-507 (b) (formerly § YY51-3.3 [b]) which fixes the amount of rent under rent stabilization when a private owner buys property from the City of New York. Administrative Code § 26-507 establishes a basis upon which new base rents are to be fixed once the City of New York sells a building to a private owner. It does not establish a method to determine who is a tenant of record.
Case law has interpreted the meaning of "tenant” in the context of who is entitled to a renewal lease. In each case, however, the person requesting the lease had never signed a lease legally entitling him or her to the apartment. In Sullivan v Brevard Assocs. (66 NY2d 489) the Court of Appeals found that the sister of the leaseholder was not entitled to a renewal lease even when they had cohabited in the apartment. In Two Assocs. v Brown (127 AD2d 173, appeal dismissed 70 NY2d 792) a "gay life partner” who cohabited with the deceased tenant of record was held not to be entitled to a *517renewal lease. And in Joint Props. Owners v Deri (113 AD2d 691) the son and executor of the deceased tenant was not entitled to a lease when it was found the son had never lived with his mother in the apartment previous to her death.
Here, the appellant became a tenant of record while the building was owned by the City of New York; a lease was issued in her name.
Since the appellant was a tenant of record, once a private landlord bought the building she became his tenant (see, Matter of O'Donnell, 240 NY 99) and she remained covered by rent stabilization. This coverage continued when he later sold the building to the plaintiff. She is entitled to a renewal lease under rent stabilization.
The appellant’s counterclaims for damages must be dismissed. Such awards must be made, in the first instance, by the New York State Division of Housing and Community Renewal under Administrative Code § 26-516 (c) (2). The appellant has not sought relief from that body, and, therefore, we cannot grant this relief. Thompson, J. P., Rubin, Eiber and Sullivan, JJ., concur.
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01-13-2022
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In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Gurahian, J.), entered January 17, 1986, which is in favor of the defendants and against them, upon a jury verdict.
Ordered that the judgment is reversed, on the facts and as a matter of discretion, and a new trial is granted, with costs to abide the event.
The plaintiff, Alan P. Stewart, was injured when his car collided with the side of a school bus at a "T” intersection on a highway. Stewart, who was returning from work, was traveling southbound on the highway. The school bus, which was being driven by the defendant Moore, had been traveling in a northerly direction on the highway and was making a left turn onto a local road that formed the intersection with the highway (Route 106) when it was hit by the Stewart vehicle. Moore, who had regularly been making the left turn at the intersection for the two preceding years, testified on a number of occasions, both at trial and during an examination before trial, that there was a traffic light governing traffic turning onto the local road and that the light was green for cars turning onto the local road and red for southbound cars on Route 106 when he entered the intersection. There was, *518however, substantial photographic evidence that no light faced the northbound traffic turning westbound onto the local road. When shown photographs of the intersection depicting that fact, Moore asserted that the photographs were either "turned around”, or taken at a different angle, or that the traffic light had been blown by the wind. When directly confronted by the plaintiffs’ counsel with the fact that there was no light facing traffic turning onto the local road, Moore stated that this was. "news” to him. Two disinterested eyewitnesses testified that the light had turned to yellow for Stewart as he moved into the intersection, and as the bus began to move through the intersection.
Under the circumstances of this case, we find that the jury could not have reached a verdict in favor of the defendants based on any fair interpretation of the evidence (see, Nicastro v Park, 113 AD2d 129). Accordingly, we conclude that the verdict was against the weight of the evidence and that a new trial is necessary. We also note that at the new trial, under this factual posture, the court should charge the jury as to the provisions of Vehicle and Traffic Law § 1141 (vehicle turning left) (see, e.g., Kazales v Minto Leasing, 61 AD2d 1039). Moflen, P. J., Brown, Rubin and Spatt, JJ., concur.
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/1003399/
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 00-4482
LARRY LAZELLE FLOYD, a/k/a Larry
L. Floyd,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-99-280)
Submitted: December 29, 2000
Decided: January 16, 2001
Before WIDENER and NIEMEYER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Nils E. Gerber, Winston-Salem, North Carolina, for Appellant. Walter
C. Holton, Jr., United States Attorney, Sandra J. Hairston, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
2 UNITED STATES v. FLOYD
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Larry Lazelle Floyd appeals his conviction following a jury trial for
possession with intent to distribute crack cocaine in violation of 21
U.S.C. § 841(a)(1) (1994). In the sole issue raised by Floyd in this
appeal, he contends that the district court erred in denying his Fed. R.
Crim. P. 29 motion for acquittal. Floyd contends that his own uncor-
roborated statements and notarized affidavit in which he admitted
possession of the crack cocaine at issue were insufficient to support
his conviction. This court reviews the denial of a motion for acquittal
under a sufficiency of evidence standard. See Fed. R. Crim. P. 29; See
Glasser v. United States, 315 U.S. 60, 80 (1942); United States v.
Romer, 148 F. 3d 359, 364 (4th Cir. 1998), cert. denied, 525 U.S.
1141 (1999). In light of that standard, we have no difficulty in decid-
ing that the district court did not err in denying Floyd’s motion.
Floyd’s argument amounts to an invitation to this court to reweigh the
evidence at trial; an invitation we uniformly decline to accept. See
Glasser, 315 U.S. at 80; United States v. Saunders, 886 F.2d 56, 60
(4th Cir. 1989).
Accordingly, Floyd’s conviction and sentence are affirmed.* We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
*The court has considered and rejected the possibility of reversible
error under Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).
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07-04-2013
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Egan Jr., J.
Appeal from a judgment of the County Court of Cortland County (Ames, J.), rendered September 25, 2009, convicting defendant upon her plea of guilty of the crimes of arson in the third degree and burglary in the third degree.
Defendant previously was convicted of arson in the third degree (two counts) and burglary in the third degree (two counts) after she twice set fire to a residence being constructed by her former paramour. Upon appeal, this Court reversed and dismissed the indictment due to a defect in the grand jury proceedings (48 AD3d 886 [2008]). Defendant was reindicted for the same crimes and, in full satisfaction of that indictment, thereafter pleaded guilty to one count of arson in the third degree and one count of burglary in the third degree and waived her right to appeal. County Court sentenced defendant to the agreed-upon aggregate prison term of 22/s to 8 years, and defendant now appeals.
We affirm. The record reflects that defendant executed a written waiver of the right to appeal, and County Court adequately explained the nature of the rights forfeited thereby. Accordingly, defendant’s challenge to the validity of such waiver—raised for the first time in her reply brief—is meritless (see People v Carbone, 101 AD3d 1232, 1233 [2012]). Although defendant’s challenge to the voluntariness of her plea survives her appeal waiver, the record does not reflect that defendant moved to withdraw her plea or vacate the judgment of conviction; hence, *1066this issue is unpreserved for our review (see People v Empey, 73 AD3d 1387, 1388 [2010], lv denied 15 NY3d 804 [2010]). The narrow exception to the preservation requirement is not implicated here, as nothing in the record casts doubt upon defendant’s guilt or otherwise calls into question the voluntariness of her plea (see People v Abrams, 75 AD3d 927, 928 [2010]; People v Empey, 73 AD3d at 1388). In any event, defendant’s present claim—that she pleaded guilty because she thought she would be sentenced to a prison term of l1 Is to 7 years—is belied by the record. During the plea colloquy, County Court twice recited that the plea included an aggregate sentence of 22/s to 8 years in prison and, each time, defendant affirmatively indicated that she understood the sentence being proposed. Finally, defendant’s challenge to the severity of the agreed-upon sentence is foreclosed by her valid waiver of appeal (see People v Seitz, 67 AD3d 1251, 1252 [2009]).
Mercure, J.P., Spain and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
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815 S.W.2d 850 (1991)
MATSUSHITA ELECTRIC CORPORTION OF AMERICA, Appellant,
v.
McALLEN COPY DATA, INC. and John Smith, Appellees.
No. 13-90-209-CV.
Court of Appeals of Texas, Corpus Christi.
August 29, 1991.
Rehearing Overruled October 3, 1991.
*851 Mark D. Manela, William J. Dyer, Morton L. Susman, Weil, Gotshal & Manges, Houston, George Almaraz, Almaraz, Quintana & Canales, McAllen, for appellant.
H. Harman Camp, James D. Selman, III, Selman & Camp, Neil Norquest, Keith C. Livesay, Frank Rodriguez, McAllen, for appellees.
Before SEERDEN, KENNEDY and DORSEY, JJ.
OPINION
SEERDEN, Justice.
This is an appeal from a default judgment granted in favor of appellees McAllen Copy Data, Inc., and John Smith and against Matsushita Electric Corporation of America (MECA). We reverse and remand the case for a trial on the merits.
A procedural history of the case is necessary to understand our disposition. Appellees, McAllen Copy Data, Inc., and John Smith (Copy Data), sued Gary Everett, Panasonic Company (PC), Panasonic Industrial Company (PIC), and Matsushita Electric Corporation of America (MECA), based upon the termination of a dealership agreement between Copy Data and the Panasonic group. Copy Data alleged numerous false and misleading acts. On January 3, 1989, a general denial was filed in the name of Panasonic Industrial Company, Division of Matsushita Electric Corporation of America ("Panasonic"). Below the attorney's signature line on the answer were the words "Attorneys for Defendants Panasonic Industrial Company, Panasonic Company, Matsushita Electric Corporation of America and Gary Everett", although the body of the answer did not purport to be filed by all of the defendants in the case. Rather, it appeared to be filed by only PIC, a division of MECA. On January 4, 1989, Copy Data took an interlocutory default judgment for $1,000,000.00 against defendants PC and MECA. The Panasonic Group (MECA, PIC and PC), filed a petition for removal to federal court on January 6, 1989. In their petition for removal they alleged that at the time of removal only PIC had been served. They claimed that Gary Everett had been fraudulently joined in the state lawsuit to defeat the federal court's jurisdiction. They also asserted that PIC and PC were divisions of MECA. MECA and PC filed answers in the state court on January 9, 1989, after the default had already been taken against them without their knowledge. The Panasonic Group *852 filed an amended answer in federal court. The case was remanded to state court on June 23, 1989.
Copy Data then filed its Motion for Severance, Sanctions and Final Default Judgment on August 1, 1989. MECA filed a motion to set aside that interlocutory default judgment. After a hearing, the trial court denied MECA's motion, granted Copy Data's motion for severance and awarded sanctions, finding that MECA had abused the discovery process. The trial court did not strike any of MECA's pleadings, however. Both sides present to this court opposite views of the trial court's actions. MECA argues that the trial court's actions amounted to an improper default judgment on the theory that as a matter of law the parties had answered, there were several defects in the service of citation, and there was improper notice of the default judgment. Copy Data views the granting of the default judgment as a sanction. The difference is crucial, because if MECA's view is correct, we review the case based on whether the default should have been granted. If Copy Data is correct, the test is whether the trial court abused its discretion in granting the sanction that it did. It is difficult to determine which side is correct because the trial court made several inconsistent statements which at one point reflect that it was affirming the default as a sanction and at another point refusing to strike the pleadings and granting attorney's fees as a sanction. We look to the judgment and the complete record of the hearings for our determination of what actually happened in this case.
The judgment contains specific findings which relate to the questions at hand. They are:
1. The Court found that the Original Answer filed on behalf of defendant PIC was not intended to constitute an answer on behalf of MECA and PC, and did not constitute an answer on behalf of MECA or PC.
2. The Court found that MECA intentionally maintained the position that PIC, PC, and MECA were separate legal entities before the trial court, and the Federal Court, and that such was maintained for the purpose of complicating the case.
3. The Court found that MECA had engaged in a consistent, conscious, and flagrant pattern of bad faith discovery abuse by:
a. noticing counsel for deposition on short notice and refusing to reschedule.
b. failing to attend a scheduled deposition without notice of cancellation.
c. making spurious objections to discovery.
d. failing to properly answer discovery instruments after two voluntary extensions.
e. failing to file verified answers to interrogatories after extensions were voluntarily given.
After these specific findings, the court ordered that MECA pay Copy Data $1,000,000.00, plus attorney's fees. The Court also decreed that none of the defendants' pleadings were struck.
By its first point, MECA argues that the trial court erred in not granting the motion to set aside the default judgment because MECA answered prior to the entry of the interlocutory default. It argues that the uncontroverted evidence shows that PIC and PC are assumed names of the operating divisions of MECA. Because one of the operating divisions answered, this constituted an answer for all. The answer was filed by PIC, a division of Matsushita Electric Corporation of America. The issue then is whether this answer was in fact, an answer on behalf of MECA. If so, the trial court improperly granted the default.
Texas law provides that when a plaintiff's cause of action should have been brought against a separate and distinct corporate entity other than the one sued, there is no misnomer. Rather, there is a mistake in identity, and the wrong party is under no obligation to correct that mistake. Trailways, Inc. v. Clark, 794 S.W.2d 479, 489 (Tex.App.Corpus Christi 1990, writ denied). On the other hand, if a party is complaining that it has been sued in the wrong capacity or is not incorporated as *853 alleged, it would have to raise that defense in a verified pleading in accordance with Tex.R.Civ.P. 93. Texas law also recognizes that legal action taken in the name of a division is legal action taken for the corporation. Northern Natural Gas. Corp. v. Vanderburg, 785 S.W.2d 415 (Tex.App Amarillo 1990, no writ). In Vanderburg, the court held that a division of a corporation is not a separate legal entity but is the corporation itself. Id. at 421. The court also said that a suit answered and defended by a division is also a suit answered and defended for the corporation. Additionally, when a division's name is also an assumed name of the corporation, the corporation may sue and be sued in the assumed name. See Tex.R.Civ.P. 28.
Here, the answer was in the name of one of the divisions of MECA. We hold that the answer on behalf of the division was an answer on behalf of MECA, the corporation. Copy Data argues that MECA is estopped from claiming it answered because it did not file a verified denial under Tex.R.Civ.P. 93. We cannot see how the failure to file a verified denial in this case matters because MECA actually answered the lawsuit. A verified denial would have been proper if MECA was claiming that it had not been sued in the proper capacity or was not incorporated as alleged. We hold that the trial court erred in finding that MECA was estopped from claiming that it had failed to answer the original lawsuit. The answer of the division was, in fact, an answer for the corporation. We sustain point one.
By point three, MECA alleges that the trial court erred in granting the default judgment because no notice of the default judgment hearing was given to MECA or its counsel of record.
An application to the court for an order and notice of any hearing, not presented during a hearing or a trial, shall be served upon the adverse party not less than three days before the time specified for the hearing, unless otherwise provided by the rules or shortened by the court. Tex.R.Civ.P. 21. When a party has made an appearance through counsel the rules provide that notice of all hearings must be provided. A defendant who does not receive notice of a default judgment proceeding is deprived of due process. LBL Oil Co. v. International Power Serv., Inc., 777 S.W.2d 390, 391 (Tex.1989). The record in this case established that MECA had no actual notice of the hearing on motion for default judgment, which effectively disposed of its case. We sustain MECA's third point.
By its ninth point of error, MECA argues that the discovery sanctions ordered do not support the trial court's refusal to set aside the default judgment. We will review the hearings that took place to determine what the trial judge did. On August 1, 1989, Copy Data filed a motion for severance, sanctions and final default judgment. The motion included a claim that MECA had committed discovery abuses primarily occurring after the interlocutory default. The motion requested an order striking MECA's pleadings as a discovery sanction. The trial court held two separate hearings on these questions. At the first hearing, on November 20, 1989, the parties agreed that the trial court would hear MECA's motion to set aside the interlocutory default. At that hearing, the judge stated that he had time to hear the motion for severance but that he did not have time to hear the motion for sanctions. After argument in the first hearing, the judge said that he was ruling that the motion to set aside the default judgment was denied, the motion to sever would be granted and that the parties would need to get another setting on the other motions. At this time, the trial court had upheld the no answer default judgment and determined to make it into a severable and final judgment. There was no indication in this hearing that the trial court was granting the final default because of discovery abuse. It appeared more likely that the trial court believed that MECA had not answered the lawsuit and the failure to answer was purposeful. This is more in line with the notion that the failure to answer the lawsuit was based on the conscious indifference of MECA. See Craddock v. Sunshine Bus *854 Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). However, we determined in an earlier point of error that MECA had answered the lawsuit.
On January 30, 1990, the trial court held a sanctions hearing. In that hearing, Copy Data asked that MECA's pleadings be stricken and that default be ordered for discovery abuse. The trial court responded:
The request by plaintiffs on the motion for sanctions, asking that the defendant's pleadings be stricken and the answers be stricken for discovery abuse is going to be denied. However, the Court does find that there has been some discovery abuse by the defendants, the Court doesn't feel that the sanction of striking the pleadings is appropriate at this time. The Court does find, however, that a sanction against the defendants for attorney's fees will be granted.
Copy Data requested that the Court grant them $12,000.00 in attorney's fees. Instead, the trial court gave them $3,500.00. Later in the hearing the trial court said that even if the trial court found that some discovery abuses were made, he did not feel that it was so abusive that he would strike MECA's pleadings. Later in the hearing, the trial court indicated that it had already granted the default judgment and it had been or would be severed and appealed.
However, when the hearing was about to end, Copy Data's attorney said that his requests for default and sanctions were part of one motion. He indicated that Copy Data had asked for the entry of a default judgment based upon the prior interlocutory default judgment and all the "rest of the stuff that's going on, and then additionally in the alternativeand that's the way our motion was couchedwe asked for the striking of the pleadings as well." He further argued that he understood the court's ruling to mean that the court was satisfied with the interlocutory judgment it had entered, that it had heard evidence about what had gone on in federal court (although no actual testimonial evidence was presented at either hearing), and that the court was simply awarding the $3,500.00 and upholding the default. MECA's attorney responded that he understood that the court determined that the proper remedy for discovery abuse was $3,500.00 award. The court responded that MECA's attorney was incorrect. The court indicated that it was going to go along with what Copy Data's attorney had said earlier considering "everything on the part of the rulings made by the court previously."
It appears to us that the trial court allowed the default judgment to stand because it believed that MECA had consciously determined not to answer the lawsuit. There is no showing that the trial court allowed the default to stand because of discovery abuse. The trial court specifically decided not to strike the parties' pleadings as a sanction. The trial court awarded one-fourth of the requested amount of fees to Copy Data. The final order decrees that no pleadings were stricken.
The Supreme Court has recently determined that the test for determining whether sanctions are just is two-pronged. First, a direct relationship must exist between the offensive conduct and the sanction imposed. Transamerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (1991). Second, a sanction must be no more severe than necessary to satisfy a legitimate purpose. Discovery sanctions cannot be used to adjudicate the merits of a party's claim or defense unless a party's hindrance of the discovery process justifies a presumption that its claim or defense lacks merit. Id. Sanctions which are so severe as to preclude presentation of the merits of the case should not be assessed absent a party's flagrant bad faith or callous disregard for the responsibilities of discovery under the rules. The imposition of very severe sanctions is limited, not only by these standards, but by constitutional due process.
The entry of a default judgment as a sanction is the most devastating form of sanction that the trial court can impose. Before we, as an appellate court, can review the trial court's discretion in granting such a sanction, the record should clearly *855 reflect that the trial court is, in fact, entering a default judgment as a discovery sanction. The record in this case is equivocal. It would be improper for us to uphold the default judgment as a sanction in the face of the many inconsistent statements which appear in the record.
We hold that the trial court erred in granting the default judgment. The judgment of the trial court is reversed and remanded.
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10-30-2013
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Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities, dated April 10, 1985, which, after a hearing, approved the establishment of a community residential facility at the location desired by the respondents, rather than at the alternative site proposed by the petitioner.
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.
The petitioner has failed to demonstrate that the facility will cause an overconcentration of similar facilities which would alter the nature and character of the area (see, Matter of Town of Hempstead v Commissioner of State of N. Y. Off. of Mental Retardation & Developmental Disabilities, 121 AD2d 388). Moreover, the Commissioner’s determination to the contrary was supported by substantial evidence (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Town of Hempstead v Commissioner, State of N. Y. Off. of *519Mental Retardation & Developmental Disabilities, 89 AD2d 850).
We further conclude that the record contains substantial evidence to support the Commissioner’s finding that the alternative site proposed by the petitioner for a community residential facility was not a superior site (see, Matter of Town of Oyster Bay v Webb, 111 AD2d 760). Bracken, J. P., Kunzeman, Spatt and Sullivan, JJ., concur.
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In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Posner, J.), dated May 1, 1987, as denied that branch of their motion which was to set the action as against the corporate defendants down for inquest and which granted that branch of the corporate defendants’ cross motion which was to compel them to accept the answer of the corporate defendants on the condition that those defendants pay to the plaintiffs the sum of $250.
Ordered that the order is modified by increasing the amount of the sanction to $750; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs, and the corporate defendants’ time to serve an answer and pay the increased sanction is extended until 20 days after service upon them of a copy of this decision and order with notice of entry.
Because his time to answer the complaint did not begin to run until 10 days after the belated filing of the affidavit of service (see, CPLR 308 [2]), the plaintiffs have conceded that no default may be taken against the allegedly active tortfeasor, the individual defendant Rodriguez (see, R. L. C. Investors v Zabski, 109 AD2d 1053). Although the negligence of the defaulting corporate defendants’ insurance carrier was the only excuse offered for their failure to timely answer (cf., CPLR 2005), that delay was not shown to be deliberate and did not result in any prejudice which cannot be remedied by imposition of an appropriate sanction (see, Murphy v D. V. Waste Control Corp., 124 AD2d 573; Tugendhaft v Country Estates Assocs., 111 AD2d 846). Moreover, the nature of the liability the plaintiffs seek to impose on one of these defendants is vicarious only. The basis on which liability is to be imposed on the other cannot be discerned from plaintiffs’ pleading or from the infant plaintiff’s affidavit as to how the accident occurred (cf., CPLR 3215 [e]). Under the circum*520stances, the Supreme Court properly excused the approximately four-month delay in the interest of justice (see, CPLR 2005; Ladd v Stevenson, 112 NY 325, 332; R. L. C. Investors v Zabski, supra). However, we find that the sanction was inadequate to the extent indicated. Mangano, J. P., Brown, Harwood and Balletta, JJ., concur.
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Spain, J.
Appeal from an amended decision of the Workers’ Compensation Board, filed June 29, 2010, which ruled that claimant violated Workers’ Compensation Law § 114-a and permanently disqualified him from receiving future wage replacement benefits.
In March 2000, claimant sustained injuries to his neck and back in the course of his employment as a bus driver. He was awarded workers’ compensation benefits and, in July 2002, was found to be permanently partially disabled. Thereafter, various proceedings were held in connection with, among other things, claimant’s assertion of reduced earnings. In March 2006, the self-insured employer raised the issue of whether claimant had violated Workers’ Compensation Law § 114-a based upon its suspicions concerning possible underreported income by claimant and other questions regarding the ownership of a cleaning business allegedly operated by claimant’s wife. Following further proceedings, a Workers’ Compensation Law Judge determined that claimant had violated Workers’ Compensation Law § 114-a and assessed the mandatory penalty of forfeiture of benefits for the period between January 2002 and January 2005. The Workers’ Compensation Board, in an October 31, 2008 deci*1067sion, modified that determination so as to include the discretionary penalty of disqualifying claimant from receiving future benefits. Although claimant filed a notice of appeal from that order, in response to claimant’s application for full Board review, the Board filed an amended decision on June 29, 2010 that denied that application, but also issued a superseding decision that effectively rescinded its prior decision. As a result, this Court dismissed claimant’s appeal from the October 2008 decision as moot (82 AD3d 1453 [2011]). Claimant now appeals from the June 2010 amended decision.
We affirm. “Pursuant to Workers’ Compensation Law § 114-a (1), a person may be disqualified from receiving workers’ compensation benefits when he or she knowingly [makes] a false statement or representation as to a material fact for the purpose of obtaining such benefits” (Matter of Martinez v LeFrak City Mgt, 100 AD3d 1110, 1111 [2012] [internal quotation marks and citation omitted]; see Matter of Siddon v Advance Energy Tech., 98 AD3d 1202, 1202 [2012]). Here, the record confirms, among other things, that at a September 2003 hearing, claimant testified that, aside from minimal income earned from an insurance adjusting/investigation business in 2002, he performed no other type of work and received no income after he left his job with the self-insured employer. However, following the submission of relevant tax returns and some of the requested records from the wife’s cleaning business, claimant ultimately admitted, among other things, that, in fact, during the relevant time periods, he had been paid $200 per week by the business and was working 15 to 20 hours per week. Given this inconsistent and contradictory proof and the Board’s authority to resolve credibility issues (see Matter of Siddon v Advance Energy Tech., 98 AD3d at 1203), we find that substantial evidence supports the Board’s ruling (see Matter of Outerie v Derle Farms, 306 AD2d 793 [2003]), including its finding of permanent disqualification; therefore, we find no basis to disturb it (see Matter of Poli v Taconic Correctional Facility, 83 AD3d 1339, 1339-1340 [2011]).
The remaining issues, including claimant’s assertion that the Board abused its discretion in declining to reopen the hearing to accept certain hearsay letters from his accountant, are without merit.* As noted by the Board, claimant declined to produce his accountant to testify in the course of this lengthy litigation despite numerous opportunities for him to do so.
*1068Mercure, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the amended decision is affirmed, without costs.
Although claimant contends that the testimony and evidence produced by the self-insured employer’s accountant were unworthy of belief, credibility determinations are for the Board to make (see Matter of Martinez v LeFrak *1068City Mgt., 100 AD3d at 1111). In any event, regardless of the accountant’s testimony, it is dispositive herein that the Board based its ruling on claimant’s own testimony inasmuch as it specifically found that claimant violated Workers’ Compensation Law § 114-a “by knowingly making material misrepresentations with respect to his earnings for the purpose of obtaining workers’ compensation benefits.”
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/15/2020 08:08 AM CDT
- 428 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
In re Guardianship of Suzette G.,
an incapacitated person.
Alvin G., Guardian, et al., appellees,
v. Suzette G., appellant.
___ N.W.2d ___
Filed April 3, 2020. No. S-18-785.
1. Guardians and Conservators: Appeal and Error. An appellate court
reviews guardianship and conservatorship proceedings for error appear-
ing on the record in the county court.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
3. Rules of the Supreme Court: Testimony: Guardians Ad Litem.
Neb. Ct. R. § 6-1469 (2017) does not prohibit testimony by a guardian
ad litem and instead contemplates that a guardian ad litem can testify
when such testimony is allowed by the Nebraska Rules of Professional
Conduct.
Petition for further review from the Court of Appeals,
Riedmann, Arterburn, and Welch, Judges, on appeal thereto
from the County Court for Douglas County, Marcena M.
Hendrix, Judge. Judgment of Court of Appeals affirmed.
James Walter Crampton for appellant.
Jayne Wagner and Emily J. Briski, of Legal Aid of Nebraska,
for appellee Alvin G.
Denise E. Frost, of Johnson & Mock, for guardian ad litem.
- 429 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Suzette G. appealed the order of the county court for Douglas
County which appointed her brother, Alvin G., as her limited
guardian. The Nebraska Court of Appeals affirmed the county
court’s order. We granted Suzette’s petition for further review
in which she claims that the Court of Appeals erred when it
determined that the county court did not err when it allowed
the appointed guardian ad litem (GAL) to testify at the trial.
We affirm the decision of the Court of Appeals which affirmed
the order of the county court.
STATEMENT OF FACTS
Suzette’s brother, Alvin, filed petitions seeking temporary
and permanent appointments as her limited guardian. Alvin
alleged that because of mental health issues, Suzette was inca-
pable of making responsible decisions regarding her person
and her health, and he sought a limited guardianship related
to those matters. A guardianship had been recommended by
Suzette’s doctor and was part of a plan formulated by the
mental health board. The court appointed Alvin as temporary
guardian and began proceedings to consider his petition for a
permanent guardianship. At a hearing in February 2018, the
county court appointed a GAL and also appointed a separate
attorney to act as Suzette’s legal counsel.
The trial on the permanent guardianship included appear-
ances by counsel for Alvin and counsel for Suzette, and the
GAL also appeared. Alvin called both Suzette and himself
as witnesses when presenting his case as the petitioner, and
the GAL was allowed to cross-examine both of them. Alvin
also called the GAL as a witness. Suzette objected to the
GAL’s testifying, and she argued that the GAL could not act
as an attorney by cross-examining witnesses and then act as
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Nebraska Supreme Court Advance Sheets
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IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
a witness by testifying in the same proceeding. In response,
the GAL argued that under the guardian ad litem statutes and
rules, the GAL could do both. The court allowed the GAL’s
testimony. During Alvin’s direct examination of the GAL,
Alvin offered and the court received the GAL’s report into
evidence without objection. Alvin questioned the GAL regard-
ing information she reviewed in preparing her report and how
she came to her recommendations. Suzette cross-examined
the GAL.
In addition to cross-examining witnesses, the GAL was
allowed to, and did, make objections throughout the trial. At
the end of the trial, the GAL was allowed to make a closing
statement. Following the trial, the court appointed Alvin as a
permanent limited guardian for Suzette.
Suzette appealed to the Court of Appeals and claimed that
the county court erred when it (1) found there was clear and
convincing evidence that Alvin should be appointed as her
guardian and (2) allowed the GAL to testify. The Court of
Appeals rejected Suzette’s assignments of error and affirmed
the county court’s order. See In re Guardianship of Suzette
G., 27 Neb. Ct. App. 477, 934 N.W.2d 195 (2019). Suzette does
not seek further review regarding whether there was clear
and convincing evidence to support the appointment, and so
the Court of Appeals’ resolution of that issue will not be dis-
cussed herein.
Regarding Suzette’s claim that the GAL should not have
been allowed to testify, the Court of Appeals concluded that
the court did not err when it allowed the testimony. The Court
of Appeals noted first that Neb. Rev. Stat. § 30-4203(2)(a)
(Reissue 2016) provides that an appointed guardian ad litem
may, inter alia, “[c]onduct discovery, present witnesses, cross-
examine witnesses, present other evidence, file motions, and
appeal any decisions regarding the person for whom he or
she has been appointed.” The Court of Appeals further noted
Neb. Ct. R. § 6-1469(E)(4)(b) (2017), which provides that in
court proceedings, “[t]he guardian ad litem may testify only
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305 Nebraska Reports
IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
to the extent allowed by the Nebraska Rules of Professional
Conduct.” The Court of Appeals cited Neb. Ct. R. of Prof.
Cond. § 3-503.7(a) and stated that the rule “prohibits a lawyer
from acting as an advocate at a trial in which the lawyer is
likely to be a necessary witness.” In re Guardianship of Suzette
G., 27 Neb. Ct. App. at 487, 934 N.W.2d at 202. But the Court of
Appeals also noted Neb. Ct. R. § 6-1469(C)(2), which provides
that “[w]here a lawyer has already been or is appointed to
represent the legal interests of the person, . . . the guardian ad
litem shall function only to advocate for the best interests of
the person.”
The Court of Appeals reasoned that because the court had
appointed both the GAL and a separate attorney to represent
Suzette, “the GAL’s duty was to advocate for Suzette’s best
interests” and “the GAL was not required to make a determina-
tion consistent with Suzette’s preferences.” In re Guardianship
of Suzette G., 27 Neb. Ct. App. at 488, 934 N.W.2d at 202.
The Court of Appeals noted Neb. Ct. R. § 6-1469(C)(3)(a),
which provides that when the guardian ad litem is “serv-
ing as advocate for the person’s best interests, the guardian
ad litem shall make an independent determination,” and that
“[s]uch determination is not required to be consistent with any
preferences expressed by the person.” The Court of Appeals
reasoned that it was the responsibility of Suzette’s separately
appointed attorney, and not the GAL, to advocate for Suzette’s
preferences.
The Court of Appeals cited comment 1 to Neb. Ct. R. of
Prof. Cond. § 3-503.7, which states in part that “[c]ombining
the roles of advocate and witness can . . . involve a conflict of
interest between the lawyer and client.” The Court of Appeals
reasoned that because the GAL was advocating for Suzanne’s
best interests rather than for Suzanne’s preferences, “no con-
flict of interest arose between the GAL and Suzette” as a
result of the GAL’s acting as a witness. In re Guardianship of
Suzette G., 27 Neb. Ct. App. at 488, 934 N.W.2d at 202. The Court
of Appeals concluded that the GAL’s testimony “did not run
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305 Nebraska Reports
IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
afoul of the Nebraska Rules of Professional Conduct” and that
therefore the county court “did not err in permitting the GAL
to testify.” In re Guardianship of Suzette G., 27 Neb. Ct. App. at
488, 934 N.W.2d at 202.
We granted Suzette’s petition for further review.
ASSIGNMENT OF ERROR
Suzette claims that the Court of Appeals erred when it deter-
mined that Neb. Ct. R. § 6-1469 allowed the GAL to testify
over her objection.
STANDARDS OF REVIEW
[1,2] An appellate court reviews guardianship and conser-
vatorship proceedings for error appearing on the record in the
county court. In re Guardianship & Conservatorship of Alice
H., 303 Neb. 235, 927 N.W.2d 787 (2019). When reviewing
a judgment for errors appearing on the record, an appellate
court’s inquiry is whether the decision conforms to the law,
is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable. Id.
ANALYSIS
Suzette argues on further review that the relevant statutes
and rules precluded the GAL’s testimony in this case and that
the analysis of the Court of Appeals to the contrary was error.
Suzette’s arguments necessarily implicate due process con-
cerns and considerations of fairness to the parties to a guard-
ianship proceeding. As explained below, we agree with the
conclusion of the Court of Appeals that on the specific facts
of this case, the statutes and rules did not prohibit the GAL’s
testimony, and we further note that due process and fairness
concerns that might be present under another set of facts were
not implicated here. Accordingly, we do not comment on other
circumstances, such as where separate counsel has not been
appointed and the guardian ad litem represents the subject or
where the subject’s rights, such as the right to cross-examine,
have been denied.
- 433 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
[3] Section 30-4203 sets forth the duties and powers of a
guardian ad litem; it does not specifically address whether a
guardian ad litem may or should be a witness in a proceed-
ing. As noted by the Court of Appeals, Neb. Ct. R. § 6-1469
sets practice standards for guardians ad litem in proceedings
under the Nebraska Probate Code and provides in subsection
(E)(4)(b) that in court proceedings, “[t]he guardian ad litem
may testify only to the extent allowed by the Nebraska Rules
of Professional Conduct.” The rule therefore does not prohibit
testimony by a guardian ad litem and instead contemplates
that a guardian ad litem can testify when such testimony is
allowed by the rules of professional conduct. We note that
under Neb. Rev. Stat. § 30-4202(1)(a) (Reissue 2016), a
guardian ad litem appointed pursuant to the Nebraska Probate
Code must “[b]e an attorney in good standing admitted to the
practice of law in the State of Nebraska,” and it follows that
an appointed guardian ad litem is subject to the rules of pro-
fessional conduct.
Suzette relies on Neb. Ct. R. of Prof. Cond. § 3-503.7(a)
to argue that a guardian ad litem may not simultaneously act
as an advocate in a proceeding and testify as a witness in that
same proceeding. Neb. Ct. R. of Prof. Cond. § 3-503.7(a)
provides that, subject to certain exceptions not relevant here,
“[a] lawyer shall not act as advocate at a trial in which the
lawyer is likely to be a . . . witness[.]” The comments to the
rule elucidate the concerns behind the rule; Neb. Ct. R. of
Prof. Cond. § 3-503.7, comment 1, states that “[c]ombining the
roles of advocate and witness can prejudice the tribunal and
the opposing party and can also involve a conflict of interest
between the lawyer and client.” In Neb. Ct. R. of Prof. Cond.
§ 3-503.7, comment 2, the concerns related to the tribunal and
the opposing party are further explained: “The tribunal has
proper objection when the trier of fact may be confused or
misled by a lawyer serving as both advocate and witness. The
opposing party has proper objection where the combination of
roles may prejudice that party’s rights in the litigation.” Neb.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
Ct. R. of Prof. Cond. § 3-503.7, comment 4, further notes that
“[w]hether the tribunal is likely to be misled or the opposing
party is likely to suffer prejudice depends on the nature of
the case, the importance and probable tenor of the lawyer’s
testimony, and the probability that the lawyer’s testimony will
conflict with that of other witnesses.” Considering the nature
and the specific circumstances of the present case, as we
explain more fully below, we agree with the conclusion of the
Court of Appeals that the GAL’s testimony in this case “did
not run afoul of the Nebraska Rules of Professional Conduct.”
In re Guardianship of Suzette G., 27 Neb. Ct. App. 477, 488, 934
N.W.2d 195, 202 (2019).
In this case, the county court appointed separate counsel to
represent Suzette as authorized by § 30-4202(3), which pro-
vides that the guardian ad litem may act as “counsel for the
person who is the subject of the guardianship . . . unless . . .
there are special reasons why . . . the person who is the subject
of the proceeding should have separate counsel.” The appoint-
ment of separate counsel for Suzette by the county court indi-
cates the court’s determination that the views of the GAL and
those of Suzette had diverged. Given the existence of a conflict
of interest between the GAL and Suzette, the court’s logical
remedy for the perceived conflict was to appoint separate coun-
sel for Suzette, and it did so.
The presence of two lawyers and their split roles were fully
contemplated by Neb. Ct. R. § 6-1469(C)(2), which provides
that “[w]here a lawyer has already been or is appointed to
represent the legal interests of the person, . . . the guardian ad
litem shall function only to advocate for the best interests of
the person.” In such a situation, the separately appointed coun-
sel represents the person who is the subject of the guardian-
ship and his or her preferences whereas the guardian ad litem’s
role is to advocate for what he or she determines to be the
person’s best interests. Neb. Ct. R. § 6-1469(C)(3)(a) provides
that when the guardian ad litem is “serving as advocate for the
person’s best interests, the guardian ad litem shall make an
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
independent determination,” and that “[s]uch determination is
not required to be consistent with any preferences expressed
by the person.”
The concern of Neb. Ct. R. of Prof. Cond. § 3-503.7(a)
that a guardian ad litem’s testifying might create a conflict
of interest between the person who is the subject of the pro-
ceeding and his or her counsel is not implicated under the
present circumstances. A conflict of interest between the GAL
and Suzette already existed because their views of Suzette’s
best interests had diverged, and the court remedied that con-
flict by appointing separate counsel to represent Suzette. The
GAL was therefore relieved of a duty to represent Suzette’s
wishes, and instead, the GAL’s role was to advocate for what
the GAL determined to be Suzette’s best interests. At that
point, the GAL was not acting as Suzette’s counsel, and the
concern of Neb. Ct. R. of Prof. Cond. § 3-503.7(a) that an
attorney’s testimony would create a conflict between the attor-
ney and the person he or she represents was not present here.
See In re K Children, 120 Haw. 116, 121, 202 P.3d 577, 582
(2007) (concluding that guardian ad litem’s testimony was
not improper and reasoning that relevant statute distinguishes
between “‘guardian ad litem’” and “‘counsel’”). We conclude
that the GAL’s testifying in this case did not create a conflict
of interest between counsel and client which did not already
exist and that it therefore did not implicate Neb. Ct. R. of Prof.
Cond. § 3-503.7(a) to the extent that such rule is concerned
with creating conflicts between client and counsel.
The Court of Appeals ended its analysis of whether the
GAL’s testimony was allowed under Neb. Ct. R. of Prof.
Cond. § 3-503.7(a) when it concluded that the testimony
did not create a conflict of interest between Suzette and her
counsel. But we find it necessary to consider the other con-
cerns addressed in Neb. Ct. R. of Prof. Cond. § 3-503.7(a),
that is, both the potential to prejudice the tribunal and the
potential to prejudice the opposing party. In the present case,
those concerns require us to consider the effect of the GAL’s
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305 Nebraska Reports
IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
testimony on the county court as fact finder and on Suzette,
who could now be considered in the nature of an opposing
party to the GAL.
As a preface to such analysis, we note that there have long
been discussion and concern regarding the role of an attorney
who serves as a guardian ad litem and in particular the appli-
cation of professional rules of ethics in such a situation. See,
Roger A. Eddleman & John A. DiNucci, Due Process and the
Guardian Ad Litem in Elder Law Disputes: Which Hat Will She
Don With Her Cloak of Neutrality? 13 Marq. Elder’s Advisor
129 (2012); Marcia M. Boumil et al., Legal and Ethical Issues
Confronting Guardian Ad Litem Practice, 13 J.L. & Fam.
Stud. 43 (2011); Robert L. Aldridge, Ethics and the Attorney
as Guardian Ad Litem, 49 Advocate (Idaho State Bar) 21 (June
2006). See, also, In re K Children, 120 Haw. at 121, 202 P.3d
at 582 (noting “nationwide” struggle to clarify roles of guard-
ian ad litem and counsel). Such discussion informs our analysis
in this case.
As to the first concern, regarding the potential to prejudice
the tribunal, we note the portion of comment 2 to Neb. Ct. R.
of Prof. Cond. § 3-503.7(a) which states that “[t]he tribunal
has proper objection when the trier of fact may be confused
or misled by a lawyer serving as both advocate and witness.”
In a different case, the focus of this concern would be on the
effect the lawyer’s testifying would have on a jury that was
acting as the fact finder; in such a case, the potential for con-
fusion is more apparent. In the present case, the county court
was the fact finder, and therefore, we consider whether the
court might have been confused by the GAL’s serving both
as an advocate for best interests and as a witness. We con-
clude that under the circumstances of this case, there was no
such prejudice.
We do not think the concerns that are present where a
jury serves as fact finder are present in cases such as the
instant matter where the court acts as fact finder. We believe
a court can be expected to understand the different roles of
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305 Nebraska Reports
IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
an advocate and of a witness, and a court can be expected
to distinguish when a guardian ad litem is acting in one role
rather than the other. Generally, a court may view the guardian
ad litem as an independent party to investigate and report on
the subject’s best interests. See Eddleman & DiNucci, supra.
However, it has been observed that, at least in certain respects,
a guardian ad litem “is viewed as an arm of the court.” Id.
at 162. Whereas here, separate counsel has been appointed
to represent the preferences of the subject of the proceeding,
the court can be expected to understand the more limited role
of the guardian ad litem as an advocate for the best inter-
ests of the subject. We conclude that the circumstances of
the present case do not implicate the concern of Neb. Ct. R.
of Prof. Cond. § 3-503.7(a) to the effect that the fact finder
would be confused about the guardian ad litem’s role in the
proceedings and that the tribunal might be prejudiced by the
GAL’s testifying.
As to the second concern regarding the potential to preju-
dice the opposing party, we note the portion of comment 2 to
Neb. Ct. R. of Prof. Cond. § 3-503.7(a) which states that “[t]he
opposing party has proper objection where the combination
of roles may prejudice that party’s rights in the litigation.” In
the present case, because the GAL was representing what she
determined to be Suzette’s best interests and the GAL’s views
diverged from Suzanne’s wishes, Suzanne could be considered
in the nature of an opposing party to the GAL. We therefore
consider whether the GAL’s being allowed to testify prejudiced
Suzanne’s rights in this proceeding. We conclude that under
the circumstances of this case, it did not.
As noted above, there has long been discussion of ethical
concerns related to the role of a guardian ad litem, and those
concerns relate in large part to the due process and other rights
of the subject of a proceeding as well as other parties to the
proceeding. Other courts have had concerns regarding how
the guardian ad litem’s role in a proceeding affects other par-
ties’ rights. For example, in S.S. v. D.M., 597 A.2d 870, 878
- 438 -
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305 Nebraska Reports
IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
(D.C. App. 1991), the District of Columbia Court of Appeals
determined that error arose when a guardian ad litem was
allowed to act as both the child’s attorney and as a witness
in an adoption proceeding; although the appellate court ulti-
mately concluded that there was no miscarriage of justice,
it stated that “because the guardian ad litem, who had been
appointed as an advocate for the child, was called as a wit-
ness for one of the opposing parties, new counsel should have
been appointed to represent the child.” (Emphasis omitted.)
In Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014), the Supreme
Court of Kentucky concluded that a mother’s right to due
process included the right to cross-examine the guardian ad
litem when the trial court relied on the guardian ad litem’s
report to make custody decisions.
Contrary to the situations in the cases just cited, we think
that similar concerns regarding the effect that the GAL’s role
in this proceeding had on Suzette’s rights were adequately
addressed. The appointment of separate counsel to represent
Suzette was designed to protect her rights in this proceed-
ing. The appointment of separate counsel allowed the GAL to
focus on advocating for what she found to be Suzette’s best
interests without subordination to Suzette’s divergent wishes.
Meanwhile, the separate counsel was able to focus on protect-
ing Suzette’s rights by advancing her wishes without defer-
ence to the GAL’s determination of Suzette’s best interests.
As part of protecting Suzette’s rights, separately appointed
counsel was able to cross-examine the GAL, as well as other
witnesses, and to take the necessary steps in order to advance
Suzette’s arguments.
CONCLUSION
Under the circumstances of the present case—a guardian-
ship proceeding in which separate counsel was appointed to
represent the subject of the proceeding and the guardian ad
litem’s role was limited to advocating for the subject’s best
interests rather than representing the subject—the concerns of
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IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
Neb. Ct. R. of Prof. Cond. § 3-503.7(a) were not implicated.
The GAL was therefore allowed to testify under the rules of
professional conduct and, consequently, under Neb. Ct. R.
§ 6-1469(E)(4)(b), which provides that “[t]he guardian ad litem
may testify only to the extent allowed by the Nebraska Rules
of Professional Conduct.” We therefore conclude that the Court
of Appeals did not err when it concluded that the county court
did not err when it allowed the GAL to testify, and we affirm
the decision of the Court of Appeals which affirmed the order
of the county court which appointed Alvin as Suzette’s lim-
ited guardian.
Affirmed.
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In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) a judgment of the Supreme Court, Rockland County (Braatz, J.), dated October 1, 1986, which, upon a jury verdict after a trial on the issue of liability only, is in favor of the defendant and (2) an order of the same court dated October 6, 1986, which denied their motion to set aside the verdict.
Ordered that the judgment and order are affirmed, with one bill of costs.
While the instructions to the jury concerning the standard of conduct to be applied to this infant plaintiff were erroneous (Dimino v Burriesci, 125 AD2d 361), the claim of error has not been preserved for appellate review. In any event, the instructions do not require reversal, since the jury found the defendant free from any negligence and did not reach the question of the infant’s negligence. The jury was confronted with questions of credibility which were resolved in favor of the defendant. We must accord great deference to the jury’s findings in this regard. Since this interpretation of the evidence is fair and supports the verdict, we cannot say that the verdict is against the weight of the evidence (Nicastro v Park, 113 AD2d 129).
We have found the plaintiffs’ remaining contentions unpreserved for appellate review and, in any event, without merit. Thompson, J. P., Rubin, Eiber and Sullivan, JJ., concur.
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Spain, J.
Appeal from an amended decision of the Workers’ Compensation Board, filed June 29, 2010, which ruled that claimant violated Workers’ Compensation Law § 114-a and permanently disqualified him from receiving future wage replacement benefits.
In March 2000, claimant sustained injuries to his neck and back in the course of his employment as a bus driver. He was awarded workers’ compensation benefits and, in July 2002, was found to be permanently partially disabled. Thereafter, various proceedings were held in connection with, among other things, claimant’s assertion of reduced earnings. In March 2006, the self-insured employer raised the issue of whether claimant had violated Workers’ Compensation Law § 114-a based upon its suspicions concerning possible underreported income by claimant and other questions regarding the ownership of a cleaning business allegedly operated by claimant’s wife. Following further proceedings, a Workers’ Compensation Law Judge determined that claimant had violated Workers’ Compensation Law § 114-a and assessed the mandatory penalty of forfeiture of benefits for the period between January 2002 and January 2005. The Workers’ Compensation Board, in an October 31, 2008 deci*1067sion, modified that determination so as to include the discretionary penalty of disqualifying claimant from receiving future benefits. Although claimant filed a notice of appeal from that order, in response to claimant’s application for full Board review, the Board filed an amended decision on June 29, 2010 that denied that application, but also issued a superseding decision that effectively rescinded its prior decision. As a result, this Court dismissed claimant’s appeal from the October 2008 decision as moot (82 AD3d 1453 [2011]). Claimant now appeals from the June 2010 amended decision.
We affirm. “Pursuant to Workers’ Compensation Law § 114-a (1), a person may be disqualified from receiving workers’ compensation benefits when he or she knowingly [makes] a false statement or representation as to a material fact for the purpose of obtaining such benefits” (Matter of Martinez v LeFrak City Mgt, 100 AD3d 1110, 1111 [2012] [internal quotation marks and citation omitted]; see Matter of Siddon v Advance Energy Tech., 98 AD3d 1202, 1202 [2012]). Here, the record confirms, among other things, that at a September 2003 hearing, claimant testified that, aside from minimal income earned from an insurance adjusting/investigation business in 2002, he performed no other type of work and received no income after he left his job with the self-insured employer. However, following the submission of relevant tax returns and some of the requested records from the wife’s cleaning business, claimant ultimately admitted, among other things, that, in fact, during the relevant time periods, he had been paid $200 per week by the business and was working 15 to 20 hours per week. Given this inconsistent and contradictory proof and the Board’s authority to resolve credibility issues (see Matter of Siddon v Advance Energy Tech., 98 AD3d at 1203), we find that substantial evidence supports the Board’s ruling (see Matter of Outerie v Derle Farms, 306 AD2d 793 [2003]), including its finding of permanent disqualification; therefore, we find no basis to disturb it (see Matter of Poli v Taconic Correctional Facility, 83 AD3d 1339, 1339-1340 [2011]).
The remaining issues, including claimant’s assertion that the Board abused its discretion in declining to reopen the hearing to accept certain hearsay letters from his accountant, are without merit.* As noted by the Board, claimant declined to produce his accountant to testify in the course of this lengthy litigation despite numerous opportunities for him to do so.
*1068Mercure, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the amended decision is affirmed, without costs.
Although claimant contends that the testimony and evidence produced by the self-insured employer’s accountant were unworthy of belief, credibility determinations are for the Board to make (see Matter of Martinez v LeFrak *1068City Mgt., 100 AD3d at 1111). In any event, regardless of the accountant’s testimony, it is dispositive herein that the Board based its ruling on claimant’s own testimony inasmuch as it specifically found that claimant violated Workers’ Compensation Law § 114-a “by knowingly making material misrepresentations with respect to his earnings for the purpose of obtaining workers’ compensation benefits.”
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/1788808/
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509 So.2d 420 (1987)
Thomas William JORDAN and Patricia Smith Jordan
v.
EMPLOYEE TRANSFER CORPORATION and Equitable Relocation Management Corporation.
No. 87-C-0004.
Supreme Court of Louisiana.
June 22, 1987.
C. Daniel Street, Bruscato, Loomis & Street, Monroe, for applicant.
Lavalle Salomon, Davenport, Files & Kelly, Charles Smith, Hayes, Harkey, Smith & Cascio, Charles Trascher, III, Snellings, Breard, Sartor, Inabnett & Trascher, Monroe, for respondent.
DIXON, Chief Justice.
The issue in this redhibition suit is when prescription began to run. Thomas William Jordan and his wife, Patricia Smith Jordan, bought a house on October 14, 1981 from the defendant, Employee Transfer Corporation (which later became Equitable Relocation Management Corporation). On *421 the night of September 31, and the morning of October 1, 1982, a significant rain flooded the Jordans' den. The Jordans attempted to find and repair the leak, but on November 31, and December 1, 1982, a second rain flooded the room again. The Jordans filed suit against Equitable Transfer Corporation on December 1, 1983. Thereafter, Employee Transfer Corporation filed third party claims against the broker who sold the house (Terry Roberts, d/b/a Century 21/Robert's Realty), the realtor who arranged for the sale (David Key), and the prior owners of the house (Mr. and Mrs. Russell). After a trial on the merits the trial court maintained an exception of prescription based on C.C. 2534. The court of appeal affirmed (499 So.2d 454 (La.App. 2d Cir.1986)) and this court granted writs.
On August 7, 1981 the Jordans contacted David Key in response to a newspaper ad listing the house for sale. At about 4:00 or 5:00 p.m. that day, the Jordans met Key to see the house which at this time was owned by Mr. and Mrs. Russell. After arriving, Key first showed the house exterior to the Jordans and pointed out cracks in the wall.
The Jordans testified Key said the cracks were only cosmetic and could be repaired for about $110. Key showed them a copy of the report prepared by a civil engineer, Jerry Madden, which concluded the house was not structurally unsound. The Jordans stated that Key informed them that Madden would be liable if his report was found to be incorrect. At no time did Key mention the existence of a second report prepared by John Maroney. The Maroney report had been commissioned by Employee Transfer Corporation after Key informed its representative of both the cracks in the exterior walls and the prior owner's difficulty with water damage. Key did not tell the Jordans of the original owner's problems with water leaking into the den.
Key's version of how he showed the Russells' house differed substantially from the Jordans' rendition. Key testified that he did not discuss with the Jordans how the cracks could be repaired. He claims he simply showed the cracks to the prospective purchasers and handed them a copy of the Madden report. Key admitted he had received a copy of the Maroney report prior to showing the house to plaintiffs and claims to have informed the Jordans of the second report's existence though not its contents. Key claims to have found the conclusions reached by both engineers to have been essentially the same. Key denied that he told the plaintiffs that Madden would be responsible if his report was found to be incorrect. Key testified that he not only discussed the problems that the original owners had had with water in the den but even pulled up part of the carpet to show where sealant had been applied to keep water out. He assured the Jordans that the leak had been repaired.
The Jordans spent thirty to forty-five minutes looking at the house. They were enthusiastic about the large yard and the den that was lower than the rest of the house, giving it a sunken effect. After returning home, the Jordans decided to make an offer to purchase the house. They phoned Key's office at about 11:00 p.m. that night to arrange to make an offer. Key testified that he unsuccessfully tried to find the Maroney report when Mr. Jordan came to his office that night. The Jordans made an offer that was accepted the next day.
Before closing the sale, the Russells sold the property to a transfer corporation that would arrange for the sale of the property for a specified price and then return any other profits to the Russells. This transfer corporation, Employee Transfer Corporation, was used by Mr. Russell's employer to facilitate the sale of employees' houses that were necessary due to a job transfer. For this reason, Employee Transfer Corporation was the owner of the property at the time of the closing on October 14, 1981.
After a rainstorm that ended on October 1, 1982, Mrs. Jordan found the carpet in the sunken den soaked. Mr. Jordan called their insurer and then called Weil Cleaners to remove the wet carpet. When Donnie Weil arrived to remove the carpet, he pointed out to Mrs. Jordan that moldy sideboards indicated that the den had flooded *422 before. Weil testified through deposition that Mrs. Jordan seemed surprised that there had been prior water damage. When the carpet was picked up, Mrs. Jordan could see where sealant had covered some cracks in the middle of the den floor. The cleaning man suggested that the water in the den could have been caused either by the flashing on the roof around the chimney, by cracks in the foundation or perhaps by a broken pipe.
After inspecting the house, the insurance adjuster concluded that the water had probably come in from a leaking flashing where the chimney met the roof. The adjuster agreed to pay for all the damage, minus the deductible.
At this point, the Jordans were confident that the foundation was sound because of both Key's reassurances and the civil engineer's report they had read. Furthermore, the insurance adjuster agreed to assume liability for the damage based on an assessment that the water had entered through the flashing. Mr. Jordan repaired the flashing with tar as the insurance company representative had instructed.
On December 1, 1982, the den flooded a second time. This time the Jordans were able to see water seeping in through the foundation.
Mr. Jordan went to Robert's Realty and met with Terry Roberts. Mr. Jordan obtained a copy of the Madden report and was also given a report prepared by John Maroney dated August 21, 1981. The Maroney report noted the cracking in the walls and found that, although the house was not in danger of collapsing, the foundation was structurally damaged. The report concluded, "If the house should be underpinned and jacked up into its original position, it would cost approximately $4000." The Jordans filed suit in redhibition on December 1, 1983 to rescind the sale and obtain damages.
A suit in redhibition must be filed within one year of the date of sale unless the seller had knowledge of the vice and neglected to inform the purchaser. C.C. 2534. If the seller fails to disclose to the purchaser a known redhibitory vice at the time of the sale, he is in bad faith. This bad faith operates to suspend the running of prescription until the purchaser discovers the vice. This discovery is not presumed. The seller has the burden to prove by a preponderance of the evidence that the purchaser discovered the vice more than one year prior to when suit was filed. C.C. 2546; Tuminello v. Mawby, 57 So.2d 666 (La.1952).
By his own admission, Key neither showed the Jordans the Maroney report nor fully disclosed its contents. The trial court and the court of appeal correctly concluded that this failure to disclose put the seller in bad faith and suspended the running of prescription until the Jordans were found to have discovered the vice.
When the Jordans first discovered water in their den, they reasonably suspected that the water had entered between the flashing and the chimney. The insurance adjuster, whose job was in part to identify the origin of damage, had reached the same conclusion. The Jordans reasonably relied upon the Madden report's conclusion that the foundation was not structurally unsound as well as Key's representations. For these reasons, the Jordans made a reasonable decision to attempt to repair the flashing and see if that cured the problem. The Jordans did not discover the origin of the leak until the second substantial rainfall, about two months later. By this time, the carpet had been removed and water could be seen seeping through the den floor.
The court of appeal followed Lee v. Equitable Life Assurance Society of the United States, 391 So.2d 37 (La.App. 3d Cir.1980) which had held that plaintiff Lee noticed water seeping into his den and had undertaken certain drainage repairs more than a year before filing the suit. There was no question about the source of the water. In the Lee case the court of appeal held such notice sufficient to start the prescription period running, and quoted dicta[1]*423 from our opinion in Cartwright v. Chrysler Corporation, 255 La. 597, 232 So.2d 285, 287 (1970).
The court of appeal in the instant case paraphrased the same dicta, as if it had been the rule in Cartwright. It was not. Mrs. Cartwright had been rear-ended by Dr. Kent's Chrysler. At the scene of the wreck Dr. Kent told Mrs. Cartwright that his brakes had failed. Mrs. Cartwright sued Dr. Kent, who was successful at trial in proving sudden failure of his brakes. Then, more than a year after she had been damaged, Mrs. Cartwright sued Chrysler Corporation. This court sustained Chrysler's plea of prescription, holding:
"While this court has accepted in certain limited situations the common law doctrine `contra non valentem agere nulla currit praescriptio,' which means that prescription does not run against a person who could not bring his suit, we do not think that plaintiff can find any comfort under the facts of this case in that doctrine. The rule that prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring suit, applies only when such ignorance is not wilful and does not result from negligence, and the doctrine has been limited to cases where the debtor has concealed the fact of the obligation or has committed other acts which tend to hinder, impede or prevent the creditor from ascertaining knowledge of the existence of the debt...." Cartwright v. Chrysler Corporation, supra [232 So.2d] at 287. (Underscoring added).
The Cartwright opinion then added two sentences about "constructive notice," which is sometimes cited as the rule of the Cartwright case. Mrs. Cartwright, however, had actual notice, from the day of the accident through pretrial and trial, that Dr. Kent blamed the Chrysler's brakes for suddenly failing and causing the accident.
Recent decisions of this court, particularly in the medical malpractice area, have clarified the kind of "notice" that starts the running of liberative prescription. In Young v. Clement, 367 So.2d, 828, 830 (La.1979), this court held, "Prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring a malpractice action, as long as such ignorance is not willful and does not result from his neglect," citing Henson v. St. Paul Fire & Marine Insurance Co., 363 So.2d 711 (La.1978).
In Cordova v. Hartford Accident & Indemnity Co., 387 So.2d 574, 577 (La.1980), this could held, "The mere apprehension by plaintiff that `something was wrong' is not sufficient to start prescription unless plaintiff knew or should have known by exercising reasonable diligence that there was a reasonable possibility that his problem ... may have been caused by acts of malpractice."
Recently, in Griffin v. Kinberger, 507 So.2d 821, 823 (La.1987), this court explicitly noted that this language in Cartwright v. Chrysler Corporation, supra had been "refined" to focus on the reasonableness of a tort victim's action or inaction. The court concluded, "prescription does not run as long as it was reasonable for the victim not to recognize that the condition may be related to the treatment."
The language in Cartwright, quoted in footnote 1, is an incomplete definition of the kind of notice that will start the running of prescription. Prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong. Prescription should not be used to force a person who believes he may have been damaged in some way to rush to file suit against all parties who might have caused that damage. On the other hand, a plaintiff will be responsible to seek out those whom he believes may be responsible for a specific injury.
When prescription begins to run depends on the reasonableness of a plaintiff's action or inaction. The Jordans knew there was damage on October 1, 1982, when they *424 discovered the water in their den. However, prescription did not begin to run until they had a reasonable basis to pursue a claim against a specific defendant. This did not occur until December 1, 1982, when the plaintiffs had a reasonable basis to conclude that Key's assurances and the Madden report were incorrect. Since the Jordans filed suit on December 1, 1983, prescription had not yet run.
For the above reasons, the judgments in the trial court and the court of appeal sustaining defendant's exception of prescription are reversed at the cost of defendants-respondents, and the case is remanded to the trial court for a decision on the merits.
NOTES
[1] "... Whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of every thing to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry is sufficient to start the running of prescription."
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/5902320/
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In a proceeding pursuant to CPLR article 78 to review a determination of the respondents denying the petitioner access to certain documents, the appeal is from a judgment of the Supreme Court, Suffolk County (Yachnin, J.), entered September 18, 1986, which granted the petition to the extent of directing the appellants to produce certain records in accordance with its instructions.
Ordered that the judgment is affirmed, without costs or disbursements.
The petitioner seeks access to various documents prepared by the appellants with regard to his request to be reclassified from his position of assistant public health engineer to that of public health engineer. The Freedom of Information Act protects against the disclosure of "inter-agency or intra-agency materials”, predecisional memoranda or other nonfinal recommendations prepared to assist an agency decision maker (Public Officers Law § 87 [2] [g]; Matter of Xerox Corp. v Town of Webster, 65 NY2d 131). The documents at issue herein fall within this exception. However, Public Officers Law § 87 (2) (g) (i) provides that access should be provided to material in such a document that constitutes "statistical or factual tabulations or data”.
In the case at bar, after an in camera inspection of the documents in issue and a review of the redactions made by the Supreme Court, Suffolk County, we conclude that these documents consist of factual data that are not protected from disclosure under Public Officers Law § 87 (2) (g); (see also, Matter of MacRae v Dolce, 130 AD2d 577). Thompson, J. P., Rubin, Fiber and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902322/
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In a neglect proceeding pursuant to Family Court Act article 10, the appeal is from an order of the Family Court, Nassau County (Capilli, J.), dated October 5, 1987, which directed the appellant to undergo an examination for acquired immune deficiency syndrome (hereinafter AIDS).
Ordered that on the court’s own motion, the appellant’s notice of appeal is treated as an application for leave to appeal, that application is referred to Justice Brown, and leave to appeal is granted by Justice Brown, and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the provision *528directing the appellant to undergo an examination for AIDS is deleted.
Following the appellant’s failure to appear during a child neglect proceeding in which it was alleged that the child in appellant’s custody was not attending school on a regular basis, a warrant was issued for her arrest. When a Deputy Sheriff attempted to execute the warrant, the appellant bit him on his wrist causing puncture wounds. The appellant was subsequently charged with assault in the second degree.
Under the circumstances of this case, we find that the Family Court abused its discretion in directing that the appellant undergo testing for AIDS. Family Court Act § 1038-a upon which the court purportedly relied, as well as Family Court Act § 251 pursuant to which it ordered a physical, psychiatric and psychological examination of the appellant authorizes such examinations when the results of the testing are reasonably related to establishing the allegations contained in the petition before the Family Court. In the instant case, as the court itself stated, "[t]he AIDS test * * * has nothing to do with the child [it is being ordered because] at the time the [appellant] was apprehended she bit an officer carrying out his duties * * * and based on that, I am ordering the AIDS test”.
The record is devoid of any evidence whatever that the appellant had or was suspected of having AIDS. In the recently released "Guidelines for the Handling of a Court Appearance Involving a Person Afflicted with an Infectious Disease”, the Office of Court Administration has suggested that "In any case in which a person believed to have AIDS, the AIDS virus, or any infectious disease is due to appear in court, the judge presiding should inquire as to the basis on which it is believed that the person is so infected * * * [A]nd the judge’s findings should be conveyed to counsel and court personnel” (NYLJ, Jan. 14, 1988, at 3, cols 2-3).
Since it made no inquiry as to the basis on which it was suspected that the appellant had AIDS, if indeed there existed any such suspicion, and since the results of the testing were unrelated to the pending neglect petition, the Family Court should not have directed the appellant to undergo testing for AIDS. Thompson, J. P., Brown, Fiber and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902323/
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Mercure, J.P.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Comptroller which denied petitioner’s application for accidental disability retirement benefits.
Petitioner, a police officer, applied for accidental disability retirement benefits following an incident in which she slipped on ice near the front door of the precinct and injured her left knee. The application was denied upon the ground that the incident did not constitute an “accident” within the meaning of Retirement and Social Security Law § 363. Following a hearing and redetermination, the Hearing Officer reached the same conclusion and the Comptroller upheld the decision, prompting this CPLR article 78 proceeding.
We confirm. Petitioner bore the burden of establishing that her injuries were the result of an accident, and the Comptroller’s determination will be upheld if supported by substantial evidence (see Matter of Sweeney v New York State Comptroller, 86 AD3d 893, 893 [2011]; Matter of O’Neill v DiNapoli, 83 AD3d 1280, 1280 [2011]). It is well settled that “an incident does not qualify as an accident justifying the award of accidental disability retirement benefits where the injury results from an expected or foreseeable event arising from the performance of routine employment duties” (Matter of O’Brien v Hevesi, 12 AD3d 895, 896 [2004], lv dismissed 5 NY3d 749 [2005]; accord Matter of Ruggiero v DiNapoli, 85 AD3d 1282, 1283 [2011], lv denied 17 NY3d 711 [2011]).
The record contains certified copies of weather reports that indicate that freezing rain fell intermittently in the area on the night in question from approximately 9:30 p.m. until 3:00 a.m. Further, a contemporaneous incident report prepared by a fel*1069low police officer indicates that petitioner fell “due to the inclement weather.” “The assessment of petitioner’s sworn testimony, as well as the evaluation of any apparent inconsistency between such testimony and the written documentation, presented credibility issues for the Hearing Officer and, ultimately, the Comptroller to resolve” (Matter of Hardy v DiNapoli, 82 AD3d 1490, 1491 [2011] [citation omitted]; see Matter of Carpiniello v DiNapoli, 88 AD3d 1045, 1046 [2011]). Inasmuch as there is substantial evidence in the record that the icy condition presented a hazard that petitioner should have reasonably anticipated given the weather conditions (see Matter of Ruggiero v DiNapoli, 85 AD3d at 1283; Matter of Kempkes v DiNapoli, 81 AD3d 1071, 1072 [2011]), it will not be disturbed.
Rose, Lahtinen and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.
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01-13-2022
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