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https://www.courtlistener.com/api/rest/v3/opinions/5902324/
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In a proceeding pursuant to Mental Hygiene Law article 77 for the appoint*529ment of a conservator, the appeal is from so much of a judgment of the Supreme Court, Westchester County (Cerrato, J.), dated March 24, 1986, as, inter alia, (1) appointed the petitioner Carl J. Franzetti as a coconservator; (2) declined to appoint the cross petitioner Jennie Kehrsberger as coconservator; and (3) awarded compensation and counsel fees to the coconservators.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
We reject the appellants’ contention that the court of first instance abused its discretion in appointing the petitioner Franzetti as a coconservator. While Franzetti’s multiple role as coconservator and as a cotrustee and contingent remainder-man of a trust, the income of which is payable to the conservatee, raises a potential conflict of interest (see generally, Matter of Silber, 104 Misc 2d 574; Matter of Gorman, 77 Misc 2d 564), we find that the court adequately safeguarded against any possible abuse of the fiduciary relationship by appointing a coconservator and by imposing reporting requirements upon both conservators. Similarly, the mere fact that the petitioner is not related to the conservatee does not preclude his appointment as a coconservator, for the record demonstrates that he is the most capable and willing individual to serve in that capacity, while the relatives of the conservatee have demonstrated little planning and even less concern for the welfare of the conservatee (see, e.g., Matter of Judas, 74 AD2d 874; Matter of Lyon, 52 AD2d 847, affd 41 NY2d 1056; see generally, Matter of Weisman, 112 AD2d 871). Under these circumstances, the appointment of the petitioner cannot be characterized as an abuse of discretion.
The appellants’ claims regarding the award of counsel fees and the provision for compensation of the coconservators are without merit (see, Mental Hygiene Law § 77.07 [d]; § 77.27; see, e.g., Matter of Noel, 92 AD2d 1053). 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/5902325/
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In a proceeding pursuant to CPLR article 78 to review a determination of James E. Sullivan, Superintendent of the Sing Sing Correctional Facility (hereinafter the Superintendent), dated December 14, 1986, which, after a hearing, found the petitioner guilty of violating rules 108.10, 109.11 and 118.10 of the Standards of Inmate Behavior and imposed a sanction, the petitioner appeals, as *530limited by his brief, from so much of a judgment of the Supreme Court, Westchester County (Wood, J.), entered June 26, 1987, as dismissed that branch of his petition which was to review the finding of a violation of rule 108.10, and the Superintendent cross-appeals, as limited by his brief, from so much of the same judgment as modified his determination by (a) dismissing his findings that the petitioner was guilty of violating rule 109.11 and rule 118.10 and (b) reducing the petitioner’s penalty of confinement to the special housing unit and loss of privileges from 5 years to 1 year.
Ordered that the judgment is affirmed insofar as appealed from and reversed insofar as cross-appealed from, on the law, without costs or disbursements, the determination is confirmed and the petition is dismissed on the merits.
The petitioner, an inmate at the Sing Sing Correctional Facility, was charged with escape, leaving an assigned area, and setting a fire, in that on December 9, 1986, he, along with two other inmates, exited the prison via a bathroom window and cut through a fence to effect their escape using an incendiary device to create a diversion. The petitioner was apprehended in North Tarrytown, New York, on December 10, 1986, and returned to the prison by the State Police the next day.
In commencing this CPLR article 78 proceeding the petitioner claimed that the procedures employed by the Superintendent in arranging and conducting a Tier III hearing violated his due process rights and that the penalty imposed was excessive. Upon review of the petition, the Supreme Court, Westchester County, found that the petitioner’s due process rights had been violated with regard to two of the charges filed against him in that he had not been given certain investigatory reports which might have been relevant to his defense. In deciding the due process issue the court further held that the two charges in question were not supported by substantial evidence.
We note that although the petitioner did not raise the contention that the Superintendent’s findings were unsupported by substantial evidence, the Supreme Court decided that issue. The court erred in doing so, since the issue had not been raised, and, in any event, the authority to determine that issue is vested in the Appellate Division (see, CPLR 7804 [g]; Matter of Salley v Hempstead School Dist., 121 AD2d 547). However, since the Supreme Court erroneously modified certain findings of the Superintendent based upon the supposed *531lack of substantial evidence, this court has reached the issue on this appeal (see, Matter of Quinn v Werner, 96 AD2d 1079, 1081, appeal dismissed 61 NY2d 868; Matter of Salley v Hempstead School Dist., supra).
We do not find, as the Supreme Court did, that the petitioner was denied due process because he was prevented from submitting relevant documentary evidence to the Hearing Officer. It is provided in 7 NYCRR 254.6 (c) that an inmate "shall be allowed to submit relevant documentary evidence * * * on his behalf’ (emphasis supplied) as part of a Tier III hearing. The petitioner herein has failed to show how any of the investigatory reports which he requested were relevant to his defense, since he never raised any defense to the charges against him.
In sustaining the charges filed against the petitioner, the Superintendent relied on a misbehavior report by Lt. Wilkerson, who completed it based on information he obtained from personnel with firsthand knowledge of the incident, and on the testimony of the corrections officer who was present when the petitioner was returned to prison by the State Police. The Supreme Court found that charges of violating rule 109.11 (leaving assigned area) and rule 118.10 (setting a fire) were not supported by substantial evidence because "the report and testimony of Lt. Wilkerson was not of his own direct knowledge and investigation but was based upon knowledge, conduct and statements of other persons who did not testify at the hearing or participate in the misbehavior report”. This finding was erroneous in light of the holding of the Court of Appeals in People ex rel. Vega v Smith (66 NY2d 130, 139) that hearsay evidence may constitute substantial evidence as long as there is " 'such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ ” (People ex rel. Vega v Smith, supra, at 139). The record reveals that there is substantial evidence to support each of the charged violations.
It was also error for the Supreme Court, Westchester County, to substitute its own penalty for that imposed by the Superintendent. Where a court finds a penalty to be excessive the proper procedure is to remit the matter to the appropriate agency for the imposition of a new penalty (see, Rob Tess Rest. Corp. v New York State Liq. Auth., 49 NY2d 874). However, we do not concur with the court’s holding that the penalty herein imposed is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness” (see, Matter of Pell v Board of Educ., 34 NY2d *532222, 233; Matter of New York City Dept. of Sanitation v New York Civ. Serv. Commn., 68 NY2d 978). Accordingly, we confirm the determination of the Superintendent which imposed a penalty of confinement to the special housing area and loss of privileges for a period of five years.
We have reviewed the other due process issues raised by the petitioner and find them to be without merit. Thompson, J. P., Brown, Eiber and Sullivan, JJ., concur.
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902326/
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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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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902327/
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Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the Department of Environmental Conservation, dated September 18, 1986, which, after a hearing, denied the petitioner’s application for tidal wetlands variances under Environmental Conservation Law article 25.
Adjudged that the determination is confirmed, and the proceeding is dismissed on the merits, with costs.
Pursuant to Environmental Conservation Law article 25 (the Tidal Wetlands Act) and the implementing regulations set forth in 6 NYCRR part 661 (the Tidal Wetlands—Land Use Regulations), a property owner who seeks to build on lands which are designated either tidal wetlands or an adjacent area must apply for a permit prior to doing so (see, 6 NYCRR 661.3, 661.9). To this end, 6 NYCRR 661.10 (b) (1) sets forth the standards for issuance of permits, and allows the Department of Environmental Conservation to issue a permit only if it is determined that the proposed activity, inter alia:
"(i) is compatible with the policy of the act to preserve and protect tidal wetlands and to prevent their despoliation and destruction * * *
"(ii) is compatible with the public health and welfare;
"(iii) is reasonable and necessary, taking into account such factors as reasonable alternatives to the proposed regulated activity and * * *
"(iv) complies with the development restrictions contained in section 661.6”.
In the case at bar, it is clear from the record that the Administrative Law Judge did in fact adhere to the standards set forth in 6 NYCRR 661.10, and, in so doing, determined that approval of the proposed regulated activity would not be in conformity with the Tidal Wetlands Act. Our review of the *533record reveals that there was sufficient evidence to support the Commissioner’s determination, and that there exists a rational basis for the denial of the petitioner’s application for variances under the Tidal Wetlands Act. Inasmuch as the doctrine is well settled that the scope of judicial review of whether the determination of an administrative body after a judicial or quasi-judicial hearing has sufficient evidentiary support is limited to the issue of whether that determination is supported by substantial evidence (see, Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Tellerman v New York City Tr. Auth., 99 AD2d 512), there is no reason to disturb the instant determination. 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/5902329/
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In a support proceeding pursuant to Family Court Act article 4, Samuel Miller appeals from (1) an order of the Family Court, Westchester County (Miller, J.), entered July 23, 1986, which, pursuant to the findings of Hearing Examiner Lefkowitz, inter alia, denied his petition for downward modification of his temporary support obligations and ordered him to pay $200 per week for the support of his wife and child, effective January 22, 1985, and (2) an order of the same court entered October 16, 1986, which, after a hearing, inter alia, (a) held that he had willfully failed to make court-ordered support payments, (b) fixed arrears at $15,650, and (c) ordered his incarceration for 60 days, with sentence to be suspended at such time as he paid $3,000 toward reduction of the arrears.
Ordered that the appeal from the order entered July 23, 1986, is dismissed; and it is further,
Ordered that the order entered October 16, 1986, is affirmed; and it is further,
Ordered that the petitioner is awarded one bill of costs.
Pursuant to the findings of Hearing Examiner Lefkowitz after a hearing on July 10, 1985, the Family Court entered a permanent order of support awarding the petitioner wife $200 weekly for herself and the parties’ son. No objections to those findings were filed (see, Family Ct Act § 439 [e]). Thus, the appeal must be dismissed (see, Matter of Werner v Werner, 130 AD2d 754). In any event, no transcript of the proceedings *537before the Hearing Examiner was included in the record on appeal; thus, we are unable to review the Hearing Examiner’s findings. The permanent award was properly determined based upon the Hearing Examiner’s recommendation, and properly made retroactive to the date of the original support petition (see, Family Ct Act § 449).
The appellant’s petition for downward modification of his permanent support obligation was heard along with the petitioner’s violation petition, and the Family Court, in its order entered October 16, 1986, declined to reduce or cancel the accumulated arrears in support due and owing. We affirm that order. The appellant attempts to shield himself with the administrative determination finding him eligible for public assistance; however, he failed to offer the court any evidence tending to support that determination. On the contrary, the evidence suggests that the appellant’s loss of his job was willful and unrelated to any inability to work. Under these circumstances, a court is justified in concluding that the appellant should not, merely by virtue of his placement on the welfare rolls, be relieved of his obligation to provide court-ordered support (cf., Matter of Chenango County Support Collection Unit v De Brie, 100 AD2d 687, 688; Matter of Nassau County Dept. of Social Servs. v Walker, 95 AD2d 855, lv dismissed 60 NY2d 557, 778).
The court’s finding that the appellant had willfully violated the support order was well justified by the evidence. Initially, the testimony offered by the petitioner and a Nassau County Department of Social Services investigator indicating that the appellant had failed to pay support as ordered by the court constituted a prima facie showing of willfulness (see, Family Ct Act § 454). Moreover, his ability to pay support was properly established. First the petitioner had already been required, at the hearing on the petition for a permanent order of support, to prove that the appellant had the ability to pay support. Additionally, the petitioner showed that the appellant’s loss of his job was in no way related to any disability. The appellant’s testimony that his ulcers prevented him from working was properly rejected as incredible. Similarly, his weak protests that he had made efforts to find employment were properly rejected. We are left with his mere status as a welfare recipient, which, given the petitioner’s evidence, is insufficient to establish his inability to work and satisfy his support obligation.
We conclude that the petitioner satisfied her ultimate burden of proving that the appellant, having the ability to pay *538the ordered support, willfully failed to do so. The Family Court therefore acted properly in ordering the appellant’s incarceration for 60 days, with the sentence to be suspended in the event that the appellant paid $3,000 toward reduction of the support arrears.
We have considered the appellant’s remaining contentions and find them to be without merit. Mangano, J. P., Brown, Harwood and Balletta, JJ., concur.
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902330/
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Garry, J.
Appeal from a decision of the Workers’ Compensation Board, filed February 10, 2012, which ruled that the employer is entitled to reimbursement from the Special Disability Fund.
Claimant had been working for the self-insured employer for almost 20 years, most recently as its transportation coordinator, when she sustained back and shoulder injuries in May 2002 while assisting students exiting a bus. Thereafter, the employer sought reimbursement from the Special Disability Fund pursuant to Workers’ Compensation Law § 15 (8) (d). Following proceedings, the Workers’ Compensation Board found that, due to claimant’s preexisting diabetes and obesity, the Fund was liable and the Fund now appeals.
We reverse. To be entitled to reimbursement from the Fund, an employer must establish “ ‘that the claimant had a preexisting permanent impairment that hindered job potential, a subsequent injury arising out of and in the course of employment, and a permanent disability caused by both conditions materially and substantially greater than what would have been caused by the work-related injury alone’ ” (Matter of Southard v Corning Hotel Corp., 95 AD3d 1519, 1519-1520 [2012], quoting Matter of Sturtevant v Broome County, 188 AD2d 893, 893-*1070894 [1992]; see Matter of Pinter v Louis J. Kennedy Trucking Corp., 82 AD3d 1481, 1481 [2011]). We find merit in the Fund’s contention that the employer failed to demonstrate that claimant’s preexisting conditions hindered her job potential.
Examining first the issue of claimant’s diabetes, the existence of that disease alone has not been held sufficient to establish a preexisting permanent condition that hinders employment for the purposes of Workers’ Compensation Law § 15 (8) (d) (see Matter of Grabinsky v First At Nursing Servs., 79 AD3d 1494, 1495 [2010]; Matter of Sturtevant v Broome County, 188 AD2d at 894; compare Matter of Dupuis v Frito Lay, 74 AD3d 1618, 1618 [2010]). To the contrary, preexisting conditions that are controlled by medication have been found, without more, not to constitute a hindrance to employability (see Matter of Weiner v Glenman Indus. & Commercial Contr. Corp., 95 AD3d 1516, 1518 [2012]; Matter of Bushey v Schuyler Ridge, 77 AD3d 1006, 1007 [2010]). Here, the Board principally relied on the medical opinion of orthopedic surgeon Stephen Zolan, who performed a medical record review in April 2010 and found claimant to suffer, as a result of her diabetes, from peripheral neuropathy in her lower extremities as well as optical neuropathy. However, Zolan acknowledged that there was no diagnosis of either condition before the May 2002 incident. Indeed, claimant testified that, although she had suffered from diabetes for over 20 years, it was controlled through oral medication and had never affected her ability to perform her job. Claimant further stated unequivocally that she did not experience problems with her vision and that her peripheral neuropathy was not detected until June 2004.
With regard to her obesity, claimant testified that she had always been heavy and it had never affected her ability to perform her job duties. In any event, claimant testified that she had never been diagnosed with a medical condition that caused her obesity, and there is no instance in which obesity, lacking a medical basis that would ensure permanency, has been found to be a preexisting condition (see Matter of Shirley v Triangle Maintenance Corp., 41 AD2d 800, 801 [1973]; compare Matter of Durdaller v Liberty Prods. Corp., 16 AD2d 849, 849-850 [1962], affd 12 NY2d 787 [1962]). Accordingly, the Board’s decision is not supported by substantial evidence (see Matter of Kakuriev v Home Serv. Sys., LLC, 80 AD3d 1033, 1034 [2011]; Matter of Grabinsky v First At Nursing Servs., 79 AD3d at 1495).
Peters, P.J., Stein and Egan Jr., JJ., concur. Ordered that the decision is reversed, without costs, and matter remitted to the Workers’ Compensation Board for further proceedings not inconsistent with this Court’s decision.
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https://www.courtlistener.com/api/rest/v3/opinions/2177373/
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229 Cal. App. 3d 209 (1991)
280 Cal. Rptr. 766
AIM INSURANCE COMPANY, Plaintiff, Cross-defendant and Respondent,
v.
JAMES CULCASI, Defendant, Cross-complainant and Appellant.
Docket No. H006828.
Court of Appeals of California, Sixth District.
April 10, 1991.
*212 COUNSEL
George S. Roberts for Defendant, Cross-complainant and Appellant.
Low, Ball & Lynch, Raymond Coates and Geneva Wong Ebisu for Plaintiff, Cross-defendant and Respondent.
OPINION
CAPACCIOLI, Acting P.J.
Statement of the Case
Defendant James Culcasi (Culcasi), doing business as Rosine's, a restaurant, appeals from a judgment entered after the trial court granted plaintiff Aim Insurance Company's (Aim) motion for summary judgment. He claims the court erred in granting the motion. We affirm the judgment.
*213 Scope of Review
(1) The trial court may properly grant a motion for summary judgment only if there are no triable issues of fact and, as a matter of law, the moving party is entitled to judgment. (Blankenheim v. E.F. Hutton & Co. (1990) 217 Cal. App. 3d 1463, 1470 [266 Cal. Rptr. 593].)
The Undisputed Facts
In October 1986, Culcasi hired Noemi Grijalva as a waitress at Rosine's. At that time, Culcasi made health insurance available to his employees. Around July 24, 1986, Grijalva submitted an application for insurance coverage to Culcasi, who accepted it and undertook to forward it to the insurer. (2) (See fn. 1.) According to Culcasi, the application "was entrusted by her to [me] for the purpose of transmitting the same to the group health insurance company and plan administrator."[1]
In January 1989, Grijalva sued Culcasi and others, for negligent breach of fiduciary duty, breach of contract, and infliction of emotional distress. In her complaint, she alleged that eligibility for insurance was part of the compensation Culcasi paid his employees, and this potential eligibility induced Grijalva to apply for and accept the job at Rosine's.
She alleged that on July 24, 1987, she filled out an application and gave it to Culcasi. He, in turn, represented that she would be properly enrolled in the health insurance program and undertook the obligation "to insure that her application and documents were promptly and properly forwarded to the health plan and that her premium payment would result in the expected coverage."
Grijalva alleged that she met all the requirements for enrollment in the plan, premiums were deducted from her paycheck, she believed she was so enrolled in the plan, and, as a result, she did not attempt to purchase other health insurance. However, according to Grijalva, Culcasi negligently failed "to properly complete her enrollment in the plan despite his assurances that she was so enrolled." Thereafter, he requested and obtained another application, which he told her to backdate to July 24, 1987.
On September 6, 1987, Grijalva was injured in an automobile accident. In late September 1987, the insurer received her second application and *214 enrolled her in the health plan as of October 1, 1987. However, this enrollment date precluded recovery for the injuries she suffered in early September. Thus, she alleged that Culcasi's conduct deprived her of insurance coverage and as a result she had to pay her own medical expenses and suffered great emotional distress.
Culcasi tendered his defense action to Aim, which had issued a liability insurance policy (the Policy) to him. Under it, Aim agreed to "pay on behalf of [Culcasi] all sums which [he] shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies" and to "defend any suit against [Culcasi] seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent[.]"
Aim assumed the defense under a reservations of rights. On April 4, 1989, it filed the instant action, seeking a declaration that it had no potential duty to indemnify Culcasi in the event Grijalva prevailed and no duty to provide his defense. Culcasi answered and filed a cross-complaint seeking a declaration that Aim had a duty to defend and, if necessary, indemnify him.
Thereafter, Aim filed a motion for summary judgment. After a hearing, the trial court granted the motion and entered judgment in favor of Aim. In a minute order, the court explained that any duties Culcasi might have had regarding the handling of Grijalva's medical plan application could only be based on their employment contract, and, therefore, Culcasi would be liable for damages only if he breached this contract. However, the court found that the Policy covered only tort, not contractual, liability. Consequently, Aim had no duty to defend against Grijalva's contract action.
Discussion
The Trial Court's Rationale
(3) The Policy provided indemnification for amounts Culcasi "shall become legally obligated to pay as damages." Courts have construed this language to limit coverage to tort liability only. (Fragomeno v. Insurance Co. of the West (1989) 207 Cal. App. 3d 822, 828 [255 Cal. Rptr. 111]; Insurance Co. of the West v. Haralambos Beverage Co. (1987) 195 Cal. App. 3d 1308, 1317 [241 Cal. Rptr. 427]; Fireman's Fund Ins. Co. v. City of Turlock (1985) 170 Cal. App. 3d 988, 997-998 [216 Cal. Rptr. 796]; International Surplus Lines Ins. Co. v. Devonshire Coverage Corp. (1979) 93 Cal. App. 3d 601, 610-611 [155 Cal. Rptr. 870].) Thus, we agree with the trial court's conclusion that Aim had no duty to defend Culcasi against an action for breach of contract.
*215 (4a) However, we disagree with the trial court's conclusion that Grijalva's complaint sounds only in contract. The complaint clearly purports to state a cause of action for negligence, i.e., the breach of a duty of care.
(5) Generally, "[a] person who has not created a peril is ordinarily not liable in tort merely for failure to take affirmative action to assist or protect another, no matter how great the danger in which the other is placed, or how easily he could be rescued, unless there is some relationship between them which gives rise to a duty to act." (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 858, p. 220, and cases cited there, italics in original.) However, there is an exception to this rule based on a voluntary or gratuitous undertaking. (Id., § 868, p. 234, and cases cited there; Bloomberg v. Interinsurance Exchange (1984) 162 Cal. App. 3d 571, 575 [207 Cal. Rptr. 853]; Schwartz v. Helms Bakery Limited (1967) 67 Cal. 2d 232, 238 [60 Cal. Rptr. 510, 430 P.2d 68].)
Particularly instructive here is Valdez v. Taylor Automobile Co. (1954) 129 Cal. App. 2d 810 [278 P.2d 91]. There, the defendant, a car dealer, advertised that the purchase price of a car would include the cost of a premium on a liability insurance policy for the new owner. (Id. at p. 812) Plaintiff bought a car and informed the salesman he wanted "full coverage insurance to protect myself" and "that covers up the next party in case you have an accident." (Ibid.) The salesman said he would obtain this type of insurance and prepared the various documents for the sale and insurance. (Id. at p. 813.)
The plaintiff was in a car accident, in which others were injured. (Valdez, supra, 129 Cal. App.2d at p. 814.) They sued, and the plaintiff tendered his defense to the car dealer. It declined, and a money judgment was rendered against the plaintiff. (Ibid.) He then sued the dealer for failing to obtain insurance for him, asserting causes of action for, among other things, breach of contract, negligence, and fraud. (Id. at p. 812.) The jury apparently rejected plaintiff's contract claim, but nevertheless found in his favor. (Id. at p. 815.)
On appeal, the car dealer claimed that since the jury found there was no contract to obtain the insurance the plaintiff had requested, it had no duty to procure such insurance; and in the absence of a contractual duty, plaintiff could not recover for the dealer's negligent failure to do so. (Valdez, supra, 129 Cal. App.2d at p. 817.) The appellate court disagreed, stating, "It is well established that a person may become liable in tort for negligently failing to perform a voluntarily assumed undertaking even in the absence of a contract so to do. A person may not be required to perform a service for another but he may undertake to do so called a voluntary undertaking. In *216 such a case the person undertaking to perform the service is under a duty to exercise due care in performing the voluntarily assumed duty, and a failure to exercise due care is negligence. Dean Prosser says, `[I]f the defendant enters upon an affirmative course of conduct affecting the interests of another, he is regarded as assuming a duty to act, and will thereafter be liable for negligent acts or omissions,' and `If the defendant receives the plaintiff's property or papers, and undertakes, without consideration, to obtain insurance, ... he assumes a duty to use proper care in the performance of the task.... In many cases the court has laid stress upon the fact that the plaintiff has relied upon the conduct of the defendant to his damage, and has indicated that this is essential to liability. Notwithstanding an early New York case to the contrary, there is authority that where the defendant has reason to expect such reliance to the plaintiff's detriment, even a mere gratuitous promise will be enough to create a duty, for the breach of which a tort action will lie.'" (Id. at pp. 817-818; see also Smith v. Minnesota Mut. Life Ins. Co. (1948) 86 Cal. App. 2d 581, 585 [195 P.2d 457]; Stark v. Pioneer Casualty Co. (1934) 139 Cal. App. 577, 580 [34 P.2d 731]; Annot. (1953) 32 A.L.R. 2d 487, 511-517, and Later Case Service.)
(4b) In this case, Grijalva's complaint alleges that she entrusted her health plan application and supporting documents to Culcasi, who told her she would be properly enrolled in the plan, accepted her papers, and undertook the task of forwarding them to the insurance company. Culcasi concedes that he undertook this particular task. Grijalva further alleges that Culcasi "negligently breached his fiduciary duty to her by failing to properly complete her enrollment in the plan despite his assurances that she was so enrolled."
These allegations state a cause of action for negligence based on Culcasi's alleged breach of his duty to perform with due care the task he undertook and upon which Grijalva relied. That Culcasi may or may not also have had a contractual duty to send Grijalva's health plan application to the insurer is irrelevant, for his duty to perform it with reasonable care independently arose when volunteered to do it.[2] (Cf. Nidiffer v. Clinchfield R. Co. (Tenn. Ct. App. 1980) 600 S.W.2d 242 [10 A.L.R. 4th 1260] [although defendant had no contractual duty to procure adequate insurance for employees, voluntary assumption of task rendered it liable for tort damages for negligence].)
Aim cites Fragomeno v. Insurance Co. of the West, supra, 207 Cal. App. 3d 822, Insurance Co. of the West v. Haralambos Beverage Co., supra, 195 *217 Cal. App.3d 1308, Fireman's Fund Ins. Co. v. City of Turlock, supra, 170 Cal. App. 3d 988, and International Surplus Lines Ins. Co. v. Devonshire Coverage Corp., supra, 93 Cal. App. 3d 601 in support of the trial court's ruling that Grijalva's recovery is dependent on proving the existence of a contract. These cases are distinguishable. Although they support the conclusion that the Policy does not cover contractual liability, none involve a complaint that stated both contract and independent tort causes of action. Rather, the complaints in those cases contained claims based solely on alleged breaches of contractual duties.
The Duty to Defend
The seminal case on when an insurer's duty to defend arises is Gray v. Zurich Insurance Co. (1966) 65 Cal. 2d 263 [54 Cal. Rptr. 104, 419 P.2d 168]. There, a third party sued the insured, alleging an intentional assault. Thereafter, the insured sued his insurer for failing to defend him in the third party action. The type of injuries suffered were clearly covered under the policy, but the insurer claimed it had no duty to defend because of an exclusion for bodily injury intentionally caused by the insured. Our Supreme Court disagreed on two separate grounds.
The court first concluded that since the damages were the type covered by the policy, the broad language setting forth the insurer's duty to defend reasonably led the insured to expect a defense. Moreover, since the exclusionary clause upon which the insurer relied was ambiguous and not sufficiently conspicuous, plain and clear to have negated the reasonableness of the insured expectations, the insurer had a duty to perform according to the language of the policy and the reasonable expectations it gave rise to. (Gray, supra, 65 Cal.2d at pp. 267-275.)
The court's second ground was based on the rule that an insurer must defend a suit which potentially seeks damages within the coverage of the policy. (65 Cal.2d at p. 275.) "`[T]he ultimate question is whether the facts alleged do fairly apprise the insurer that plaintiff is suing the insured upon an occurrence which, if his allegations are true, gives rise to liability of insurer to insured under the terms of the policy.' (Italics added.) [Citations.] The corollary [is that] the insurer need not defend if the third party complaint can by no conceivable theory raise a single issue which could bring it within the policy coverage." (Id. at p. 276, fn. 15.)
The court explained that "[s]ince modern procedural rules focus on the facts of a case rather than the theory of recovery in the complaint, the duty to defend should be fixed by the facts which the insurer learns from the complaint, the insured, or other sources. An insurer, therefore, bears a duty *218 to defend its insured whenever it ascertains facts which give rise to the potential of liability under the policy." (Gray, supra, 65 Cal.2d at pp. 276-277, italics added.)
Since in Gray the complaint and the facts known to the insurer reasonably disclosed the potential for a judgment for damages against the insured based on his nonintentional conduct, damages which would clearly fall within the coverage of the insurance policy, the insurer had a duty to defend. (Gray, supra, 65 Cal.2d at pp. 276-277.)
Culcasi's Reasonable Expectation of a Defense
(6) Whether an insured's expectation of a defense is reasonable is a question of law. (Cf. Dyer v. Northbrook Property & Casualty Ins. Co. (1989) 210 Cal. App. 3d 1540, 1549 [259 Cal. Rptr. 298].)
(4c) As noted above, the Policy covers only "property damage" and "bodily injury."
In her complaint, Grijalva did not allege any sort of property damage. Rather she sought, among other things, "payment of medical bills which would have, except for the negligence of Defendant have been paid by the group health insurance plan in an amount not less than $14,000." Grijalva's loss of insurance benefits constitutes economic injury, not property damage. (Cf. Safeco Ins. Co. of America v. Andrews (9th Cir.1990) 915 F.2d 500 [economic injury due to misrepresentation not property damage].) Therefore, Culcasi reasonably could not have expected that Aim would defend him based on Grijalva's economic loss.
Although Grijalva's primary injury was economic, she also alleged that she suffered "great emotional distress." Thus the question arises, does the policy coverage for "bodily injury" cover a claim for only emotional distress.[3]
The Meaning of "Bodily Injury"
(7) Words in an insurance policy must be read in their ordinary sense. (Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal. 3d 903, 912 [226 Cal. Rptr. 558, 718 P.2d 920].) If the meaning a layperson would give to the policy language is unambiguous, then we must apply it. (AIU Ins. Co. *219 v. Superior Court (1990) 51 Cal. 3d 807, 822 [274 Cal. Rptr. 820, 799 P.2d 1253].) On the other hand, if the language is ambiguous, we first try to resolve it by interpreting the language "in the sense the promisor (i.e., the insurer) believed the promisee understood [it] at the time of formation." (Ibid.) If the ambiguity persists, we resolve it against the insurer. (Producers Dairy Delivery Co. v. Sentry Ins. Co., supra.)
Whether language is ambiguous is a question of law. (Producers Dairy Delivery Co. v. Sentry Ins. Co., supra, 41 Cal. 3d 903, 912.) Ambiguity arises when policy language may reasonably be interpreted in two or more ways. (Ibid.) Courts, however, should not strain to find ambiguity where none reasonably exists. (See Reserve Insurance Co. v. Pisciotta (1982) 30 Cal. 3d 800, 807 [180 Cal. Rptr. 628, 640 P.2d 764].)
The critical word in the term "bodily injury" is "bodily."
(4d) Webster's Third New International Dictionary (1981) defines "bodily" as "having a body or a material form: physical, corporeal." It considers the word synonymous with physical, corporeal, corporal, and somatic, explaining, "these words agree in referring to the human body and differ so little that they are often interchangeable. Bodily contrasts with mental or spiritual." (Id. at p. 245, italics in original; Webster's Ninth New Collegiate Dict. (1986) p. 164 [same].)
The Random House Dictionary of the English Language (2d ed. 1987) defines "bodily" as "1. of or pertaining to the body. 2. corporeal or material, as contrasted with spiritual or mental[.]" (Id. at p. 232.)
The American Heritage Dictionary (2d College ed. 1982) defines "bodily" as "adj. 1. Of, pertaining to, within, or exhibited by the body: bodily organs. 2. Physical as opposed to mental or spiritual: bodily welfare. adv. 1. In the flesh; in person: bodily but not mentally present." (Id. at p. 193, italics in original.)
Black's Law Dictionary (6th ed. 1990) defines "bodily" as "Pertaining to or concerning the body; of or belonging to the body or the physical constitution; not mental, but corporeal." (Id. at p. 175; see Ballentine's Law Dict. (3d ed. 1969) p. 144 [same]; West's Legal Thesaurus/Dict. (1986) p. 97 [same].)
Such definitional unanimity indicates that the ordinary and popular meaning of the word "bodily" does not reasonably encompass, and in fact suggests a contrast with, the purely mental, emotional, and spiritual.
*220 Indeed, in Cotton States Mut. Ins. Co. v. Crosby (1979) 244 Ga. 456 [260 S.E.2d 860, 862-863], the Georgia Supreme Court reversed a finding that the term "bodily injury" was ambiguous. "The definition section of the policy provides that `"bodily injury" means bodily injury, sickness or disease....' While it is true that the two words are not defined in intricate detail, nevertheless, we have a rule of construction in Georgia [citation] which provides that words `generally bear their usual and common signification....' These words cannot fairly be said to have misled anyone. The definition offered in the policy, that is that `bodily injury means bodily,' is a genuine attempt to explain words which need no explanation, and it would be an onerous imposition indeed to require insurance companies to go beyond that with each and every term used to provide the insured with an unnecessary lexicon."
Given the clear and ordinary meaning of the word "bodily," we find the term "bodily injury" unambiguous. It means physical injury and its consequences. It does not include emotional distress in the absence of physical injury.[4]
Some California cases suggest that emotional distress might be "bodily injury."
In Royal Globe Ins. Co. v. Whitaker (1986) 181 Cal. App. 3d 532, 538, footnote 8 [226 Cal. Rptr. 435], the insurer conceded that emotional distress alleged in a complaint for fraud constituted bodily injury within the meaning of the policy. In Westfield Ins. Co. v. TWT, Inc. (N.D.Cal. 1989) 723 F. Supp. 492, 495, the insurer did not dispute that emotional distress was bodily injury within the meaning of the term in primary and excess insurance policies presumably because the excess policy explicitly included it. These cases did not address the issue before us, and, therefore, neither is *221 authority for a conclusion one way or the other. (Saberi v. Bakhtiari (1985) 169 Cal. App. 3d 509, 516, fn. 6 [215 Cal. Rptr. 359].)
In Dyer v. Northbrook Property & Casualty Ins. Co., supra, 210 Cal. App. 3d 1540, 1546, the court stated in dicta that "several cases" define "bodily injury" arising from wrongful termination to include harm caused by emotional distress. This statement implies that nonphysical harm caused by emotional distress is nevertheless "bodily injury." However, the court cited only two cases: Abellon v. Hartford Ins. Co. (1985) 167 Cal. App. 3d 21 [212 Cal. Rptr. 852] and Agarwal v. Johnson (1979) 25 Cal. 3d 932 [160 Cal. Rptr. 141, 603 P.2d 58]. Neither remotely supports the court's statement.
Agarwal v. Johnson, supra, 25 Cal. 3d 932 does not discuss the tort of wrongful termination, the meaning of the term "bodily injury" as used in an insurance policy, or whether emotional distress without physical manifestation or injury constitutes bodily injury.
In Abellon v. Hartford Ins. Co., supra, 167 Cal. App. 3d 21 a divided court concluded that a wife's loss of consortium could be an independent bodily injury under an insurance policy that covered "bodily injury," if the loss of consortium were accompanied by emotional distress which resulted in bodily injury. (Id. at pp. 26-32.) The court held that under such circumstances the wife's recovery would not be limited to the "per person" coverage limitation applicable to her husband. (Id. at pp. 25-30; but see dissenting opinion of Lewis, J., in Abellon v. Hartford Ins. Co., supra, 167 Cal. App. 3d 21, 33-35; see generally, Annot. (1986) 46 A.L.R. 4th 735 and later cases (1990 pocket supp.) pp. 15-17.)
Although the court opined that it is difficult to distinguish between mental and physical injuries (Abellon v. Hartford Ins. Co., supra, 167 Cal. App.3d at p. 27), it did not suggest that emotional distress in the absence of physical injury constitutes "bodily injury" as that term is used in an insurance policy.[5]
In Keating v. National Union Fire Ins. Co. (C.D.Cal. 1990) 754 F. Supp. 1431, the court discussed whether emotional distress is "bodily injury." *222 There, the court acknowledged the holding in United Pacific Ins. Co. v. McGuire Co. (Cal. App. A045445) rehg. granted Aug. 23, 1990) (see ante, fn. 3, p. 218)[*] but noted that a rehearing had been granted and opined that "at least for the moment, [the] opinion is of questionable value as precedent." (Keating, supra, 754 F. Supp. 1431.)
Notwithstanding the United Pacific case, the court in dicta opined that previous cases implied that even pure emotional distress would constitute bodily injury. Consequently, "it would appear that allegations of emotional distress would be sufficient to trigger a defense under [a policy covering `bodily injury']." (Keating, supra, 754 F. Supp. 1431.)
In support of this view, the court cited Abellon v. Hartford Ins. Co., supra, 167 Cal. App. 3d 21, and Employers Cas. Ins. Co. v. Foust (1972) 29 Cal. App. 3d 382 [105 Cal. Rptr. 505], both of which Culcasi also relies on.
As noted above, Abellon v. Hartford Ins. Co., supra, 167 Cal. App. 3d 21 does not suggest that emotional distress without physical manifestation or injury constitutes "bodily injury." Nor does Employers Cas. Ins. Co. v. Foust, supra, 29 Cal. App. 3d 382. There, the court held that the term "bodily injury" in an insurance policy covers "bodily or physical injury even where such injury is proximately caused, not by direct collision, but by emotional distress induced directly or indirectly by such collision." (Id. at p. 387.) Moreover, because the insurer was liable for "all damages ... arising out of bodily injury," the policy covered the accompanying emotional distress. (Ibid., italics added.)
Neither Abellon nor Employers Casualty Insurance suggests that emotional distress unaccompanied by physical injury constitutes "bodily injury."
Returning to Keating, we further note the complaint in that case "expressly allege[d] both `emotional and physical distress' and `impairment of health.'" (Keating, supra, 754 F. Supp. 1431.) Under the circumstances, the court concluded that even if the "bodily injury" provision of the policy requires some physical injury, the plaintiffs' claims of physical distress and impairment of health were sufficient to show such injury.
In the instant case, the allegations in Grijalva's complaint do not allege any physical injury, distress, or impairment. Thus, Keating is distinguishable on its facts.
In addition to Abellon and Employers Casualty Insurance, Culcasi also cites Molien v. Kaiser Foundation Hospitals (1980) 27 Cal. 3d 916 [167 *223 Cal. Rptr. 831, 616 P.2d 813, 16 A.L.R. 4th 518] and Vanoni v. Western Airlines (1967) 247 Cal. App. 2d 793 [56 Cal. Rptr. 115].
In Molien v. Kaiser Foundation Hospitals, supra, 27 Cal. 3d 916, the court held that a husband may maintain a tort action for the emotional distress caused by a negligent diagnosis of his wife's physical condition regardless of whether he suffers actual physical injury. (Id. at pp. 923, 928, 932.) In so holding, the court rejected the previous rule that physical injury was required to recover damages for emotional distress in negligence actions. (Id. at pp. 924-931.) It noted that the primary purpose of the rule was to screen "feigned injuries and false claims." (Id. at p. 925.) However, since the interest in freedom from negligently inflicted emotional distress is entitled to independent protection, the purpose of the rule is not justified because it permits recovery where the physical injury is trivial and mechanically denies court access to plaintiffs who may have valid, provable claims. (Id. at pp. 928-929.)
The court observed that the "border between physical and emotional injury is not clearly delineated" and the distinction between physical and psychological injury clouds the real issue, which is one of proof: has the plaintiff suffered a serious and compensable injury. (Molien, supra, 27 Cal.3d at pp. 929-930.) Since the "physical injury" requirement screens claims at the pleading stage, it tended to usurp the jury's fact-finding function. (Ibid.) The court opined that emotional distress claims were capable of verification by the general standard of proof required to support a claim. (Ibid.)
In Vanoni v. Western Airlines, supra, 247 Cal. App. 2d 793, the court applied the rule requiring physical harm to recover for emotional distress but found an allegation that the plaintiffs suffered "severe shock to [their] nerves and nervous system[s]" sufficient to state physical injury so as to overcome a general demurrer. (Id. at p. 797.)
In support of its conclusion, the court quoted Sloane v. Southern Cal. Ry. Co. (1896) 111 Cal. 668, 680 [44 P. 320], where the court observed that "`nervous shock or paroxysm, or a disturbance of the nervous system, is distinct from mental anguish, and falls within the physiological, rather than the psychological, branch of the human organism.'" (Vanoni, supra, 247 Cal. App.2d at p. 796, italics added.)
Molien and Vanoni indicate, among other things, that (1) emotional distress may or may not involve physical injury, (2) physical and emotional well-being are equally entitled to protection from intentional and negligent impairment, and (3) physical injury is no longer required to recover *224 damages for emotional distress in tort actions. However, they do not imply that emotional distress by itself is physical or bodily injury or that it automatically causes such injury.
Our research reveals that courts in numerous other jurisdictions have considered the precise issue before us. Not surprisingly, the overwhelming majority have reached the same conclusion we have. (See, e.g., Kema Steel, Inc. v. Home Ins. Co. (1986) 153 Ariz. 315 [736 P.2d 798, 799] [Ariz.]; United States Fidelity and Guaranty Co. v. Shrigley (W.D.Ark. 1939) 26 F. Supp. 625, 628 [Ark.]; Presidential Hotel v. Canal Ins. Co. (1988) 188 Ga. App. 609 [373 S.E.2d 671, 672] [Ga.]; Grant v. North River Ins. Co. (N.D.Ind. 1978) 453 F. Supp. 1361, 1367 [Ind.]; Dahlke v. State Farm Mut. Auto. Ins. Co. (Iowa 1990) 451 N.W.2d 813, 815 [Iowa]; Nickens v. McGehee (La. Ct. App. Cir.1966) 184 So. 2d 271, 278 [La.]; Allstate Ins. Co. v. Diamant (1988) 401 Mass. 654 [518 N.E.2d 1154, 1156-1157] [Mass.]; Farm Bureau Mut. Ins. Co. of Michigan v. Hoag (1984) 136 Mich. App. 326 [356 N.W.2d 630, 633] [Mich.]; Mutual Serv. Cas. Ins. v. Co-Op Supply, Inc. (D.Mont. 1988) 699 F. Supp. 1438, 1440 [Mont.]; Artcraft v. Lumberman's Mut. Cas. Co. (N.H. 1985) 497 A.2d 1195, 1196 [N.H.]; Lumbermen's v. United Serv. Auto. (1987) 218 N.J. Super. 492 [528 A.2d 64, 65-68] [N.J.]; Rolette County v. Western Casualty & Surety Co., supra, 452 F. Supp. 125, 130 [N.D.]; Mellow v. Medical Malpractice Ass'n (R.I. 1989) 567 A.2d 367, 368 [R.I.]; Guardian Life Ins. Co. of America v. Richardson (Tenn. 1939) 129 S.W.2d 1107, 1115 [Tenn.]; Bituminous Fire & Marine Ins. Co. v. Izzy Rosen's Inc. (6th Cir.1974) 493 F.2d 257, 261 [Tenn.]; American & For. Ins. v. Church Sch., Diocese of Va. (E.D.Va. 1986) 645 F. Supp. 628, 632 [Va.]; E-Z Loader Boat Trailers v. Travelers Indem., supra, 106 Wash. 2d 901 [726 P.2d 439, 443] [Wash.]; St. Paul Fire & Marine Ins. v. Campbell Cty. School (D.Wyo. 1985) 612 F. Supp. 285, 287 [Wyo.]; see also Allstate Ins. Co. v. McCranie (S.D.Fla. 1989) 716 F. Supp. 1440, 1443; Kufalk v. Hart (N.D.Ill. 1986) 636 F. Supp. 309, 311 [Ill.]; Tomlinson v. Skolnik (1989) 44 Ohio St. 3d 11 [540 N.E.2d 716, 719] [Ohio]; E.E.O.C. v. Southern Pub. Co., Inc. (S.D.Miss. 1988) 705 F. Supp. 1213, 1219; Western Cas. & Sur. Co. v. Waisanen (D.S.D. 1987) 653 F. Supp. 825, 833 [S.D.].)
In general, courts find that "bodily injury" is unambiguous; it is more restrictive than "personal injury," which includes emotional injury; and, therefore, it is limited to physical injury, sickness, or disease and their consequences. (See, e.g., Allstate Ins. Co. v. Diamant, supra, 401 Mass. 654 [518 N.E.2d 1154, 1156-1157]; Artcraft v. Lumberman's Mut. Cas. Co., supra, 497 A.2d 1195, 1196.)
We acknowledge and discuss decisions to the contrary.
*225 In Morrison Assur. Co. v. North American Reinsurance (N.D.Ala. 1984) 588 F. Supp. 1324, 1327, the court did not discuss whether the insurance policy was ambiguous but simply construed it against the insurer and concluded without discussion or citation to any authority that mental anguish was "sickness" and/or "disease," and, therefore covered under the policy.
In Loewenthal v. Sec. Ins. Co. of Hartford (1982) 50 Md. App. 112 [436 A.2d 493, 499], the court concluded without discussion or authority that emotional distress was bodily injury. (But see Daley v. United Services (1988) 312 Md. 550 [541 A.2d 632, 633-636] [solatium injury, which includes emotional distress, is not bodily injury].)
Neither Morrison nor Loewenthal is very persuasive authority.
In Lavanant v. General Acc. Ins. Co. (1990) 164 A.D.2d 73 [561 N.Y.S.2d 164, 167-168], the court interpreted the policy language against the insurer and found emotional anguish, even in the absence of physical touching, to be "sickness" within the policy definition of "bodily injury." To support its conclusion the court cited, in addition to Morrison Assur. Co. v. North American Reinsurance, supra, 588 F. Supp. 1324, Loewenthal v. Sec. Ins. Co. of Hartford, supra, 50 Md. App. 112 [436 A.2d 493, 499], and NPS Corp. v. Insurance Co. of North America (1986) 213 N.J. Super. 547 [517 A.2d 1211], which held that "bodily injury" includes the emotional consequences of a sexual battery. (But cf. Lumbermen's v. United Service Auto., supra, 218 N.J. Super. 492 [528 A.2d 64] [alleged defamation including great emotional distress not "bodily injury"].) The court also cited on County of Chemung v. Hartford Cas. Ins. Co. (1985) 130 Misc. 2d 648 [496 N.Y.S.2d 933, 935], where the court held that "bodily injury" covered all damages resulting from physical abuse, including pain and suffering.
The authorities cited by the Lavanant court do not lead us to its conclusion. Moreover, since "bodily injury" is, in our view, unambiguous, we do not interpret the term against Aim. For this latter reason, we are also unpersuaded by another New Jersey case, Wolfe v. State Farm Ins. Co. (1988) 224 N.J. Super. 348 [540 A.2d 871, 873-874], where the court found "bodily injury" to be ambiguous and, therefore, construed it against the insurer to include a family's emotional distress resulting from the death of a member by carbon monoxide poisoning.
In State Farm Mut. Auto. Ins. Co. v. Ramsey (1988) 295 S.C. 349 [368 S.E.2d 477, 478], the court held that emotional distress was covered as "bodily injury." However, it relied on tort cases, which recognized emotional well-being as an interest worthy of protection. The court did not discuss *226 the language of the insurance policy or the distinction between tort damages for personal injuries and damages recoverable under an insurance contract. Thus, we find its analysis unconvincing.
In Bloodworth v. Carroll (La. Ct. App. 1984) 455 So. 2d 1197, 1205, reversed on other grounds, (La. 1985) 463 So. 2d 1313, the court stated without analysis that "bodily injury includes mental anguish, fright, distress and humiliation." As support, the court cited Levy v. Duclaux (La. Ct. App. 1975) 324 So. 2d 1 and Holcomb v. Kincaid (La. Ct. App. 1981) 406 So. 2d 646. However, neither case suggests that emotional distress absent physical manifestation or injury constitutes "bodily injury." Rather, in Levy, the court considered mental anguish that caused tears and hysteria, required medication, and impaired the ability to work to be a "sickness." (Levy, supra, 324 So.2d at p. 10.) In Holcomb, the court found humiliation and embarrassment causing rash, falling hair, weight loss, and symptoms of stroke to be "bodily injury." (Holcomb, supra, 406 So.2d at p. 648.)
Moreover, in Albin v. State Farm Mut. Auto. Ins. Co. (La. Ct. App. 1986) 498 So. 2d 171, 174, another Louisiana court later reiterated the physical manifestation or injury requirement and held that in the absence thereof, one could not recover for loss of consortium even though such injury included emotional distress.
In sum, the cases discussed above that have reached a contrary conclusion do not dissuade us.
We now return to our discussion of Culcasi's reasonable expectation of coverage. Given the clear and unambiguous meaning of the term "bodily injury" and our conclusion that absent physical injury, emotional distress is not "bodily injury," we further conclude that Culcasi could not reasonably have expected Aim to provide a defense against Grijalva action based solely on her allegations of emotional distress.[6]
*227 Potential Liability
(8) As noted above, the facts alleged in the complaint or known to the insurer determine whether it has a duty to defend an insured. (Gray v. Zurich Insurance Co., supra, 65 Cal.2d at pp. 276-277.)
(4e) The allegation that Grijalva suffered economic injury because Culcasi negligently failed to forward her insurance application does not reasonably disclose any potential liability for "property damage."
We note that in his cross-complaint for declaratory relief, Culcasi alleges that (1) Grijalva's application papers were her personal property, (2) she alleged that he negligently failed to transmit them, (3) this allegation includes the possibility that he "negligently lost, destroyed, or misdirected said application," and (4) loss or destruction of the application would constitute "property damage" within the meaning of the policy.
(9) Culcasi does not reiterate this claim on appeal, and, therefore has waived it. (9 Witkin, Cal. Procedure, supra, Appeal, § 479, pp. 469-471, and cases cited there.) (4f) Moreover, this claim is frivolous. The alleged loss or destruction of a piece (or pieces) of paper Grijalva entrusted to Culcasi represents trivial, if not nonexistent, property damage. Finally, we disagree that the complaint reasonably apprises Aim of potential liability for the loss or destruction of Grijalva's paper.
We next conclude that Grijalva's claim of "great emotional distress" does not reasonably disclose the potential liability for "bodily injury."
(10) Emotional or mental injuries are not inextricably linked to bodily injury. (Interstate Fire & Cas. Co. v. Stuntman, Inc. (9th Cir.1988) 853 F.2d 751, 752-753.) The one, especially emotional distress, does not automatically suggest the existence of the other. And one can recover for emotional distress in the absence of a physical injury or manifestation. (See 6 Witkin, Summary of Cal. Law, supra, Torts, § 852, pp. 210-213.) (4g) Consequently, the mere fact that Grijalva allegedly suffered emotional distress, standing alone, does not, in our view, reasonably suggest that she also suffered "bodily injury." Nor does Culcasi suggest that Aim was aware of facts indicating Grijalva suffered some physical injury.
Under the circumstances, therefore, the record discloses that Aim was not apprised of any facts suggesting "bodily injury" which might have rendered it potentially liable for Grijalva's alleged emotional distress. (Compare Giddings v. Industrial Indemnity Co. (1980) 112 Cal. App. 3d 213 [169 Cal. Rptr. 278] [no duty to defend where allegations of economic injury fail *228 to raise potential liability under policy covering property damage] with CNA Casualty of California v. Seaboard Surety Co. (1986) 176 Cal. App. 3d 598 [222 Cal. Rptr. 276] [duty to defend where allegations that defendant stole and misused property interest and trade secrets and made misrepresentations to eliminate other competition were arguably within policy coverage for piracy, unfair competition, and idea misappropriation].)
Conclusion and Disposition
In light of our discussion and review of the undisputed facts, we conclude there were no triable issues of fact concerning whether Aim had any potential liability for property damage or damages for bodily injury under the Policy. Rather, the record negates the existence of a reasonable expectation of coverage or potential liability. Consequently, Aim has no duty to defend Culcasi against Grijalva's complaint. (11) And since the duty to defend is broader than the duty to indemnify (Giddings v. Industrial Indemnity Co., supra, 112 Cal. App. 3d 213, 217), it follows that Aim could have no duty to indemnify Culcasi if Grijalva should prevail. (12) (See fn. 7.) In sum, therefore, we hold that the trial court properly granted Aim's motion for summary judgment.[7]
The judgment is affirmed.
Elia, J., and Bamattre-Manoukian, J., concurred.
Appellant's petition for review by the Supreme Court was denied June 20, 1991. Mosk, J., and Broussard, J., were of the opinion thta the petition should be granted.
NOTES
[1] This statement is taken from the allegations in Culcasi's cross-complaint against Aim and, therefore, constitutes an admission. (1 Witkin, Cal. Evidence (3d ed. 1986) The Hearsay Rule, § 646, pp. 631-632.)
[2] Grijalva need not prove a fiduciary relationship with Culcasi to recover under the theory of a negligent performance of a voluntary undertaking. Hence, her allegation that Culcasi breached a "fiduciary duty" may be disregarded as surplusage.
[3] Division One of the First District recently concluded that emotional distress is covered under a "bodily injury" provision only if it results from, or itself causes, physical injuries. However, the court granted a rehearing in that case. (United Pacific Ins. Co. v. McGuire Co. (Cal. App. A045445) rehg. granted Aug. 23, 1990.)[*]
[*] Reporter's Note: For subsequent opinion, see 229 Cal. App. 3d 1560 (May 22, 1991).
[4] Culcasi asserts that the policy defines "bodily injury" as "bodily injury, sickness or disease." He does not provide a record reference to support this assertion of fact. (Cal. Rules of Court, rule 15 (a)). Moreover, our review of the policy before the trial court and included in record on appeal does not reveal this definition. In the absence of an adequate record and/or record references to support Culcasi's assertion, we need not consider this purported definition and argument based thereon. (See 9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, §§ 418, 474, pp. 415-417, 466-467.)
We observe that in its motion for summary judgment, Aim quoted this definition but also failed to provide documentary support for it. Even if this purported definition were properly before us, however, our analysis would remain unchanged. In this definition, "bodily" modifies not only "injury," but also "sickness" and "disease." (See E-Z Loader Boat Trailers v. Travelers Indem. (1986) 106 Wash. 2d 901 [726 P.2d 439, 443]; see Aetna Cas. & Sur. Co. v. First Sec. Bank of Bozeman (D.Mont. 1987) 662 F. Supp. 1126, 1128; Cotton States Mut. Ins. Co. v. Crosby (1979) 244 Ga. 456 [260 S.E.2d 860, 862-863]; Rolette County v. Western Cas. & Sur. Co. (D.N.D. 1978) 452 F. Supp. 125, 129-130.) Thus, the policy covers injury, sickness, and/or disease where they have physical manifestations or consequences.
[5] It should also be noted that the distinction between purely emotional and physical injuries is important in a related context. Namely, it underlies the determination concerning whether an employee may sue for intentional infliction of emotional distress suffered at work or whether workers' compensation provides his or her exclusive remedy. (See Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal. 3d 148, 151, 153, 156 [233 Cal. Rptr. 308, 729 P.2d 743]; Green v. City of Oceanside (1987) 194 Cal. App. 3d 212, 224-225 [239 Cal. Rptr. 470]; Renteria v. County of Orange (1978) 82 Cal. App. 3d 833, 840, 842 [147 Cal. Rptr. 447].)
[*] See Reporter's Note, ante, page 218.
[6] Many of the cases we have cited from other jurisdictions also concluded that the insurer had no duty to defend a claim against the insured for emotional distress. (See, e.g., Kema Steel, Inc. v. Home Ins. Co., supra, 153 Ariz. 315 [736 P.2d 798, 799]; United States Fidelity and Guaranty Co. v. Shrigley, supra, 26 F. Supp. 625, 628; Presidential Hotel v. Canal Ins. Co., supra, 188 Ga. App. 609 [373 S.E.2d 671, 672]; Farm Bureau Mut. Ins. Co. of Michigan v. Hoag, supra, 136 Mich. 326 [356 N.W.2d 630, 633]; Mutual Serv. Cas. Ins. Co. v. Co-op Supply, Inc., supra, 699 F. Supp. 1438, 1440; Lumbermen's v. United Serv. Auto., supra, 218 N.J. Super. 492 [528 A.2d 64, 65-68]; Rolette County v. Western Casualty & Surety Co., supra, 452 F. Supp. 125, 130; Mellow v. Medical Malpractice Ass'n, supra, 567 A.2d 367, 368; American & For. Ins. v. Church Sch., Diocese of Va., supra, 645 F. Supp. 628, 632; E-Z Loader Boat Trailers v. Travelers Indem., supra, 106 Wash. 2d 901 [726 P.2d 439, 443]; St. Paul Fire & Marine Ins. v. Campbell Cty. School, supra, 612 F. Supp. 285, 287.)
[7] Although we reject the trial court's reasoning for granting Aim's motion, we may nevertheless find it to be the correct judicial action. As our Supreme Court explained in D'Amico v. Board of Medical Examiners (1974) 11 Cal. 3d 1 [112 Cal. Rptr. 786, 520 P.2d 10], "`The fact that the action of the court may have been based upon an erroneous theory of the case, or upon an improper or unsound course of reasoning, cannot determine the question of its propriety. No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.'" (Id. at pp. 18-19, quoting Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329 [48 P. 117].)
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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/5902332/
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In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Queens County (Torres, J.), dated July 14, 1986, which, upon a fact-finding order of the same court, dated April 17, 1986, made after a hearing, finding that appellant had committed acts which, if committed by an adult, would have constituted the crimes of grand larceny in the second degree, criminal possession of stolen property in the first degree, and possession of burglar’s tools, placed him with the Division for Youth, Title II, for a period not to exceed 18 months. The appeal brings up for review the fact-finding order dated April 17, 1986.
Ordered that the order of disposition is affirmed, without costs or disbursements.
The court did not err in admitting into evidence testimony that the police officer received a police radio report stating that the vehicle the officer was observing was stolen. This was offered primarily for the purpose of explaining the officer’s actions, rather than to prove that the vehicle was, indeed stolen. That evidence was not hearsay, since it was only admitted for the fact that the statement was made (see, Richardson, Evidence § 203 [Prince 10th ed]; cf., People v Jimenez, 102 AD2d 439, 443). Even if this testimony had been considered for its truth, its inclusion was harmless, since the owner of the vehicle identified the vehicle recovered as his and stated that it had been taken without his permission.
We have considered the appellant’s remaining contentions and find them to be without merit. 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/5902333/
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Garry, J.
Appeal from a decision of the Workers’ Compensation Board, filed February 10, 2012, which ruled that the employer is entitled to reimbursement from the Special Disability Fund.
Claimant had been working for the self-insured employer for almost 20 years, most recently as its transportation coordinator, when she sustained back and shoulder injuries in May 2002 while assisting students exiting a bus. Thereafter, the employer sought reimbursement from the Special Disability Fund pursuant to Workers’ Compensation Law § 15 (8) (d). Following proceedings, the Workers’ Compensation Board found that, due to claimant’s preexisting diabetes and obesity, the Fund was liable and the Fund now appeals.
We reverse. To be entitled to reimbursement from the Fund, an employer must establish “ ‘that the claimant had a preexisting permanent impairment that hindered job potential, a subsequent injury arising out of and in the course of employment, and a permanent disability caused by both conditions materially and substantially greater than what would have been caused by the work-related injury alone’ ” (Matter of Southard v Corning Hotel Corp., 95 AD3d 1519, 1519-1520 [2012], quoting Matter of Sturtevant v Broome County, 188 AD2d 893, 893-*1070894 [1992]; see Matter of Pinter v Louis J. Kennedy Trucking Corp., 82 AD3d 1481, 1481 [2011]). We find merit in the Fund’s contention that the employer failed to demonstrate that claimant’s preexisting conditions hindered her job potential.
Examining first the issue of claimant’s diabetes, the existence of that disease alone has not been held sufficient to establish a preexisting permanent condition that hinders employment for the purposes of Workers’ Compensation Law § 15 (8) (d) (see Matter of Grabinsky v First At Nursing Servs., 79 AD3d 1494, 1495 [2010]; Matter of Sturtevant v Broome County, 188 AD2d at 894; compare Matter of Dupuis v Frito Lay, 74 AD3d 1618, 1618 [2010]). To the contrary, preexisting conditions that are controlled by medication have been found, without more, not to constitute a hindrance to employability (see Matter of Weiner v Glenman Indus. & Commercial Contr. Corp., 95 AD3d 1516, 1518 [2012]; Matter of Bushey v Schuyler Ridge, 77 AD3d 1006, 1007 [2010]). Here, the Board principally relied on the medical opinion of orthopedic surgeon Stephen Zolan, who performed a medical record review in April 2010 and found claimant to suffer, as a result of her diabetes, from peripheral neuropathy in her lower extremities as well as optical neuropathy. However, Zolan acknowledged that there was no diagnosis of either condition before the May 2002 incident. Indeed, claimant testified that, although she had suffered from diabetes for over 20 years, it was controlled through oral medication and had never affected her ability to perform her job. Claimant further stated unequivocally that she did not experience problems with her vision and that her peripheral neuropathy was not detected until June 2004.
With regard to her obesity, claimant testified that she had always been heavy and it had never affected her ability to perform her job duties. In any event, claimant testified that she had never been diagnosed with a medical condition that caused her obesity, and there is no instance in which obesity, lacking a medical basis that would ensure permanency, has been found to be a preexisting condition (see Matter of Shirley v Triangle Maintenance Corp., 41 AD2d 800, 801 [1973]; compare Matter of Durdaller v Liberty Prods. Corp., 16 AD2d 849, 849-850 [1962], affd 12 NY2d 787 [1962]). Accordingly, the Board’s decision is not supported by substantial evidence (see Matter of Kakuriev v Home Serv. Sys., LLC, 80 AD3d 1033, 1034 [2011]; Matter of Grabinsky v First At Nursing Servs., 79 AD3d at 1495).
Peters, P.J., Stein and Egan Jr., JJ., concur. Ordered that the decision is reversed, without costs, and matter remitted to the Workers’ Compensation Board for further proceedings not inconsistent with this Court’s decision.
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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/5902336/
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Mercare, J.P.
Appeal from a decision of the Workers’ Compensation Board, filed January 30, 2012, which, among other things, ruled that claimant did not violate Workers’ Compensation Law § 114-a.
Claimant, while employed as a machinist by Griffin Manufacturing Company, reported that he sustained injuries to his back in July 1998 and March 2000. He did not pursue workers’ compensation benefits with respect to the 1998 incident, but the 2000 incident resulted in an established workers’ compensation claim set forth in a September 2002 decision by a Workers’ Compensation Law Judge (hereinafter WCLJ), which was not appealed.* Eight years later, Griffin filed an application seeking a reopening and rehearing of the previously established 2000 claim on the basis that claimant allegedly violated Workers’ Compensation Law § 114-a. According to Griffin, claimant concealed a prior 1979 motor vehicle accident, impermissibly “linked a time barred accident” allegedly occurring in July 1999 to the 2000 incident, and gave inconsistent accounts regarding the 2000 claim. Following a hearing, the WCLJ found no credible evidence of fraud supporting Griffin’s contentions. Upon review, the Workers’ Compensation Board affirmed and denied the application to reopen, and this appeal by Griffin ensued.
We affirm. “The Board’s determination as to whether a claimant has made a material misrepresentation in violation of Workers’ Compensation Law § 114-a will not be disturbed if supported by substantial evidence” (Matter of Hamza v Steinway & Sons, 88 AD3d 1033, 1033 [2011] [citations omitted]). Here, the record evinces that claimant’s medical file included information pertaining to his 1979 motor vehicle accident, and Griffin acknowledged that the July 1999 accident date appearing on a few medical reports “was probably a typo” *1072meant to refer to the already-disclosed July 1998 incident. Furthermore, Griffin’s contention that claimant gave inconsistent accounts of the 2000 injury did no more than create “a credibility issue for the Board, the sole arbiter of witness credibility” (Matter of Martinez v LeFrak City Mgt., 100 AD3d 1110, 1111 [2012] [internal quotation marks and citation omitted]). Inasmuch as there is substantial evidence supporting the Board’s decision, we decline to disturb it.
Griffin’s remaining contentions, including its assertion that the Board abused its discretion in granting a reopening or rehearing of the 2000 claim, have been examined and found to be unpersuasive.
Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed, without costs.
Thereafter, claimant filed another claim for workers’ compensation benefits alleging that he sustained another injury in June 2006 while working for a subsequent employer. Although the Workers’ Compensation Board decided that claimant sustained a new injury, this Court ultimately ruled that this decision was not supported by substantial evidence (Matter of Poulton v Martec Indus., 75 AD3d 819 [2010]).
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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/5902337/
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Fuchs, J.), rendered October 13, 1983, convicting him of robbery in the first degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The identifications made at the time of the defendant’s apprehension were spontaneous, and there is no evidence that the subsequent identifications at the station house came about as a result of a staged showup or other improper police conduct (see, People v Dukes, 97 AD2d 445; see also, People v Evans, 120 AD2d 608, lv denied 68 NY2d 756).
Viewing the evidence in the light most favorable to the People (People v Benzinger, 36 NY2d 29), it is legally sufficient to support the defendant’s conviction of the crime charged (see, People v Lewis, 64 NY2d 1111; People v Contes, 60 NY2d 620). Moreover, upon the exercise of our factual review power, we are satisfied that the evidence overwhelmingly established the defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
As to the sentence, we find that there has been no failure to apply proper sentencing principles (see, People v Suitte, 90 AD2d 80, 86).
The defendant’s remaining contention has not been preserved for appellate review (CPL 470.05 [2]). 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/5902338/
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Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Felig, J.), rendered November 4, 1983, convicting him of sexual abuse in the first degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The record in the present case, including the minutes of the Grand Jury proceedings, provides an adequate basis upon which to conclude that any prearrest showup procedure was purely confirmatory in that the complaining witness knew the identity of the defendant. The court therefore did not err in summarily denying the defendant’s motion to suppress identification testimony (see, People v Kearn, 118 AD2d 871; see also, People v Robles, 122 AD2d 234, 235, lv denied 68 NY2d 917; People v Marrero, 110 AD2d 785; People v Stanton, 108 AD2d 688, 689; cf., People v Rubio, 118 AD2d 879). We have examined the defendant’s remaining contentions and find that they are either not preserved for appellate review or meritless. Bracken, J. P., Brown, Weinstein and Spatt, 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/5902339/
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Mercare, J.P.
Appeal from a decision of the Workers’ Compensation Board, filed January 30, 2012, which, among other things, ruled that claimant did not violate Workers’ Compensation Law § 114-a.
Claimant, while employed as a machinist by Griffin Manufacturing Company, reported that he sustained injuries to his back in July 1998 and March 2000. He did not pursue workers’ compensation benefits with respect to the 1998 incident, but the 2000 incident resulted in an established workers’ compensation claim set forth in a September 2002 decision by a Workers’ Compensation Law Judge (hereinafter WCLJ), which was not appealed.* Eight years later, Griffin filed an application seeking a reopening and rehearing of the previously established 2000 claim on the basis that claimant allegedly violated Workers’ Compensation Law § 114-a. According to Griffin, claimant concealed a prior 1979 motor vehicle accident, impermissibly “linked a time barred accident” allegedly occurring in July 1999 to the 2000 incident, and gave inconsistent accounts regarding the 2000 claim. Following a hearing, the WCLJ found no credible evidence of fraud supporting Griffin’s contentions. Upon review, the Workers’ Compensation Board affirmed and denied the application to reopen, and this appeal by Griffin ensued.
We affirm. “The Board’s determination as to whether a claimant has made a material misrepresentation in violation of Workers’ Compensation Law § 114-a will not be disturbed if supported by substantial evidence” (Matter of Hamza v Steinway & Sons, 88 AD3d 1033, 1033 [2011] [citations omitted]). Here, the record evinces that claimant’s medical file included information pertaining to his 1979 motor vehicle accident, and Griffin acknowledged that the July 1999 accident date appearing on a few medical reports “was probably a typo” *1072meant to refer to the already-disclosed July 1998 incident. Furthermore, Griffin’s contention that claimant gave inconsistent accounts of the 2000 injury did no more than create “a credibility issue for the Board, the sole arbiter of witness credibility” (Matter of Martinez v LeFrak City Mgt., 100 AD3d 1110, 1111 [2012] [internal quotation marks and citation omitted]). Inasmuch as there is substantial evidence supporting the Board’s decision, we decline to disturb it.
Griffin’s remaining contentions, including its assertion that the Board abused its discretion in granting a reopening or rehearing of the 2000 claim, have been examined and found to be unpersuasive.
Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed, without costs.
Thereafter, claimant filed another claim for workers’ compensation benefits alleging that he sustained another injury in June 2006 while working for a subsequent employer. Although the Workers’ Compensation Board decided that claimant sustained a new injury, this Court ultimately ruled that this decision was not supported by substantial evidence (Matter of Poulton v Martec Indus., 75 AD3d 819 [2010]).
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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/2296695/
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(2008)
Mac HUDSON and Derrick Tyler
v.
Kathleen DENNEHY, in her official capacity as Commissioner of the Massachusetts Department of Correction.
Civil Action No. 01-CV-12145-RGS.
United States District Court, D. Massachusetts.
March 5, 2008.
FINDINGS OF FACT, RULINGS OF LAW, AND ORDER AFTER A NON-JURY TRIAL
STEARNS, District Judge.
On May 4, 2001, state prison inmates Mac Hudson and Derick Tyler, who adhere to the religious teachings of Elijah Muhammad and the Nation of Islam, brought this civil rights suit against Kathleen Dennehy, the Commissioner of the Massachusetts Department of Correction (DOC), and other DOC defendants, seeking money damages and declaratory and injunctive relief. Hudson and Tyler are incarcerated at the Massachusetts Correctional Institution Cedar Junction (MCI-CJ), a maximum security prison in Walpole, Massachusetts. The Complaint as originally filed alleged an abridgment of plaintiffs' rights under the Free Exercise Clause of the First and Fourteenth Amendments, as well as violations of 103 CMR 471.00 et seq. Plaintiffs claimed that the DOC had violated their religious rights by refusing to provide Muslim inmates with halal meals,[1] by requiring Muslim inmates to use a prayer "towel" rather than a traditional prayer rug while performing salat,[2] and by refusing to allow Muslim inmates confined in the Special Management Unit (SMU)[3] to participate in Jum'ah[4] services. Plaintiffs also argued that the DOC's policy of accommodating the dietary requirements of Jewish, Seventh Day Adventist, Buddhist, and other observant prisoners, while denying a similar accommodation to Muslim inmates, violated the Equal Protection Clause of the Fourteenth Amendment.[5]
BACKGROUND
This action began with a pro se complaint filed in 2001 by inmates Hudson, Tyler, Antwan Crawford, Darrick Wilson, and Anthony Tucker.[6] Named as defendants were Michael Maloney, the Commission of the DOC; Peter Allen, Superintendent of MCI-CJ; Peter Pepe, former Superintendent of MCI-CJ; Andrea Emodi, former Director of Program Services; and Sherry Elliot, Director of Treatment at MCI-CJ. On March 29, 2004, the court entered an order denying plaintiffs' request for interim injunctive relief. On May 12, 2004, defendants filed a motion for summary judgment.[7] On July 23, 2004, the court issued a Memorandum and Order finding defendants exempted by qualified and official immunity from any claims for monetary damages. Hudson, 326 F.Supp.2d at 214. The court further determined that under the test of Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987),[8] plaintiffs were not entitled to relief as a matter of law with regard to the DOC's ban on prayer rugs or its policy of assigning prisoners to kitchen service jobs on a nondiscriminatory basis. However, the court found that a triable issue of fact existed as to whether the DOC's refusal to provide Halal meals to Muslim inmates constituted an undue burden on plaintiffs' exercise of their religious beliefs. The court did not address plaintiffs' claims regarding Jum'ah services. The court then appointed counsel to represent plaintiffs.[9] Newly appointed counsel thereafter, on May 26, 2005, filed an Amended Complaint.[10]
The Amended Complaint, in addition to First and Fourteenth Amendment free exercise and equal protection claims, pled new causes of action under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1(a) (RLUIPA), the State Civil Rights Act, Mass. Gen. Laws ch. 12, § 11, and the Inmate Right of Worship Statute, Mass. Gen. Laws ch. 127, § 88, and related regulations. Discovery then proceeded.
On April 14, 2006, plaintiffs filed a motion urging the court to revisit the prayer rug issue based on "newly discovered" evidence. After a hearing, on August 31, 2006, the court granted plaintiffs' motion for reconsideration, thereby framing the three issues to be decided at trial: whether the DOC's refusal to provide regular Halal meals, its ban on traditional prayer rugs, and its refusal to permit inmates in the SMU to participate in Jum'ah services, substantially and unjustifiably burdened plaintiffs' exercise of their religious rights. In January of 2007, a six-day non-jury trial was held. Final arguments were heard in February of 2007. The parties were then given leave to file further pleadings.
Defendant's Motion for Judgment on Partial Findings
At the close of plaintiffs' case, Commissioner Dennehy filed a "motion for judgment on partial findings," arguing that all but one (the Halal meal issue) of plaintiffs' three claims were barred by the Prison Litigation Reform Act, 42 U.S.C. § 1997e (PLRA). The Commissioner contended that plaintiffs had failed to exhaust their administrative remedies as required by the PLRA. More specifically, she claimed that plaintiffs had failed to make a direct presentment of their religious grievances to the DOC's Religious Services Review Committee (RSRC) (they filed their grievances instead with the Superintendent of MCI-CJ), and had failed to use the proper Religious Service Request Form (RSRF) (they used the standard prisoner grievance form instead). The Commissioner argued that these procedures are mandated by the DOC's Religious Services Handbook (Handbook). The Handbook contemplates a process by which a request regarding the accommodation of a religious practice is first considered by the RSRC, which then forwards a recommendation to the Commissioner for a final determination. The court provisionally denied the motion, but deferred a final ruling until after the close of evidence and an opportunity for plaintiffs to reply to the newly asserted jurisdictional claim.
The Commissioner's exhaustion argument is unpersuasive. She does not dispute that Hudson and Tyler submitted repeated grievances regarding Halal meals, prayer rugs, and access to Jum'ah services. She also concedes that the DOC never distributed the Handbook to inmates, and moreover, that the Handbook was created to give guidance to prison administrators and not to inmates seeking to file grievances. Finally, the record shows that Dennehy's predecessor, Commissioner Michael Maloney, denied Hudson's and Tyler's three requests for accommodation, even though two of the requests were never formally reviewed by the RSRC. If the Commissioner failed to follow the procedures outlined in the Handbook, it is difficult to fault plaintiffs for failing to do better. See Shaheed-Muhammad v. DiPaolo, 393 F. Supp. 2d 80, 96-97 (D.Mass.2005). Consequently, the Commissioner's motion for judgment on partial findings will be DENIED.
FINDINGS OF FACT
The following findings of fact are drawn from the evidence and testimony adduced at trial as well as from the stipulations entered prior to trial by the parties.
1. Plaintiff Mac S. Hudson is serving a lengthy custodial sentence at MCI-CJ. At various times, Hudson has been confined in the SMU.
2. Plaintiff Derick Tyler is serving a lengthy custodial sentence at MCI-CJ. At various times, Tyler has been confined in the SMU.
3. Defendant Kathleen Dennehy was at the time of the filing of the Amended Complaint the Commissioner of the DOC.[11]
4. MCI-CJ is a maximum security prison owned and managed by the DOC, a department of the Commonwealth of Massachusetts. The prison is located in South Walpole, Massachusetts.
5. The DOC receives federal financial assistance.
6. Plaintiffs Hudson and Tyler belong to the Nation of Islam[12] and regard themselves as members of the worldwide Muslim community (umma). They subscribe to the teachings of the Qur'an as revealed by the Prophet Muhammad and by Elijah Muhammad. These teachings include dietary laws specifying the foods that a Muslim is permitted to eat (Halal) and those that are forbidden (haram).[13] Plaintiffs also believe that traditional prayer rugs should be used in performing salat and that they are obligated to participate in the weekly Jum'ah services. The court has previously found that plaintiffs' beliefs, while deviating from those of orthodox Islam, are sincerely held. The Commissioner does not challenge this finding.
7. The DOC permits Muslim inmates to fast during the month of Ramadan,[14] to celebrate the two annual feasts of Eid,[15] to pray five times daily (salat) using a "prayer towel,"[16] to wear a kufi (skull cap), and to possess prayer beads, prayer oil, and a Qur'an. The DOC provides Halal meat for the Eid feasts.
8. The DOC houses over 10,000 inmates who are served three meals daily. The DOC offers four basic menus: the regular menu, which does not include pork or pork by-products; an alternative vegetarian menu;[17] a Kosher menu; and a medical menu (which requires a doctor's prescription). All of the menus, including the alternative vegetarian menu, are served in twenty-one day cycles. Pork products are not permitted in any of the DOC's institutional kitchens.
9. The meals comprising the four menus are prepared under the supervision of a registered dietician. They meet the Recommended Dietary Allowance (RDA) standards of the Food and Nutrition Board, the National Academy of Sciences, the National Resource Council, and the American Correctional Association. The alternative vegetarian menu contains meatless items made of wheat, soy, and other vegetable products that provide RDA nutritional values comparable to those of the meat-inclusive menus.[18]
10. The DOC offers daily Kosher meals, including meat, to Jewish inmates who request a Kosher diet. The DOC provides the alternative vegetarian diet to Muslim inmates who request it. The DOC does not offer Muslim inmates a strictly Halal diet. The DOC provides Muslim inmates with Halal meat during the Feasts of Eid.
11. The number of Muslims in the Massachusetts prison population far exceeds the number of Jewish inmates. At present, there are no Jewish inmates at MCI-CJ who are served Kosher meals.
12. Jewish dietary laws require that Kosher food be prepared using dedicated pots, pans, plates, bowls, and utensils. Different sets of cookware must be used to prepare meat dishes and dairy products.
13. Muslim dietary laws have similar rules intended to prevent the "cross-contamination" of food.
14. Former Commissioner Michael Maloney denied Tyler's and Hudson's requests to be served Halal meals after receiving a negative recommendation from the RSRC.
15. Pre-prepared Halal meals are commercially available, although at three times the cost of Kosher meals and at five to ten times the cost of the regular prison menu or the vegetarian alternative. However, the DOC's decision not to offer Halal meals was not influenced by considerations of price. According to Deputy Superintendent Timothy Hall, the sole basis for the decision was a concern that non-Muslim inmates might resent any special treatment accorded to Muslim inmates.[19]
16. Other prison systems, including the Federal Bureau of Prisons, provide Halal meals to Muslim inmates. The DOC presented no evidence that these prison systems have experienced disruption or conflict among inmates as a result.
17. DOC regulations prohibit inmates confined in a SMU from participating personally in group religious services or other group activities.
18. The DOC does not broadcast Jum'ah services over closed-circuit television to SMU inmates on Ten Block at MCI-CJ. There are no technical obstacles that prevent the DOC from doing so.
19. The Departmental Disciplinary Unit (DDU) at MCI-CJ is defined in 103 CMR 430.06 as a segregated unit in a restricted area designated by the Commissioner in which an inmate who has received a sentence recommended by a Special Hearing Officer after a disciplinary hearing is confined.
20. The DOC broadcasts Jum'ah services over closed-circuit television to inmates confined in the DDU at MCI-CJ.
21. DOC property regulations, 103 CMR 403.00 et seq., place strict limits on the types of personal property that inmates may keep in their cells. The DOC does not permit inmates to possess prayer rugs because of a concern that their bulk and decorative fringes might facilitate the concealment of weapons and other contraband.
22. Neither the DOC's ban on traditional prayer rugs, nor its requirement that inmates use prayer towels as a substitute, has prevented Hudson and Tyler from performing salat.
RULINGS OF LAW
1. RLUIPA provides that
[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc-1(a)
2. As the First Circuit explained in Spratt v. Rhode Island Dep't of Corrs., 482 F.3d 33 (1st Cir.2007), "[a] claim under RLUIPA includes four elements. On the first two elements, (1) that an institutionalized person's religious exercise has been burdened and (2) that the burden is substantial, the plaintiff bears the burden of proof.... Once a plaintiff has established that his religious exercise has been substantially burdened, the onus shifts to the government to show (3) that the burden furthers a compelling governmental interest and (4) that the burden is the least restrictive means of achieving that compelling interest." Id. at 38.
3. RLUIPA should be applied with particular sensitivity when security concerns are legitimately at issue. "It bears repetition ... that prison security is a compelling state interest, and that deference is due to institutional officials' expertise in this area." Spratt, 482 F.3d at 39, quoting Cutter v. Wilkinson, 544 U.S. 709, 725 n. 13, 125 S. Ct. 2113, 161 L. Ed. 2d 1020 (2005). See also Longoria v. Dretke, 507 F.3d 898, 904 (5th Cir.2007); Washington v. Klem, 497 F.3d 272, 283 (3d Cir.2007). Cf. Johnson v. California, 543 U.S. 499, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005) ("necessities of prison security and discipline" are a compelling government interest in justifying narrowly tailored racial classifications).
4. RLUIPA does not confer "privileged status on any particular sect, and singles out no bona fide faith for disadvantageous treatment." Cutter, 544 U.S. at 724, 125 S. Ct. 2113. The statute does not permit a court to determine whether the belief or practice in question is "compelled by, or central to, a system of religious belief." A plaintiff, however, must establish that the exercise forms a legitimate part of his or her profession of faith. 42 U.S.C. § 2000cc-5(7)(a). The statute in this regard does not preclude a court from inquiring into the sincerity of an inmate's professed beliefs. Cutter, 544 U.S. at 725 n. 13, 125 S. Ct. 2113.
5. The statute does not define "substantial burden." However, Supreme Court precedent identifies the existence of such a burden when government puts "substantial pressure on an adherent to modify his behavior and to violate his beliefs...." Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 718, 101 S. Ct. 1425, 67 L. Ed. 2d 624 (1981); see Spratt, 482 F.3d at 38 (assuming, arguendo, that the Thomas standard is generally applicable).[20] "[I]ncidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs," are not affected by this standard. Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 450, 108 S. Ct. 1319, 99 L. Ed. 2d 534 (1988).
6. Once the prisoner demonstrates a substantial burden, the government must show that the disputed policy is the least restrictive means of furthering a compelling State interest.
7. A compelling State interest must be more than a colorable interest, or an interest serving the convenience of the State. "Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation...." Sherbert, 374 U.S. at 406, 83 S. Ct. 1790, quoting Thomas v. Collins, 323 U.S. 516, 530, 65 S. Ct. 315, 89 L. Ed. 430 (1945). "`Context matters' in the application of that standard." Cutter, 544 U.S. at 723, 125 S. Ct. 2113, quoting Grutter v. Bollinger, 539 U.S. 306, 327, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003). While it is beyond cavil that maintaining prison security is a compelling State interest deserving of scrupulous deference by the courts, "merely stating [that there is] a compelling interest does not fully satisfy [the government's] burden on this element of RLUIPA." Spratt, 482 F.3d at 39. Rather, prison authorities must provide some basis for their concern and the policy at issue must be narrowly tailored to further this interest by the least restrictive means possible. Klem, 497 F.3d at 283, citing Spratt, 482 F.3d at 39.
8. A "least restrictive means" is one that does not sweep "more broadly than necessary to promote the government's interest. That consideration ... cannot be done without some evaluation of the alternative measures put in issue by the parties." Casey v. City of Newport, 308 F.3d 106, 114 (1st Cir.2002). Prison authorities, in other words, must consider and reject other plausible means before determining that the policy they implement is the least restrictive means of furthering a compelling State interest. Spratt, 482 F.3d at 41, citing Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir.2005). Although RLUIPA does not "require prison administrators to refute every conceivable option to satisfy the least restrictive means prong ... their rejection [of competing alternatives] should generally be accompanied by some measure of explanation." Spratt, 482 F.3d at 41 n. 11 (internal quotations and citations omitted).
9. Evidence that the Federal Bureau of Prisons allows a religious practice that is not permitted by a state prison system is relevant to the inquiry of whether the State has chosen the least restrictive means of achieving a compelling State interest. Spratt, 482 F.3d at 42 ("[E]vidence of policies at one prison is not conclusive proof that the same policies would work at another institution. However, in the absence of any explanation by [defendant] of significant differences between [its policies] and a federal prison that would render the federal policy unworkable, the Federal Bureau of Prisons policy suggests that [the banned conduct] could be permissible without disturbing prison security.").
ULTIMATE CONCLUSIONS OF FACT AND LAW
1. Plaintiffs' desire to observe a Halal diet that conforms to the teachings of the Qur'an and the Nation of Islam is a "religious exercise" within the meaning of RLUIPA.
2. The DOC's refusal to provide a daily Halal menu to Muslim inmates substantially burdens plaintiffs' exercise of their religious beliefs by creating pressure on plaintiffs to consume meals that do not conform with their understanding of the requirements of Islamic law.[21]
3. The DOC has failed to satisfy its burden of showing that its refusal to provide regular Halal meals furthers a compelling State interest. The DOC concedes that the added costs of providing Muslim inmates with Halal meals did not factor in its decision to refuse plaintiffs' requests. Defendant produced little if any evidence validating its assertion that serving Halal meals to Muslim inmates would ignite inmate conflict. (The Federal Bureau of Prisons has allowed inmate access to certified, pre-packaged Halal meals since 1996 without incident). If anything, the DOC's long standing practice of providing dietary accommodations to Jewish, Buddhist, and Seventh Day Adventist inmates, among others, with only one anecdotal instance of resulting friction, proves the opposite of the DOC's assertion.[22]
4. The "alternative vegetarian" diet is not a satisfactory substitute as it does not in many significant respects conform to plaintiffs' sincerely held religious beliefs.
5. As with Kosher foods, there are available vendors willing and able to provide pre-packaged Halal-certified meals in quantities sufficient to serve the 50 to 90 Muslim inmates at MCI-CJ that Acting Superintendent Marshall estimated might request such meals.
6. Although prayer rugs are often used in the Muslim prayer ritual, Hudson and Tyler have failed to establish that the use of a prayer towel substantially burdens their ability to perform salat. Moreover, this issue has been definitively and authoritatively addressed by the Massachusetts Supreme Judicial Court. See Rasheed v. Comm'r of Corr., 446 Mass. 463, 473-474, 845 N.E.2d 296 (2006) (the DOC's policy of providing inmates with a prayer towel rather than permitting the use of a prayer rug does not violate an inmate's rights under the Free Exercise Clause of art. 16 of the Massachusetts Declaration of Rights); Ahmad v. Dep't of Corr., 446 Mass. 479, 486, 845 N.E.2d 289 (2006) (same, First Amendment and RLUIPA).[23] "The purpose of the prayer rug is to ensure that [its user] is not in direct contact with the impurities of the floor when he prays. The record establishes that purpose is satisfied by the use of a prayer towel that is comparable in size, other than thickness (an irrelevant characteristic) to a prayer rug." Rasheed, 446 Mass. at 473, 845 N.E.2d 296. This court is fully in agreement with the Supreme Judicial Court on this issue.
7. Participating in the Jum'ah service is a religious exercise within the meaning of RLUIPA.
8. The DOC's ban on participation in Jum'ah services by inmates confined in the SMU (Ten Block) substantially burdens plaintiffs' practice of a core tenet of their faith.
9. The DOC's ban on personal participation in Jum'ah services by inmates confined in Ten Block serves the compelling State interest of rehabilitating prisoners and promoting good order. Inducing prisoners to comply with prison rules by limiting certain liberties is consistent with this interest. Cutter, 544 U.S. at 722-723, 125 S. Ct. 2113 ("While [RLUIPA] adopts a compelling governmental interest standard, context matters in the application of that standard. Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions.") (internal quotations and citations omitted).
10. The ban on participation by Ten Block inmates in Jum'ah services by closed-circuit television is not the least restrictive means of vindicating the compelling State interest at issue. To the extent that the State seeks to promote order through discipline, denial of the privilege of personal participation in Jum'ah services adequately serves that interest. Moreover, the DOC has not suggested any meaningful distinction between inmates confined in the DDU, who are permitted closed-circuit access to Jum'ah services, and inmates in the SMU, who are not.[24]
ORDER
For the foregoing reasons, the court will enter judgment in part for plaintiffs. The Commissioner's motion for judgment on partial findings is DENIED. The court will grant plaintiffs' prayers for declaratory judgment on the issues of Halal meals and closed-circuit television access to Jum'ah services while confined in Ten Block. Judgment will enter for defendant on the prayer rug issue.[25] No money damages are awarded. Plaintiffs will within ten (10) days of date of the entry of this Order file a Proposed Form of Final Judgment. Defendant will have seven (7) days thereafter to comment. On entry of Final Judgment, the Clerk may close the case. The court will, however, retain jurisdiction to oversee the implementation of any remedial aspects of the Judgment.[26]
SO ORDERED.
NOTES
[1] Halal means that which is authorized by Islamic law (fiqh). The halal dietary restrictions at issue in this case principally involve the slaughtering of animals for consumption. An Islamic website, eat-halal.com, describes the Halal slaughter ritual as follows.
Animals such as cows, sheep, goats, deer, moose, chickens, ducks, game birds, etc., are also Halal, but they must be Zabihah (slaughtered according to Islamic Rites) in order to be suitable for consumption. The procedure is as follows: the animal must be slaughtered by a Muslim (or a Jew or Christian). The animal should be put down on the ground (or held if it is small) and its throat should be slit with a very sharp knife to make sure that the 3 main blood vessels are cut. While cutting the throat of the animal (without severing it) the person must pronounce the name of Allah or recite a blessing which contains the name of Allah, such as "Bismillah Allah-u-Akbar."
While the method bears striking similarities to Kosher slaughter rituals, what is Kosher is not Halal, and vice-versa, in the Jewish and Muslim traditions.
[2] Salat (or namaz) is the ritual prayer performed five times daily by an observant Muslim.
[3] The Special Management Unit (SMU) is defined in 103 CMR 423.06 as "[a] separate housing area from general population within institutions in which inmates may be confined for reasons of administrative segregation, protective custody, or disciplinary detention." Inmates typically stay less than three months in the SMU, but detentions for as long as a year are not unheard of. The SMU at MCI-CJ is often referred to as "Ten Block."
[4] Jum'ah is a Friday group prayer that is obligatory for Muslims.
[5] The Complaint also alleged that plaintiffs' religious beliefs were affronted by having to eat food prepared and served by non-Muslim inmates. The Complaint sought an injunctive order requiring that only Muslim inmates be permitted to prepare meals for other Muslim inmates. The court denied the request for injunctive relief, noting that the DOC's policy of assigning kitchen jobs on a nondiscriminatory basis served the compelling State interest of maintaining institutional harmony and order.
[P]laintiffs' demand, that only Muslim inmates be permitted to prepare meals for other Muslim inmates, would not under any circumstances pass the test of Turner, 482 U.S. at 89, 107 S. Ct. 2254, as affirmed in a First Amendment context by [O'Lone v.] Estate of Shabazz, 482 U.S. [342] at 350-353, 107 S. Ct. 2400 [96 L. Ed. 2d 282 (1987)]. Under the Turner test, a prison regulation, or practice that impinges on an inmate's constitutional rights, passes muster if it is reasonably related to a legitimate penological interest. As the court [has previously] observed ... "any special selection of inmates for food service positions based on their religious affiliation would violate the Department of Correction's policy of assigning jobs on a nondiscriminatory basis and [would] expose it to"potential litigation, as well as resentment on the part of other inmates at the special treatment accorded to plaintiffs." Moreover, the Department's food service employment policy does not impinge on any constitutional right of the plaintiffs. As the Rahim affidavit explains, the Qu'ran specifically permits Muslims to consume food prepared by non-Muslims. Plaintiffs do not maintain that their desire to be served by Muslim food service workers is based on any Islamic teaching, but appears to have as its basis an expression of solidarity with Muslim [inmate] coreligionists.
Hudson v. Maloney, 326 F. Supp. 2d 206, 212 n. 5 (D.Mass.2004). The court does not understand plaintiffs to press this issue further. Plaintiffs' expert on Muslim dietary laws, Mohammad Mazhar Hussaini, testified at trial that no Islamic teaching enjoins Muslims from eating Halal food prepared and served by non-Muslims so long as it is prepared in conformity with Islamic dietary laws. Hudson could not identify any religious basis for his beliefs about non-Muslim kitchen workers. Tyler, in his testimony at trial, did not appear to share Hudson's aversion to being served meals prepared by non-Muslims.
[6] On October 18, 2002, the court dismissed the claims of Tucker and Wilson for want of prosecution pursuant to Fed.R.Civ.P. 41(b). Antwan Crawford was released from DOC custody on January 16, 2003, and was terminated as a party on March 29, 2004.
[7] No opposition to the motion was filed by plaintiffs. They instead filed a motion on May 25, 2004, seeking to stay a decision on defendants' motion until the completion of discovery.
[8] Under Turner, a prison regulation or practice that impinges on an inmate's constitutional rights must be reasonably related to a legitimate penological interest.
[9] The court commends plaintiffs' counsel, the law firm of McDermott Will & Emery, for agreeing to take on this important case without any assurance of being compensated for its efforts.
[10] The Amended Complaint dismissed all individual defendants with the exception of Commissioner Dennehy, who is named in her official capacity only.
[11] Dennehy has since been succeeded as Commissioner by Harold W. Clarke.
[12] The Nation of Islam was founded in 1930 in Detroit, Michigan, by Wallace Fard Muhammad. Elijah Muhammad was an early convert who came to preach that W. Fard Muhammad was God (Allah) incarnate. The Nation of Islam adheres to the Five Pillars of orthodox Muslim practice: Shahada (the profession of faith), salat, zakat (charitable tithing), the observance of Ramadan, and for those who are able, the duty to make Hajj (the pilgrimage to Mecca). The Nation of Islam also subscribes to Islamic dietary restrictions, including the ban on consumption of pork and alcohol. The Nation of Islam differs from orthodox Islam in, among other beliefs, its championing of the racial superiority of blacks, its belief that Allah manifested himself in the person of W. Fard Muhammad, and its belief that Elijah Muhammad succeeded the Prophet Muhammad as the messenger of Allah.
[13] There are six basic categories of food that Islam defines as haram: alcohol, blood, carnivorous animals and birds of prey, carrion, animals sacrificed to a deity other than Allah, and swine. Plaintiffs to differing degrees subscribe to the additional dietary restrictions espoused by Elijah Muhammad. These include a ban on the consumption of wheat, corn, large beans, and any fish that weighs in excess of fifty pounds. While Hudson testified that he believes it "sinful" for a Muslim not to eat meat, he could articulate no religious basis for this conviction. Tyler is a vegetarian and does not eat meat of any kind.
[14] During Ramadan (the ninth month of the Islamic lunar calendar), Muslims are required to abstain from eating, drinking, or smoking from before sunrise until after sunset.
[15] Eid is an Arabic word meaning festival. The Feast of Eid al-Fitr marks the end of Ramadan. The Feast of Eid al-Adha celebrates the end of the Hajj pilgrimage and is the holiest of Muslim religious holidays.
[16] The "prayer towel" is a 22" by 43" white cotton bath towel issued by the DOC with the word "PRAYER" inscribed on its fringe in black marker ink.
[17] The alternative vegetarian menu was introduced by the DOC in 2000 to accommodate inmates who for religious or personal reasons eschew meat. It was not specifically designed to meet the dietary needs of Muslim inmates.
[18] Plaintiffs do not challenge the nutritional sufficiency of the four menu offerings. Plaintiffs' expert, Mohammad Mazhar Hussaini, testified that the menus, including the vegetarian alternative, are nutritionally adequate. He also agreed that nothing in Islam requires a Muslim to eat meat. He testified, however, that a vegetarian diet is not necessarily Halal, as certain non-meat products, such as peanut butter and yoghurt, are processed with non-Halal additives.
[19] Deputy Superintendent Hall testified that friction resulted from the DOC's decision to offer Kosher meals to Jewish prisoners, but he could recall only one actual incident during his many years at the DOC.
[20] The First Circuit has yet to offer a conclusive definition of a "substantial burden." Other circuits have adopted formulations of the Thomas standard or the slightly stricter standard suggested in Sherbert v. Verner, 374 U.S. 398, 404, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963) (a substantial burden exists when an adherent is forced "to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept [a benefit], on the other hand."). See Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) (a substantial burden "occurs when a state or local government, through act or omission, `put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.'"), quoting Thomas, 450 U.S. at 718, 101 S. Ct. 1425; Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir.2004) ("[A] substantial burden can result from pressure that tends to force adherents to forego religious precepts or from pressure that mandates religious conduct."); Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004) ("[A] government action or regulation creates a `substantial burden' on a religious exercise if it truly pressures the adherent to significantly modify his religious behavior and significantly violate his religious beliefs.... [A] government action or regulation is significant when it either (I) influences the adherent to act in a way that violates his religious beliefs, or (2) forces the adherent to choose between, on the one hand, enjoying some generally available; non-trivial benefit, and, on the other hand, following his religious beliefs."). In practice, it is not clear that the decisional nuances in defining a substantial burden have any practical significance.
[21] The court recognizes that other courts have reached a different conclusion. See, e.g., Allah v. Jordan-Luster, No. 04-1083, 2007 WL 2582199 (C.D.Ill. Aug. 3, 2007) (no accommodation required for a Halal diet including "ritualistically-slaughtered" meat where plaintiff acknowledged that a vegetarian diet was an adequate alternative and would not violate his faith); Spruel v. Clarke, No. C06-5021 RJB, 2007 WL 1577729 (W.D.Wash. May 31, 2007) (denial of Halal meat did not burden plaintiff's religious exercise); Pratt v. Corrs. Corp. of Am., No. 03-3259, 2006 WL 2375656 (D.Minn. Aug. 16, 2006) ("Plaintiff has failed to present any evidence that he must receive all foods that are Halal in order to fulfill his religion or that receiving [H]alal meat is a central tenet of his religion."). RLUIPA, however, specifically bars inquiry into whether a particular religious exercise is "compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(a). While not perhaps a compelling distinction, these cases focused on plaintiffs' desire to be provided with Halal meat. Plaintiffs' Amended Complaint is focused more on obtaining a Halal menu consistent with their beliefs, than with demands for specific items of food, like meat.
[22] It is worth noting that Congress has already identified a prison's refusal to provide a Halal diet as an "egregious and unnecessary" restriction on an inmate's religious liberty. Cutter, 544 U.S. at 716, 125 S. Ct. 2113. "The hearings held by Congress revealed, for a typical example, that `a state prison in Ohio refused to provide Moslems with Halal food, even though it provided Kosher food.'" Id. at 716 n. 5, 125 S. Ct. 2113.
[23] Other courts have reached the same conclusion. See, e.g., Mohammad v. Beard, No. 05-580, 2007 WL 1439051, at *10 (W.D.Pa. May 16, 2007) ("Here, the court finds that Plaintiff has not met his burden to demonstrate that denial of a prayer rug imposes a substantial burden on his religious belief.... [A] prayer rug is not essential to Plaintiff praying, rather, the essential requirement for Plaintiff to pray is that the area on which he prays be clean. Hence, a clean towel or linen can suffice or even a cleaned floor. Nor has Plaintiff shown that this is not the case.") (internal citations omitted).
[24] As previously indicated, the DOC does not contend that there is any technical reason that prevents the broadcast of Jum'ah services by closed-circuit television to Muslim inmates in Ten Block.
[25] The Amended Complaint also seeks a declaration enjoining the DOC from requiring plaintiffs to register their Muslim religious faith prior to attending or witnessing Jum'ah services. No evidence that the DOC in fact imposes such a requirement was offered by plaintiffs at trial.
[26] Plaintiffs' counsel may submit a petition for an award of attorneys' fees in due course properly segregating compensable from noncompensable claims and supported by appropriately documented billing records. See Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir.1984).
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[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 97-1890
UNITED STATES,
Appellee,
v.
GEORGE ASAMOAH, A/K/A KOJO BOAYITEY, A/K/A KWADWO BOAYITEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
Mark J. Gillis on brief for appellant.
Donald K. Stern, United States Attorney, and Kevin P. McGrath,
Assistant U.S. Attorney, on Motion for Summary Disposition for
appellee.
January 6, 1999
Per Curiam. The United States has moved for
summary disposition in this direct criminal appeal, contending
that the only issue presented is a claim of ineffective
assistance of counsel. As such, the government argues, we must
dismiss the appeal and direct defendant George P. Asamoah to
file a motion under 28 U.S.C. 2255. A careful reading of the
brief prepared by defendant's appellate attorney, however,
reveals that counsel is not making such a claim. Further, the
government ignores the pro se supplemental brief filed by
defendant. In this brief, defendant raises four other claims
that are appropriate for direct appeal. We therefore address
these claims now.
1. Colloquy Regarding Right to Testify
In Siciliano v. Vose, 834 F.2d 29 (1st Cir. 1987), we
held that the Constitution does not require a trial judge, sua
sponte, to personally address a criminal defendant, to explain
to that defendant that he or she has the right to testify, and
to ascertain that the defendant chooses to waive that right.
Id. at 30. Other courts of appeals agree. See United Statesv. Ortiz, 82 F.3d 1066, 1071 (D.C. Cir. 1996); United States v.
Pennycooke, 65 F.3d 9, 11 (3rd Cir. 1995); Ortega v. O'Leary,
843 F.2d 258, 261 (7th Cir. 1988). Thus, we held, "a criminal
defendant must claim his privilege or right to testify by
attempting to take the stand or it is waived." Siciliano, 834
F.2d at 30 (internal quotation marks and citation omitted).
-2-
Here, defendant was silent all through the trial.
Further, nothing in the trial record gives any indication of
problems in the attorney-client relationship. Indeed, in this
respect, we note that during opening argument, defendant's
trial attorney plainly stated, and presumably defendant heard,
that defendant "may or may not testify here." See id. (noting
that defendant had heard the trial judge state that defendant
"may testify"). Rather, defendant waited until sentencing,
where he made the following statement: "[M]y lawyer made it
known to me that he is the one who has to review the facts of
what is happening to the Court, and that I have no right to get
on the stand, and there was no point for me to say anything."
Under Siciliano, defendant's statement was not enough
to obligate Judge Harrington to conduct a colloquy regarding
defendant's waiver of the right to testify. That is, defendant
did not "attempt to take the stand" at trial, which is when
Siciliano requires that a defendant assert the right. SeeSiciliano, supra. Further, defendant waited until the
disposition hearing on June 11, 1997 over three months afterthe trial had ended to raise the question. Finally, we add
that defendant still can litigate this issue if he, in fact,
files a 2255 motion claiming ineffective assistance regarding
his trial attorney's alleged advice that he could not testify.
2. Stipulation Regarding the Amount of Heroin
Carried by Co-defendant Emelia Dadzie
At the beginning of trial, the prosecutor read into
the record an agreement entered into by defendant and the
government in which they stipulated that the heroin seized from
Dadzie weighed 816.3 grams and was from 76% to 82% pure. Judge
Harrington did not ask defendant whether he personally had
agreed to this stipulation. Defendant now maintains that the
lack of a colloquy on this point violated his due process
rights.
The cases defendant cites in support of this
argument, however, are inapposite. Rather, they all concern
stipulations or admissions of prior convictions in the context
of sentence enhancements. See, e.g., Johnson v. Cowley, 40
F.3d 341, 346 (10th Cir. 1994) (holding that a remand was
required where defendant's state trial counsel had stipulated
to defendant's prior conviction and there was no evidence in
the record that defendant had agreed to the stipulation);
Government of the Virgin Islands v. George, 741 F.2d 643, 648
(3rd Cir. 1984) (under the Virgin Islands procedure for
sentencing habitual criminals, the trial court, before asking
a defendant whether he or she has been previously convicted,
"must inquire into, and make a determination of, the
defendant's understanding of the consequences of that
admission); Cox v. Hutto, 589 F.2d 394 (8th Cir. 1979) (per
curiam). Even were we to consider adopting a Cox-type rule, it
would not apply here.
First, the stipulation regarding the weight of the
cocaine carried by Dadzie plainly was not the "functional
equivalent of a guilty plea" i.e, it did not leave the trial
court with nothing to do but enter judgment and impose
sentence. Further, the stipulation directly concerned Dadzie,
not defendant. That is, the government still had to prove that
defendant was connected to Dadzie and to the cocaine she had
imported into this country. Given this, we cannot see that any
of defendant's rights were violated by the stipulation in this
case.
3. Sentencing Errors
a. Amount of Heroin Used for Sentencing -- 816.3 or
700 Grams. Defendant argues that Judge Harrington erred by
using, for the initial calculation of defendant's base offense
level (BOL), the 816.3 grams of heroin Dadzie had carried in
July 1993. Rather, defendant contends, the judge should have
used 700 grams the amount Dadzie testified that she had been
told she would be carrying. The problem with this argument is
that it makes no difference which quantity was used because the
BOL was the same for both amounts.
First, where a crime involves at least 700 grams, but
less than 1 kilogram, of heroin, the resulting BOL is 30.
U.S.S.G. 2D1.1(c)(5). Thus, 700 grams and 816.3 grams yield
the same result. Further, when the additional 500 grams of
heroin is added to either amount -- for a total amount of 1200
and 1316.3 grams respectively, defendant's BOL is 32 for bothamounts. See id. 2D1.1(c)(4) (at least 1 kilogram of heroin,
but less than 3 kilograms of heroin). Any error, therefore,
would be harmless. See United States v. Young, 78 F.3d 758,
763 n.4 (1st Cir. 1996).
b. Distribution to Government Agent. Defendant
argues that since both Dadzie and co-defendant Eric Sekyere
were government agents at the time of most of the events
underlying the conspiracy at hand, the heroin carried by Dadzie
on July 24, 1993, should not have been counted at all for
sentencing purposes. In support of this argument, defendant
cites United States v. Reyes, 979 F.2d 1406 (10th Cir. 1992).
Reyes, however, does not have anything to do with whether an
individual's status as a government agent affects the amount of
drugs which can be attributed to a defendant in calculating his
or her sentence. Because defendant cites no other authority
for this questionable proposition, his argument must be
rejected.
c. The Extra 500 Grams of Heroin. Defendant
contends that there was insufficient evidence to connect him to
Dadzie's February 1993 importation of 500 grams of heroin.
"Absent a mistake of law, we review only for clear error the
district court's conclusions that drugs were part of the same
conduct or scheme or plan." Young, supra, 78 F.3d at 763.
Under U.S.S.G. 1B1.3, "relevant conduct" includes all acts
"that were part of the same course of conduct or common scheme
or plan as the offense of conviction . . . ." In order for two
offenses to be considered part of a common plan or scheme,
"they must be substantially connected to each other by at least
one common factor, such as common victims, common accomplices,
common purpose, or similar modus operandi." U.S.S.G. 1B1.3,
comment. (n.9(A)).
Here, Judge Harrington had the testimony of Dadzie
that she had brought heroin into the United States at
defendant's behest in February 1993. That Dadzie knew
defendant prior to the July 1993 importation also is
corroborated by the testimony of Patrick Barkerswoode that he
had introduced defendant to Dadzie in 1991. The decision to
credit the testimony of Dadzie was within Judge Harrington's
"exclusive province." See United States v. Conley, 156 F.3d
78, 85 (1st Cir. 1998).
As a result of the foregoing, it is plain that the
February and July importations involved two common factors: a
common accomplice and a common modus operandi. Further, as for
defendant's argument that the February importation was not
reasonably foreseeable by him, suffice it to say that "[a]
defendant simply cannot be heard to complain that he could not
reasonably foresee acts that he himself engineered." Id.
There was no clear error, then, in crediting defendant with the
extra 500 grams of heroin.
The judgment of the district court is affirmed. SeeLocal Rule 27.1. Any ineffective assistance claims must be
raised in a 2255 motion. See United States v. Mala, 7 F.3d
1058, 1063 (1st Cir. 1993) ("the trial judge, by reason of
familiarity with the case, is usually in the best position to
assess both the quality of the legal representation afforded to
the defendant in the district court and the impact of any
shortfall in that representation").
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02-07-2011
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[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 98-1834
RAFAEL ARZUAGA-PERELLO, ET AL.,
Plaintiffs, Appellants,
v.
THE SHELL COMPANY (PUERTO RICO), ETC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Stahl, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
John E. Mudd and Melvin Rosario on brief for appellants.
Ramon Coto-Ojeda, Armando Llorens and McConnell Valdes on brief for appellee.
February 4, 1999
Per Curiam. Plaintiffs-appellants Rafael Arzuaga
Perello and Beatriz de los Reyes appeal from the district
court's dismissal of their complaint for lack of subject matter
jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). They concede
that the affidavit submitted by defendant-appellee Shell Co.
(Puerto Rico) Limited ("Shell") supports the district court's
ruling that diversity of citizenship between the parties is
lacking. Appellants argue, however, that the district court
abused its discretion by not granting them additional time to
conduct discovery so that they could disprove the factual
allegations contained in the Shell affidavit.
"It is well settled that the trial judge has broad
discretion in ruling on pre-trial management matters and we
review the district court's denial of discovery for abuse of
its considerable discretion. 'We will intervene in such
matters only upon a clear showing of manifest injustice, that
is, where the lower court's discovery order was plainly wrong
and resulted in substantial prejudice to the aggrieved party.'"
Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 91 (1st
Cir. 1996) (citations omitted).
When faced with a 12(b)(1) motion, a district court
"may allow discovery to be completed on the issue and a further
hearing to be held before ruling on the motion." 5A Charles
Alan Wright & Arthur R. Miller, Federal Practice & Procedure
1350 (2d ed. 1990). "Where the defendant has challenged the
plaintiff's assertion of federal jurisdiction under Rule
-2-
12(b)(1), the court should give the plaintiff an opportunity to
present facts in support of his jurisdictional contention."
Berrios v. Department of Army, 884 F.2d 28, 33 (1st Cir. 1989).
Here, the district court gave appellants such an
opportunity by granting their request for a thirty-day
extension of time to oppose the motion to dismiss. Despite the
extra time, appellants failed even to identify a theory under
which the Shell affidavit could be attacked. Compare Madj-Pourv. Georgiana Community Hosp., Inc., 724 F.2d 901, 903 (11th
Cir. 1984)(reversing and remanding Rule 12(b)(1) dismissal
where "[p]laintiff's counsel alleged that discovery would show
that the two defendants are actually one entity operating out
of the state of Indiana"). Appellants have failed to make "a
clear showing of manifest injustice." Ayala-Gerena, 95 F.3d at
91. There was no abuse of the district court's broad
discretion over discovery matters.
The district court's Opinion and Order dated May 26,
1998, granting appellee's motion to dismiss is affirmed.
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02-07-2011
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— Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: On appeal from convictions of *919two counts of felony murder and related crimes, defendant raises several claims, none requiring reversal. Defendant’s primary claim is that the trial court erred in failing to charge that the testimony of an alleged accomplice must be corroborated. Since defendant neither requested such a charge nor excepted to the charge given, the issue has not been preserved for review (CPL 470.05; People v Pele, 101 AD2d 995). In any event, the fact that the witness aided defendant in disposing of some evidence did not make him an accomplice as a matter of law (see, People v Cobos, 57 NY2d 798, 801; People v Vataj, 121 AD2d 756, 757, revd on other grounds 69 NY2d 985; People v Smith, 110 AD2d 669, revd on other grounds 68 NY2d 737, cert denied — US —, 107 S Ct 444) and there was other evidence that corroborated the alleged accomplice’s testimony (see, People v Graham, 67 AD2d 172, 179).
Defendant also was not denied due process of law by a 15-month preindictment delay. Throughout this period the police conducted an extensive investigation of the two homicides and did not believe that they possessed sufficient evidence to arrest the defendant until his wife’s son informed the police that defendant admitted responsibility for the crime. Moreover, defendant remained at liberty throughout the period of delay and failed to establish any prejudice (see, People v Fuller, 57 NY2d 152, 159-160; People v Singer, 44 NY2d 241, 253-254).
The trial court did not err in denying defendant’s motion for severance of the counts of the indictment relating to each homicide. The counts were joinable because they are similar in law (see, CPL 200.20 [2] [c]). Moreover, defendant failed to make a convincing showing on the record that he had both important testimony concerning some of the counts and a genuine need to refrain from testifying on other counts (see, CPL 200.20 [3] [b]; People v Lane, 56 NY2d 1, 8-10).
We have considered defendant’s remaining claims and conclude that none requires a reversal. Defendant, however, was entitled to be sentenced under the law in effect at the time the crimes were committed and, therefore, we modify defendant’s conviction to the extent that the aggregate minimum period of imprisonment be 25 rather than 50 years (see, People v Lynch, 85 AD2d 126, 131-132; cf., Penal Law § 70.30 [1] [b]). (Appeal from judgment of Niagara County Court, Hannigan, J. — murder, second degree, and other charges.) Present— Doerr, J. P., Boomer, Green, Lawton and Davis, JJ.
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6823517/
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Cup-shaped articles.
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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/5902340/
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Rader, J.), rendered January 24, 1983, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The record of the plea proceedings indicates that in return for the bargained-for plea, the defendant voluntarily and expressly waived his right to raise on appeal any question with respect to the admissibility of his confession and certain physical evidence. Accordingly, the defendant’s arguments on these issues must be rejected (see, People v Williams, 36 NY2d 829, cert denied 423 US 873).
We have reviewed defendant’s remaining arguments and find them to be unpreserved for appellate review, and in any event, without merit (see, People v Pellegrino, 60 NY2d 636; People v Harris, 61 NY2d 9; People v Lowrance, 41 NY2d 303; People v Serrano, 15 NY2d 304; People v Martinez, 127 AD2d 855; People v Barton, 103 AD2d 750; Strickland v Washington, 466 US 668, reh denied 467 US 1267; People v Kazepis, 101 AD2d 816; People v Suitte, 90 AD2d 80). Mangano, J. P., Brown, Rubin and Harwood, JJ., concur.
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01-13-2022
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Appeal by the defendant from a *546judgment of the Supreme Court, Kings County (Juviler, J.), rendered February 18, 1986, convicting him of assault in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
On appeal the defendant argues that the People failed to disprove his defense of justification beyond a reasonable doubt (see, People v Reyes, 116 AD2d 602, lv denied 67 NY2d 949). The complainant, Charles Briggs, testified that the defendant attacked him with a razor after Briggs had verbally abused him. The defendant alleged that it was Briggs who initially attacked him with a stickball bat and he used the razor in self-defense. These contradictory versions of the incident placed in issue the credibility of these two witnesses.
Determination of the credibility of witnesses is a matter primarily for the jurors (see, People v Malizia, 62 NY2d 755, cert denied 469 US 932; People v Di Girolamo, 108 AD2d 755, lv denied 64 NY2d 1133) due to their ability to see and hear the witnesses (see, People v Bigelow, 106 AD2d 448, 450). The account given by the complainant and obviously believed by the jury was sufficient to disprove the defense of justification beyond a reasonable doubt (see, People v Fleming, 134 AD2d 610).
The defendant’s claim that it was error for the prosecutor to question him about his failure to contact the police with his exculpatory version of the incident is not preserved for appellate review (see, CPL 470.05 [2]; People v Harrington, 128 AD2d 726). It was wrong for the prosecutor to suggest that because the defendant was the person on trial, evidence of his past criminality could be used as proof of guilt (see, People v Resnick, 133 AD2d 237). However, the court gave prompt curative instructions and admonished the prosecutor to keep his summation within proper bounds. In light of the trial court’s prompt and emphatic curative instructions, these and the other alleged errors committed during summation did not deprive the defendant of a fair trial (see, People v Galloway, 54 NY2d 396; People v Roopchand, 107 AD2d 35, affd 65 NY2d 837) and, therefore, reversal is not warranted. Thompson, J. P., Rubin, Fiber and Sullivan, JJ., concur.
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01-13-2022
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21 F.3d 1121
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Dillard E. KELLEY, Sr., Plaintiff-Appellant,v.POSTAL SERVICE (U.S.), Department of the United States Mailand United States Postal Service, PostmasterGeneral, Defendants-Appellees.
No. 93-3250.
United States Court of Appeals, Tenth Circuit.
April 5, 1994.
Before TACHA, BRORBY and EBEL, Circuit Judges.
ORDER AND JUDGMENT1
1
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
2
Mr. Kelley, a federal inmate and pro se litigant, appeals the dismissal of his complaint wherein he sued the Postal Service for non-delivery of mail. We grant Mr. Kelley permission to proceed in forma pauperis and affirm.
3
Mr. Kelley sued under the Federal Tort Claims Act to recover damages for the loss of legal papers sent by Mr. Kelley to his attorney by certified mail. The district court properly substituted the United States of America as a party (28 U.S.C. 2672) and in reliance upon 28 U.S.C. 2680(b) (provisions of Federal Tort Claims Act shall not apply to "Any claim arising out of the loss, miscarriage or negligent transmission of letters or postal matter") concluded the United States had not waived its sovereign immunity. The district court dismissed the complaint.
4
Mr. Kelley appeals this order with numerous creative arguments including equitable liability waives immunity and charging postage waives immunity. He also claims the statute is unconstitutional as it is not positive law and claims the postal service is a commercial enterprise. None of Mr. Kelley's arguments have merit under the law and none warrant discussion.
5
The judgment of the district court is AFFIRMED.
1
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470
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04-16-2012
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Appeal by the defendant from two judgments of the Supreme Court, Westchester County (Marasco, J.), both rendered August 6, 1984, convicting him of robbery in the first degree under indictment No. 83-01622-01, and burglary in the third degree under indictment No. 84-00124-01, upon his pleas of guilty, and imposing sentences.
Ordered that the judgments are affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606). Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur.
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Peters, P.J.
Appeal from a decision of the Workers’ Compensation Board, filed December 2, 2011, which ruled that decedent’s death did not arise out of and in the course of his employment and denied claimant’s application for workers’ compensation death benefits.
The underlying facts are set out more fully in our prior decision in this matter (86 AD3d 762 [2011]). Briefly, decedent became depressed and committed suicide shortly after the employer began investigating inconsistencies in fiber proficiency tests performed by him. Claimant, his wife, submitted an application for workers’ compensation death benefits, which the Workers’ Compensation Board denied upon the ground that the employer’s actions were taken in good faith and stemmed from “a lawful personnel decision involving a disciplinary action” (Workers’ Compensation Law § 2 [7]). We found the Board’s denial to be unsupported by substantial evidence in the record, but remitted the matter so that it could assess whether the employer’s actions constituted a work evaluation for purposes of Workers’ Compensation Law § 2 (7) or if decedent was only exposed to normal workplace levels of stress (86 AD3d at 764). The Board found both to be the case and again rejected claimant’s application, prompting her appeal.
We affirm. While a psychiatrist causally linked decedent’s sui*1073cide to workplace stress, he had no firsthand knowledge of the investigation and did not opine that it caused abnormal levels of stress. Indeed, numerous individuals involved in investigating the testing irregularities testified that they followed standard procedure in doing so, and that their interactions with decedent were uniformly collegial and cordial. The Board was free to credit that testimony and determine that the stress created by the investigation was not “greater than that which other similarly situated workers experienced in the normal work environment” as required and, thus, reject claimant’s application (Matter of Spencer v Time Warner Cable, 278 AD2d 622, 623 [2000], lv denied 96 NY2d 706 [2001]; see Matter of Grace v Bronx Mun. Hosp. Ctr., City of N.Y. Health & Hosps. Corp., 272 AD2d 799, 800 [2000]; cf. Matter of Potter v Curtis Lbr. Co., Inc., 10 AD3d 819, 820 [2004]).
In light of the foregoing, we need not assess whether substantial evidence similarly supports the Board’s determination regarding the applicability of Workers’ Compensation Law § 2 (7).
Lahtinen, Garry and Egan Jr., JJ, concur. Ordered that the decision is affirmed, without costs.
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14 S.W.3d 512 (2000)
341 Ark. 105
FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS, INC., and Southern Farm Bureau Casualty Insurance Company
v.
Gaylon FOOTE and Tammy Foote.
No. 99-1365.
Supreme Court of Arkansas.
April 20, 2000.
*515 Hardin, Jesson & Terry, by: Rex M. Terry, J. Rodney Mills, and Kirkman T. Dougherty, Fort Smith, for appellants.
Nolan, Caddell & Reynolds, by: Bennett S. Nolan, Fort Smith, for appellees.
DONALD L. CORBIN, Justice.
This appeal raises issues of first impression regarding (1) alleged premature jury deliberations, and (2) the applicability of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), to the Arkansas Rules of Evidence. Appellants Farm Bureau Mutual Insurance Company of Arkansas, Inc., and Southern Farm Bureau Casualty Insurance Company (collectively, "Farm Bureau") appeal the judgment of the Sebastian County Circuit Court in favor of Appellees Gaylon and Tammy Foote for their claim to recover insurance proceeds, after a fire destroyed their residence. Farm Bureau raises seven points for reversal. Our jurisdiction of this matter is pursuant to Ark. Sup.Ct. R. 1-2(b)(1). We affirm.
The record reflects that in the early morning hours of September 29, 1997, while the Footes were out of town, their residence in Greenwood was destroyed by fire. Their Chevrolet Blazer and two Polaris watercrafts, which were parked in the garage at the time, were also destroyed. It was not disputed that the homeowners policy and the motor-vehicle policy issued by Farm Bureau were in effect at the time of the fire. It was not disputed that the Footes were the named insureds, and that the fire resulted in a total loss. Farm Bureau paid off the mortgage interest in the home held by Farmers Bank, as well as the lien on the Blazer held by First Resource Credit Union. Farm Bureau denied payment to the Footes, however, because its investigation revealed that (1) the fire was intentionally set by the Footes or at their direction, and (2) the Footes intentionally concealed or misrepresented material facts or circumstances relating to their loss and coverage.
The Footes subsequently filed suit against Farm Bureau in the Sebastian County Circuit Court. The jury returned a verdict in favor of the Footes, finding that (1) the Footes had an insurable interest in the residence; (2) the Footes had not committed fraudulent acts or made material false statements in their procurement of the policies or in the damage claims; and (3) the fire was not intentionally set by the Footes or by anyone else at their direction. Following the jury's verdict, the trial court awarded the Footes $117,297.62, plus interest; a statutory penalty of $14,075.71; costs of $323.63; and attorney's fees of $47,574.45. This appeal followed.
I. Substantial Evidence
For its first point for reversal, Farm Bureau argues that the trial court erred in denying its motion for directed verdict. Farm Bureau also argues for its sixth point that the jury's verdict is not based on substantial evidence. Because these points are merely different ways of stating the same argument, we review them together. Specifically, Farm Bureau argues that (1) the Footes failed to establish an insurable interest in the property; (2) the homeowners policy was voided by the Footes' fraudulent acts and false statements made before and after the fire; and (3) the fire was intentionally set by the Footes. When reviewing a denial of a motion for a directed verdict, we determine whether the jury's verdict is supported by substantial evidence. State Auto Property & Cas. Ins. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond mere suspicion or conjecture. Id. We review the evidence and all reasonable inferences *516 arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id.
A. Insurable Interest
Farm Bureau argues that there was not substantial evidence showing that the Footes had an insurable interest in the property. This argument is based on the claim that the Footes lacked ownership because their names were not on the title to the home.
According to the evidence, the Footes had lived at the residence in Greenwood for several years prior to the fire and had made improvements to the home by constructing a garage and a two-story addition. The Footes admitted that title to the property was in the names of Gaylon's parents, Garlan and Judy Foote. Both Gaylon and Tammy testified that at the time the home was purchased, they were divorced, but attempting to reconcile. They indicated that because they were not certain of a reconciliation, title to the home was put in Gaylon's parents' names. They also admitted that the mortgage was in Gaylon's parents' names, and that payments were made out of a joint bank account shared by Gaylon and his mother. Nevertheless, the Footes maintained that they actually paid all the mortgage payments, insurance, and taxes on the home, and that they also paid for the improvements to the property.
Garlan Foote confirmed their testimony regarding the ownership and payment of the home. He stated that when Tammy and Gaylon split up, Gaylon thought it would be best to put the house in his parents' names in case there was any confusion later. He stated that Gaylon has paid for the house, and that Gaylon and Tammy paid for the improvements to the home. He stated that he and his wife have never made any mortgage payments or exercised any control over the house. He stated further that although his wife actually writes out the payment checks, she has no interest in the joint bank account.
Arkansas Code Annotated § 23-79-104 (Repl.1999) provides:
(a) No contract of insurance of property or of any interest in property or arising from property shall be enforceable as to the insurance except for the benefit of persons having an insurable interest in the things insured at the time of the effectuation of the insurance and at the time of the loss.
(b) "Insurable interest" as used in this section means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.
"[A]n insurable interest is not dependent upon ownership." Beatty v. USAA Cas. Ins. Co., 330 Ark. 354, 361, 954 S.W.2d 250, 253 (1997) (quoting Hinkle v. Perry, 296 Ark. 114, 119, 752 S.W.2d 267, 269 (1988)).
Generally speaking, a person has an insurable interest in property whenever he would profit by or gain some advantage by its continued existence and suffer some loss or disadvantage by its destruction. If he would sustain such loss, it is immaterial whether he has, or has not, any title in, or lien upon, or possession of, the property itself.
Id. at 361-62, 954 S.W.2d at 253-54 (quoting Hartford Fire Ins. Co. v. Stanley, 7 Ark.App. 94, 96, 644 S.W.2d 628, 629 (1983) (citing, 3 Couch on Insurance § 24:13 (2d ed.1960))). The foregoing testimony is substantial evidence that the Footes had a substantial economic interest in preserving the property and stood to suffer some loss or disadvantage by its destruction. Accordingly, the Footes had an insurable interest in the residence and the property therein, regardless of the fact that they were not the titled owners of the residence.
B. Fraudulent Acts and False Statements
Farm Bureau next argues that the Footes were not entitled to any recovery *517 under the terms of the homeowners policy, due to the allegedly uncontroverted evidence that the Footes committed fraudulent acts and made false statements. Specifically, Farm Bureau contends that the Footes made false statements about (1) their status as owners of the house and their interest in the two watercrafts burned in the fire, and (2) their additional living expenses. Farm Bureau also contends that Gaylon committed a fraudulent act by submitting false receipts as documentation for their claimed additional living expenses.
Regarding the first of these points, Farm Bureau introduced the insurance application, signed by Gaylon, reflecting that the Footes had indicated the land was not owned by someone other than the applicants and that there were no occupants on the premises other than the owner. Gaylon testified that when he applied for the insurance policy, he explained the ownership situation to Farm Bureau's agent, Brad Walker, and that Walker then completed the application for insurance. Gaylon testified that he also told this information to Farm Bureau's adjuster, Kent Bard, after the fire.
Farm Bureau presented the property inventory completed by the Footes, wherein they claimed a loss of $12,500.00 for the value of the two Polaris watercrafts. It also presented the titles to the watercrafts, showing them to be owned by Charles Hamilton. Gaylon admitted that when he signed the inventory, he understood that he was representing that the items listed were his property. He maintained, however, that he held more than a majority of the ownership interest in the watercrafts. He explained that Hamilton was his partner and that Hamilton's ownership interest was approximately $3,500.00, while the remaining interest was his.
Farm Bureau also presented evidence showing that the Footes misrepresented the nature of their interest in the trailer in which they were living after the fire. Farm Bureau questioned Gaylon about a letter that he had written to the insurance company stating that he and Tammy had rented the trailer for $750.00 per month. Gaylon admitted that the information in the letter was wrong, because he and Tammy had actually purchased, not rented, the trailer. Gaylon also admitted that he had a friend write fictitious receipts as proof of the rental fees for the trailer. On rebuttal, Gaylon explained that he presented the false receipts as a result of conversations with Bard, wherein Bard agreed to pay the Footes $700.00 a month for additional living expenses. Gaylon stated that Bard told him that they could live with their parents and still receive $700.00 per month, but that they would still have to furnish receipts for their expenses so that he would have something to put in his file. According to Gaylon, Bard told him: "It's your money and we'll pay it to you[.]"
Bard confirmed the substance of these conversations, testifying that he told the Footes that Farm Bureau would pay additional living expenses even if they were living with their parents and not paying any money. Bard also stated that he told the Footes that they had to have some documentation to justify payment of those living expenses.
Whether these actions were fraudulent or the statements were materially false was a question for the jury. This court has recognized that once the insured establishes a prima facie case for recovery under the insurance policies, the burden shifts to the insurer to prove that the damages claimed were not covered under the policy. See Reynolds v. Shelter Mut. Ins. Co., 313 Ark. 145, 852 S.W.2d 799 (1993). The jury was instructed on this issue as follows:
Farm Bureau contends that the insurance contract is void because of certain actions and representations of the Plaintiffs.
If you find by a preponderance of the evidence, either before or after the loss, there have been fraudulent acts or material *518 false statements made or material facts or circumstances concealed or misrepresented in regard to the insured property, the insured coverage, or the loss by the Plaintiffs, then your verdict must be for the Defendants and against the Plaintiffs.
The jury apparently believed the explanations offered by the Footes and concluded that Farm Bureau had not met its burden on this issue. We find no error with this conclusion. The jury is free to believe or disbelieve the testimony of any witness. Bearden v. J.R. Grobmeyer Lumber Co., 331 Ark. 378, 961 S.W.2d 760 (1998). This is true even if the testimony is uncontradicted or unimpeached. See Anderson v. Graham, 332 Ark. 503, 966 S.W.2d 223 (1998).
C. Suspicious Origin of the Fire
Lastly, Farm Bureau contends that the evidence supports a finding that the Footes intentionally set fire to the property. While we agree that the evidence indisputably showed that the fire had suspicious origins, we affirm the jury's verdict.
During the trial, testimony was presented from several expert witnesses showing that the fire started in the area of the kitchen and utility room, near the entrance to the garage. The presence of accelerants was detected in the living room floor and near the kitchen door. No accidental cause for the fire was discovered, and it was the conclusion of Farm Bureau's fire investigation experts that the fire was intentionally set. No direct proof, however, was offered by Farm Bureau connecting the Footes to the suspicious cause of the fire. Although it attempted to show that only the Footes had the opportunity to commit the fire, based on their admissions that the home was locked and no one else had keys, Farm Bureau's fire specialist, Rodger Smith, conceded that someone else could have broken into the home and started the fire. He stated that a break in could have been possible, as the back door was completely missing from the home.
Perhaps more significant is the fact that Farm Bureau presented no convincing evidence demonstrating a motive for the fire. Although Smith opined that the motive of financial gain was usually present in fires of this nature, Farm Bureau produced no specific evidence that such was the case here. Smith merely surmised that the financial gain was derived from the Footes having their mortgage paid in full and thus owning the house free and clear. Smith's theory was not supported by the evidence, however, which demonstrated that the Footes suffered a tremendous loss as a result of the fire. Gaylon testified that everything that they had worked for over the course of many years was gone. Tammy testified about the personal items destroyed that were of sentimental value to them, such as a collection of the children's school photographs, a painting done by a family friend that had been given to them as a wedding present, Tammy's angel collection, and approximately twenty sound tracks for music that Tammy performed at church. Viewing the evidence in the light most favorable to the Footes, as we are required to do, we conclude that the jury's verdict on this point is supported by substantial evidence.
II. Scientific Expert Testimony
For its second point for reversal, Farm Bureau argues that the trial court erred in refusing to allow Trooper Doug Estes, an investigator with the Arkansas State Police, to testify regarding the alleged superior ability of his canine partner, Benjamin, to detect the presence of accelerants after a fire. Estes testified that as a result of his training, Benjamin has the ability to discriminate between different types of chemicals, so that when the dog alerts on a particular spot at a fire scene, it signifies the presence of accelerants. Estes stated that Benjamin has been trained extensively in this area and was required to test at an accuracy rate of 100 percent in order to receive his certification. Estes stated further that it has been proven *519 in numerous cases that a dog's nose is more sensitive than the laboratory equipment used by forensic chemists. He stated that a dog's nose can detect 300 parts per billion, while the laboratory tests detect 100 parts per million. The source of his information was a master's thesis written by Kevin Lockridge, the purported director of the Florida State Crime Laboratory. Farm Bureau offered this testimony to explain why the dog made five "hits," while the chemist only detected measurable amounts of accelerants in two samples. The trial court denied admission of the proffered testimony based on the holding in Daubert, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469. This court has not previously adopted the holding in Daubert. We do so now.
In Daubert, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469, the petitioners urged the Court to dispose of the test established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which provided that "expert opinion based on a scientific technique is inadmissible unless the technique is `generally accepted' as reliable in the relevant scientific community." 509 U.S. at 584, 113 S. Ct. 2786. They contended that the Frye test had been superseded by the adoption of the Federal Rules of Evidence. The Court agreed and established the following inquiry to be conducted by the trial court:
Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.
Id. at 592-93, 113 S. Ct. 2786 (footnotes omitted). The Court concluded that a key consideration is whether the scientific theory or technique can be or has been tested. Other considerations include whether the theory or technique has been subjected to peer review and publication, the potential rate of error, and the existence and maintenance of standards controlling the technique's operation. Additionally, the Court recognized that general acceptance in the scientific community can have a bearing on the inquiry. The Court emphasized that the inquiry envisioned by Federal Rule of Evidence 702, which is identical to our Rule 702, is a flexible one:
Its overarching subject is the scientific validityand thus the evidentiary relevance and reliabilityof the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.
Id. at 594-95, 113 S. Ct. 2786 (footnote omitted).
Two years before the Court's decision in Daubert, this court adopted a strikingly similar approach to the admission of novel scientific expert testimony in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). This approach, based on Arkansas Rules of Evidence 401, 402, and 702, requires the trial court to conduct a preliminary inquiry focusing on (1) the reliability of the novel process used to generate the evidence, (2) the possibility that admitting the evidence would overwhelm, confuse, or mislead the jury, and (3) the connection between the evidence to be offered and the disputed factual issues in the particular case. Under this approach, reliability is the critical element. There are a number of factors that bear upon reliability, including "the novelty of the new technique, its relationship to more established modes of scientific analysis, the existence of specialized literature dealing with the technique, the qualifications and professional stature of expert witnesses, and the non-judicial uses to which the scientific techniques are put." Id. at 186, 820 S.W.2d at 431 (citing Andrews v. State, 533 So. 2d 841 (Fla.Dist.Ct. App.1988) (citing United States v. Downing, *520 753 F.2d at 1238-39, and Weinstein & Berger, Weinstein's Evidence ¶ 702[03] (1991))).
In the present case, we conclude that the proffered testimony concerning the dog's alleged superior ability to detect the presence of accelerants does not pass muster using either the Daubert or Prater analysis. Farm Bureau simply did not make any showing regarding the scientific validity of the evidence. For instance, Estes did not produce the study allegedly conducted by Lockridge, so there was no way of ascertaining the techniques used or the potential rate of error. There was no evidence that this scientific theory had ever been tested or subjected to peer review, or that it had been otherwise embraced by the particular scientific community. In short, Farm Bureau, as the proponent of the novel scientific evidence, failed to carry its burden of proof on the issue of reliability. See Houston v. State, 321 Ark. 598, 906 S.W.2d 286 (1995). We thus the affirm the trial court's ruling.
III. Mistrial
For its third point for reversal, Farm Bureau argues that the trial court erred in denying its motion for mistrial as a result of four questions submitted to the court by the jury during a recess. The record reflects that during Farm Bureau's presentation of its defense, the trial court was given a note from the jury asking four questions: (1) "Who first discovered the fire?"; (2) "Who were the firemen/department on call?"; (3) "What emotions were observed on the Footes on arriving on the scene?"; and (4) "Why did the insurance company take the payments on the policy if the house ownership was in question?"
After reading the questions to the parties, the trial judge proposed telling the jurors that he could not answer the questions and then admonishing them that all the evidence had not yet been presented. In response, counsel for Farm Bureau proposed that the jurors be told that at the conclusion of the case, the court will instruct them and they will decide the case based on the law given and the evidence heard. Counsel for the Footes then expressed his concern that the jurors were prematurely talking about these issues before all the evidence had been presented. Counsel for Farm Bureau then agreed with that concern and moved for a mistrial. Alternatively, Farm Bureau asked the court to voir dire the jurors to determine the extent, if any, of their deliberations on the issues in the case.
The trial court denied the motion for mistrial, finding that Farm Bureau's concern would be cured by admonishing the jurors that they are to base their decision on the evidence presented and the instructions given at the conclusion of the trial. The trial court found further that conducting voir dire of the jurors individually would only complicate the situation, rather than cure it.
It is well settled that a mistrial is a drastic and extreme remedy that should be granted only when there has been error so prejudicial that justice cannot be served by continuing the trial or when fundamental fairness of the trial itself has been manifestly affected. See Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). The trial court has wide discretion in granting or denying a motion for a mistrial, and we will not disturb the court's decision absent an abuse of discretion or manifest prejudice to the movant. Id. A mistrial will only be granted where any possible prejudice could not have been removed by an admonition to the jury. Id. Regarding allegations of juror misconduct, the moving party bears the burden of proving that a reasonable possibility of prejudice resulted. Sunrise Enters., Inc. v. Mid-South Rd. Builders, Inc., 337 Ark. 6, 987 S.W.2d 674 (1999); Berry v. St. Paul Fire & Marine Ins. Co., 328 Ark. 553, 944 S.W.2d 838 (1997).
*521 Farm Bureau relies primarily on the case of United States v. Resko, 3 F.3d 684 (3rd Cir.1993), for the holding that "[i]t is a generally accepted principle of trial administration that jurors must not engage in discussions of a case before they have heard both the evidence and the court's legal instructions and have begun formally deliberating as a collective body." Id. at 688. The facts in Resko establish that seven days into a nine-day trial, a juror approached a court officer and reported that the members of the jury had been discussing the case during the recesses and while waiting in the jury room. The trial court then summoned the jurors, informed them of the problem, and gave each of them a questionnaire to complete. The two questions asked of the jurors were (1) whether they had discussed the facts of the case amongst themselves during the trial, and (2) if so, whether they had formed an opinion about the guilt or innocence of the defendants. All twelve jurors answered "yes" to the first question and "no" to the second question. The trial court made no further inquiries of the jurors, and the defendants were eventually convicted. The court of appeals vacated the convictions on the ground that the trial court should have conducted individual inquiry of the jurors. The court held:
Although ordinarily a defendant must establish prejudice before a new trial will be ordered, in the circumstances here, in which there is unequivocal proof of jury misconduct discovered mid-trial coupled with the failure by the district court to evaluate the nature of the jury misconduct or the existence of prejudice, we conclude that a new trial is warranted. Given the importance of the Sixth Amendment rights at stake and the relative ease with which the district court here could have properly assessed the impact of the jury misconduct, it would be unfair to penalize the defendants for lack of evidence of prejudice. We are thus willing, in these limited circumstances, to carve out an exception to the rule that a defendant must demonstrate prejudice before a new trial is warranted.
Id. at 694 (emphasis added). It is clear from this ruling that the court placed great emphasis on the fact that it was a criminal trial implicating the protections of the Sixth Amendment, and that it was uncontroverted that the jurors had engaged in premature deliberations. The present case is thus distinguishable from Resko.
Under the facts presented here, we think the better case is United States v. McVeigh, 153 F.3d 1166 (10th Cir.1998), cert. denied, 526 U.S. 1007, 119 S. Ct. 1148, 143 L. Ed. 2d 215 (1999). There, an alternate juror reported to the court clerk the substance of a discussion that had taken place in the jury room, during the course of the trial. The jurors had been conversing about who might be the alternates, and one juror said, "I hope I'm not the hold-out juror." Id. at 1185. In response, another juror stated, "It wouldn't be very hard. I think we all know what the verdict should be." Id. (footnote omitted). The trial judge did not conduct an individual inquiry with the jurors; rather, he admonished them about the importance of maintaining an open mind with respect to all aspects of the case. He also reminded them of the oath they had taken to decide the case based on all the evidence presented. The court of appeals held that the district court's refusal to conduct a hearing on the issue was not an abuse of discretion. The court distinguished between intrajury misconduct and extraneous influences on the jury, such as jurors becoming privy to prejudicial information not introduced into evidence or having improper contacts with parties or witnesses. The court explained:
Although premature discussions among jurors may prejudice the defendant, intrajury misconduct generally has been regarded as less serious than extraneous influences on the jury. Consequently, an allegation of intrajury misconduct may or may not warrant a hearing....
*522 ... Ultimately, the court must weigh the benefits of having a hearing, including the ability perhaps to ascertain more fully the extent and gravity of the possible prejudice, against the risks inherent in interrupting the trial and possibly placing undue emphasis on the challenged conduct.
Id. at 1186-87 (citations omitted). The court concluded that although a hearing may have been preferable under the circumstances, the trial court had not abused its discretion.
Here, as in the foregoing federal cases, the misconduct alleged was of the intrajury type; however, unlike those cases, there was no actual evidence that any jurors had engaged in premature discussions of the case. Rather, as the trial court pointed out, the four questions could very well have come from one juror mulling over issues in his or her mind. There was simply no affirmative proof that the jurors had been discussing the case. Moreover, the trial court's admonition was precisely the relief initially requested by Farm Bureau. Under these circumstances, we conclude that the trial court did not abuse its discretion in refusing to grant the mistrial or to conduct an individualized inquiry of the jurors. As indicated in McVeigh, such an inquiry may have only served to place undue emphasis on the challenged conduct. We thus affirm on this issue.
IV. Jury Instructions
For its fourth point for reversal, Farm Bureau argues that the trial court erred in instructing the jurors that for the homeowners policy to be voided, they must find by a preponderance of the evidence that "there have been fraudulent acts or material false statements made or material facts of circumstances concealed or misrepresented in regard to the insured property, the insurance coverage, or the loss[.]" Particularly, Farm Bureau argues that the word "material" should not have been used to modify the term "false statements," because no such modification is reflected in the policy itself. Farm Bureau relies on this court's decisions holding that an insurer may contract with its insured on whatever terms the parties may agree, so long as it is not contrary to statute or public policy. See Western World Ins. Co. v. Branch, 332 Ark. 427, 965 S.W.2d 760 (1998); Shelter Gen. Ins. Co. v. Williams, 315 Ark. 409, 867 S.W.2d 457 (1993). Thus, Farm Bureau argues that the trial court erred in refusing to instruct the jury with the exact language of the policy. We disagree.
The trial court concluded that the law requires false statements to be material before an insurance policy may be voided by the insurer. The trial court explained:
In looking at this and trying to analyze the law in regards to this, I believe that the statements, at least false statements, must have some degree of materiality to them.... That if it were otherwise, if it were any false statement, whether it be innocent or not, you could void the policy and that would be against the public policy, and obviously the company is looking at material false statements.
We find no error with this ruling, particularly in light of the fact that Farm Bureau's proffered instruction provided: "If you find from the evidence that any policyholder concealed or misrepresented any material fact relating to the insurance coverage, either before or after the fire, then your verdict must be for the Defendants on that issue and against the Plaintiffs." (Emphasis added.) Moreover, Farm Bureau's letter to the Footes specifically reflected that their claim was being denied because they "intentionally concealed or misrepresented material facts or circumstances relating to your loss and/or coverage." (Emphasis added.)
Furthermore, the language of the policy itself raises the inference that mere false statements are not sufficient to void the policy. The policy reflects that it becomes void when there have been "fraudulent acts or false statements made or material *523 facts or circumstances concealed or misrepresented in regard to the insured property, the insured coverage or the loss." From this context, it appears that the term "false statements" does not apply to statements that are merely incorrect or are without consequence to the loss or the policy itself. Although there is no specific statutory provision on this issue, our construction of this policy language is consistent with the statutory law regarding false information contained in applications for life or disability insurance. Arkansas Code Annotated § 23-79-107 (Repl.1999) provides in pertinent part that misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent recovery under the policy unless either: (1) fraudulent; (2) material to the acceptance of the risk or to the hazard assumed by the insurer; or (3) the insurer in good faith would not have issued the policy, or at least not in as large an amount or at the same premium rate, if the true facts had been known to it. In any event, the policy language is, at best, ambiguous, and we must resolve the ambiguity in favor of the insureds. See, e.g., Phelps v. U.S. Life Credit Life Ins. Co., 336 Ark. 257, 984 S.W.2d 425 (1999); State Farm Mut. Auto. Ins. Co. v. Traylor, 263 Ark. 92, 562 S.W.2d 595 (1978). Accordingly, the trial court did not abuse its discretion is refusing to give the proffered instruction. See Edwards, 335 Ark. 470, 984 S.W.2d 366.
V. Rebuttal Evidence
For its fifth point for reversal, Farm Bureau argues that the trial court abused its discretion in allowing the Footes to present rebuttal evidence regarding their emotional states after the fire and the substance of conversations between Gaylon Foote and Farm Bureau's adjuster pertaining to the issue of receipts for additional living expenses. Admissibility of rebuttal evidence lies within the sound discretion of the trial court, and we will not reverse absent a showing of abuse of that discretion. Edwards, 335 Ark. 470, 984 S.W.2d 366; Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). Genuine rebuttal is evidence that is offered in reply to new matters; however, the fact that the evidence could have been presented in the plaintiff's case-in-chief does not preclude its introduction on rebuttal if it serves to refute evidence raised by the defense. Id.
The record reflects that the first rebuttal witness, Larry Hill, testified that he had contact with Gaylon about a week after the fire. Hill stated that he and Gaylon went to the house and looked around the burned structure. Hill stated that Gaylon was very sad and depressed about his house. No objection was made to this testimony. The next witness, Tammy Foote's mother, was asked to describe the Footes' emotions in response to the fire. Farm Bureau objected and argued that such evidence should have been presented in the Footes' case-in-chief. The trial court overruled the objection. Thereafter, three additional witnesses testified about the Footes' emotions. The trial court did not abuse its discretion in allowing the testimony, as it was particularly relevant to refute Farm Bureau's defense, i.e., that the Footes set fire to their own home to collect the insurance proceeds. Moreover, Farm Bureau failed to object to the evidence at the first opportunity, during Hill's testimony. It is well settled that to preserve a point for appeal, a proper objection must be asserted at the first opportunity. Edwards, 335 Ark. 470, 984 S.W.2d 366.
As for Gaylon Foote's testimony about conversations he had with the insurance adjuster, Kent Bard, we likewise find no abuse of discretion. During Farm Bureau's defense, Rodger Smith testified that Gaylon had asked Bard for additional living expenses and that Bard had called Smith for authorization. Smith stated that he then sent a letter to Gaylon, advising him that Farm Bureau had not received enough receipts and documentation to support the payment of living expenses. Smith then testified that he was aware *524 that Bard had also requested appropriate documentation of rental expenses from the Footes. On rebuttal, Gaylon described the substance of his conversations with Bard regarding Farm Bureau's requests for the documentation. Accordingly, the trial court did not abuse its discretion by permitting Gaylon's rebuttal testimony.
VI. Attorney's Fees and Statutory Penalty
For its last point, Farm Bureau argues that the trial court erred in awarding attorney's fees and a twelve-percent penalty to the Footes, pursuant to Ark. Code Ann. § 23-79-208 (Repl.1999). Subsection (a)(1) provides that in all cases where loss occurs, and the insurance company fails to pay the losses within the time specified in the policy after demand has been made, the insurance company "shall be liable to pay the holder of the policy or his assigns, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorney's fees for the prosecution and collection of the loss." Subsection (d) provides that the right to recover the twelve-percent penalty is conditioned upon the amount recovered for the loss being within twenty percent of the amount demanded or sought in the suit.
Farm Bureau asserts that because the Footes sought their policy limits in their complaint and because the judgment recovered by them was set off by the monies paid to the banks for the mortgage and the lien on the vehicle, the Footes did not recover within twenty percent of the amount demanded. This assertion is erroneous under this court's decision in Farmers Mut. Ins. Co. v. Lane, 278 Ark. 53, 643 S.W.2d 544 (1982). There, this court held that "[i]t does not matter whether the actual payment under the policy is made to the insured or to the loss payee in order for the insureds to be entitled to the statutory penalty and attorneys' fees when payment by the [insurance] Company is late." Id. at 56, 643 S.W.2d at 546 (citing Farm Bureau Mut. Ins. Co. v. Shaw, 269 Ark. 757, 600 S.W.2d 432 (Ark.App. 1980)). Likewise, in Shaw, 269 Ark. at 758, 600 S.W.2d at 433, the court of appeals held that the statutory penalty and attorney's fees "applies regardless whether the late payment is made to the insured or insured's mortgagee." Accordingly, we find no merit to Farm Bureau's argument on this point, and we affirm.
THORNTON, J., not participating.
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33 N.J. Super. 156 (1954)
109 A.2d 462
HAROLD G. MUELLER, PLAINTIFF-APPELLANT,
v.
DANIEL EUCENHAM, DEFENDANT-RESPONDENT, AND DANIEL EVERNHAM, JR., AN INFANT BY HIS GUARDIAN AD LITEM, DANIEL EVERNHAM, AND DORIS EVERNHAM, AN INFANT BY HER GUARDIAN AD LITEM DANIEL EVERNHAM, INTERVENING-COUNTERCLAIMANTS-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued September 20, 1954.
Decided November 12, 1954.
*158 Before Judges EASTWOOD, GOLDMANN and SCHETTINO.
Mr. Jerome S. Lieb argued the cause for appellant (Messrs. Harkavy & Lieb, attorneys; Mr. Abraham I. Harkavy and Mr. Lieb, of counsel).
Mr. Clarkson S. Fisher argued the cause for respondents (Messrs. Frankel & Frankel, attorneys; Mr. George A. Bariscillo, Jr., on the brief).
*159 The opinion of the court was delivered by GOLDMANN, J.A.D.
Plaintiff appeals from an order of the Monmouth County District Court (1) permitting defendant (wrongly designated in the original complaint as Eucenham) to counterclaim, and (2) permitting defendant's infant children, Daniel Evernham, Jr. and Doris Evernham, by their father as guardian ad litem, to intervene and file their claims against plaintiff.
The action grew out of a collision on April 10, 1953 involving plaintiff's and defendant's automobiles. Defendant's children were passengers in his car. Plaintiff was at that time insured against property loss under a collision policy issued by the Service Fire Insurance Company. The company paid him $656.40 for the damage to his car; plaintiff in return gave the company his "loan receipt" whereby it was subrogated to his rights against defendant for the recovery of the sum it had paid under the policy. By that receipt plaintiff agreed to present his claim to defendant promptly and, if necessary, commence and diligently prosecute an action against him in his own name. He also appointed the "managers and/or agents" of the company "his agent(s) and attorney(s)-in-fact," to collect the claim and to begin, prosecute, compromise or withdraw, in his name but at the company's expense, any and all legal proceedings it might deem necessary to enforce the claim, such proceedings to be under the exclusive control and direction of the company.
On November 20, 1953 the company's attorney filed a complaint in plaintiff's name in the Monmouth County District Court seeking judgment against defendant for the damage done to plaintiff's automobile. Defendant was served the next day and entered his appearance December 8, 1953. On or about December 30, 1953 plaintiff moved from New Jersey to Virginia where he is presently residing.
Daniel Evernham individually and as guardian ad litem of his two infant children then filed a complaint in the Monmouth County Court on January 18, 1954 seeking judgment for personal injuries and damage to his automobile, for injuries *160 suffered by the children, and for damages per quod. Plaintiff could not be served personally because of his removal from the State. Evernham then attempted to file a so-called "counterclaim" in the Monmouth County District Court action, on behalf of himself and the children. Actually, it was (1) a counterclaim for his own injuries and property damage, as well as for damages per quod by reason of the injuries to his children, and (2) a claim by the children as intervenors for personal injuries suffered because of plaintiff's alleged negligence. Evernham's counsel sent this "counterclaim" to plaintiff's then attorney who, on April 8, 1954, acknowledged service as of time and without objection. The district court action was thereupon, pursuant to R.R. 7:6-1(b), transferred to the Superior Court by a consent order entered by a Law Division judge. At this juncture of the proceedings substituted counsel for plaintiff prepared an order, to which defendant's attorney consented, dismissing the "counterclaim" without prejudice and without costs because plaintiff's original counsel "inadvertently" acknowledged service of that pleading. The consent order was entered May 6, 1954; it remanded the complaint to the Monmouth County District Court "for further procedure therein, in accordance with the rules and practice of that court."
Counsel for defendant then moved on notice for an order permitting the infants, appearing by their father as guardian ad litem, and defendant individually, "to intervene and counterclaim" against plaintiff in the original action, it being represented that their respective claims and the main action had a common question of law or fact. Attached thereto was a copy of the "counterclaim" proposed to be filed. The motion was contested, and after argument the district court judge entered the order of May 12, 1954 here on appeal, granting the relief sought.
The "counterclaim" filed pursuant to the May 12 order was in six counts seeking judgment as follows: (1) $50,000 for personal injuries suffered by defendant Evernham; (2) $1,000 for property damage to his automobile; (3) $25,000 for personal injuries suffered by his son, Daniel Evernham, *161 Jr.; (4) $5,000 for medical expenses and loss of earnings by the father; (5) $25,000 for personal injuries suffered by his daughter, Doris Evernham; and (6) $5,000 for medical expenses and loss of earnings by the father. Thus, the "counterclaim" consists of a counterclaim by Evernham individually seeking $61,000 total damages, and a claim by the intervening infants against plaintiff Mueller seeking $50,000 total damages.
The May 12 order of the Monmouth County District Court was interlocutory. R.R. 2:2-3(a) provides that an appeal may be taken to this court from an interlocutory order "(3) Determining that the court has jurisdiction over the subject matter or the person." In objecting to the entry of the order under appeal plaintiff strenuously urged that the district court had no jurisdiction over his person or the subject matter the latter for the reason that the amount in controversy under the counterclaim and the intervening claims far exceeded the jurisdiction of the court. The present appeal clearly falls within the provision of the cited rule.
I
On this appeal plaintiff argues, as he did below, that the district court lacked jurisdiction over him in permitting the filing of the counterclaim and intervenors' claims. In opposing this contention respondents seek to draw some support from the fact that plaintiff's former attorney had "inadvertently" (as he put it) acknowledged the "counterclaim" as served within time. That acknowledgement is no longer in the picture; respondents, by their attorney, consented to its withdrawal and they cannot now rely upon it. We are not concerned with the reasons for that waiver. An attorney of record has implied authority to waive technical advantages and formalities necessary or incidental to the management of the suit and which affect only procedure, as distinguished from the cause of action itself. 5 Am. Jur., Attorneys at Law, § 91, p. 314.
*162 Plaintiff claims that he permitted his name to be used by the Service Fire Insurance Company for a limited purpose only in the institution of this suit, and this pursuant to the provisions of the loan receipt he had executed in its favor. He also argues that the insurance company which would be compelled to defend the counterclaim and the claims of the infant intervenors for personal injuries is an entirely different company from the one which began the district court suit to recover for property damage. Neither of these contentions is of moment. Solution of the jurisdictional problem must be sought at a more significant level. Our consideration of the question falls under two heads: defendant's counterclaim and the claims of the intervening infants.
Plaintiff having, by his voluntary act in demanding justice from defendant, submitted himself to the jurisdiction of the district court, there is nothing arbitrary or unreasonable in treating him as being there for all purposes for which justice to the defendant requires his presence. "It is the price which the state may exact as the condition of opening its courts to the plaintiff." Adam v. Saenger, 303 U.S. 59, 67-68, 58 S.Ct. 454, 82 L.Ed. 649 (1938), rehearing denied 303 U.S. 666, 58 S.Ct. 640, 82 L.Ed. 1123 (1938). See Freeman v. Bee Machine Co., Inc., 319 U.S. 448, 63 S.Ct. 1146, 87 L.Ed. 1509 (1943); and cf. Englander v. Jacoby, 132 N.J. Eq. 336, 340 (Ch. 1942), where it was said:
"* * * A party who appears in a cause submits himself to its jurisdiction in respect to those outreaches of the case which are reasonably to be anticipated."
This is certainly true of a defendant's counterclaim arising out of the same collision which forms the basis for plaintiff's action.
Plaintiff cites Swanson v. Swanson, 10 N.J. Super. 513 (App. Div. 1950), affirmed 8 N.J. 169 (1951), and Schuster v. Schuster, 9 N.J. Super. 11 (App. Div. 1950). Both cases are distinguishable. In Swanson the plaintiff wife instituted a divorce action against her husband, alleging she *163 was a resident of New Jersey. Following the taking of testimony, the court conducted an investigation as to the alleged residence, with the result that contempt proceedings were begun against plaintiff and two others. The petition and order to show cause in those proceedings were served upon her in New York State. Counsel for plaintiff unsuccessfully objected to the jurisdiction of the court to try the contempt. Plaintiff was convicted of contempt of court, and upon appeal this court reversed, holding:
"The circumstance that the appellant originally invoked the jurisdiction of the court in quest of a judgment of divorce does not in our judgment confer jurisdiction over her for the purposes of the adverse prosecution against her of the charge of criminal contempt." (10 N.J. Super. at pages 521-522)
And in affirming, the Supreme Court (8 N.J., at page 180) clearly indicated that the contempt proceedings were criminal in nature and an offense against the State, so that to obtain effective jurisdiction over Mrs. Swanson, process had to be served upon her within the confines of this State.
In Schuster plaintiff had instituted a divorce suit against her husband, who was personally served in New Jersey. He counterclaimed and subsequently moved to Florida. Plaintiff was given leave to file an amended complaint adding a separate cause of action for support and maintenance. The court held that such amended pleading could not be served upon the attorney for the nonresident defendant without violating the constitutional guarantee of procedural due process. It must be recognized that the defendant in Schuster was a party in invitum, and that is sufficient to distinguish the case. Parenthetically, it may be observed that the result of that case is difficult to understand in view of the fact that defendant had himself filed a counterclaim. See 8 Rutgers L. Rev. 273.
We have considered Whalen v. Young, 15 N.J. 321 (1954), as well as New York Life Insurance Co. v. Dunlevy, 241 U.S. 518, 36 S.Ct. 613, 60 L.Ed. 1140 (1916), and Ex parte Indiana Transportation Co., 244 U.S. 456, 37 S.Ct. *164 717, 61 L.Ed. 1253 (1917), and do not find that what was said in these cases runs contrary to our holding that the district court had jurisdiction over plaintiff for the purpose of defendant's counterclaim.
The claims of the intervening infants stand on a different footing. That part of the so-called "counterclaim" setting up these claims amounts, in effect, to an independent cause of action brought on their behalf by the father as guardian ad litem. Were these claims "outreaches of the case" which were "reasonably to be anticipated" by the now non-resident plaintiff? We do not think so. By suing defendant for property damage, plaintiff cannot be considered as having submitted himself to the jurisdiction of the court for any and every purpose. See Munday v. Vail, 34 N.J.L. 418, 422 (Sup. Ct. 1871). Had this collision involved three cars, it would not, in our view, have been proper in the circumstances of this case where plaintiff had left the jurisdiction after instituting his property damage action, to allow the owner of the third car to intervene and by independent action seek damages for personal injuries. The fact that the intervening claimants happen to be the defendant's children does not change the logic of the matter. Neither of the infant intervenors was a proper or necessary party to the original action, and plaintiff sought no relief against them. The "counterclaim" which the district court judge permitted to be filed could not be used as a means of introducing new parties seeking affirmative relief.
The intervention was, of course, permissive. It is not necessary, in view of our determination that the court did not have jurisdiction over the person of absent plaintiff in the circumstances, to determine whether the application for intervention was timely under R.R. 4:37-3, made applicable to the county district court by virtue of R.R. 5:2-1 and 7:1-3. Our further consideration of the appeal will therefore be limited to defendant's own counterclaim.
*165 II
As noted above, the four counts in the "counterclaim" which relate to defendant alone respectively demand judgment for his personal injuries, damage to his car, and damages per quod for medical expenses and loss of earnings of his two children. The per quod feature of his counterclaim is derivative. Defendant could recover such damages only if the infants were successful, for their claims are based upon plaintiff's negligence and the infants would have to prove that negligence and their own lack of contributory negligence. Accordingly, we need consider only the personal injury and property damage features of defendant's counterclaim.
R.R. 7:5-8 provides:
"All claims in the nature of recoupment, set-off, cross-action, or any other claim for relief except a complaint or a third party complaint, shall be asserted in an answer as a counterclaim, and not otherwise, and shall be served and filed within the time limited for answering."
R.R. 7:5-4 allows 20 days after service of summons and complaint for the filing of the answer. Plaintiff argues that R.R. 7:5-8 is mandatory, that the counterclaim should have been filed by December 11, 1953, and having been filed more than four months later is completely out of time. But there are other operative considerations. In the first place, defendant's claims are for an unliquidated amount; in the Superior Court, he would not be required to set them up by way of counterclaim under R.R. 4:13-1, Kelleher v. Lozzi, 7 N.J. 17 (1951), and such was also the rule in the district court under the old practice, Ehret v. Hering, 99 N.J.L. 73 (Sup. Ct. 1923). 17 N.J. Practice (Fulop, District and Municipal Courts), § 455, p. 236. Again, R.R. 7:1-2 provides that the rules governing county district courts "shall be construed to render the civil practice just, simple and uniform, and to prevent unjustifiable expense and delay," and where strict adherence to the rules would work injustice *166 or surprise, they may be relaxed or dispensed with by the court. Cf. R.R. 1:27A, formerly R.R. 1:1-8. There is the further consideration that R.R. 4:13-5, relating to omitted counterclaims, provides:
"When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment."
This power is conferred upon the County Courts by virtue of R.R. 5:2-1, and R.R. 7:1-3 provides that the practice and procedure in the county district courts "shall conform as nearly as may be to that in the law division of the county court, except where there is an express provision in the law or these rules to the contrary." Taking all these factors into consideration, the county district court could, in its discretion, permit defendant to file his counterclaim.
But the argument is made that pretense of liberality cannot cloak the county district court with powers beyond its jurisdiction, and the court should not have permitted the filing of the counterclaim where defendant sought damages in excess of its jurisdictional limits.
Admittedly, the county district court is a purely statutory court. L. 1953, c. 297 amended N.J.S. 2A:6-34 to increase the jurisdiction of county district courts to $3,000, exclusive of costs, in actions for damages resulting from bodily injury or death or damage to property arising out of the ownership, maintenance or use of a motor vehicle. A counterclaim is, of course, considered an "action" in the county district court, Broad & Branford Place Corp. v. J.J. Hockenjos Co., 132 N.J.L. 229 (Sup. Ct. 1944). Had defendant promptly filed his counterclaim within the 20-day period, no objection to lack of jurisdiction over the subject matter could have been raised, even though the amount exceeded the jurisdictional limit.
R.R. 7:6-1 sets up the procedure for transferring an action to the Superior Court where a counterclaim is filed in excess of the jurisdiction of the county district court. The counterclaim is merely filed with the county district court; *167 the court is not called upon to act with respect thereto. The counterclaimant then moves in the Superior Court for a transfer of the cause to that court, and the Superior Court in its discretion permits the transfer to be made.
We cannot say that the county district court abused its discretion in permitting defendant to file his own counterclaim, even though the demand for judgment exceeded the jurisdiction of that court. The court apparently considered that under R.R. 4:13-5 justice required that defendant be allowed to file a counterclaim, realizing that he would next move for a transfer of the entire cause to the Superior Court where the complaint and counterclaim could expeditiously be disposed of in one trial, the claims presenting common questions of law and fact. It would not appear that the trial will be unduly delayed by reason of such transfer.
The May 12, 1954 order of the county district court will therefore be modified in accordance with this opinion. The order is affirmed to the extent that it permitted defendant to set up his claims for personal injuries and property damage by way of counterclaim; it will be reversed insofar as it allowed the infants to intervene by their guardian ad litem and permitted defendant to counterclaim for damages per quod.
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Egitto, J.), rendered April 16, 1984, convicting him of robbery in the first degree (three counts), robbery in the second degree (three counts), burglary in the second degree and sodomy in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The trial court did not abuse its discretion in denying the *552defendant’s request for a continuance to produce an alibi witness. The identity of this witness was disclosed and the request for a continuance was made for the first time when the People rested. The defendant failed to show any degree of diligence in identifying and locating this witness or good cause for his delay (see, People v Foy, 32 NY2d 473, 476, 478; People v Jackson, 111 NY 362; People v Peralta, 127 AD2d 803, lv denied 69 NY2d 953).
We have considered the defendant’s remaining contentions and find them to be without merit. Thompson, J. P., Rubin, Eiber and Sullivan, JJ., concur.
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Linakis, J.), rendered June 11, 1985, convicting him of rape in the first degree, sexual abuse in the first degree (three counts), and assault in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant, a native of Bulgaria, contends on appeal that the trial court erred in denying without a hearing his motion to set aside the verdict. Specifically, he claims that the conditions of his incarceration during the trial precluded defense counsel’s use of a Bulgarian interpreter at the detention facility, so that he was unable to communicate with his attorney at the time and was therefore denied the effective assistance of counsel. He further alleges that the incompetency of the interpreters used during the proceedings deprived him of a fair trial. The record, however, supports the finding of the trial court that the defendant had some knowledge of English and was able to effectively communicate in English without the assistance of an interpreter. Since defense counsel was not otherwise prevented from interviewing his client in the evening at the facility, the claim of ineffective assistance is without merit. There is, moreover, no basis in the record upon which to conclude that the interpreters at trial were unable to perform their duties competently. We therefore find that the court properly denied the defendant’s motion to set aside the verdict.
The defendant’s challenge to the imposition of a mandatory surcharge upon his conviction is premature at this juncture (see, People v West, 124 Misc 2d 622; People v Fleming, 134 AD2d 610; People v Bethea, 133 AD2d 836).
Finally, we find that the sentence of 6 to 18 years’ imprison*553ment imposed with respect to the rape count was not excessive. Thompson, J. P., Rubin, Eiber and Sullivan, JJ., concur.
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Fourth Court of Appeals
San Antonio, Texas
February 8, 2017
No. 04-15-00405-CV
David GILLESPIE and Michael O'Brien,
Appellants
v.
A.L. HERNDEN and Frederick R. Zlotucha,
Appellees
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-10278
Honorable Cathleen M. Stryker, Judge Presiding
ORDER
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Marilyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
The en banc court has considered Appellants’ motion for en banc reconsideration. The
motion is DENIED. See TEX. R. APP. P. 49.7.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 8th day of February, 2017.
___________________________________
Keith E. Hottle
Clerk of Court
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Stein, J.
Appeal from a decision of the Workers’ Compensation Board, filed November 25, 2011, which, among other things, directed the employer’s workers’ compensation carrier to make a deposit into the aggregate trust fund pursuant to Workers’ Compensation Law § 27 (2).
Claimant sustained a work-related permanent partial disability and, due to the timing of his injury and the award arising out of it, the Workers’ Compensation Board directed that the full amount of that award be deposited into the aggregate trust fund (hereinafter the ATF) pursuant to Workers’ Compensation Law § 27. The employer’s workers’ compensation carrier was not required to make the deposit “during the pendency of an appeal to this Court from a Board decision directing such a lump-sum payment” (Matter of Appley v American Food, 82 AD3d 1563, 1564 [2011]), and the employer and carrier (hereinafter collectively referred to as the employer) did so appeal. We affirmed the Board’s decision (81 AD3d 1068 [2011], appeal *1074dismissed 17 NY3d 922 [2011]). However, when further proceedings continued, and in response to a request by claimant that the employer be required to comply with the ATF direction, the employer argued that it was not required to make the deposit until all avenues of review of this Court’s decision had been exhausted. In a November 25, 2011 decision, the Board disagreed and found, among other things, that the employer was required to make the ATF deposit. The employer now appeals from that decision.
At the time of the Board’s November 2011 decision, the employer had filed an appeal as of right of this Court’s prior decision to the Court of Appeals (see CPLR 5601 [b] [1]). That appeal has since been dismissed (17 NY3d 922 [2011]). No leave to appeal was ever sought (see CPLR 5602), and the time to do so has expired (see CPLR 5513 [b]). Inasmuch as the employer has now exhausted all avenues of appeal, we conclude that the Board properly required the employer to make a deposit into the ATF based upon this Court’s prior decision, and its November 2011 decision requiring the employer to do so must be affirmed.
Peters, P.J., Garry and Egan Jr., JJ., concur. Ordered that the decision is affirmed, with costs.
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Appeal by the defendant from a judgment of the County Court, Westchester County (Colabella, J.), rendered January 31, 1984, convicting him of assault in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The contentions of error raised by the defendant concerning the trial court’s instructions to the jury are either unpreserved for appellate review (see, CPL 470.05 [2]; People v Nuccie, 57 NY2d 818) or are without merit (see, CPL 60.35 [2]; People v Carroll, 37 AD2d 1015; see, People v Moses, 63 NY2d 299; People v Reddy, 261 NY 479). Moreover, any alleged error was harmless beyond a reasonable doubt due to the overwhelming nature of the evidence adduced at trial (see, People v Crimmins, 36 NY2d 230). Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.
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Appeal by the defendant from a judgment of the County Court, Westchester County (Plumadore, J.), rendered July 10, 1984, *554convicting him of criminal possession of a weapon in the third degree, coercion in the first degree and unlawful imprisonment in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant’s challenge to the propriety of the prosecutor’s summation remarks alleging that the defendant had intended to commit a robbery prior to his arrest on the instant charges was not raised at trial and thus has not been preserved for appellate review (see, CPL 470.05 [2]). In any event, neither these remarks nor the prosecutor’s similar statements made during his cross-examination of the defense witnesses, some of which were objected to by defense counsel, require reversal of the judgment of conviction in view of the overwhelming proof of guilt against the defendant (see, People v Morgan, 66 NY2d 255, 259).
We also reject the defendant’s contention that the trial court committed reversible error in denying his request for an adjournment to permit him an opportunity to retain private counsel. It is well established that "absent exigent or compelling circumstances, a court may, in the exercise of its discretion, deny a defendant’s request to substitute counsel made on the eve of or during trial if the defendant has been accorded a reasonable opportunity to retain counsel of his own choosing before that time” (People v Arroyave, 49 NY2d 264, 271; see also, People v Tineo, 64 NY2d 531; People v Dixon, 127 AD2d 785, lv denied 70 NY2d 645; People v Crown, 51 AD2d 588). Based on the circumstances of this case, we find that the trial court properly denied the defendant’s request. The defendant’s assigned counsel had represented the defendant for approximately 17 months during which time the defendant’s first trial, which ended in a mistrial, had been conducted. At no time during that period did the defendant register a complaint regarding counsel’s representation.
On the second day of his retrial, after the jury selection process was completed, the defendant sought an adjournment to allow him an opportunity to retain private counsel with funds to be provided by his mother. In support of his application, the defendant claimed that his assigned counsel was not providing him with proper representation in view of counsel’s failure to object to certain remarks made by the prosecutor in the first trial. The record, however, indicates that the defendant was merely seeking to delay the retrial because he was informed that the prosecution intended to call as a witness *555one of the arresting police officers who was unavailable to testify at the defendant’s first trial. That officer’s testimony was in contradiction to the defendant’s intended defense. In view of these facts, we agree with the trial court’s determination that the defendant failed to establish “exigent or compelling circumstances” which would warrant the granting of his application. Mollen, P. J., Brown, Rubin and Spatt, JJ., concur.
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/15/2020 08:08 AM CDT
- 176 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
SABINO v. OZUNA
Cite as 305 Neb. 176
Ariana Bernal Sabino, appellant, v.
Juan Carlos Genchi Ozuna, appellee.
___ N.W.2d ___
Filed March 6, 2020. No. S-18-110.
1. Statutes. Statutory interpretation presents a question of law.
2. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
3. Divorce: Appeal and Error. In a marital dissolution action, an appellate
court reviews the case de novo on the record to determine whether there
has been an abuse of discretion by the trial judge.
4. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court is required to make independent factual determinations
based upon the record, and the court reaches its own independent con-
clusions with respect to the matters at issue.
5. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
6. Statutes: Time. Amendments to Neb. Rev. Stat. § 43-1238(b) (Cum.
Supp. 2018) were procedural and applicable to pending cases.
7. Courts: Minors. The role of state courts in the special immigrant juve-
nile status determination is to make the findings of fact necessary to the
U.S. Citizenship and Immigration Service’s legal determination of the
immigrant child’s entitlement to special immigrant juvenile status.
8. Courts: Federal Acts: Minors. Federal law affirms the institutional
competence of state courts as the appropriate forum for child welfare
determinations regarding abuse, neglect, and abandonment, as well
as a child’s best interests. But it is not the role of the state court to
make a determination as to whether a child will ultimately be eli-
gible for special immigrant juvenile status; that is a determination
reserved for the U.S. Citizenship and Immigration Service and the
federal government.
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SABINO v. OZUNA
Cite as 305 Neb. 176
9. Courts: Minors. That a court is requested to make special immigrant
juvenile status findings does not mean that it must make findings favor-
able to the party seeking them.
10. Courts: Minors: Evidence. Courts asked to make special immigrant
juvenile status findings may conclude that there was insufficient evi-
dence or that the evidence was not credible.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Reversed and remanded for further
proceedings.
Roxana Cortes Reyes, of Immigrant Legal Center, an affili-
ate of the Justice For Our Neighbors Network, for appellant.
No appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
The Douglas County District Court dissolved the marriage
of Ariana Bernal Sabino and Juan Carlo Genchi Ozuna and
awarded full custody of the parties’ child to Sabino. Sabino
sought specific findings of fact for purposes of special immi-
grant juvenile (SIJ) status under federal law. The district court
declined to make such findings, and Sabino appealed. We
reverse, and remand for further proceedings.
FACTUAL BACKGROUND
According to an affidavit offered into evidence by Sabino at
trial, she and Ozuna met in Cuatro Bancos, Guerrero, Mexico,
in approximately 2000. Sabino was born in Cuatro Bancos, and
she was 13 years old when she met Ozuna. A year later, she
and Ozuna moved in together, and 5 months after that, Ozuna
began to physically assault Sabino. Sabino became pregnant
in May 2003, and she and Ozuna were married in November.
Throughout this time, Ozuna continued to physically assault
Sabino. In December, Sabino left Ozuna and returned to her
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SABINO v. OZUNA
Cite as 305 Neb. 176
parents’ home. According to Sabino’s affidavit, just 1 week
later, Ozuna moved in with another woman.
Sabino averred that Ozuna was aware of her pregnancy and
of the due date of the baby. Sabino also averred that Ozuna
was aware of where she was staying. Sabino stated that Ozuna
never attempted to see her or the baby and provided no finan-
cial assistance.
According to her affidavit, Sabino was unable to provide
for the couple’s son on her own and came to the United States
when her son was 20 months old. Sabino left her son in
Mexico with her mother and sent money to cover his expenses.
She also spoke with him on the telephone frequently. In August
2016, Sabino’s son and mother, who was also a victim of
domestic violence at the hands of Sabino’s father, left Mexico
for the United States.
In June 2017, Sabino filed a complaint in the Douglas
County District Court for the dissolution of marriage. Ozuna
entered a voluntary appearance in October, but did not person-
ally appear. Trial was held on November 8. Sabino testified
through a Spanish language interpreter that she was married to
Ozuna and was seeking a divorce because Ozuna had hit her,
that she had been separated from him for over 13 years, and
that she did not believe the marriage could be saved. Sabino
sought an award of all of the property in her possession and
custody of the parties’ son.
Because Sabino had borne children from other relationships
while Sabino and Ozuna were married, the trial court contin-
ued the trial in order for Sabino to gather evidence rebutting
the statutory presumption that Ozuna was the father of those
children. The trial resumed on January 11, 2018, at which time
evidence rebutting that presumption was offered.
In addition to the proof of paternity for her other children,
Sabino offered exhibit 4, which was a photocopy of materials
from the U.S. Citizenship and Immigration Services explaining
“Special Immigrant Juvenile Status.” According to this exhibit,
SIJ status is available to children who present in the United
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SABINO v. OZUNA
Cite as 305 Neb. 176
States without legal immigration status because they have been
“abused, abandoned, or neglected by a parent.” As relevant to
this appeal, exhibit 4 notes: “Juvenile courts issue orders that
help determine a child’s eligibility for SIJ status. . . . The role
of the court is to make factual findings based on state law
about the abuse, neglect, or abandonment; family reunification;
and best interests of the children.”
Following admission of this evidence, the court made cer-
tain inquiries of Sabino while she was on the witness stand.
Specifically, the court asked Sabino whether she or her mother
had “any legal authority to live in the United States.” Sabino’s
counsel objected on relevancy grounds, noting that it went
to neither “the best interest of the child [n]or the divorce
proceedings.”
The court then made an oral pronouncement (with an accom-
panying written decree) granting the divorce and awarding
custody to Sabino, subject to Ozuna’s reasonable visitation at
Sabino’s reasonable discretion. Ozuna was also ordered to pay
$50 per month in child support.
As relevant to this appeal, the court also stated:
The Court makes no decision as to the other issues that
[Sabino] has requested with regard to abandonment in
Mexico, abuse in Mexico, and things of that nature, as the
Court does not have adequate information as to why the
child could not live safely in some part of Mexico.
In addition, the Court does find that it’s relevant as
to whether [Sabino] is legally in the United States, if
her mother is legally in the United States, things of that
nature. And if she refuses to answer those, then I’m not
going to go any further with asking other questions in
this matter.
The Court’s also concerned as to whether it’s even
within my purview to makes [sic] these determinations. If
I do make these — if this is in my purview to make these
determinations, then I need a lot more evidence to make
that determination. For sure I need evidence as to how
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SABINO v. OZUNA
Cite as 305 Neb. 176
paragraph 7 [of Sabino’s affidavit, detailing her mother’s
flight to the United States due to domestic violence,] was
arrived at. . . . Sabino . . . doesn’t know how the informa-
tion in paragraph 7 was obtained. If she doesn’t know,
then that is somewhat of a crux of the information in
this matter.
The district court signed a decree prepared by Sabino’s coun-
sel that included the findings sought regarding abuse, neglect,
or abandonment; family reunification; and best interests of the
child. However, the court struck through those findings and
therefore did not make the findings requested by Sabino.
Sabino appealed. In a prior opinion, we concluded that the
district court erred in not allowing Sabino to proceed in forma
pauperis.1 We are now presented with the merits of Sabino’s
appeal.
ASSIGNMENT OF ERROR
Sabino assigns three assignments of error that can be con-
solidated as one: The district court erred in not making the
findings of fact requested by Sabino.
STANDARD OF REVIEW
[1,2] Statutory interpretation presents a question of law.2
We independently review questions of law decided by a lower
court.3
[3-5] In a marital dissolution action, an appellate court
reviews the case de novo on the record to determine whether
there has been an abuse of discretion by the trial judge.4 In a
review de novo on the record, an appellate court is required
to make independent factual determinations based upon the
record, and the court reaches its own independent conclusions
1
See Sabino v. Ozuna, 303 Neb. 318, 928 N.W.2d 778 (2019).
2
In Re Guardianship of Carlos D., 300 Neb. 646, 915 N.W.2d 581 (2018).
3
Id.
4
Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019).
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SABINO v. OZUNA
Cite as 305 Neb. 176
with respect to the matters at issue.5 A judicial abuse of discre-
tion exists if the reasons or rulings of a trial judge are clearly
untenable, unfairly depriving a litigant of a substantial right
and denying just results in matters submitted for disposition.6
ANALYSIS
This appeal generally presents the question of whether the
district court had the authority to make the findings of fact
requested by Sabino and, if so, whether there was sufficient
evidence for the court to make those findings. Each issue will
be addressed in turn.
District Court’s Authority.
[6] The district court in this case had the authority to make
the findings sought by Sabino. Neb. Rev. Stat. § 43-1238(b)
(Cum. Supp. 2018) provides:
In addition to having jurisdiction to make judicial deter-
minations about the custody and care of the child, a court
of this state with exclusive jurisdiction under subsection
(a) of this section [setting forth when a court has juris-
diction to make an initial child custody determination]
has jurisdiction and authority to make factual findings
regarding (1) the abuse, abandonment, or neglect of the
child, (2) the nonviability of reunification with at least
one of the child’s parents due to such abuse, abandon-
ment, neglect, or a similar basis under state law, and (3)
whether it would be in the best interests of such child to
be removed from the United States to a foreign country,
including the child’s country of origin or last habitual
residence. If there is sufficient evidence to support such
factual findings, the court shall issue an order containing
such findings when requested by one of the parties or
upon the court’s own motion.
5
Id.
6
Id.
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SABINO v. OZUNA
Cite as 305 Neb. 176
Although the amendments to § 43-1238 were not effective until
July 19, 2018, which was several months after the order was
issued in this case, we recently held in In re Guardianship of
Carlos D.7 that the change made to § 43-1238(b) was proce-
dural and thus applied to pending cases.
The language of § 43-1238 provides that if a court has
jurisdiction to make an initial child custody determination,
it also has the jurisdiction and authority to make the factual
findings relevant to SIJ status. In this case, the record shows
that the child’s home state for purposes of § 43-1238(a)
was Nebraska, and, as such, the court had the jurisdiction to
make an initial child custody determination and to make the
requested findings.
Sufficient Evidence.
Section 43-1238 provides that “[i]f there is sufficient evi-
dence to support such factual findings, the court shall issue an
order containing such findings when requested by one of the
parties or upon the court’s own motion.”
[7,8] Having concluded that the court has the authority to
make these findings, we turn to an examination of what these
factfinding courts should consider when doing so. The role of
state courts in the SIJ status determination is to make the find-
ings of fact necessary to the U.S. Citizenship and Immigration
Service’s legal determination of the immigrant child’s entitle-
ment to SIJ status.8 Federal law affirms the institutional com-
petence of state courts as the appropriate forum for child
welfare determinations regarding abuse, neglect, and aban-
donment, as well as a child’s best interests.9 But it is not the
role of the state court to make a determination as to whether
7
In re Guardianship of Carlos D., supra note 2.
8
8 U.S.C. § 1101(a)(27)(J)(iii) (Reissue 2018).
9
See, Guardianship of Penate, 477 Mass. 268, 76 N.E.3d 960 (2017);
H.S.P. v. J.K., 223 N.J. 196, 121 A.3d 849 (2015); Kitoko v. Salomao, 215
A.3d 698 (Vt. 2019); In re Y.M., 207 Cal. App. 4th 892, 144 Cal. Rptr. 3d
54 (2012); Simbaina v. Bunay, 221 Md. App. 440, 109 A.3d 191 (2015).
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SABINO v. OZUNA
Cite as 305 Neb. 176
a child will ultimately be eligible for SIJ status; that is a
determination reserved for the U.S. Customs and Immigration
Service and the federal government.10
[9,10] That a court is requested to make findings for pur-
poses of SIJ status does not mean that it must make findings
favorable to the party seeking them.11 Courts asked to make
these findings may conclude that there was insufficient evi-
dence or that the evidence was not credible.12
Federal law provides:
Applications for asylum and other forms of relief from
removal in which an unaccompanied alien child is the
principal applicant shall be governed by regulations which
take into account the specialized needs of unaccompanied
alien children and which address both procedural and
substantive aspects of handling unaccompanied alien chil-
dren’s cases.13
Courts in other jurisdictions have interpreted this language
as a caution to courts to not place insurmountable evidentiary
burdens on SIJ petitioners, because those seeking that status
will have limited abilities to corroborate testimony with addi-
tional evidence.14
In this case, the district court questioned both the record
before it and its authority, before concluding that it was not
“even within [its] purview” to make the findings sought by
Sabino. We conclude that although the court can and should
entertain a request for findings, the court’s powers as a fact
10
See, J.U. v. J.C.P.C., 176 A.3d 136 (D.C. 2018); Romero v. Perez, 463 Md.
182, 205 A.3d 903 (2019); Guardianship of Penate, supra note 9; Kitoko v.
Salomao, supra note 9.
11
See, J.U. v. J.C.P.C., supra note 10; Romero v. Perez, supra note 10;
Kitoko v. Salomao, supra note 9; In re J.J.X.C., 318 Ga. App. 420, 734
S.E.2d 120 (2012).
12
See id.
13
8 U.S.C. § 1232(d)(8) (2018).
14
See, J.U. v. J.C.P.C., supra note 10; Romero v. Perez, supra note 10;
Kitoko v. Salomao, supra note 9.
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Cite as 305 Neb. 176
finder to assess the credibility of a witness or judge the suffi-
ciency of evidence remain in effect. But nothing in this opinion
should be read to suggest what findings the court should make
on remand.
Because in this case the district court concluded that it
lacked the authority to make the requested findings, we accord-
ingly reverse the decision of the district court and remand the
cause for further proceedings.
CONCLUSION
The decision of the district court is reversed and the cause is
remanded for further proceedings.
Reversed and remanded for
further proceedings.
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05/15/2020 08:09 AM CDT
- 66 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. KRANNAWITTER
Cite as 305 Neb. 66
State of Nebraska, appellee, v.
Amy J. Krannawitter, appellant.
___ N.W.2d ___
Filed February 21, 2020. No. S-19-014.
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. Motions for New Trial: Appeal and Error. The standard of review for
the denial of a motion for new trial is whether the trial court abused its
discretion in denying the motion.
3. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure. The first tier of police-citizen encounters involves no restraint
of the liberty of the citizen involved, but, rather, the voluntary coopera-
tion of the citizen is elicited through noncoercive questioning. This type
of contact does not rise to the level of a seizure and therefore is outside
the realm of Fourth Amendment protection.
4. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
Investigative Stops: Search and Seizure: Words and Phrases. The
second category of police-citizen encounters, the investigatory stop, is
limited to brief, nonintrusive detention during a frisk for weapons or
preliminary questioning. This type of encounter is considered a seizure
sufficient to invoke Fourth Amendment safeguards, but because of its
less intrusive character requires only that the stopping officer have spe-
cific and articulable facts sufficient to give rise to reasonable suspicion
that a person has committed or is committing a crime.
5. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
Arrests: Search and Seizure: Probable Cause. The third type of
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305 Nebraska Reports
STATE v. KRANNAWITTER
Cite as 305 Neb. 66
police-citizen encounters, arrests, is characterized by highly intrusive
or lengthy search or detention. The Fourth Amendment requires that an
arrest be justified by probable cause to believe that a person has com-
mitted or is committing a crime.
6. Constitutional Law: Search and Seizure. A seizure in the Fourth
Amendment context occurs only if, in view of all the circumstances sur-
rounding the incident, a reasonable person would have believed that he
or she was not free to leave.
7. ____: ____. In addition to situations where an officer directly tells a
suspect that he or she is not free to go, circumstances indicative of a
seizure may include the threatening presence of several officers, the dis-
play of a weapon by an officer, some physical touching of the citizen’s
person, or the use of language or tone of voice indicating the compli-
ance with the officer’s request might be compelled.
8. Motions for New Trial: Evidence: Proof. In order to obtain a new trial
based on newly discovered evidence, a defendant must show that the
new evidence could not with reasonable diligence have been discovered
and produced at trial and that the evidence is so substantial that a dif-
ferent result may have occurred.
9. Blood, Breath, and Urine Tests: Drunk Driving: Evidence: Proof.
The four foundational elements which the State must establish as a
foundation for the admissibility of a breath test in a driving under
the influence prosecution are as follows: (1) that the testing device
was working properly at the time of the testing, (2) that the person
administering the test was qualified and held a valid permit, (3) that
the test was properly conducted under the methods stated by the
Department of Health and Human Services, and (4) that all other stat-
utes were satisfied.
Appeal from the District Court for Lancaster County:
Andrew R. Jacobsen, Judge. Affirmed.
Brad Roth and Kenneth Yoho, Senior Certified Law Student,
of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg,
P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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Heavican, C.J.
I. INTRODUCTION
Amy J. Krannawitter was charged with third-offense driving
under the influence. Her motion to suppress was denied, and
she was convicted. Krannawitter then filed a motion for new
trial on the basis of newly discovered evidence. That motion
was denied, and she was sentenced. Krannawitter appeals.
We affirm.
II. FACTUAL BACKGROUND
At approximately 6 a.m. on July 4, 2017, Deputy Dennis
Guthard of the Lancaster County Sheriff’s Department was
leaving his home to report for work. Guthard was driving
a marked cruiser. He noticed a black Nissan Altima driving
slowly down the street of his neighborhood, of which he had
been a resident for 16 years. Guthard’s house was located on
the corner of a street and a neighborhood circle. He drove from
the circle onto the nearby through street and emerged behind
the Altima. The Altima pulled into the driveway of Guthard’s
neighbors’ house.
Guthard did not recognize the Altima or its driver, who he tes-
tified was a “younger woman” later identified as Krannawitter.
Guthard testified that the occupants of the neighbors’ house
were a 70-year-old woman and her 96-year-old mother and
that it was his experience that these two women did not wake
until around 8:30 a.m. Guthard also testified that he considered
keeping an eye on his neighborhood to be part of his job and
that he was therefore aware of many of the vehicles belonging
to persons who visited the neighborhood. Guthard noted that he
often left for work at 6 a.m. and was therefore aware of who
might be out and about at that time of the morning.
As Guthard drove down the street, he noticed, using his side
and rear view mirrors, that the Altima was “just parked there”
in the driveway. Guthard thought that was suspicious, but he
also allowed for the possibility that the Altima’s driver was
lost, because it was a “confusing neighborhood.” He therefore
turned around at the next neighborhood circle to see if he could
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be of assistance. As his cruiser approached the driveway, the
driver of the Altima, who had been in the process of back-
ing out of the driveway, paused for several seconds and then
abruptly pulled back into the driveway and parked again. No
other cars were traveling on the street at the time.
Guthard pulled into the driveway about 5 feet behind
the Altima, but did not activate his cruiser’s siren or lights.
Guthard did turn the cruiser’s camera on as he approached the
Altima, and a video of the interaction between Guthard and
Krannawitter was offered into evidence at trial.
Guthard made contact with the driver, Krannawitter.
Immediately before Krannawitter opened the door of the
Altima, Guthard observed Krannawitter was “very dishev-
eled” and had droopy eyelids. When she opened the door,
Guthard smelled a strong odor of alcohol and further noted
Krannawitter’s bloodshot eyes and slurred speech.
Krannawitter’s breath test, administered approximately 90
minutes later, showed a concentration of .235 grams of alcohol
per 210 liters of breath. Krannawitter was charged with aggra-
vated driving under the influence, third offense. Krannawitter’s
motion to suppress was denied. The district court concluded
that the initial stop of Krannawitter was a tier-one police-
citizen encounter and that even if it was a seizure, there was
reasonable suspicion to support a brief investigative stop.
Following a jury trial, Krannawitter was found guilty of
driving under the influence. She filed a motion for new trial on
the basis of newly discovered evidence. Krannawitter alleged
that her breath test was performed using a machine that was
maintained and tested using solutions that did not have cer-
tificates of analysis, in violation of title 177 of the Nebraska
Administrative Code dealing with the testing of the alcohol
content in blood and breath and in violation of her due process
and confrontation rights. This argument centered on the testing
solutions use to maintain the machine.
Krannawitter presented evidence that when sent to law
enforcement, the solutions were accompanied by certificates
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Cite as 305 Neb. 66
of analysis signed by Alma Palmer as the individual who pre-
pared, tested, and supplied the solutions. Such a certificate is
required by title 177. However, it was later determined that the
solutions were actually prepared, tested, and supplied by Colby
Hale. The company that delivered the solutions subsequently
provided amended certificates, signed by Hale.
The district court concluded that the amended certificates
were “not . . . newly discovered evidence” and that even if they
were, the defect in the original certificates would not have ren-
dered the breath test inadmissible. Accordingly, Krannawitter’s
motion was denied. Krannawitter was sentenced to 5 years’
probation and a 15-year license revocation, with the possi-
bility of obtaining an ignition interlock device after 1 year.
She appeals.
III. ASSIGNMENTS OF ERROR
Krannawitter assigns, restated and consolidated, that the
district court erred in (1) denying her motion to suppress and
(2) denying her motion for new trial.
IV. 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
[2] The standard of review for the denial of a motion for
new trial is whether the trial court abused its discretion in
denying the motion.2
1
State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441 (2019).
2
State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).
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V. ANALYSIS
1. Motion to Suppress
In her first assignment of error, Krannawitter assigns that
the district court erred in denying her motion to suppress. In
so denying, the district court noted that in its view, the interac-
tion between Guthard and Krannawitter was a tier-one police-
citizen encounter, but that in any case, the encounter was sup-
ported by reasonable suspicion. Krannawitter takes issue with
both findings.
[3-5] There are three tiers of police encounters under
Nebraska law. The first tier of police-citizen encounters
involves no restraint of the liberty of the citizen involved,
but, rather, the voluntary cooperation of the citizen is elicited
through noncoercive questioning.3 This type of contact does
not rise to the level of a seizure and therefore is outside the
realm of Fourth Amendment protection. The second category,
the investigatory stop, as defined by the U.S. Supreme Court in
Terry v. Ohio,4 is limited to brief, nonintrusive detention during
a frisk for weapons or preliminary questioning.5 This type of
encounter is considered a “seizure” sufficient to invoke Fourth
Amendment safeguards, but because of its less intrusive char-
acter requires only that the stopping officer have specific and
articulable facts sufficient to give rise to reasonable suspicion
that a person has committed or is committing a crime.6 The
third type of police-citizen encounters, arrests, is characterized
by highly intrusive or lengthy search or detention.7 The Fourth
Amendment requires that an arrest be justified by probable
cause to believe that a person has committed or is committing
3
State v. Schriner, 303 Neb. 476, 929 N.W.2d 514 (2019).
4
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See,
also, State v. Schriner, supra note 3.
5
See State v. Schriner, supra note 3.
6
Id.
7
Id.
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a crime.8 Only the second and third tiers of police-citizen
encounters are seizures sufficient to invoke the protections of
the Fourth Amendment to the U.S. Constitution.9
[6,7] A seizure in the Fourth Amendment context occurs
only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he or
she was not free to leave.10 In addition to situations where an
officer directly tells a suspect that he or she is not free to go,
circumstances indicative of a seizure may include the threaten-
ing presence of several officers, the display of a weapon by an
officer, some physical touching of the citizen’s person, or the
use of language or tone of voice indicating the compliance with
the officer’s request might be compelled.11
We need not decide whether this encounter might have
been a tier-one police-citizen encounter, because we conclude
that in any case, it was a seizure supported by reasonable
suspicion.
The U.S. Supreme Court has recognized that the Fourth
Amendment permits brief investigative stops of vehicles based
on reasonable suspicion when a law enforcement officer has
a “‘particularized and objective basis for suspecting the par-
ticular person stopped of criminal activity.’”12 The reasonable
suspicion needed to justify an investigatory traffic stop “‘“is
dependent upon both the content of information possessed
by police and its degree of reliability.”’”13 Like the prob-
able cause standard, the reasonable suspicion standard “‘takes
into account “the totality of the circumstances—the whole
8
Id.
9
Id.
10
Id.
11
Id.
12
Navarette v. California, 572 U.S. 393, 396, 134 S. Ct. 1683, 188 L. Ed. 2d
680 (2014).
13
State v. Barbeau, 301 Neb. 293, 301, 917 N.W.2d 913, 921 (2018), quoting
Navarette v. California, supra note 12.
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picture.”’”14 A mere hunch does not create reasonable suspi-
cion, but the level of suspicion required to meet the standard is
“‘“considerably less than proof of wrongdoing by a preponder-
ance of the evidence,” and “obviously less” than is necessary
for probable cause.’”15
Nervous, evasive behavior is a factor in determining reason-
able suspicion.16 Another consideration is unprovoked flight
upon noticing the police.17 Other pertinent circumstances
include the officer’s own direct observations, dispatch infor-
mation, directions from other officers, and the nature of the
area and time of day during which the suspicious activity
occurred.18
In this case, Guthard was familiar with the neighborhood
where the seizure took place because he lived in it. Specifically,
Guthard testified that he was aware of those individuals who
frequented the house of the neighbors in question, but did not
recognize Krannawitter or her Altima. Because of this person-
alized knowledge regarding his own neighborhood, Guthard
testified that the fact that Krannawitter was parked in the
driveway in question at 6 a.m. was suspicious. Guthard thought
it was possible that the driver might be lost, but his suspicion
about the Altima and its occupants was reinforced when he
circled back to check on the Altima and witnessed it begin to
back out of the driveway, only to pause for an unknown reason
and abruptly drive back into the driveway just as he approached
in his marked cruiser. In his interaction with Krannawitter,
Guthard indicated that he thought he should check on the prop-
erty and on her, to be sure that she and her passengers were not
attempting to break into the property.
14
Id.
15
Id.
16
U.S. v. Harris, 313 F.3d 1228 (10th Cir. 2002).
17
Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570
(2000).
18
U.S. v. Campbell, 549 F.3d 364 (6th Cir. 2008).
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Guthard witnessed what appeared to him to be evasive
behavior when Krannawitter pulled out of and then imme-
diately back into the neighbors’ driveway. Based on his
knowledge of the neighbors and the neighborhood in ques-
tion, Guthard did not believe Krannawitter was visiting or
acquainted with those neighbors such that there was a reason
for her Altima to be parked in that driveway in the early morn-
ing hours. Guthard testified he considered it to be part of his
job to keep an eye on his neighborhood. We conclude that
when the totality of the circumstances is considered, Guthard’s
seizure of Krannawitter was supported by a particularized and
objective basis for suspecting the particular person stopped of
criminal activity.
2. Motion for New Trial
In her second assignment of error, Krannawitter assigns that
the district court erred in denying her motion for new trial.
In denying Krannawitter’s motion for new trial, the district
court found that the amended certificates of analysis were “not
. . . newly discovered evidence,” because they could have been
discovered with reasonable diligence, and that in any case, the
defect with the original certificates would not have rendered
the breath test inadmissible.
[8] In order to obtain a new trial based on newly discov-
ered evidence, a defendant must show that the new evidence
could not with reasonable diligence have been discovered and
produced at trial.19 Additionally, the defendant must show the
evidence is “so substantial that a different result may have
occurred.”20 In other words, the defendant must show that if the
evidence had been admitted at the former trial, it would prob-
ably have produced a substantially different result.
19
See, Neb. Rev. Stat. §§ 29-2101(5) and 29-2103(4) (Reissue 2016); State
v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017).
20
State v. Cross, supra note 19, 297 Neb. at 161, 900 N.W.2d at 6.
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STATE v. KRANNAWITTER
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(a) Newly Discovered Evidence
The district court erred in finding that the amended certifi-
cates did not qualify as newly discovered evidence. A timeline
of events relating to the certificates is helpful in determining
this issue.
On June 29 and July 27, 2016, respectively, Palmer signed
the original certificates of analysis of the solutions for testing
concentrations of .08 and .15 milliliters of alcohol per 210
liters of breath, and the testing solutions were sent to Lancaster
County. The solutions were those used to test and maintain
the breath testing machine shortly before Krannawitter was
arrested and tested on July 4, 2017.
Krannawitter’s trial began on April 9, 2018. On that same
date, Palmer signed affidavits stating that she had not tested
those solutions, but that Hale had done that testing. It is not
clear from the record how these affidavits came to be signed.
On April 10, following a second day of trial, Krannawitter was
found guilty. On May 7, Hale signed amended certificates of
analysis, which were sent to Lancaster County. Krannawitter’s
motion for new trial was filed May 10. (The operative motion
for new trial, however, is the amended motion for new trial,
which was filed on July 27.)
Evidence is considered “newly discovered” if it “could not
with reasonable diligence have [been] discovered and pro-
duced at the trial.”21 Defense counsel’s affidavit indicates that
he was not aware of the inaccuracy in the original certificates
of analysis; nor is there any other evidence in the record to
suggest that counsel should have been aware that the original
certificates were incorrect. The amended certificates qualify as
newly discovered evidence, and the district court erred in find-
ing otherwise.
(b) Substantially Different Result
We turn next to the question of whether, had the certifi-
cates been offered at trial, the results of that trial would have
21
§ 29-2101(5).
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been substantially different. Krannawitter contends, within the
framework of her motion for new trial, that (1) her breath
test results were inadmissible, (2) she had a right to confront
Palmer and Hale, (3) the certificates of analysis were inadmis-
sible hearsay, and (4) the State violated Krannawitter’s due
process rights when it offered Palmer’s affidavit at trial.
[9] Krannawitter’s argument on appeal is based on her
assertion that because the original certificates of analysis were
incorrect, there was insufficient foundation to support the
introduction of her chemical breath test results. The four foun-
dational elements which the State must establish as a founda-
tion for the admissibility of a breath test in a driving under
the influence prosecution are as follows: (1) that the testing
device was working properly at the time of the testing, (2)
that the person administering the test was qualified and held
a valid permit, (3) that the test was properly conducted under
the methods stated by the Department of Health and Human
Services, and (4) that all other statutes were satisfied.22 The
certificate of analysis at issue in this appeal is required by 177
Neb. Admin. Code, ch. 1, § 008.04A (2016), of the Department
of Health and Human Services regulations. Krannawitter
contends—as set forth above—that the State did not prove
§ 008.04A, which requires that the test be properly conducted
under the methods stated by the Department of Health and
Human Services.
But Krannawitter’s assertion that there was improper
foundation overlooks both the framework used to deter-
mine whether a motion for new trial should be granted and
the substantive effect of the amended certificates. We agree
with Krannawitter that together with Palmer’s affidavit, the
amended certificates of analysis showed that the original cer-
tificates were incorrect.
But we do not agree that this fact results in the conclusion
that there was no foundation for the admission of the breath
22
State v. Jasa, 297 Neb. 822, 901 N.W.2d 315 (2017).
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test results. In addition to contributing to the evidence show-
ing that the original certificates were incorrect, the amended
certificates were independent foundational evidence supporting
the admission of those results. And in addition to even these
certificates, there was other evidence presented at the hearing
on the amended motion for new trial that supported the admis-
sibility of the results.
Krannawitter also argued that her confrontation rights were
violated when she was not permitted to confront the wit-
nesses against her, specifically naming Hale. The district court
rejected this claim in its order, citing to State v. Fischer 23
wherein this court held that certificates of analysis similar to
these are nontestimonial.
Krannawitter argues that our prior case law is distinguish-
able because there were amended certificates of analysis, the
“primary purpose of [which] was to present after-the-fact evi-
dence that the calibration verification was reliable so that the
State could establish that the testing device was working prop-
erly at the time the breath test was administered.”24 While we
understand the distinction Krannawitter relies upon, we find
that it makes no difference in this case.
In concluding that such certificates of analysis were non-
testimonial, this court in Fischer reasoned that the statements
in a certificate “did not pertain to any particular pending mat-
ter” and that the certificate “was prepared in a routine manner
without regard to whether the certification related to any par-
ticular defendant.”25
This reasoning is also applicable to the amended certifi-
cates now at issue. There is no indication from the face of
the amended certificates that they were prepared for a par-
ticular criminal proceeding. Rather, the testimony of one of the
23
State v. Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007).
24
Brief for appellant at 30-31.
25
State v. Fischer, supra note 23, 272 Neb. at 971, 972, 726 N.W.2d at 182,
183.
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maintenance officers indicated that the amended certificates
were “additional documentation” received by the county in
connection with the simulator solutions in the county’s posses-
sion and that the only difference between the original and the
amended certificates was the name of the person who tested
the solutions.
Moreover, the record shows that that the amended cer-
tificates were received by Lancaster County after the time
Krannawitter was convicted and before the date Krannawitter
filed her motion for new trial. Just as the original certificates
were nontestimonial, so also were the amended certificates.
There is no merit to Krannawitter’s contention to the contrary.
Whether there was sufficient foundation for the admission
of those results is a question for the trial court.26 At the hear-
ing on the motion for new trial, the district court found that
the foundational elements were met and that the results were
admissible. As such, the trial court concluded that the results of
a trial where the amended certificates of analysis were offered
would not have been substantially different.
We need not reach Krannawitter’s arguments on appeal
regarding her due process rights, or whether the certificates
of analysis were inadmissible hearsay, because neither was
raised in her amended motion for new trial or at the hearing on
that motion.
The trial court did not abuse its discretion in denying
Krannawitter’s amended motion for new trial.
VI. CONCLUSION
The judgment and sentence of the district court are affirmed.
Affirmed.
26
See State v. Richardson, 285 Neb. 847, 830 N.W.2d 183 (2013).
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205 Cal. App. 2d 654 (1962)
PHIL G. DEICHER, Plaintiff and Respondent,
v.
JUNE W. CORKERY et al., Defendants and Appellants.
Civ. No. 25839.
California Court of Appeals. Second Dist., Div. Two.
July 16, 1962.
Morris Lavine for Defendants and Appellants.
James Schwartz for Plaintiff and Respondent.
HERNDON, J.
Defendants Corkery and Pond appeal from plaintiff's judgment of $5,700 rendered after a nonjury trial in an action brought to recover a commission allegedly due to respondent from appellants as a result of a real estate transaction.
Respondent is a licensed real estate broker. In the latter part of May 1959, he entered into negotiations with appellant Pond relating to the sale of a subdivision in Riverside County, the title to which stood in the name of appellant Corkery, who, as the evidence hereinafter recited will show, was engaged in a joint venture with Pond in the ownership and management of said land. Respondent and Pond viewed the property and Pond submitted to him a description and map which indicated that it contained 375 one-acre estates. Respondent, working with another broker, obtained buyers who indicated their willingness to pay the purchase price which had been set by Pond.
On June 5, 1959, respondent and Pond, with the assistance *656 of an escrow officer, drew up escrow instructions for the sale of the property. The instructions stated that the property was comprised of at least 375 acres and that $50,000 of the total purchase price of $225,000 would be paid in cash through escrow, the balance of $175,000 to be evidenced by a note and secured by a deed of trust. An instruction was included directing that a commission of $11,250 be paid to respondent out of the purchase money.
On Saturday, June 6, 1959, respondent and his wife, who was a notary public, met with appellants. It was then orally agreed that respondent would take part of his broker's commission in land or trust deeds. A memorandum was prepared and signed by respondent and appellant Corkery in which it was agreed that the 5 per cent commission to be paid respondent would be paid $2,500 in cash and the balance of $8,750 "in land or property" in Lancaster. Appellant Pond signed as a "Witness." Respondent asked whether the memorandum should be placed in escrow. Appellants said that they preferred that it should not be because it might hold up the closing of the escrow. It was agreed that unless land satisfactory to respondent was designated before the close of escrow, respondent was to receive his commission as provided in the instructions. The escrow instructions were then examined and executed by appellant Corkery as the "Seller." They were later submitted to the escrow officer. The memorandum was not included.
On June 9, 1959, respondent learned that the property did not conform to the description which he had received from Pond. It appeared to him from the title reports that odd pieces had been sold out of the total, that a 40-foot strip along the front had been sold for a new highway, and that there were other variances. Respondent reported these discrepancies to a representative of the buyers and thereafter informed Pond that the buyers refused to proceed because of the discrepancies. Pond then told him to "make the best deal you can." That evening Pond flew to Hawaii. The next day, June 10, respondent advised Pond by telephone that the only way the deal could be closed would be to reduce the selling price by $6,000. Pond verbally authorized him to assign $6,000 of his commission as a credit to the buyers on behalf of the seller. Respondent thereupon executed and placed in escrow an authorization that the buyers be credited with this amount out of his commission, indicating therein: "This amount is advanced by the undersigned on behalf of the seller. ..." *657
The escrow closed on June 11, 1959. Respondent received $5,250 cash. The buyers were credited with $6,000. A check for the balance of the down payment was made payable to appellant Corkery and was accepted by Pond's wife on behalf of the sellers. In the latter part of June, Pond returned from Hawaii. Very shortly thereafter, he and respondent discussed the matter while on a trip to Antelope Valley to look at some land. On July 1, 1959, appellant Pond sent a letter to respondent in which he recognized the $6,000 obligation and indicated his intention to allow respondent to select a piece of land belonging to him worth $8,250 for a payment of $2,250. Thereafter they failed to agree on any land to be transferred to respondent and no payment of any kind was made.
The court found that appellants were joint adventurers in various real estate transactions, including the sale of the real property here involved, and that they acted in concert, one with the other, as principals in the sale of the land; that respondent was employed as a broker by Pond on behalf of himself and appellant Corkery; that the escrow instructions and the memorandum were executed by Corkery acting on behalf of herself and Pond; that the instructions provided for payment of $11,250 commission to respondent, said commission being 5 per cent of the purchase price; that the parties neither intended nor desired that the memorandum agreement be deposited into escrow as a modification of the escrow instructions; that Pond "verbally instructed and authorized plaintiff to modify the instructions by reducing the purchase price in the amount of $6,000, and further, authorized plaintiff, pursuant to said modification, to advance $6,000 for and on behalf of defendants ... out of ... [his] commission"; that respondent complied; that Pond, with knowledge that respondent had complied, ratified and approved in writing respondent's actions; and that at no time did the parties reach agreement as to any property to be conveyed to respondent in lieu of the money due for his earned commission.
The conclusions were: that the agreement expressed in the escrow instructions to pay $11,250 commission to respondent was not modified except to the extent required by the $6,000 reduction in the selling price of the property which operated to reduce respondent's commission to $10,950; that Pond's ratification of his oral authorization to respondent also bound appellant Corkery; that the so-called agreement of June 6, 1959, was expressly dependent for its legal effect upon the possibility of a future agreement which was never accomplished; *658 that respondent had been paid $5,250 and that a balance of $5,700 was due, owing and unpaid to him. Judgment was for that amount.
The first contention of appellants is that the court erred in denying their motion for a mistrial. The record reflects that during the presentation of plaintiff's case, the court had a conference with counsel and thereafter talked to appellant Pond alone and then to respondent and his wife alone in an attempt to effect a settlement. The record further reflects that the court's discussions with the parties were had with the full knowledge, acquiescence and approval of counsel and without the slightest suggestion of any objection.
In the course of the argument on the motion, the following statements were made by the court and by appellants' counsel: "The Court: Do you contend that any discussions that were had by the court with the attorneys and with the respective parties to this action was done against the will of yourself, Mr. Lavine, or against the will of your client? Mr. Lavine: Well, it was not done against my will, your Honor. I am always in favor of a settlement. ... In answer to your Honor's question directly, I will state it was not against my wishes. I favor discussions for settlement and it was not against my wishes. ..."
In denying the motion, the court stated: "Well, if the court agreed with your client and felt it was not in a position to give him a fair trial, I would suggest this at the very outset and not wait for a motion to be made. But since the court feels that it can act with complete objectivity, that it can appraise the facts dispassionately, that it can apply the law as it is presented to it by counsel, and such law as its own independent research and knowledge places in the possession of the court and will place into the possession of the court at the conclusion of this case, and since the court feels that the interest of justice would not be served by granting the motion, the motion will be denied. ... And also because the court feels that it is capable of retaining an open mind and complete objectivity and will be swayed and persuaded only by the burden of the evidence that appears in the courtroom and within the confines of the record made out by the parties to this litigation. All these reasons, each of them and all of them collectively. ... Let it [the record] also show this was done with the full acquiescence of counsel and only in response to an inquiry by the court whether, in the opinion of counsel, some constructive purpose might be served, and that in addition *659 thereto, counsel, the court spoke to Mr. Pond in the presence of his own counsel."
Appellants assert that the court's attempt to effect a settlement was coercive, indicated that he had prejudged the case, and amounted to the taking of evidence outside the courtroom. They further assert, without any citation of the record and apparently in an attempt to show prejudice, that the court conducted some of the examination of the witnesses, suggested questions to plaintiff's counsel, and prepared the findings in the case.
[1] As to the contention that the court's actions were coercive and indicated that he had prejudged the case, it is elementary that misconduct of the court must appear in the record before it can be reviewed on appeal. Where the objection relates to matters occurring in chambers or to anything not appearing in the transcript, the alleged facts must be placed in the record. (See Gantner v. Gantner, 39 Cal. 2d 272, 277-278 [246 P.2d 923]; McVey v. McVey, 132 Cal. App. 2d 120, 123 [281 P.2d 898].) We have thoroughly reviewed the record and find absolutely no evidence of coercion, bias, or prejudgment on the part of the court. On the contrary, we note that he exercised a high degree of courtesy and patience and at all times appeared to maintain an open and unprejudiced attitude.
[2] However, interviewing litigants separately in chambers, even with the consent of counsel, in an effort to settle the case during the trial, is ill-advised for in the event settlement is not effected and the trial is resumed, the losing party may understandably feel that something was said during such interviews that influenced the judge's decision but which, had he or his attorney been present, could have been successfully answered or explained.
Appellants contend that certain findings are not supported by the evidence. The first questioned finding is that appellants were joint adventurers.
In stating the facts in accordance with the familiar rule of appellate review, we have accepted all testimony and inferences favorable to respondent wherever the evidence presented a substantial conflict. We are satisfied that the recited evidence and the inferences reasonably to be drawn therefrom furnish abundant support for the challenged finding. (Calada Materials Co. v. Collins, 184 Cal. App. 2d 250, 253 [7 Cal. Rptr. 374].) Furthermore, Pond directly testified: "It is a joint venture, and she allows me to use money of hers, which I use, *660 and we both participate in the profits. You can call it, I am her nominee or you can say that she is my nominee or that she owns the property and I am her agent. ..." While the extrajudicial declarations of an agent are not admissible to prove his agency or the extent of his authority (Vind v. Asamblea Apostolica, Christo Jesus, 148 Cal. App. 2d 597, 604 [307 P.2d 85]), his testimony is competent to prove these facts. (El Rio Oils Ltd. v. Pacific Coast Asphalt Co., 95 Cal. App. 2d 186, 193 [213 P.2d 1]; cert. denied 340 U.S. 850 [71 S. Ct. 77, 95 L. Ed. 623].)
Appellants next question the finding that the parties neither desired nor intended that the memorandum regarding the substitution of land or property for cash as a part of respondent's commission be deposited into escrow as a modification of the escrow instructions. They assert that it was not their intention that the memorandum modify the escrow instructions, but that it was to have the same force and effect as if placed in escrow. There was testimony by the plaintiff that it was agreed that the land or property referred to in the memorandum agreement was to be designated prior to the close of escrow, and if it was not, the escrow instructions were to prevail. On conflicting evidence, the court found in favor of respondent.
The third questioned finding, namely, that the buyers ascertained that only 365 acres were included, appears to be based upon testimony of the respondent that he informed Pond that the buyers would not proceed because there were discrepancies in the description of the property. There is no claim that respondent fraudulently induced Pond to authorize the $6,000 credit to the buyers. Whether the buyers were informed of the discrepancies was not in issue. [3] A finding outside the issues is to be disregarded as surplusage. (Morgan v. Walker, 217 Cal. 607, 610-612 [20 P.2d 660].)
There was evidence and a finding that Pond orally instructed respondent to advance $6,000 for and on behalf of appellants to the credit of the buyers out of his commission, and that he complied. By assignment of the broker's commission, it was thus possible, in effect, to reduce the price of the property without the execution of a supplemental written instruction by appellant Corkery, in whose name title was held. The court also made a finding that Pond orally authorized respondent "to modify the escrow instructions by reducing the purchase price" and that he complied. Appellants assert this latter finding is unsupported by the evidence. Manifestly the contention is unsubstantial and without merit. *661 The latter finding merely states in more general terms the finding that Pond orally instructed respondent to advance the money to the credit of the buyers.
Appellants next contend that since this action is based on a claim for a broker's commission, the statute of frauds bars recovery. They argue that by the assignment of a portion of his commission, respondent "could not alter the escrow instructions nor get an additional commission as a broker for services rendered without an agreement in writing." We fail to understand this argument.
[4] An oral agreement to pay commissions to a real estate broker is within the statute of frauds, but subsequent written escrow instructions recognizing the obligation make it enforceable. (Coulter v. Howard, 203 Cal. 17, 22 [262 P. 751]; Devereux v. Sirkus, 105 Cal. App. 2d 340, 344 [233 P.2d 644]; Martin v. Chernabaeff, 124 Cal. App. 2d 648, 650 [269 P.2d 25].)
Thus, there is no question but that the provision for the payment of respondent's 5 per cent commission was enforceable and it was, in fact, carried out by the payment of $5,250 to respondent in cash and by the assignment of $6,000 to the credit of the buyers. The assignment of the $6,000 for and on behalf of appellants pursuant to Pond's instructions was the advancement of the money at the special instance and request of appellants and required no writing. The argument that respondent assigned the funds on his own behalf to complete the deal was not accepted by the trier of fact. Appellants also argue that they did not agree to repay respondent.
A payment voluntarily made to a third person for the use and benefit of another cannot be recovered from the latter as money loaned. (Curtin v. Black Oak Dev. Co., 35 Cal. App. 1, 5 [168 P. 1157].) [5] However, as here, where one person pays out money for the benefit of another, at the latter's request, a common count for money paid, laid out and expended will lie. (Kraner v. Halsey, 82 Cal. 209, 210 [22 P. 1137]; Jaffe v. Lilienthal, 86 Cal. 91, 92 [24 P. 835]; Pleasant v. Samuels, 114 Cal. 34, 37-38 [45 P. 998].)
If we look beyond details of the transaction to its effect, as urged by appellants, it appears that even though the effect was to modify orally the terms of an agreement required to be in writing, the doctrine of estoppel would apply in favor of respondent. As we have stated, respondent testified that Pond agreed to send him a demand note for the $6,000. The fact that the note apparently was to be signed by Pond, while *662 a circumstance to be considered in determining the intentions of the parties, does not relieve the other member of the joint venture from liability if the signer had authority to bind the other and if the note was executed with that intent and so accepted. The nature of the transaction fairly and reasonably implies the advancement of the money to accommodate the needs of the joint venture. (See Wurm v. Metz, 162 Cal. App. 2d 262, 269 [327 P.2d 969].)
The final argument advanced on behalf of appellants is that the court erred in holding them liable on the theory of mutual agency generally applicable to partnerships and joint ventures.
[6] The rule is that each partner or joint venturer is the agent of the others in making contracts reasonably necessary to carry out the enterprise. (Engineering etc. Corp. v. Longridge Inv. Co., 153 Cal. App. 2d 404, 411 [314 P.2d 563]; Lindner v. Friednash, 160 Cal. App. 2d 511, 520 [325 P.2d 612].) A few cases have held that this rule is not applicable to all joint ventures. It cannot be urged here, as it was in those cases, that either appellants' identity or their connection with the venture was unknown to respondent. Nor can it be urged that Pond exceeded his authority in authorizing the assignment. (Cf. Hansen v. Burford, 212 Cal. 100, 111 [297 P. 908]; Hayward's v. Nelson, 143 Cal. App. 2d 807, 814 [299 P.2d 1013].)
The evidence shows that actually and ostensibly Pond had broad authority. Appellant Corkery permitted him to make all decisions and direct the details of the transactions. In contracts with third persons the law imposes liability upon one who either represents himself or consents to another representing him as a partner in an actual or apparent partnership. (Corp. Code, 15016; Dodd v. Tebbetts, 198 Cal. 333, 340 [244 P. 1081]; Moen v. Art's Cafe, 95 Cal. App. 2d 577, 579 [213 P.2d 393]; Singh v. Kashian, 124 Cal. App. Supp. 2d 879, 884 [268 P.2d 768].)
[7] The assignment of the $6,000 to the credit of the buyers at the instance and request of appellants effected the closing of the escrow. Appellants accepted the benefits of the sale and made no attempt to rescind the transaction. There was testimony that the profits were subsequently invested in another joint venture of appellants. The venture, having obtained the benefits of the transaction, appellants as members thereof cannot escape liability for the $6,000 advanced by *663 respondent for and on behalf of the venture. (Grant v. Weatherholt, 123 Cal. App. 2d 34, 45-46 [266 P.2d 185].)
The judgment is affirmed; the attempted appeal from the order denying motion for a new trial is dismissed.
Fox, P. J., and Ashburn, J., concurred.
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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/5902353/
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Stein, J.
Appeal from a decision of the Workers’ Compensation Board, filed November 25, 2011, which, among other things, directed the employer’s workers’ compensation carrier to make a deposit into the aggregate trust fund pursuant to Workers’ Compensation Law § 27 (2).
Claimant sustained a work-related permanent partial disability and, due to the timing of his injury and the award arising out of it, the Workers’ Compensation Board directed that the full amount of that award be deposited into the aggregate trust fund (hereinafter the ATF) pursuant to Workers’ Compensation Law § 27. The employer’s workers’ compensation carrier was not required to make the deposit “during the pendency of an appeal to this Court from a Board decision directing such a lump-sum payment” (Matter of Appley v American Food, 82 AD3d 1563, 1564 [2011]), and the employer and carrier (hereinafter collectively referred to as the employer) did so appeal. We affirmed the Board’s decision (81 AD3d 1068 [2011], appeal *1074dismissed 17 NY3d 922 [2011]). However, when further proceedings continued, and in response to a request by claimant that the employer be required to comply with the ATF direction, the employer argued that it was not required to make the deposit until all avenues of review of this Court’s decision had been exhausted. In a November 25, 2011 decision, the Board disagreed and found, among other things, that the employer was required to make the ATF deposit. The employer now appeals from that decision.
At the time of the Board’s November 2011 decision, the employer had filed an appeal as of right of this Court’s prior decision to the Court of Appeals (see CPLR 5601 [b] [1]). That appeal has since been dismissed (17 NY3d 922 [2011]). No leave to appeal was ever sought (see CPLR 5602), and the time to do so has expired (see CPLR 5513 [b]). Inasmuch as the employer has now exhausted all avenues of appeal, we conclude that the Board properly required the employer to make a deposit into the ATF based upon this Court’s prior decision, and its November 2011 decision requiring the employer to do so must be affirmed.
Peters, P.J., Garry and Egan Jr., JJ., concur. Ordered that the decision is affirmed, with costs.
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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/5902354/
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Appeal by the defendant from a judgment of the County Court, Nassau County (Santagata, J.), rendered November 30, 1984, convicting him of robbery in the first degree (two counts) and robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of that branch of the defendant’s omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
We agree with the hearing court’s conclusions that there was neither suggestiveness nor illegality in any of the identification procedures conducted by police detectives. Suppression of such testimony was, therefore, properly denied (see, People v Pleasant, 54 NY2d 972, cert denied 455 US 924).
The defendant’s other contentions, including those raised in his supplemental pro se brief, are either without merit or unpreserved for appellate review. 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/5902355/
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Groh, J.), rendered March 24, 1982, convicting him of burglary in the third degree, criminal mischief in the second degree, and criminal possession of stolen property in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by reducing the conviction of criminal mischief in the second degree to criminal mischief in the third degree; as so modified, the judgment is affirmed.
The defendant argues that the People failed to prove him guilty of criminal mischief in the second degree beyond a reasonable doubt since the trial evidence did not establish damage to the burglarized jewelry store in excess of $1,500. We agree. The only person who testified to the value of the damaged safe was the complainant, who is not an expert; and no evidence as to the cost of repair or replacement was introduced to support the complainant’s allegation that a new safe was necessary, at a cost of $10,000. Since the defendant concedes that the damage exceeded $250, the conviction on this count is reduced to criminal mischief in the third degree.
The defendant also challenges his conviction of criminal possession of stolen property in the first degree based upon the fact that he was found hiding in the ceiling rafters of the burglarized jewelry store when the police discovered him. He was thus allegedly unable ever to exercise “dominion and control” over the bag of stolen jewelry on the floor thereof. The evidence adduced at trial, however, when viewed in the light most favorable to the People (see, People v Contes, 60 NY2d 620) was legally sufficient to establish the defendant’s guilt of criminal possession of stolen property in the second degree. The evidence was more than sufficient for the jury to conclude that the arrival of the police had merely interrupted the defendant’s wrongful “possession” of the property of another. Moreover, one of the arresting officers testified that the *556defendant had confessed to his involvement in the burglary of the premises.
Several remarks of the prosecutrix in her summation, as well as certain questions she posed during direct and cross-examination, are now challenged on appeal. These remarks and questions were either not objected to at trial, or the objections were sustained by the trial court. Defense counsel did not request any curative instructions nor did he move for a mistrial. Therefore, with respect to those comments, no error of law was preserved for appellate review (see, CPL 470.05 [2]). Moreover, the errors were harmless since the evidence of the defendant’s guilt was overwhelming (see, People v Crimmins, 36 NY2d 230).
Finally, the defendant contends that Detective Smith’s rebuttal testimony deprived him of a fair trial in that it suggested by way of hearsay, bolstering and improper rebuttal that another officer had already given the defendant his Miranda rights. We note that the defendant’s objection to this testimony was sustained by the trial court, and curative instructions were given. Defense counsel did not thereafter request further instructions, nor did he move for a mistrial. Therefore, the issue was not preserved for appellate review (see, People v Santiago, 52 NY2d 865). Moreover, the defendant himself twice endeavored to use this allegedly objectionable testimony for his own purposes on cross-examination, so that he cannot now be heard to complain that the People gave it undue prominence. 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/5902356/
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Rose, 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 sergeant, applied for accidental disability retirement benefits alleging that he is permanently disabled due to left knee injuries he sustained in two employment-related accidents occurring on September 9, 1990 and March 15, 1993. Following a hearing, the Hearing Officer denied the application, finding that neither incident constituted an accident within the meaning of Retirement and Social Security Law § 363. The Comptroller accepted the decision of the Hearing Officer and petitioner commenced this proceeding pursuant to CPLR article 78 challenging that determination.
Initially, the Comptroller concedes, and we agree, that the September 9, 1990 incident was an accident and, therefore, the *1075determination will be annulled to that extent. We find, however, that the Comptroller’s determination that the March 15, 1993 incident—whereby petitioner slipped and fell in the precinct parking lot—was not an accident is supported by substantial evidence in the record. Significantly, “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 during the performance of routine employment duties” (Matter of Ruggiero v DiNapoli, 85 AD3d 1282, 1283 [2011], lv denied 17 NY3d 711 [2011] [internal quotation marks and citations omitted]; see Matter of Hardy v DiNapoli, 82 AD3d 1490, 1490 [2011]).
Here, petitioner testified that, on March 15, 1993 at approximately 3:00 p.m., he slipped on “unseen ice” while walking to his unmarked radio car in his work parking lot. He said that, although it had snowed approximately two days earlier, it was a “[f]ine, dry” and “sunny” day with no snow in the parking lot. According to petitioner, he had previously gone to his car once or twice already that day, but there had been no ice at that time and he speculated that possibly the ice came from snow melting and freezing due to a change in temperature. The Hearing Officer, noting that in the contemporaneous incident report petitioner related that he had fallen “due to the severe icy conditions,” did not find petitioner’s testimony credible and concluded that the incident was not an accident even if petitioner “did not actually see the hazardous condition until after [he] sustained his injury.” Under these circumstances, we find no basis to disturb the determination that the March 15, 1993 incident was not an accident (see Matter of Ruggiero v DiNapoli, 85 AD3d at 1283; Matter of Hardy v DiNapoli, 82 AD3d at 1491; Matter of O’Brien v New York State Comptroller, 56 AD3d 937, 938 [2008], lv denied 12 NY3d 708 [2009]).
Spain, Stein and McCarthy, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as determined that the incident of September 9, 1990 did not constitute an accident within the meaning of the Retirement and Social Security Law; petition granted to that extent and matter remitted to the Comptroller for further proceedings not inconsistent with this Court’s decision; and, as so modified, confirmed.
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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/5902359/
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Rose, 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 sergeant, applied for accidental disability retirement benefits alleging that he is permanently disabled due to left knee injuries he sustained in two employment-related accidents occurring on September 9, 1990 and March 15, 1993. Following a hearing, the Hearing Officer denied the application, finding that neither incident constituted an accident within the meaning of Retirement and Social Security Law § 363. The Comptroller accepted the decision of the Hearing Officer and petitioner commenced this proceeding pursuant to CPLR article 78 challenging that determination.
Initially, the Comptroller concedes, and we agree, that the September 9, 1990 incident was an accident and, therefore, the *1075determination will be annulled to that extent. We find, however, that the Comptroller’s determination that the March 15, 1993 incident—whereby petitioner slipped and fell in the precinct parking lot—was not an accident is supported by substantial evidence in the record. Significantly, “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 during the performance of routine employment duties” (Matter of Ruggiero v DiNapoli, 85 AD3d 1282, 1283 [2011], lv denied 17 NY3d 711 [2011] [internal quotation marks and citations omitted]; see Matter of Hardy v DiNapoli, 82 AD3d 1490, 1490 [2011]).
Here, petitioner testified that, on March 15, 1993 at approximately 3:00 p.m., he slipped on “unseen ice” while walking to his unmarked radio car in his work parking lot. He said that, although it had snowed approximately two days earlier, it was a “[f]ine, dry” and “sunny” day with no snow in the parking lot. According to petitioner, he had previously gone to his car once or twice already that day, but there had been no ice at that time and he speculated that possibly the ice came from snow melting and freezing due to a change in temperature. The Hearing Officer, noting that in the contemporaneous incident report petitioner related that he had fallen “due to the severe icy conditions,” did not find petitioner’s testimony credible and concluded that the incident was not an accident even if petitioner “did not actually see the hazardous condition until after [he] sustained his injury.” Under these circumstances, we find no basis to disturb the determination that the March 15, 1993 incident was not an accident (see Matter of Ruggiero v DiNapoli, 85 AD3d at 1283; Matter of Hardy v DiNapoli, 82 AD3d at 1491; Matter of O’Brien v New York State Comptroller, 56 AD3d 937, 938 [2008], lv denied 12 NY3d 708 [2009]).
Spain, Stein and McCarthy, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as determined that the incident of September 9, 1990 did not constitute an accident within the meaning of the Retirement and Social Security Law; petition granted to that extent and matter remitted to the Comptroller for further proceedings not inconsistent with this Court’s decision; and, as so modified, confirmed.
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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/5903201/
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Chetta, J.), rendered April 17, 1986.
Ordered that the judgment is affirmed (see, People v Pellegrino, 60 NY2d 636; People v Harris, 61 NY2d 9). Thompson, J. P., Bracken, Brown, Weinstein and Spatt, 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/5902360/
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Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), rendered November 2, 1983, convicting him of criminal sale of a controlled substance in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The trial court did not abuse its discretion in denying a motion for severance. Such a motion need not be granted when the grounds for a severance are merely colorable or speculative (see, People v Bornholdt, 33 NY2d 75, cert denied sub nom. Victory v New York, 416 US 905). Moreover, the appellant has failed to show that his codefendant’s pro se defense unfairly prejudiced him at his trial.
On this record, it was not error for the prosecution to have elicited testimony from its witnesses that the appellant and his codefendant were Colombian. Another codefendant who testified on behalf of the People told an undercover detective that his source for the sale of cocaine was two Colombian brothers, and this information was disseminated to an undercover backup team, who constantly referred to the suspects as two Colombian brothers. Accordingly, since the characterization was limited in this way, the characterization was not admitted for an improper purpose (see, People v Pacuicca, 134 NYS2d 381, affd 286 App Div 996). In any event, any possible error was harmless in light of the overwhelming evidence of the defendant’s guilt.
We have examined the defendant’s remaining contentions, including the claims that his sentence was excessive and that he was prevented from negotiating a plea, 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/5902361/
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Chetta, J.), rendered December 5, 1986, convicting him of criminal possession of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
We find that none of the issues raised on appeal require a reversal of the judgment and a new trial. 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/5902362/
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Broomer, J.), rendered January 2, 1986, convicting him of criminal sale of a controlled substance in the second degree and criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The record does not substantiate the defendant’s claim that the trial court refused to have the confidential informant produced from a Federal penitentiary in Kentucky. The defense counsel did not seek a writ of habeas corpus ad testificandum pursuant to CPL 650.30 even though the trial court informed him that it would sign any order necessary to secure the witness’s appearance.
*561We further find no merit to the defendant’s contention that the trial court improperly assumed the role of prosecutor or that it displayed bias or hostility toward the defendant’s case. Rather, the court quite properly took the initiative and intervened to clarify confusing testimony in order to facilitate the orderly and expeditious progress of the trial (see, People v Yut Wai Tom, 53 NY2d 44; People v Jamieson, 47 NY2d 882; People v Moulton, 43 NY2d 944). To that same end, the court bifurcated the summations by directing both sides to sum up prior to the testimony of a witness who had yet to be produced from an out-of-State correctional facility despite numerous efforts to secure his presence. Moreover, it was unknown whether the witness would invoke his Fifth Amendment rights upon being produced. The court permitted both sides to reopen their summations following that witness’s testimony and instructed them to limit their summations to his testimony. Under these circumstances, the bifurcation of summations did not constitute an abuse of the trial court’s discretion (cf., People v Hendricks, 114 AD2d 510). Moreover, the limitations imposed on the reopened summations prevented repetitive or redundant argument (see, Herring v New York, 422 US 853).
In light of the fact that the defendant was convicted of selling heroin to an undercover police officer on two separate occasions and indicated his willingness to continue his dealings in the future, the sentence imposed was neither harsh nor excessive (see, People v Suitte, 90 AD2d 80). 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/5902363/
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Appeal by the defendant from two judgments of the Supreme Court, Queens County (Zelman, J.), both rendered January 8, 1986, convicting him of criminal possession of a controlled substance in the fifth degree (two counts) under indictment No. 2174/83, after a nonjury trial, and criminal possession of a controlled substance in the fifth degree under indictment No. 802/84, upon his plea of guilty, and imposing sentences. The appeal brings up for review the denial, after a hearing (Gallagher, J.), of that branch of the defendant’s omnibus motion under indictment No. 802/84, which was to suppress physical evidence.
Ordered that the judgments are affirmed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (5).
Under indictment No. 2174/83, the defendant contends that *562the People failed to prove his guilt beyond a reasonable doubt. Inasmuch as the police did not recover the drugs in question from the defendant’s person, it was incumbent upon them to demonstrate that he constructively possessed them. At bar, upon executing a search warrant, the defendant was discovered by the police behind a locked door with no one else on the premises, lying in a prone position behind a bar approximately 40 to 50 feet from the contraband, i.e., 30 glassine envelopes of heroin and 50 tinfoil packets of cocaine, which were located on a table top. Under these circumstances, the trier of fact could reasonably conclude that the defendant was in close proximity to the drugs and that there was sufficient evidence of preparation for the purposes of sale. Thus, the statutory presumption of knowing possession applies to the instant case (see, Penal Law § 220.25 [2]; People v Chandler, 121 AD2d 644, lv denied 68 NY2d 913; People v Hylton, 125 AD2d 409, 410, lv denied 69 NY2d 881). Upon the exercise of our factual review power, we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
The defendant’s contention that the court incorrectly denied that branch of his omnibus motion which was to suppress physical evidence under indictment No. 802/84, is without merit. In this regard, the search warrant sufficiently particularized the area to be searched (cf., People v Rainey, 14 NY2d 35; People v Yusko, 45 AD2d 1043).
Further, the police entry into the second floor area was justified by probable cause. Detective Player testified that he heard the sound of footsteps running up the stairs when he smashed through a door to the premises. Player was also aware that the undercover officer had purchased drugs at the location about five minutes earlier. Thus, the officer was faced with a sufficient basis to conduct a further inquiry with respect to the second floor, whether or not he had a search warrant (see, People v Powell, 36 AD2d 177, affd 30 NY2d 634).
Finally, we find no basis to disturb the sentences imposed. 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/5902364/
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OPINION OF THE COURT
Per Curiam.
Respondent Jenee M. Gadsden was admitted to the practice of law in the State of New York by the First Judicial Department on July 14, 1997 under the name Jenee Moreen Gadsden. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department. On April 2, 2009, this Court suspended respondent (as part of a mass suspension), pursuant to Judiciary Law § 468-a for failure to pay attorney registration fees (64 AD3d 187 [1st Dept 2009]). According to the Office of Court Administration’s database, respondent failed to pay her fees for the following registration periods: 2005-2006, 2007-2008, 2009-2010 and 2011-2012.
The Departmental Disciplinary Committee (Committee) now seeks a further order suspending respondent, pursuant to 22 NYCRR 603.4 (e) (1) (i), based upon her willful failure to cooperate with the Committee’s investigation into allegations that she practiced law while suspended. The Committee received an affirmation from a Bronx Supreme Court judge, which respondent had allegedly submitted in support of a litigant’s motion for reargument. In the affirmation, respondent claims to be “an attorney duly authorized to practice law in the state of New York.”
*3By letter dated November 1, 2011, the Committee advised respondent that it had initiated a sua sponte investigation based upon her apparent unauthorized practice of law, and requested that she submit a written answer within 20 days explaining her conduct. The Committee’s letter enclosed a copy of the quoted affirmation. The Committee’s letter was sent to respondent at her last registered business address, and the address she included in the affirmation she submitted to the Supreme Court. Respondent did not respond to this letter.
By letter dated February 15, 2012, also sent to respondent’s business address, the Committee made a second request for a written response and advised that failure to do so could result in disciplinary action. Respondent did not reply to this letter. On March 1, 2012, the Committee wrote to Gregory Harmon, Esq., the named principal of the firm at which respondent maintained her office, inquiring as to, among other things, whether respondent had a forwarding address. Harmon immediately called Committee staff and provided respondent’s home address. He indicated that respondent had been away from the office, but did not confirm her status with the firm.
The Committee then sent a letter, with copies of the letters sent to the firm, to respondent’s home directing her to submit a written answer within 14 days. Respondent did not submit the requested answer, nor did she respond to this letter.
On March 21, 2012, the Committee sent another letter to respondent’s home directing her to submit an answer within 10 days, and advising her that her failure to do so could result in the Committee making “an appropriate application to the Appellate Division,” and citing to interim suspension cases from this Court. Again, respondent failed to respond.
On April 5, 2012, the Committee served respondent by first-class and certified mail with a judicial subpoena requiring her to appear before the Committee on April 20, 2012 (see 22 NYCRR 605.11 [d] [1]). The certified mailing was returned as “unclaimed,” but the first-class mailing was not returned. Respondent did not appear before the Committee on April 20, 2012. In response to respondent’s failure to appear, the Committee adjourned her scheduled appearance to May 10, 2012. A Committee investigator attempted to personally serve respondent with the judicial subpoena at her residence on April 23 and 26, 2012 (at different times of the day). There was no response on either day.
On May 2, 2012, the Committee investigator personally served the subpoena on an adult male who was entering respondent’s *4apartment. The man would not give his name, but stated that respondent currently lived in the apartment. The investigator then observed the man give the subpoena to an unidentified woman in the apartment. According to the investigator, the woman opened the envelope and closed the door to the apartment.
In accordance with CPLR 308 (2), the Committee investigator then mailed two additional copies of the judicial subpoena to respondent at her home address in white, unmarked envelopes. Again, the certified mailing was returned as unclaimed, but the first-class mailing was not returned. Respondent did not appear before the Committee on May 10, 2012, nor, to date, has she contacted the Committee.
Although served by first-class and certified mail, return receipt requested, respondent has not submitted a response to this motion.
Accordingly, we find that respondent should be suspended pursuant to 22 NYCRR 603.4 (e) (1) (i), which provides:
“[a]n attorney who is the subject of an investigation, or of charges by the Departmental Disciplinary Committee of professional misconduct . . . may be suspended from the practice of law, pending consideration of the charges against the attorney, upon a finding that the attorney is guilty of professional misconduct immediately threatening the public interest. Such a finding shall be based upon:
“(i) the attorney’s default in responding to the petition or notice, or the attorney’s failure to submit a written answer to pending charges of professional misconduct or to comply with any lawful demand of this court or the Departmental Disciplinary Committee made in connection with any investigation, hearing or disciplinary proceeding.”
Respondent’s failure to respond to the Committee’s four letters and her failure to appear before the Committee despite being served with a judicial subpoena, under the circumstances, evinces a willful failure to cooperate with the Committee’s investigation.
Accordingly, the petition of the Disciplinary Committee should be granted to the extent of continuing respondent’s suspension from the practice of law in accordance with 22 NYCRR 603.4 (e) (1) (i), and until further order of this Court.
*5Gonzalez, P.J., Saxe, Catterson, Abdus-Salaam and Manzanet-Daniels, JJ., concur.
Respondent’s suspension from the practice of law in the State of New York continued, until such time as disciplinary matters pending before the Committee have been concluded and until further order of this Court.
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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/5902365/
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered June 27, 1985, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.
*563Ordered that the judgment is affirmed.
We find unpersuasive the defendant’s claim that his right to a fair trial was compromised by the trial court’s ruling that a witness who had not participated in any pretrial identification proceedings would be permitted to make an in-court identification of him. The trial court rejected the defendant’s arguments that preclusion of the identification was the only appropriate remedy and presented him with several alternative procedures. The defendant nevertheless adhered to his preclusion argument and opted for the traditional in-court identification. The defendant’s rejection of the court’s suggestions appears to have been a strategic maneuver designed to foster his misidentification argument to the jury. Indeed, the defense counsel thoroughly explored the weaknesses in the witness’s testimony during cross-examination and presented those issues to the jury during his summation (see, People v Samuels, 133 AD2d 785; People v Simpson, 125 AD2d 347, lv denied 69 NY2d 886). The defendant should not, therefore, now be heard to complain about his choice. Mangano, J. P., Weinstein, 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/5902366/
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (G. Aronin, J.), rendered November 17, 1986, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The victim testified at trial that he went to an after-hours club at about 5:30 a.m. on September 15, 1985, in order to pick up a friend, that he stood waiting outside the club while someone went inside to find his friend and that as he began to leave he became involved in a fight, during which his wallet was taken. The victim stated that he thereafter summoned the police and identified the defendant as the man who had taken his wallet. According to the arresting officer, the victim’s wallet was found on the defendant when he was later searched at the police precinct.
The defendant testified on his own behalf. He claimed that he had only witnessed the fight and had not been involved in it. He said that during the fight he saw the victim’s wallet being taken. He claimed that he had asked the individual who had taken the wallet to return it but that the perpetrator had refused.
When the complainant pointed the defendant out to the police as the man who took his wallet, the defendant told the *564complainant that he had nothing to hide and volunteered to answer questions. He told the police that he had asked the person who had taken the wallet to return it to the complainant and that he did not know anything else. On cross-examination at trial, the prosecutor then asked the defendant why he had not told the police about the fight. The defendant claims that that inquiry was improper. We disagree. Where a defendant reveals to the police "the essential facts of his involvement in the crime [he] may be cross-examined about his failure to inform the police at the time of exculpatory circumstances to which he later testifies at trial” (see, People v Savage, 50 NY2d 673, 676, cert denied 449 US 1016).
We have examined the defendant’s remaining contention and find it to be without merit. 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/5902368/
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Meyerson, J.), rendered April 29, 1986, convicting him of rape in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
With respect to the defendant’s claim that the trial court improperly interjected itself into the proceedings, it must be initially noted that the defendant did not preserve this issue for appellate review, since he failed to apprise the court of its allegedly prejudicial conduct or to move for a mistrial (see, People v Charleston, 56 NY2d 886; CPL 470.05 [2]). In any event, the record indicates that the trial court only intervened to the extent of clarifying the testimony and ensuring that the jury heard and understood the evidence presented. The role of the Trial Judge is "neither that of automaton nor advocate” and his function is to clarify the issues and to facilitate the orderly and expeditious progress of the proceedings (see, People v Yut Wai Tom, 53 NY2d 44, 56; People v De Jesus, 42 NY2d 519; People v Hinton, 31 NY2d 71, cert denied 410 US 911). In the instant case, the record reveals that the trial court’s conduct was proper.
Turning to the numerous claims of prejudicial error in the prosecutrix’s summation, an examination of the record fails to support the defendant’s claim that the summation deprived him of a fair trial. Although summation is not an unbridled debate, it is the right of counsel to comment on every pertinent matter of fact bearing upon the questions which must be *565decided by the jury as long as it is limited to the four corners of the evidence (see, People v Ashwal, 39 NY2d 105). With respect to two statements contained within the summation, that "a trial is not a search for a reasonable doubt” and "it is outrageous to let this man on the street”, the court immediately took curative action to ameliorate the prejudicial effects of these remarks. The other statements, now claimed as error by the defendant, were unpreserved for appellate review or were fair comment. The scrutiny of the summations of both counsel indicate that the People’s summation was not so prejudicial so as to warrant reversal (see, People v Roopchand, 65 NY2d 837; People v Galloway, 54 NY2d 396; People v Singleton, 121 AD2d 752, lv denied 68 NY2d 918). 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/5902370/
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Sherman, J.), rendered May 2, 1986, convicting him of burglary in the second degree, criminal mischief in the fourth degree and resisting arrest, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed (see, People v Gomez, 137 AD2d 556 [decided herewith]). 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/5902371/
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Appeal by the defendant from a judgment of the County Court, Westchester County (Cowhey, J.), rendered October 14, 1983, convicting him of burglary in the second degree, grand larceny in the third degree, and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant’s claim, the People’s effort to impeach the credibility of his mother, an alibi witness, regarding her failure to come forward to law enforcement officials with the exculpatory information to which she testified at trial was proper. The prosecutrix’s inquiry was conducted in good faith after a bench conference during which defense counsel disclosed that he did not formally advise any potential alibi witnesses to refrain from speaking until nearly three months after the arrest (see, People v Dawson, 50 NY2d 311, 323). A proper foundation for this line of questioning was laid and the trial court properly instructed the jury that the alibi witnesses had no duty to volunteer exculpatory information and that the witnesses’ prior failure to come forward could be considered only for impeachment purposes (see, People v Dawson, supra, at 321-323). In short, the dictates of the Dawson decision were in all respect complied with.
We have examined the defendant’s remaining contentions and find them to be without merit (see, People v Scarpelli, 117 AD2d 686). 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/5902372/
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*7OPINION OF THE COURT
Per Curiam.
By order filed March 9, 2012 (209 NJ 417, 37 A3d 1134 [2012]), the Supreme Court of New Jersey suspended the respondent from the practice of law for a period of three months, effective April 9, 2012, for violating Rules of Professional Conduct rule 1.1 (a) (gross neglect); rule 1.3 (lack of diligence); rule 1.4 (b) (failure to communicate with client); rule 1.15 (a) (failure to safeguard property); rule 8.1 (a) (making a false statement to disciplinary authorities); rule 8.1 (b) (failure to cooperate with disciplinary authorities); and rule 8.4 (c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). The order was based on a decision of the Disciplinary Review Board (hereinafter DRB) of the Supreme Court of New Jersey, decided December 22, 2011.
The respondent was admitted to the New Jersey bar in 2000.
Summarized briefly, the underlying facts, as set forth in the DRB’s decision, are as follows: In 2003, Walter Richardson retained the respondent to pursue the return of funds he believed an individual named Patricia Royster had taken from his retirement dinner. Royster was in charge of organizing the retirement party. After the party, Royster gave Richardson a cash gift of $500 (five $100 bills) and a $500 travel gift certificate. Richardson believed that Royster shortchanged him. When Richardson met the respondent in September 2003, Richardson gave the respondent, as evidence for his case against Royster, the five $100 bills and the gift certificate. Richardson paid the respondent a retainer, and the respondent thereafter filed a summons and complaint in Middlesex County Special Civil Part on Richardson’s behalf. Royster defaulted, and Richardson obtained a default judgment against Royster for approximately $6,400. The respondent was to obtain an execution of Royster’s wages, but failed to do so. Despite numerous and repeated attempts by Richardson to contact the respondent, the respondent did not communicate with Richardson, aside from sending a letter stating that he owed the respondent more money.
Following a hearing on March 11, 2011, the District VIII Ethics Committee (hereinafter DEC) made certain findings, conclusions, and recommendations. The DRB conducted a de novo review of the record. In a written decision dated December 22, 2011, the DRB was satisfied that the DEC’S conclusion that the respondent was guilty of unethical conduct was fully supported by clear and convincing evidence, and found that the respon*8dent’s failure to move for a wage execution constituted lack of diligence and gross neglect. The DRB further found that the respondent failed to reply to Richardson’s repeated attempts to contact him about the status of the matter, and that the respondent failed to safeguard Richardson’s funds and property. In addition, the DRB found that the respondent misrepresented to Kim Connor, the investigator for the DEC, that the $500 had been deposited into his trust account when, in fact, the money had not been deposited into any account. Lastly, the DRB found that the respondent failed to cooperate with the DEC investigators, and that the respondent’s lying at the DEC hearing was a significant aggravating factor. Under the totality of the circumstances, the DRB determined that a period of suspension of three months was appropriate.
By order filed March 9, 2012, the Supreme Court of New Jersey, inter alia, suspended the respondent from the practice of law for a period of three months, effective April 9, 2012.
The Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts served the respondent with a notice pursuant to 22 NYCRR 691.3, via first class mail, on May 17, 2012. More than 20 days have elapsed since service of the notice, and the respondent has neither filed a verified statement nor requested additional time in which to do so. Accordingly, there is no impediment to the imposition of reciprocal discipline.
In view of the findings of the DRB and the discipline imposed by the Supreme Court of New Jersey, we find that the imposition of reciprocal discipline is warranted and suspend the respondent from the practice of law for a period of six months.
Eng, P.J., Mastro, Rivera, Skelos and Angiolillo, JJ., concur.
Ordered that the petitioner’s application to impose reciprocal discipline is granted; and it is further,
Ordered that pursuant to 22 NYCRR 691.3, the respondent, Owen Chambers, is suspended from the practice of law for a period of six months, commencing January 14, 2013, and continuing until further order of this Court. The respondent shall not apply for reinstatement earlier than June 14, 2013. In such application, the respondent shall furnish satisfactory proof that during the said period he (1) refrained from practicing or attempting to practice law, (2) fully complied with this order and with the terms and provisions of the written rules governing *9the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10), (3) complied with the applicable continuing legal education requirements of 22 NYCRR 691.11 (c), and (4) otherwise properly conducted himself; and it is further,
Ordered that the respondent, Owen Chambers, shall promptly comply with this Court’s rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,
Ordered that pursuant to Judiciary Law § 90, during the period of suspension and until further order of the Court, the respondent, Owen Chambers, shall desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, judge, justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,
Ordered that if the respondent, Owen Chambers, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency, and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10 (f).
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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/5902373/
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Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (D'Amaro, J.), rendered October 31, 1985, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant argues, inter alia, that the count of the indictment charging him with committing the crime of burglary in the second degree was jurisdictionally defective in that it did not set forth all the material elements of the crime (see, People v Iannone, 45 NY2d 589, 600). We disagree. A review of the language of the relevant count indicates that it accurately tracks the language of the applicable statute (Penal Law § 140.25 [2]). Accordingly, this argument must be rejected.
The defendant also argues that (1) there was insufficient evidence adduced before the Grand Jury to sustain that count of the indictment charging him with criminal mischief in the third degree and (2) he was denied his right to a speedy trial pursuant to CPL 30.30. However, these arguments have been waived by virtue of the defendant’s guilty plea (see, People v Thomas, 74 AD2d 317, affd 53 NY2d 338; People v O'Brien, 56 NY2d 1009, 1010). In any event, a review of the record indicates that these arguments are without merit.
We have reviewed the defendant’s remaining contentions, including the alleged excessiveness of his sentence, and find them to be without merit (see, People v O’Neil, 111 AD2d 414). 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/5904397/
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— Judgment unanimously affirmed. Memorandum: Defendant was convicted after a jury trial of first degree sexual abuse of a four-year-old girl. Defendant, a 29-year-old neighbor of the victim’s family, offered to take the victim to the store. Four hours later, when defendant and the victim had not returned from the store, the victim’s mother searched the neighborhood and found defendant walking with her daughter near their home. The young girl appeared upset and was crying. At defendant’s trial, the victim’s mother testified, over defense counsel’s objection, that her daughter had told her that defendant "hit me with his dick.” The mother also testified that she observed bruises on her daughter’s genitals and smelled sperm.
The court did not err in allowing the victim’s mother to testify about what the victim told her immediately following the incident. This testimony was admissible as a spontaneous declaration or excited utterance (see generally, Richardson, Evidence §§ 281-285 [Prince 10th ed]). Given the sudden and coercive nature of the event, the young age of the victim, the emotional trauma she likely suffered and the brief time between the incident and the victim’s statement to her mother, there is no question that the statement was made while the victim was still under the influence of the excitement precipitated by the event (People v Brown, 70 NY2d 513, 520; People v Edwards, 47 NY2d 493, 497). The fact that the victim’s statement was made in response to her mother’s question does not take the statement outside the excited utterance exception as a matter of law (People v Brooks, 71 NY2d 877; People v Brown, supra; People v Edwards, supra, at 498-499), nor does the fact that the victim herself would not be competent as a sworn witness (see, Richardson, Evidence § 285; see also, People v Groff, 71 NY2d 101).
The court, however, erred in admitting the details of what the victim said to the doctor who examined her. These statements followed extensive examination and questioning and occurred several hours after the incident. Thus, the statements to the doctor could not be admitted as either a spontaneous declaration, or as a prompt complaint. Hearsay testimony in the nature of a prompt complaint is admissible only to bolster the victim’s credibility in the face of a claim of recent fabrication (People v Fagan, 104 AD2d 252, affd 66 *932NY2d 815; People v Wooden, 66 AD2d 1004). The admission of the doctor’s statements, however, was harmless error. The evidence of guilt was overwhelming and inasmuch as the victim’s statements had already been properly admitted through her mother, "there is [no] significant probability * * * that the jury would have acquitted the defendant had it not been for the error” (People v Crimmins, 36 NY2d 230, 242). We have reviewed the other issues raised by defendant and find them to be without merit. (Appeal from judgment of Supreme Court, Erie County, Kasler, J. — sexual abuse, first degree.) Present — Doerr, J. P., Green, Pine, Balio and Lawton, 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/8076601/
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No opinion. Motion denied.
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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/4392001/
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
Maria Duria Chavelas, Individually, also § No. 08-19-00081-CV
known as Maria Duria Wilhelm d/b/a
International Legal Services-Abogados, § Appeal from the
d/b/a Abogados Sin International Legal
Services and d/b/a Attorney's without § 346th District Court
Borders,
§ of El Paso County, Texas
Appellant,
§ (TC# 2014DCV1634)
v.
§
The State of Texas,
§
State.
§
ORDER
Pending before the Court is a second motion filed by Appellant, Maria Duria Chavelas,
requesting the appointment of counsel and a translator to assist her on appeal. As the Court stated
in the order issued on April 16, 2019, Appellant is not entitled to the appointment of counsel or a
translator to assist her in this appeal from a civil judgment granting monetary and injunctive relief
against her. Appellant has also made another request for free copies of documents, recordings,
and any material in her case file. The Rules of Appellate Procedure do not authorize this Court to
grant this request. Accordingly, the motion is DENIED.
IT IS SO ORDERED this 26th day of April, 2019.
PER CURIAM
Before McClure, C.J., Rodriguez and Palafox, JJ.
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01-03-2023
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04-30-2019
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https://www.courtlistener.com/api/rest/v3/opinions/5902374/
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Appeal by the defendant from a judgment of the County Court, Suffolk County (Sherman, J.), rendered January 30, 1986, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
A central issue at trial was the accuracy of the identification of the defendant by a witness who saw the defendant’s reflection in the side-view mirror of a van in which the defendant was sitting. After the jury returned its guilty verdict, one of the jurors revealed to the defense counsel that during deliberations he looked into the side-view mirror of the minibus used to transport jurors. At a hearing on the motion to set aside the verdict, the juror testified that before boarding the minibus for the ride to the courthouse one morning he walked to the driver’s side and glanced into the side-view mirror at the driver seated in the bus. He mentioned his *568observation to the other jurors during deliberations and a 5-to 10-minute discussion ensued. Before the discussion, all 11 other jurors were in agreement as to the verdict they would return; the juror in question was of the opposite view, partly because of his observation. Following the discussion, all the jurors retained their previously held views except this juror, who ultimately changed his opinion to conform with the rest of the panel. The defendant contends that the juror’s observation constituted misconduct, in effect making the juror an unsworn witness against him and denying him his constitutional rights to confrontation and cross-examination. The hearing court found the juror’s conduct to be nothing more than the "application of everyday experience” to the issues presented at trial rather than "a conscious, contrived experiment” and thus found that it did not taint the subsequent verdict. We agree (see, People v Smith, 87 AD2d 357, affd 59 NY2d 988; cf., People v Brown, 48 NY2d 388).
We cannot conclude, upon the standards set forth in People v Brown (supra), that the juror’s observation denied the defendant a fair trial. First, the juror made a casual observation of a common, everyday experience which was readily available to any of the jurors without the benefit of any special expertise. Second, inasmuch as the identifying witness testified that he not only viewed the defendant’s profile in the mirror but also obtained a direct full-face view of him, the reflected view was not the sole basis for the witness’s identification. Moreover, additional evidence, including the witness’s identification of the van, was presented to connect the defendant with the burglary. Thus, unlike in Brown, the juror’s conduct here, while material to the issue of identity, did not bear upon the only evidence placing the defendant at the scene of the crime. Finally, the juror’s testimony established that his observation did not create "a substantial risk of prejudice to the rights of the defendant by coloring the views of the other jurors as well as [his] own” inasmuch as following the juror’s revelation of his observation to the panel, none of the other jurors changed their opinion (cf., People v Brown, supra, at 394).
We have examined the defendant’s remaining contentions including those raised in his supplemental pro se brief, and find them to be either unpreserved for appellate review or 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/5902375/
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*7OPINION OF THE COURT
Per Curiam.
By order filed March 9, 2012 (209 NJ 417, 37 A3d 1134 [2012]), the Supreme Court of New Jersey suspended the respondent from the practice of law for a period of three months, effective April 9, 2012, for violating Rules of Professional Conduct rule 1.1 (a) (gross neglect); rule 1.3 (lack of diligence); rule 1.4 (b) (failure to communicate with client); rule 1.15 (a) (failure to safeguard property); rule 8.1 (a) (making a false statement to disciplinary authorities); rule 8.1 (b) (failure to cooperate with disciplinary authorities); and rule 8.4 (c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). The order was based on a decision of the Disciplinary Review Board (hereinafter DRB) of the Supreme Court of New Jersey, decided December 22, 2011.
The respondent was admitted to the New Jersey bar in 2000.
Summarized briefly, the underlying facts, as set forth in the DRB’s decision, are as follows: In 2003, Walter Richardson retained the respondent to pursue the return of funds he believed an individual named Patricia Royster had taken from his retirement dinner. Royster was in charge of organizing the retirement party. After the party, Royster gave Richardson a cash gift of $500 (five $100 bills) and a $500 travel gift certificate. Richardson believed that Royster shortchanged him. When Richardson met the respondent in September 2003, Richardson gave the respondent, as evidence for his case against Royster, the five $100 bills and the gift certificate. Richardson paid the respondent a retainer, and the respondent thereafter filed a summons and complaint in Middlesex County Special Civil Part on Richardson’s behalf. Royster defaulted, and Richardson obtained a default judgment against Royster for approximately $6,400. The respondent was to obtain an execution of Royster’s wages, but failed to do so. Despite numerous and repeated attempts by Richardson to contact the respondent, the respondent did not communicate with Richardson, aside from sending a letter stating that he owed the respondent more money.
Following a hearing on March 11, 2011, the District VIII Ethics Committee (hereinafter DEC) made certain findings, conclusions, and recommendations. The DRB conducted a de novo review of the record. In a written decision dated December 22, 2011, the DRB was satisfied that the DEC’S conclusion that the respondent was guilty of unethical conduct was fully supported by clear and convincing evidence, and found that the respon*8dent’s failure to move for a wage execution constituted lack of diligence and gross neglect. The DRB further found that the respondent failed to reply to Richardson’s repeated attempts to contact him about the status of the matter, and that the respondent failed to safeguard Richardson’s funds and property. In addition, the DRB found that the respondent misrepresented to Kim Connor, the investigator for the DEC, that the $500 had been deposited into his trust account when, in fact, the money had not been deposited into any account. Lastly, the DRB found that the respondent failed to cooperate with the DEC investigators, and that the respondent’s lying at the DEC hearing was a significant aggravating factor. Under the totality of the circumstances, the DRB determined that a period of suspension of three months was appropriate.
By order filed March 9, 2012, the Supreme Court of New Jersey, inter alia, suspended the respondent from the practice of law for a period of three months, effective April 9, 2012.
The Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts served the respondent with a notice pursuant to 22 NYCRR 691.3, via first class mail, on May 17, 2012. More than 20 days have elapsed since service of the notice, and the respondent has neither filed a verified statement nor requested additional time in which to do so. Accordingly, there is no impediment to the imposition of reciprocal discipline.
In view of the findings of the DRB and the discipline imposed by the Supreme Court of New Jersey, we find that the imposition of reciprocal discipline is warranted and suspend the respondent from the practice of law for a period of six months.
Eng, P.J., Mastro, Rivera, Skelos and Angiolillo, JJ., concur.
Ordered that the petitioner’s application to impose reciprocal discipline is granted; and it is further,
Ordered that pursuant to 22 NYCRR 691.3, the respondent, Owen Chambers, is suspended from the practice of law for a period of six months, commencing January 14, 2013, and continuing until further order of this Court. The respondent shall not apply for reinstatement earlier than June 14, 2013. In such application, the respondent shall furnish satisfactory proof that during the said period he (1) refrained from practicing or attempting to practice law, (2) fully complied with this order and with the terms and provisions of the written rules governing *9the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10), (3) complied with the applicable continuing legal education requirements of 22 NYCRR 691.11 (c), and (4) otherwise properly conducted himself; and it is further,
Ordered that the respondent, Owen Chambers, shall promptly comply with this Court’s rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,
Ordered that pursuant to Judiciary Law § 90, during the period of suspension and until further order of the Court, the respondent, Owen Chambers, shall desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, judge, justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,
Ordered that if the respondent, Owen Chambers, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency, and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10 (f).
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Appeal by the defendant *569from a judgment of the Supreme Court, Kings County (Demakos, J.), rendered June 6, 1984, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress certain identification testimony and ignore the statements made by him to the police.
Ordered that the judgment is affirmed.
The hearing court properly denied that branch of the defendant’s motion which sought to suppress a gun recovered near the location of his arrest. The defendant’s act of running from the police officers and throwing the gun into a yard nearby was not ”a spontaneous reaction to a sudden and unexpected confrontation with the police”, but rather "an independent act involving a calculated risk” (see, People v Boodle, 47 NY2d 398, 404, cert denied 444 US 969; People v Perez, 123 AD2d 791). Therefore, the seizure of the gun was not tainted by any illegality in the officers’ pursuit and apprehension of the defendant.
Further, the hearing court properly denied that branch of the motion which sought to suppress the defendant’s inculpatory statements to the police, which were made approximately seven hours after the defendant was advised of, and waived his Miranda rights. The defendant was in continuous police custody during that period, and a review of the record of the hearing reveals no evidence of coercion by the authorities or that the statement was not voluntarily made (see, People v Anderson, 42 NY2d 35, 38; People v Glinsman, 107 AD2d 710, lv denied 64 NY2d 889, cert denied 472 US 1021).
We have reviewed the remainder of the defendant’s contentions and find them to be without merit. Bracken, J. P., Kunzeman, Spatt and Sullivan, JJ., concur.
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Appea;sby the defendant from two judgments of the Supreme Court, Kings County (Goldstein, J.), both rendered January 22, 1985, convicting him of attempted criminal possession of a weapon in the third degree (two counts; one as to each indictment), upon his pleas of guilty, and imposing sentences. The appeals bring up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress physical evidence.
Ordered that the judgments are affirmed.
*570The evidence adduced at the suppression hearing indicates that the stop of the vehicle in which the defendant was riding was reasonable since it was based upon the fact that it was being operated with one headlight in violation of Vehicle and Traffic Law § 375 (2) (a) (1) (see, People v McDaniel, 114 AD2d 471; People v Seruya, 113 AD2d 777, lv denied 66 NY2d 767; People v Sherman, 106 AD2d 416). There is no basis for concluding that the officers stopped the vehicle for the traffic violation merely as a pretext to investigate unrelated activity (cf., People v Llopis, 125 AD2d 416; People v Flanagan, 56 AD2d 658). Moreover, the one police officer’s use of a flashlight to peer into the rear of the vehicle, after he observed one of the passengers engage in some suspicious movements with his feet, was permissible and the court properly denied suppression of the shotgun he observed at that time (People v Hernandez, 125 AD2d 492, lv denied 69 NY2d 828; cf., People v Milaski, 62 NY2d 147). Mangano, J. P., Brown, Harwood and Balletta, JJ., concur.
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Chetta, J.), rendered December 27, 1983, convicting him of assault in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
In the early morning hours of December 29, 1982, shortly after Police Officers Richard Coffey and Lawrence Hilstorf left the scene of a shooting in search of a suspect, they spotted the defendant crouched down alongside the passenger side of a parked vehicle in a desolate area approximately six blocks away. As they approached the defendant, he began to walk away briskly. While turning a corner the defendant threw a small black object to the ground. The officers twice ordered him to stop and received no reply. Officer Hilstorf exited the police vehicle, walked in front of the defendant, ordered him to stop, and brought him back to the police vehicle, where he was detained by Officer Coffey while Officer Hilstorf retrieved the dropped item. Upon discovering the item to be a black, small caliber automatic weapon, Officer Hilstorf directed Officer Coffey to hold the defendant. A brief struggle ensued and the defendant was arrested. A frisk search revealed one round of live ammunition in each of the defendant’s two jacket pockets. The defendant was read his Miranda warnings and responded in the affirmative to each. When questioned about *571the shooting, the defendant replied, "Yeah, I shot him because he was gonna shoot me”. En route to Elmhurst General Hospital for a showup identification, the defendant volunteered that he and the victim had argued the previous night and threatening remarks were exchanged.
We find the police officers’ initial approach, subsequent pursuit and apprehension and eventual discovery of the gun to be lawful activity in that their degree of intrusion properly graduated as their level of suspicion and belief increased (see, People v Leung, 68 NY2d 734; People v Medina, 107 AD2d 302). The defendant’s statements were offered following a lawful arrest and need not be suppressed.
Additionally, in light of the degree of exploration into the complainant’s prior acts which the trial court permitted the defendant, precluding the defendant from probing into the underlying fact of the complainant’s most recent arrest was not reversible error. Not every error which improperly curtails a defendant’s right to cross-examine a prosecution witness is per se reversible error (see, People v Allen, 50 NY2d 898).
Further, we find the evidence legally sufficient to support the jury’s verdict of assault in the first degree (see, People v Rojas, 61 NY2d 726).
We have examined the defendant’s remaining contention and find it to be without merit. Bracken, J. P., Kunzeman, Spatt and Sullivan, JJ., concur.
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Motion by the appellant for "clarification” of an order and an opinion of this court, both dated November 23, 1987 [132 AD2d 27], which unanimously affirmed a judgment of the Supreme Court, Rockland County (Meehan, J.), entered January 14, 1987.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the motion is deemed to be one for reargument of the appeal from the judgment; and it is further,
Ordered that reargument is granted, and upon reargument the opinion of this court is amended by deleting from [line 4 on page 32], the words "must be” and substituting therefor *572the words "was properly” and by deleting the [sentence on lines 4 through 9 on page 32] and substituting therefor the following: "Since the leasehold on the surplus school property was not formally advertised for bids, and since there appears to be no statute requiring formal advertisement (cf., Matter of Ross v Wilson, 308 NY 605, supra), the board may, upon remittitur, entertain the offer of any person or entity which it deems qualified and responsible. In determining which offer would most benefit the school district, the board should consider the amount offered as rent and all other pertinent factors.”; and it is further,
Ordered that the motion is denied in all other respects. Mollen, P. J., Brown, Rubin and Kunzeman, JJ., concur.
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In a negligence action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Levine, J.), entered April 20, 1987, which granted the defendants’ motion to dismiss the action for failure to prosecute.
Ordered that the order is affirmed, with costs
We agree with the Supreme Court that the plaintiffs failed to offer a reasonable excuse for the failure to timely comply with the demand to file a note of issue. Moreover, there was a failure to provide a showing of merits by one with personal knowledge of the facts (see, Midolo v Horner, 131 AD2d 825; Seidman v Shames, 130 AD2d 568). Neither the attorney’s affirmation in opposition to the motion nor the complaint and bill of particulars, verified by the attorney on information and belief, which was incorporated by reference, was based upon personal knowledge of the facts, and, therefore, they were inadequate to establish the meritorious nature of the action (cf., Saleh v Paratore, 60 NY2d 851, rearg denied 61 NY2d 759). Mollen, P. J., Brown, Eiber and Sullivan, JJ., concur.
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Motion by the defendant to amend the rernittitur of an order of this court, dated May 4, 1987, which determined an appeal by the People from an order of the Supreme Court, Kings County, dated April 30, 1985, so as to provide that the matter is remitted to that court for further proceedings in accordance with People v Macellaro (131 AD2d 699).
Upon the papers filed in support of the motion and the papers filed in relation thereto, it is
Ordered that the motion is granted only to the extent of amending the remittitur of the order of this court dated May 4, 1987, by deleting therefrom the words "for sentencing” and substituting therefor the words "for further proceedings”; and it is further,
Ordered that the opinion of this court, also dated May 4, 1987 [128 AD2d 7], is amended accordingly; and it is further,
Ordered that the motion is denied in all other respects.
When the appeal in this case was decided in May 1987, we noted that, unlike the defendant in People v Macellaro (131 Misc 2d 383), the defendants here had failed to raise a contention before the Supreme Court that the regulations under which they were indicted were invalid. We further held that the issue was not properly before this court on an appeal by the People, citing People v Goodfriend (64 NY2d 695, 697) which holds that upon a People’s appeal we are "powerless to consider [a] defendant’s alternative arguments for affirmance”. *573The fact that in June 1987 this court determined an appeal in the Macellaro case and held that the regulations in issue had not been properly promulgated (People v Macellaro, 131 AD2d 699, supra), does not change our conclusion in this regard.
Since we were "powerless” to consider the Macellaro issue when we determined this appeal, we were without power to issue an order remitting the matter to the Supreme Court with the positive direction that it consider the issue. What we can do, and have now done by this decision and order, is merely remit the matter to the Supreme Court, Kings County, for further proceedings, at which point the defendants may, if they be so advised, make an application prior to sentencing for relief from their convictions based on People v Macellaro (supra). Mangano, J. P., Brown, Weinstein and Spatt, JJ., concur.
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*11OPINION OF THE COURT
Per Curiam.
Respondent Stephen C. Jackson was admitted to the practice of law in the State of New York by the Second Judicial Department on May 27, 1987 under the name Stephen Curtis Jackson. At all times relevant to these proceedings, respondent maintained an office for the practice of law within the First Judicial Department.
The Departmental Disciplinary Committee (Committee) seeks an order pursuant to 22 NYCRR 603.4 (e) (1) (iii) suspending respondent from the practice of law based upon uncontested evidence of professional misconduct that immediately threatens the public interest.
In August 2009, the Committee opened an investigation into respondent’s professional conduct after receiving a complaint from a client who had sought respondent’s assistance in recovering approximately $107,000 that was confiscated from him in September 2008 by the United States Customs Department (Customs). The client alleged that he paid respondent a $5,000 retainer, but never received approximately $53,000, a refund that respondent received from Customs on his behalf. In response to the complaint, respondent explained that after negotiations with Customs, he received a check from them for $52,633.22 in settlement of the client’s case. Respondent stated, and his Citibank escrow account records confirm, that he deposited this sum on July 28, 2009. Respondent also stated that on or about August 28, 2009 he issued a check in the amount of $55,014.28 to the client, but that he stopped payment on the check when he realized that the amount was wrong, and that he was owed legal fees. Lastly, the respondent told the Committee that he had maintained the client’s money in his escrow account, and he provided purported copies of the relevant escrow account for the period July 2009 to October 2009 which reflect that the $52,633.22 was present.
The Committee subpoenaed the respondent’s escrow records for the same Citibank account over the same period of time, and discovered, among other discrepancies, that the day after the $52,633.22 deposit, respondent’s balance in the account fell to $50,731.23, below the amount required to maintain the integrity of his client’s funds.
On June 15, 2012, respondent was indicted pursuant to a criminal investigation involving his law practice. There is substantial overlap in the matters covered by the Committee’s investigation of respondent and the criminal indictment.
*12For purposes of the instant motion for an immediate interim suspension, the Committee has presented clear, unrefuted evidence of respondent’s professional misconduct which immediately threatens the public interest (Matter of Kennedy, 87 AD3d 107 [1st Dept 2011]). The record before us reveals that respondent submitted an altered bank statement for an escrow account. The bank’s version of this same account reveals conversion and/or misappropriation of escrow funds. This misconduct alone constitutes a basis for concluding that respondent poses a threat to the public interest, warranting his immediate suspension.
Accordingly, the Committee’s motion pursuant to 22 NYCRR 603.4 (e) (1) (iii) should be granted and respondent suspended from the practice of law, effective immediately, and until such time as the disciplinary proceedings against respondent are concluded, and until further order of this Court.
Gonzalez, EJ., Mazzarelli, Andrias, Freedman and AbdusSalaam, JJ., concur.
Respondent suspended from the practice of law in the State of New York, effective the date hereof, until such time as disciplinary matters pending before the Committee have been concluded and until further order of this Court.
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In an action for divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Friedenberg, J.), dated September 11, 1987, as awarded the plaintiff wife $1,667 per month, pendente lite, for her support and maintenance.
Ordered that the order is affirmed insofar as appealed from, with costs.
The pendente lite maintenance award is amply supported by the record and premised upon legitimate need. Mollen, P. J., Lawrence, Eiber and Sullivan, JJ., concur.
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In an action to set aside a convey*576anee of real property and for specific performance of a preemptive right to purchase the same realty, the plaintiffs appeal from an order of the Supreme Court, Queens County (Berkowitz, J.), dated January 14, 1987, which granted the defendants’ motion for summary judgment dismissing the complaint and which denied the plaintiffs’ cross motion for summary judgment.
Ordered that the order is affirmed, with costs.
The plaintiffs purchased property from the defendant Mark Spencer Affiliates and were granted a perpetual easement appurtenant on a contiguous parcel which the plaintiffs would use, inter alia, for parking for their customers’ automobiles. In addition to the recitation in the deed, a separate agreement memorialized the easement. This agreement set terms pursuant to which the defendant Mark Spencer Affiliates could convey title to the easement area to the owner of a separate adjacent parcel if such was needed for zoning area coverage requirements or satisfaction of governmental requirements in connection with proposed future development of the adjacent parcel. If the easement area was not required to be so conveyed, the defendant Mark Spencer Affiliates would convey title to the plaintiffs if they so desired. The agreement was expressly binding upon the signatories, as well as their heirs, assigns or successors. The defendant Mark Spencer Affiliates thereafter conveyed the adjacent parcel along with the easement area to the defendant Huang and his company Ox Head Brand Co., Ltd. At the same closing, Huang reconveyed the parcel to the defendant Briarwood 147 Street Corp. (hereinafter Briarwood).
The plaintiffs seek a declaration that the conveyance of title to the parcel burdened by the easement was in breach of the contract with Mark Spencer Affiliates and thus void. The plaintiffs further demand rescission of the conveyance and specific performance of their preemptive rights contained within the easement agreement.
The conveyance by the defendant Mark Spencer Affiliates to the subsequent transferees was in accordance with the terms of the agreement. Specifically, by adding the square footage of the easement area to the other parcels owned by the defendant Briarwood, it was able to increase the size of the building to be constructed on the other parcels and still comply with zoning area coverage requirements. This was in accordance with the terms of the contract signed by the plaintiffs. The plaintiffs’ argument that the intermediate conveyance by the *577defendant Mark Spencer Affiliates to the defendant Huang breached the agreement as Huang did not need the easement area is incorrect. The plaintiffs attempt to read this agreement too narrowly. It created a perpetual easement and an agreement for a future conveyance if necessary at a time not specified. Moreover, the agreement was expressly binding on the parties’ heirs, successsors or assigns. Such language clearly shows the parties’ intentions that the agreement is to extend into the future and the intermediate same-day conveyance involving Huang did not cause the contract to be breached. The record indicates, in any event, that Huang, a developer, did himself need the easement area for a sewer hookup under building plans later assigned to Briarwood. Thus, under either scenario, the conveyance was in accordance with the language of the agreement and nothing occurred to trigger the plaintiffs’ preemptive rights.
The agreement conferred upon the plaintiffs only a preemptive right and not an option as the plaintiffs had no power to compel a conveyance at their election (Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d 156). As such, it is not violative of the rule against perpetuities (Metropolitan Transp. Auth. v Bruken Realty Corp., supra). Nor does it pose an unreasonable restraint on alienation as the reason for the preemption agreement was a reasonable business purpose and, under the agreement, two parties could join together to convey title to the easement area in fee simple absolute (Izzo v Brooks, 106 Misc 2d 743; EPTL 9-1.1 [a]). Additionally, as the easement still exists, the plaintiffs may continue to utilize it for their customers’ parking, while at the same time the defendants gain the added footage. Mangano, J. P., Thompson, Bracken and Spatt, JJ., concur.
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*11OPINION OF THE COURT
Per Curiam.
Respondent Stephen C. Jackson was admitted to the practice of law in the State of New York by the Second Judicial Department on May 27, 1987 under the name Stephen Curtis Jackson. At all times relevant to these proceedings, respondent maintained an office for the practice of law within the First Judicial Department.
The Departmental Disciplinary Committee (Committee) seeks an order pursuant to 22 NYCRR 603.4 (e) (1) (iii) suspending respondent from the practice of law based upon uncontested evidence of professional misconduct that immediately threatens the public interest.
In August 2009, the Committee opened an investigation into respondent’s professional conduct after receiving a complaint from a client who had sought respondent’s assistance in recovering approximately $107,000 that was confiscated from him in September 2008 by the United States Customs Department (Customs). The client alleged that he paid respondent a $5,000 retainer, but never received approximately $53,000, a refund that respondent received from Customs on his behalf. In response to the complaint, respondent explained that after negotiations with Customs, he received a check from them for $52,633.22 in settlement of the client’s case. Respondent stated, and his Citibank escrow account records confirm, that he deposited this sum on July 28, 2009. Respondent also stated that on or about August 28, 2009 he issued a check in the amount of $55,014.28 to the client, but that he stopped payment on the check when he realized that the amount was wrong, and that he was owed legal fees. Lastly, the respondent told the Committee that he had maintained the client’s money in his escrow account, and he provided purported copies of the relevant escrow account for the period July 2009 to October 2009 which reflect that the $52,633.22 was present.
The Committee subpoenaed the respondent’s escrow records for the same Citibank account over the same period of time, and discovered, among other discrepancies, that the day after the $52,633.22 deposit, respondent’s balance in the account fell to $50,731.23, below the amount required to maintain the integrity of his client’s funds.
On June 15, 2012, respondent was indicted pursuant to a criminal investigation involving his law practice. There is substantial overlap in the matters covered by the Committee’s investigation of respondent and the criminal indictment.
*12For purposes of the instant motion for an immediate interim suspension, the Committee has presented clear, unrefuted evidence of respondent’s professional misconduct which immediately threatens the public interest (Matter of Kennedy, 87 AD3d 107 [1st Dept 2011]). The record before us reveals that respondent submitted an altered bank statement for an escrow account. The bank’s version of this same account reveals conversion and/or misappropriation of escrow funds. This misconduct alone constitutes a basis for concluding that respondent poses a threat to the public interest, warranting his immediate suspension.
Accordingly, the Committee’s motion pursuant to 22 NYCRR 603.4 (e) (1) (iii) should be granted and respondent suspended from the practice of law, effective immediately, and until such time as the disciplinary proceedings against respondent are concluded, and until further order of this Court.
Gonzalez, EJ., Mazzarelli, Andrias, Freedman and AbdusSalaam, JJ., concur.
Respondent suspended from the practice of law in the State of New York, effective the date hereof, until such time as disciplinary matters pending before the Committee have been concluded and until further order of this Court.
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OPINION OF THE COURT
Acosta, J.
This appeal involves the propriety of the disclosures of postgraduate employment and salary data by defendant New York Law School to prospective students during the period August 11, 2005 to the present. Plaintiffs allege that the disclosures caused them to enroll in school to obtain, at a very high price, a law degree that proved less valuable in the marketplace than they were led to expect. We hold that defendant’s disclosures, though unquestionably incomplete, were not false or misleading. We thus affirm the dismissal of the complaint.
Plaintiffs are graduates of the law school who attended the school between 2004 and 2011. They assert, individually and on behalf of all others similarly situated, a claim for deceptive acts and practices in violation of General Business Law § 349 and *15claims for common-law fraud and negligent misrepresentation. These claims are based on allegations that the employment and salary information published by defendant during the relevant time period concealed, or failed to disclose, that the employment data included temporary and part-time positions and that the reported mean salaries were calculated based on the salary information submitted by a deliberately small, specifically selected, subset of graduates. In addition, plaintiffs allege that defendant enhanced its numbers by, among other things, hiring unemployed graduates as short-term research assistants so that they could be classified as employed. Plaintiffs assert that defendant engaged in this fraud to increase its class size and use the high tuition demanded of its students to lavish perks and exorbitant salaries on its administration and large faculty. The complaint seeks damages and equitable relief, including the refund and reimbursement of plaintiffs’ tuition.
Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7), arguing, among other things, that its employment reports were not materially misleading because they (1) complied with the then applicable disclosure rules of the American Bar Association (ABA); (2) made no representation or implication that they included only full-time, permanent employment that required or preferred a law degree; and (3) explicitly revealed that the reported salary ranges were based on a small sample of graduates.
Supreme Court granted the motion to dismiss the complaint. With respect to the General Business Law § 349 claim, the court first rejected defendant’s argument that it had a complete defense pursuant to General Business Law § 349 (d) because, although the regulations with which it complied were written by the United States Department of Education, the interpreting party, the Council of the Section of Legal Education and Admissions to the Bar of the ABA, is not an “official department, division, commission or agency of the United States.” The court then found that defendant’s postgraduate employment statistics were not misleading in a material way and that the salary data was not misleading because the school disclosed the sample size upon which the data was based. The court further found that the General Business Law § 349 claim failed to identify the actual injury sustained by each plaintiff as a result of the allegedly misleading statements. With respect to the fraud claim, the court found that defendant had no duty to clarify its marketing materials. Further, while the court rejected defendant’s argu*16ment that plaintiffs failed to plead reliance on the alleged misrepresentations, it found any reliance unreasonable as a matter of law. With respect to the claim for negligent misrepresentation, the court again found that any reliance would have been unreasonable. This appeal followed.
When considering a motion to dismiss pursuant to CPLR 3211 (a) (7), “the court must accept the facts as alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference, and must determine whether the facts as alleged fit within any cognizable legal theory” (Phillips v City of New York, 66 AD3d 170, 174 [1st Dept 2009] [internal quotation marks omitted]; see also CPLR 3026). Pursuant to CPLR 3211 (a) (1), dismissal may be “granted only where the documentary evidence [tendered by defendant] utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).
We begin our analysis by first considering plaintiffs’ General Business Law § 349 claim. To state a cause of action under that statute, a plaintiff
“must, at the threshold, charge conduct that is consumer oriented. The conduct need not be repetitive or recurring but defendant’s acts or practices must have a broad impact on consumers at large; ‘[p]rivate contract disputes unique to the parties . . . would not fall within the ambit of [General Business Law § 349]’ ” (New York Univ. v Continental Ins. Co., 87 NY2d 308, 320 [1995], quoting Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25 [1995]).
“If a plaintiff meets this threshold, its prima facie case may then be established by proving that defendant is engaging in an act or practice that is deceptive in a material way and that plaintiff has been injured by it” (id.). Whether a representation or omission is a “deceptive act or practice” depends on the likelihood that it will “mislead a reasonable consumer acting reasonably under the circumstances” (Oswego, 85 NY2d at 26). “In the case of omissions in particular . . . [General Business Law § 349] surely does not require businesses to ascertain consumers’ individual needs and guarantee that each consumer has all relevant information specific to its situation” (id.). However, “[o]mission-based claims under Section 349 are appropriate ‘where the business alone possesses material informa*17tion that is relevant to the consumer and fails to provide this information’ ” (Bildstein v MasterCard Intl., Inc., 2005 WL 1324972, *4, 2005 US Dist LEXIS 10763, *10-11 [SD NY 2005], quoting Oswego, 85 NY2d at 26).
[1] Here, the challenged practice was consumer-oriented insofar as it was part and parcel of defendant’s efforts to sell its services as a law school to prospective students (see Chais v Technical Career Insts., 2002 NY Slip Op 30082[U], *11-12 [Sup Ct, NY County 2002]). Nevertheless, although there is no question that the type of employment information published by defendant (and other law schools) during the relevant period likely left some consumers with an incomplete, if not false, impression of the school’s job placement success, Supreme Court correctly held that this statistical gamesmanship, which the ABA has since repudiated in its revised disclosure guidelines,1 does not give rise to a cognizable claim under General Business Law § 349. First, with respect to the employment data, defendant made no express representations as to whether the work was full-time or part-time. Second, with respect to the salary data, defendant disclosed that the representations were based on small samples of self-reporting graduates. While we are troubled by the unquestionably less than candid and incomplete nature of defendant’s disclosures, a party does not violate General Business Law § 349 by simply publishing truthful information and allowing consumers to make their own assumptions about the nature of the information (see Andre Strishak & Assoc. v Hewlett Packard Co., 300 AD2d 608, 609-610 [2d Dept 2002]; St. Patrick’s Home for Aged & Infirm v Laticrete Intl., 264 AD2d 652, 655-656 [1st Dept 1999]; see also Corcino v Filstein, 32 AD3d 201, 202 [1st Dept 2006]). Accordingly, we find that defendant’s disclosures were not materially deceptive or misleading (id.). Because plaintiffs have not adequately pleaded that defendant’s practice was misleading, we need not consider whether plaintiffs have alleged cognizable injuries. We also decline to consider defendant’s argument that General Business Law § 349 (d) provides a complete defense.
We next address plaintiffs’ fraud and negligent misrepresentation claims. To state a cause of action for fraudulent misrep*18resentation, “a plaintiff must allege a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury” (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178 [2011] [internal quotation marks omitted]). “A cause of action for fraudulent concealment requires, in addition to the four foregoing elements, an allegation that the defendant had a duty to disclose material information and that it failed to do so” (P.T. Bank Cent. Asia, N.Y. Branch v ABN AMRO Bank N.V., 301 AD2d 373, 376 [1st Dept 2003]). “In addition, in any action based upon fraud, the circumstances constituting the wrong shall be stated in detail” (id. [internal quotation marks omitted], citing CPLR 3016 [b]). To state a cause of action for negligent misrepresentation, in turn, the plaintiff must allege “(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information” (Mandarin Trading, 16 NY3d at 180 [internal quotation marks omitted]).
Plaintiffs argue that they stated causes of action for common law fraud and negligent misrepresentation based on their allegations that defendant knowingly published misrepresentations about its graduates’ employment rates and salaries, and fraudulently concealed the fact that the employment rates included temporary, part-time, voluntary or non-JD -required/ preferred employment. However, as previously discussed, the employment and salary data disclosed by defendant was not actually false (even if it was incomplete). Thus, the fraud claim fails insofar as it is based on fraudulent misrepresentations (see Pappas v Harrow Stores, 140 AD2d 501, 504 [2d Dept 1988]; see also MacDonald v Thomas M. Cooley Law Sch., 880 F Supp 2d 785, 794 [WD Mich 2012] [dismissing a lawsuit against a law school on the grounds that plaintiff’s “subjective misunderstanding of information that is not objectively false or misleading cannot mean that (defendant) has committed the tort of (fraud)”]). Furthermore, because plaintiffs have not alleged any special relationship or fiduciary obligation requiring a duty of full and complete disclosure from defendant to its prospective students, we dismiss plaintiff’s claim to the extent that it is based on fraudulent concealment (see Dembeck v 220 Cent. Park *19S., LLC, 33 AD3d 491, 492 [1st Dept 2006] [“A fiduciary relationship does not exist between parties engaged in an arm’s length business transaction”]; Jana L. v West 129th St. Realty Corp., 22 AD3d 274, 277-279 [1st Dept 2005]), and negligent misrepresentation (see US Express Leasing, Inc. v Elite Tech. [NY], Inc., 87 AD3d 494, 497 [1st Dept 2011]; United Safety of Am. v Consolidated Edison Co. of N.Y., 213 AD2d 283, 285-286 [1st Dept 1995]).
We are not unsympathetic to plaintiffs’ concerns. We recognize that students may be susceptible to misrepresentations by law schools. As such, “[t]his Court does not necessarily agree [with Supreme Court] that [all] college graduates are particularly sophisticated in making career or business decisions” (MacDonald, 880 F Supp 2d at 797). As a result, prospective students can make decisions to yoke themselves and their spouses and/or their children to a crushing burden of student loan debt, sometimes because the schools have made less than complete representations giving the impression that a full-time job is easily obtainable, when, in fact, it is not.
Given this reality, it is important to remember that the practice of law is a noble profession that takes pride in its high ethical standards. Indeed, in order to join and continue to enjoy the privilege of being an active member of the legal profession, every prospective and active member of the profession is called upon to demonstrate candor and honesty in their practice. This requirement is not a trivial one. For the profession to continue to ensure that its members remain candid and honest public servants, all segments of the profession must work in concert to instill the importance of those values. “In the last analysis, the law is what the lawyers are. And the law and lawyers are what the law schools make them.”2 Defendant and its peers owe prospective students more than just barebones compliance with their legal obligations. Defendant and its peers are educational not-for-profit institutions.3 They should be dedicated to advanc*20ing the public welfare.4 In that vein, defendant and its peers have at least an ethical obligation of absolute candor to their prospective students.
Accordingly, the order of the Supreme Court, New York County (Melvin L. Schweitzer, J.), entered March 21, 2012, which granted defendant New York Law School’s motion to dismiss the complaint, should be affirmed, without costs.
Friedman, J.E, Abdus-Salaam, Manzanet-Daniels and Román, JJ., concur.
Order, Supreme Court, New York County, entered March 21, 2012, affirmed, without costs.
. See ABA, Memorandum to Law School Deans and Career Services Officers, Reporting Placement Data on Annual Questionnaire [July, 27, 2011], available at http://www.americanbar.org/content/dam/aba/administrative/ legal_education_and_admissions_to_the_bar/council_reports_and_resolutions/ 2011_questionnaire_memo_deans_career_services_officers.authcheckdam.pdf).
. Felix Frankfurter, Professor, Harvard Law School, Letter to Mr. Rosenwald, May 13, 1927, at 3 (Felix Frankfurter papers, Harvard Law School library), quoted in Rand Jack & Dana C. Jack, Moral Vision and Professional Decisions: The Changing Values of Women and Men Lawyers 156 (1989).
. See New York Department of State, Division of Corporations, State Records & UCC, Corporation & Business Entity Database, New York Law School, http://www.dos.ny.gov/corps/bus_entity_search.html (input “New York Law School” in business entity name field, then follow associated hyperlink).
. See E. Lisk Wyckoff, Jr., Practice Commentaries, McKinney’s Cons Laws of NY, Book 37, Not-For-Profit Corporation Law § 201 (“This type of corporation is established primarily to benefit society in general as opposed to the members of a not-for-profit corporation”).
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https://www.courtlistener.com/api/rest/v3/opinions/5902389/
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In an action to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Buell, J.), entered August 28, 1986, as granted the defendants’ motion to dismiss the action as against the defendant Todd for lack of personal jurisdiction and as against the defendant Ross Distribution, Inc. (hereinafter Ross) on the ground of forum non conveniens, and the defendants cross-appeal, as limited by their notice of appeal and brief, from so much of that order as found that there existed personal jurisdiction over Ross.
Ordered that the cross appeal is dismissed (see, Parochial Bus Sys. v Board of Educ., 60 NY2d 539); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the defendants are awarded one bill of costs.
The court properly found that the plaintiff failed to obtain personal jurisdiction over the defendant Todd, as nowhere in his written guarantee did he consent to service on his behalf upon the New York corporation upon whom service was made (cf., Bankers Trust Co. v Kline, 52 AD2d 775). Personal jurisdiction was properly obtained over Ross, however, since, as the court found, it consented to such service by contract (see, National Equip. Rental v Szukhent, 375 US 311).
In any event, the court properly found that long-arm jurisdiction existed in New York as to Ross (see, CPLR 302 [a] [1]). Ross’s purposeful association with the New York franchise rendered jurisdiction in New York foreseeable. Thus, it does not offend traditional notions of due process and fair play to call upon Ross to come into New York to defend against this cause of action grounded upon the alleged injury it caused to the plaintiffs (see, Burger King Corp. v Rudzewicz, 471 US 462; International Shoe Co. v Washington, 326 US 310).
While we conclude that the court correctly found that personal jurisdiction existed over the corporate defendant, we *579further conclude that it was not an improvident exercise of discretion for the court to dismiss the complaint against that defendant on the ground of forum non conveniens (CPLR 327). We note at the outset that despite the plaintiffs contentions to the contrary, the defendants never contractually consented to New York as the sole forum for suits brought against them by the plaintiff. Thus, the court could properly consider the doctrine of forum non conveniens. The doctrine is a flexible one and is based upon the facts and circumstance of each case. The court must consider various factors in determining, in the exercise of its sound discretion, whether to retain jurisdiction over the action. Among these factors are "the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum in which plaintiff may bring suit” (Islamic Republic v Pahlavi, 62 NY2d 474, 479, cert denied 469 US 1108).
Here, the court properly considered these factors before declining to accept jurisdiction. The contracts between the parties were executed outside of New York, both in Florida and Texas. Further, the defendants possess more limited resources than the plaintiff; they reside outside of New York and their witnesses reside in Texas. Most significantly, Ross notes that an available forum for this litigation exists elsewhere, in Texas, where the defendants previously brought an action against the plaintiff based upon the same contracts involved herein. Ross acknowledges that the plaintiff may bring its claims as counterclaims in that action. The Supreme Court took appropriate factors into consideration in making its decision, and we find no abuse of discretion (see, Islamic Republic v Pahlavi, supra). 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/5902390/
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In a negligence action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (McCarthy, J.), dated May 28, 1987, which granted the motion of the plaintiff Jeffrey Corwin for leave to serve an amended bill of particulars.
Ordered that the order is affirmed, with costs.
In light of the difficulty in ascertaining the full extent of the plaintiff Jeffrey Corwin’s injuries, the expeditious manner in which leave to serve an amended bill of particulars was sought, and the right to further discovery which has been afforded to the defendants, we conclude that the Supreme *580Court properly exercised its discretion in granting the motion for leave to serve an amended bill of particulars (see generally, Kurnitz v Croft, 91 AD2d 972; Best v New York City Tr. Auth., 88 AD2d 579). Mangano, J. P., Kunzeman, Rubin, Kooper and Harwood, JJ., concur.
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https://www.courtlistener.com/api/rest/v3/opinions/5902391/
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OPINION OF THE COURT
Acosta, J.
This appeal involves the propriety of the disclosures of postgraduate employment and salary data by defendant New York Law School to prospective students during the period August 11, 2005 to the present. Plaintiffs allege that the disclosures caused them to enroll in school to obtain, at a very high price, a law degree that proved less valuable in the marketplace than they were led to expect. We hold that defendant’s disclosures, though unquestionably incomplete, were not false or misleading. We thus affirm the dismissal of the complaint.
Plaintiffs are graduates of the law school who attended the school between 2004 and 2011. They assert, individually and on behalf of all others similarly situated, a claim for deceptive acts and practices in violation of General Business Law § 349 and *15claims for common-law fraud and negligent misrepresentation. These claims are based on allegations that the employment and salary information published by defendant during the relevant time period concealed, or failed to disclose, that the employment data included temporary and part-time positions and that the reported mean salaries were calculated based on the salary information submitted by a deliberately small, specifically selected, subset of graduates. In addition, plaintiffs allege that defendant enhanced its numbers by, among other things, hiring unemployed graduates as short-term research assistants so that they could be classified as employed. Plaintiffs assert that defendant engaged in this fraud to increase its class size and use the high tuition demanded of its students to lavish perks and exorbitant salaries on its administration and large faculty. The complaint seeks damages and equitable relief, including the refund and reimbursement of plaintiffs’ tuition.
Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7), arguing, among other things, that its employment reports were not materially misleading because they (1) complied with the then applicable disclosure rules of the American Bar Association (ABA); (2) made no representation or implication that they included only full-time, permanent employment that required or preferred a law degree; and (3) explicitly revealed that the reported salary ranges were based on a small sample of graduates.
Supreme Court granted the motion to dismiss the complaint. With respect to the General Business Law § 349 claim, the court first rejected defendant’s argument that it had a complete defense pursuant to General Business Law § 349 (d) because, although the regulations with which it complied were written by the United States Department of Education, the interpreting party, the Council of the Section of Legal Education and Admissions to the Bar of the ABA, is not an “official department, division, commission or agency of the United States.” The court then found that defendant’s postgraduate employment statistics were not misleading in a material way and that the salary data was not misleading because the school disclosed the sample size upon which the data was based. The court further found that the General Business Law § 349 claim failed to identify the actual injury sustained by each plaintiff as a result of the allegedly misleading statements. With respect to the fraud claim, the court found that defendant had no duty to clarify its marketing materials. Further, while the court rejected defendant’s argu*16ment that plaintiffs failed to plead reliance on the alleged misrepresentations, it found any reliance unreasonable as a matter of law. With respect to the claim for negligent misrepresentation, the court again found that any reliance would have been unreasonable. This appeal followed.
When considering a motion to dismiss pursuant to CPLR 3211 (a) (7), “the court must accept the facts as alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference, and must determine whether the facts as alleged fit within any cognizable legal theory” (Phillips v City of New York, 66 AD3d 170, 174 [1st Dept 2009] [internal quotation marks omitted]; see also CPLR 3026). Pursuant to CPLR 3211 (a) (1), dismissal may be “granted only where the documentary evidence [tendered by defendant] utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).
We begin our analysis by first considering plaintiffs’ General Business Law § 349 claim. To state a cause of action under that statute, a plaintiff
“must, at the threshold, charge conduct that is consumer oriented. The conduct need not be repetitive or recurring but defendant’s acts or practices must have a broad impact on consumers at large; ‘[p]rivate contract disputes unique to the parties . . . would not fall within the ambit of [General Business Law § 349]’ ” (New York Univ. v Continental Ins. Co., 87 NY2d 308, 320 [1995], quoting Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25 [1995]).
“If a plaintiff meets this threshold, its prima facie case may then be established by proving that defendant is engaging in an act or practice that is deceptive in a material way and that plaintiff has been injured by it” (id.). Whether a representation or omission is a “deceptive act or practice” depends on the likelihood that it will “mislead a reasonable consumer acting reasonably under the circumstances” (Oswego, 85 NY2d at 26). “In the case of omissions in particular . . . [General Business Law § 349] surely does not require businesses to ascertain consumers’ individual needs and guarantee that each consumer has all relevant information specific to its situation” (id.). However, “[o]mission-based claims under Section 349 are appropriate ‘where the business alone possesses material informa*17tion that is relevant to the consumer and fails to provide this information’ ” (Bildstein v MasterCard Intl., Inc., 2005 WL 1324972, *4, 2005 US Dist LEXIS 10763, *10-11 [SD NY 2005], quoting Oswego, 85 NY2d at 26).
[1] Here, the challenged practice was consumer-oriented insofar as it was part and parcel of defendant’s efforts to sell its services as a law school to prospective students (see Chais v Technical Career Insts., 2002 NY Slip Op 30082[U], *11-12 [Sup Ct, NY County 2002]). Nevertheless, although there is no question that the type of employment information published by defendant (and other law schools) during the relevant period likely left some consumers with an incomplete, if not false, impression of the school’s job placement success, Supreme Court correctly held that this statistical gamesmanship, which the ABA has since repudiated in its revised disclosure guidelines,1 does not give rise to a cognizable claim under General Business Law § 349. First, with respect to the employment data, defendant made no express representations as to whether the work was full-time or part-time. Second, with respect to the salary data, defendant disclosed that the representations were based on small samples of self-reporting graduates. While we are troubled by the unquestionably less than candid and incomplete nature of defendant’s disclosures, a party does not violate General Business Law § 349 by simply publishing truthful information and allowing consumers to make their own assumptions about the nature of the information (see Andre Strishak & Assoc. v Hewlett Packard Co., 300 AD2d 608, 609-610 [2d Dept 2002]; St. Patrick’s Home for Aged & Infirm v Laticrete Intl., 264 AD2d 652, 655-656 [1st Dept 1999]; see also Corcino v Filstein, 32 AD3d 201, 202 [1st Dept 2006]). Accordingly, we find that defendant’s disclosures were not materially deceptive or misleading (id.). Because plaintiffs have not adequately pleaded that defendant’s practice was misleading, we need not consider whether plaintiffs have alleged cognizable injuries. We also decline to consider defendant’s argument that General Business Law § 349 (d) provides a complete defense.
We next address plaintiffs’ fraud and negligent misrepresentation claims. To state a cause of action for fraudulent misrep*18resentation, “a plaintiff must allege a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury” (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178 [2011] [internal quotation marks omitted]). “A cause of action for fraudulent concealment requires, in addition to the four foregoing elements, an allegation that the defendant had a duty to disclose material information and that it failed to do so” (P.T. Bank Cent. Asia, N.Y. Branch v ABN AMRO Bank N.V., 301 AD2d 373, 376 [1st Dept 2003]). “In addition, in any action based upon fraud, the circumstances constituting the wrong shall be stated in detail” (id. [internal quotation marks omitted], citing CPLR 3016 [b]). To state a cause of action for negligent misrepresentation, in turn, the plaintiff must allege “(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information” (Mandarin Trading, 16 NY3d at 180 [internal quotation marks omitted]).
Plaintiffs argue that they stated causes of action for common law fraud and negligent misrepresentation based on their allegations that defendant knowingly published misrepresentations about its graduates’ employment rates and salaries, and fraudulently concealed the fact that the employment rates included temporary, part-time, voluntary or non-JD -required/ preferred employment. However, as previously discussed, the employment and salary data disclosed by defendant was not actually false (even if it was incomplete). Thus, the fraud claim fails insofar as it is based on fraudulent misrepresentations (see Pappas v Harrow Stores, 140 AD2d 501, 504 [2d Dept 1988]; see also MacDonald v Thomas M. Cooley Law Sch., 880 F Supp 2d 785, 794 [WD Mich 2012] [dismissing a lawsuit against a law school on the grounds that plaintiff’s “subjective misunderstanding of information that is not objectively false or misleading cannot mean that (defendant) has committed the tort of (fraud)”]). Furthermore, because plaintiffs have not alleged any special relationship or fiduciary obligation requiring a duty of full and complete disclosure from defendant to its prospective students, we dismiss plaintiff’s claim to the extent that it is based on fraudulent concealment (see Dembeck v 220 Cent. Park *19S., LLC, 33 AD3d 491, 492 [1st Dept 2006] [“A fiduciary relationship does not exist between parties engaged in an arm’s length business transaction”]; Jana L. v West 129th St. Realty Corp., 22 AD3d 274, 277-279 [1st Dept 2005]), and negligent misrepresentation (see US Express Leasing, Inc. v Elite Tech. [NY], Inc., 87 AD3d 494, 497 [1st Dept 2011]; United Safety of Am. v Consolidated Edison Co. of N.Y., 213 AD2d 283, 285-286 [1st Dept 1995]).
We are not unsympathetic to plaintiffs’ concerns. We recognize that students may be susceptible to misrepresentations by law schools. As such, “[t]his Court does not necessarily agree [with Supreme Court] that [all] college graduates are particularly sophisticated in making career or business decisions” (MacDonald, 880 F Supp 2d at 797). As a result, prospective students can make decisions to yoke themselves and their spouses and/or their children to a crushing burden of student loan debt, sometimes because the schools have made less than complete representations giving the impression that a full-time job is easily obtainable, when, in fact, it is not.
Given this reality, it is important to remember that the practice of law is a noble profession that takes pride in its high ethical standards. Indeed, in order to join and continue to enjoy the privilege of being an active member of the legal profession, every prospective and active member of the profession is called upon to demonstrate candor and honesty in their practice. This requirement is not a trivial one. For the profession to continue to ensure that its members remain candid and honest public servants, all segments of the profession must work in concert to instill the importance of those values. “In the last analysis, the law is what the lawyers are. And the law and lawyers are what the law schools make them.”2 Defendant and its peers owe prospective students more than just barebones compliance with their legal obligations. Defendant and its peers are educational not-for-profit institutions.3 They should be dedicated to advanc*20ing the public welfare.4 In that vein, defendant and its peers have at least an ethical obligation of absolute candor to their prospective students.
Accordingly, the order of the Supreme Court, New York County (Melvin L. Schweitzer, J.), entered March 21, 2012, which granted defendant New York Law School’s motion to dismiss the complaint, should be affirmed, without costs.
Friedman, J.E, Abdus-Salaam, Manzanet-Daniels and Román, JJ., concur.
Order, Supreme Court, New York County, entered March 21, 2012, affirmed, without costs.
. See ABA, Memorandum to Law School Deans and Career Services Officers, Reporting Placement Data on Annual Questionnaire [July, 27, 2011], available at http://www.americanbar.org/content/dam/aba/administrative/ legal_education_and_admissions_to_the_bar/council_reports_and_resolutions/ 2011_questionnaire_memo_deans_career_services_officers.authcheckdam.pdf).
. Felix Frankfurter, Professor, Harvard Law School, Letter to Mr. Rosenwald, May 13, 1927, at 3 (Felix Frankfurter papers, Harvard Law School library), quoted in Rand Jack & Dana C. Jack, Moral Vision and Professional Decisions: The Changing Values of Women and Men Lawyers 156 (1989).
. See New York Department of State, Division of Corporations, State Records & UCC, Corporation & Business Entity Database, New York Law School, http://www.dos.ny.gov/corps/bus_entity_search.html (input “New York Law School” in business entity name field, then follow associated hyperlink).
. See E. Lisk Wyckoff, Jr., Practice Commentaries, McKinney’s Cons Laws of NY, Book 37, Not-For-Profit Corporation Law § 201 (“This type of corporation is established primarily to benefit society in general as opposed to the members of a not-for-profit corporation”).
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In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Lama, J.), entered October 8, 1986, which denied their motion pursuant to CPLR 3212 for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
Our examination of the record discloses that there exist triable issues of fact precluding the granting of summary judgment. Mangano, J. P., Thompson, Bracken and Spatt, JJ., concur.
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OPINION
SMITH, Chief Judge.
These consolidated cases, through plaintiffs’ motion to dismiss defendant’s counterclaims, call into question the constitutionality of the Contract Disputes Act of 1978 (CDA)1 as amended by the Federal Courts Improvement Act of 1982 (FCIA).2 The main issue presented in plaintiffs’ motion to dismiss is whether the Claims Court, an Article I tribunal, has jurisdiction to determine the defendant’s counterclaims3 which, according to plaintiffs, are common law breach of contract claims properly lodged only in an Article III tribunal. The plaintiffs’ second and related issue is whether the Seventh Amendment to the Constitution requires a jury trial of the defendant’s counterclaims. For the reasons stated below, we hold that the Claims Court has jurisdiction over the counterclaims and that the Seventh Amendment does not require that such counterclaims be tried before a jury.
Facts
The facts are not complicated. The underlying contracts are timber sales contracts between various contractors and the United States Forest Service. Under each of the contracts in question, the plaintiffs were required to remove a certain amount of timber by a certain date. According to the government, the plaintiffs have each failed to meet the requirements of their respective contracts. Thus, the government has determined them to be in default and has sought to recover damages from the plaintiffs through a contracting officer’s final decision adverse to them.
The majority of the contracts in question were executed after the March 1, 1979, effective date of the CDA, but before the October 1, 1982, effective date of the FCIA.4 The contracts each include a disputes clause which in substance mirrors the requirements of the CDA. The disputes clause provides in part:
C9.2 (disputes).
(a) This contract is subject to the Contract Disputes Act of 1978 (Pub.L. 95-563).
(b) Except as provided in the Act, all disputes arising under or relating to this contract shall be resolved in accordance with this provision.
(c) iii.... A claim by the government against the contractor shall be subject to a decision by the contracting officer.
*368(f) The contracting officer’s decision shall be final unless the contractor appeals or files a suit as provided in the Act.
The CDA, incorporated into the contract by the disputes clause, currently provides that a contractor has two options when appealing a final decision of the contracting officer. The contractor may appeal within 90 days to the proper Board of Contract Appeals, 41 U.S.C. § 606 (1982), or within 12 months may file a direct access appeal in the United States Claims Court, 41 U.S.C. § 609(a)(3) (1982). However, at the time most of these contracts were entered into, the contractor had the option of a direct access appeal to the Article III Court of Claims rather than the Article I Claims Court.5
Plaintiffs have complied with the requirements of the CDA and are now appealing for trial de novo the contracting officer’s decision that they are in breach of contract. In this court the United States pursues its breach of contract claims through counterclaims against the various plaintiffs.
Discussion
A. Does the Claims Court have the power to review the constitutionality of a statute granting jurisdiction?
A preliminary question raised by the plaintiffs in their reply brief is whether this court has the power to determine that the CDA, as amended by the FCIA, is unconstitutional as applied to the plaintiffs in this case. For support for the proposition that the court cannot question the constitutionality of statutes granting the court jurisdiction, plaintiffs cite Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), and cases cited in that opinion. While, as Johnson noted, an administrative agency generally does not have the jurisdiction to make decisions regarding the constitutionality of a statute, it is also true that this court cannot be construed to be an administrative agency. On this point the Court of Claims stated, after recognizing that the Supreme Court in Williams v. United States, 289 U.S. 553, 53 S.Ct. 751, 77 L.Ed. 1372 (1933) had a few years earlier ruled it to be a legislative court:
[T]his court is a court, in fact as well as in name, and ... its decisions are judicial decisions. If it were not, the Supreme Court would not review its decisions, as it does, ... And we would suppose, unless the decision in the Williams case means to the contrary, that we are no more acting as a mere agent or arm of the legislature, when we decide our cases in the first instance, than is the Supreme Court, when it, under the appellate procedure prescribed in the statute decides them finally. Each court is assigned its place in the process of doing justice between the United States and those who have claims against it. That is the major portion of this court’s assignment. It is only a small part of the Supreme Court’s assignment. But one, when it is performing that assignment must be acting judicially, if the other is.
Pope v. United States, 53 F.Supp. 570, 100 Ct.Cl. 375, 383, rev’d on other grounds,6 323 U.S. 1, 65 S.Ct. 16, 89 L.Ed. 3 (1944) (footnotes omitted). Therefore, eases such as Johnson do not apply to an Article I court. Furthermore, this court has always exercised the power to determine its jurisdiction even when that consideration involved the constitutionality of a statute. United States v. La Abra Silver Mine, 29 Ct.Cl. 432 (1894) (opinion overruling defendant’s demurrer on the question of jurisdiction) 32 Ct.Cl. 462 (1897) (the court’s decision on the merits), aff'd, 175 U.S. 423, *36920 S.Ct. 168, 44 L.Ed. 223 (1899); Ingalls Shipbuilding v. United States, 13 Cl.Ct. 757 (1987). Additionally, as noted in In-galls “the Claims Court Judges take the same oath to exercise their duties consistently with the Constitution, which Chief Justice Marshall referred to in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180, 2 L.Ed. 60 (1803).” Ingalls, 13 Cl.Ct. at 761. Thus, in order to comply with the oath, the court must fail to give effect to unconstitutional statutes and adjudicate only on those which it finds to be constitutional.
B. Do these cases require an exercise of the Article III judicial power of the United States?
1. Federal contract law actions are not suits at common law.
These cases present yet another chapter in the continuing saga of Justice Marshall’s distinction between “legislative” and “constitutional” courts. See American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 7 L.Ed. 242 (1828). The basic issue involved is whether the government’s breach of contract claims, brought as counterclaims pursuant to the CD A, are of such a nature as to require adjudication solely in a “constitutional” court established with full Article III protections of life tenure and irreducible salary. Deciding whether a claim is of that nature is not an easy task. However, there are certain cases which clearly fit within the sole jurisdiction of Article III. These cases are those traditional common law cases arising under state law and between private parties. Thomas v. Union Carbide Agric. Prod. Co., 473 U.S. 568, 587, 105 S.Ct. 3325, 3336, 87 L.Ed.2d 409 (1985); Northern Pipeline Co. v. Marathon Pipeline, 458 U.S. 50, 90, 102 S.Ct. 2858, 2881, 73 L.Ed.2d 598 (1982) (Rehnquist J. concurring); but see Commodity Futures Trading Comm. v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (The claims in Commodity Futures were state law claims, but there had been a waiver of any personal rights to Article III adjudication, and the statutory scheme did not violate the separation of powers doctrine). On the other hand, those cases which arise pursuant to rights created by federal statute or the federal Constitution may be susceptible to both Article III and Article I adjudication. Thomas, 473 U.S. at 584-85, 105 S.Ct. at 3334-35; Northern Pipeline, 458 U.S. at 80-81, 102 S.Ct. at 2876-77.
The claims in this case fall somewhere in the area between these two relatively bright lines. They do not present questions of state law within the understood holding of Northern Pipeline that “Congress may not vest in a non-Article III court the power to adjudicate, render final judgment, and issue binding orders in a traditional contract action arising under state law_” Thomas, 473 U.S. at 584, 105 S.Ct. at 3334. Nor do they fall within those cases where Congress or the Constitution directly has created the applicable federal law from which the claims arise.
It is undisputed that the law to be applied in cases related to federal contracts is federal and not state law. United States v. Allegheny County, 322 U.S. 174, 183, 64 S.Ct. 908, 913, 88 L.Ed. 1209 (1944); Forman v. United States, 767 F.2d 875, 879-80 (Fed.Cir.1985). The federal law applied in breach of contract claims is not, however, created by statute but rather for the most part has been developed by the Court of Appeals for the Federal Circuit and the Court of Claims, with the Claims Court, or the Boards of Contract Appeals applying the law in the first instance. This federal contract law also reflects the various contract clauses developed over time for the benefit of both the sovereign and the contractor through the practice of agencies and the bargaining leverage of contractors. It has drawn as well upon traditional private contract law for analogies and concepts. However, it is a separate and distinct body of law.
The court is of the opinion that disputes governed by this body of federal contract law do not constitutionally require an Article III tribunal. This is so because of the nature of the sovereign-contractor relationship. This relationship flows from *370the Constitution7 and is at the core of the most basic attribute of government: the ability to spend money and incur obligations. As noted in the Federalist 15:
The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of whom they consist. Though this principle does not run through all the powers delegated to the Union, yet it pervades and governs those on which the efficacy depends. Except as to the rule of apportionment, the United States have an indefinite discretion to make requisitions for men and money; but they have no authority to raise either by regulations extending to the individual citizens of America.8
When the sovereign enters into a contract, it does so as the sovereign, even though it has some attributes of a private contractual party. The federal sovereign is the guardian of certain national interests and values set forth in the Constitution. It must at all times act in this capacity, whether as contracting party, military force or keeper of the fisc. In Ingalls Shipbuilding v. United States, 13 Cl.Ct. 757 (1987), this court said:
Government is not just a player in the legal and social marketplace, but it is the sovereign; the institution entrusted to act as the representative of the whole Nation and in the Nation’s interest. The sovereign is the ultimate source of positive law and political legitimacy. It is the umpire and scorekeeper as well as a significant player in this market-place.
Id. at 761. Federal contract law, including the law of breach, has developed and changed over the years to reflect the particular concerns of the sovereign and its relationships with its contractors. As a result, federal contract law is not just a branch of the common law of contracts, but is a separate tree.
Suits by the sovereign in sovereign-contractor disputes are also not traditional suits at common law because federal contract law did not exist at common law. The term “common law” has long been synonymous with the law of England as it was during the time of the framing of the Constitution. Robinson v. Campbell, 16 U.S. (3 Wheat.) 212, 222-23, 4 L.Ed. 372 (1818); Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 8 L.Ed. 1055 (1834). Black’s Law Dictionary defines the common law to be “that portion of the common law of England (including such acts of parliament as were applicable) which had been adopted and was in force here at the time of the revolution ...” Black’s Law Dictionary 346 (4th Ed.1968) (quoting Industrial Acceptance Corp. v. Webb, 287 S.W. 657, 660 (Mo.App.1926)). It follows from the above that federal contract law is not synonymous with the common law of England, rather, the common law of England is that law adopted by the states and applicable in state law disputes between private parties, Northern Pipeline, 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), or in federal law disputes where there is no strong federal interest. Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943); De Sylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956); Bank of America Nat. Trust & Savings Ass’n v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956), see also, Miree v. Dekalb Co., 433 *371U.S. 25, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977).9
The thought that common law is synonymous with state law was recently reflected by Chief Justice Rehnquist in Northern Pipeline where he said that state law contract actions are “the stuff of the traditional actions at common law tried by the courts at Westminster in 1789.” Northern Pipeline, 458 U.S. at 90, 102 S.Ct. at 2881 (Rehnquist J. concurring); see also Thomas, 473 U.S. at 587, 105 S.Ct. at 3336.
Plaintiffs rely upon the fact that England sued its subjects for breach of contract in its courts upon writs of debt. This does not, however, support the plaintiffs’ position. The states are the entities that adopted the common law of England, not the federal government. It was said early on that:
[I]t is clear, there can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent states; each of which may have its local usages, customs and common law. There is no principle which pervades the union and has the authority of law, that is not embodied in the constitution or laws of the union. The common law could be made a part of our federal system, only by legislative adoption.
Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 658, 8 L.Ed. 1055 (1834). In Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) the Supreme Court reaffirmed this notion that there is no general federal common law. The court said “[ejxcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case [in federal court] is the law of the state....” Id. at 78, 58 S.Ct. at 822. Erie supports the conclusion that the federal contract law is different from the common law. Federal contract law is founded on the Constitutional powers of the federal government and not the law of the states.
At this point it is important to note that there are several definitions of common law, each based upon a particular purpose. The definition of common law as the law of England and of the states is applicable to Article III questions. The definition of common law as judge made law merely distinguishes that body of law from statutory and constitutional law, and in this sense there is a federal common law. See Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943) (federal courts fashioning federal common law when the United States exercises a constitutional function and the applicable Act of Congress or constitutional provision does not cover the question involved). This federal common law though is not synonymous with the English common law; it is, rather, law created by the federal courts to fill in interstitially the federal constitutional and statutory law. In the area of federal contract law it does this, as well as interpreting contractual meaning.
Calling the claims involved in this case government breach of contract claims does not help plaintiffs’ cause. The court’s concern must be with the substance of these claims. Commodity Futures Trading Comm. v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986); Thomas, 473 U.S. at 587, 105 S.Ct. at 3336. The substance of these claims, as noted above, is not state law, or common law as the Framers understood it, nor are they breach of contract claims between private parties such as would fall solely within the Article III judicial power. Rather, they are claims created by the unique federally created sovereign-contractor relationship.
*372Furthermore, to the extent that plaintiffs rely upon Commodity Futures that reliance is misplaced. In Commodity Futures the Court found that the claim was state law based but that there had been a waiver of any rights to Article III adjudication. The Court then went on to hold that there was no violation of the unwaivable structural concerns underlying the separation of powers doctrine. Here the court is of the opinion that this case does not call for an application of Article III judicial powers and so the court does not need to apply the Commodity Futures balancing test to the structural concerns, if any, implicated by these cases. In fact, Commodity Futures weakens the plaintiffs’ argument since it holds that even if some common law elements are involved in a claim, an Article III forum may not always be mandated.
2. The “public rights” exception.
Several exceptions to required Article III adjudication were noted in Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50, 102 S.Ct. 2858, 78 L.Ed.2d 598 (1982). There the Court specifically recognized four areas where the judicial power was not exclusively exercised by Article III judges; the territorial courts, where Congress’ power to “make all needful rules and regulations respecting the territory” enabled it to require adjudication of typical Article III type cases in a legislative court; the District of Columbia courts, whose power was derived from Congress’ control over the District; the Courts Martial, where the Constitution conferred upon Congress the power to make rules for the government and regulation of the land and naval forces; and the “public rights” exception first discussed in Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 15 L.Ed. 372 (1855). Of these, only the “public rights” exception is applicable in this case.
The court is of the opinion that the instant cases fall squarely within the “public rights” rationale and so, for this reason also, do not require an exercise of the judicial power reserved to the Article III courts. In an oft repeated quotation from Murray’s Lessee, Justice Curtis laid out the beginning of the “public rights” doctrine:
(We) do not consider congress can either withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty; nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial determination. At the same time there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.
Murray’s Lessee, 59 U.S. at 284.
In Ex parte Bakelite Corp., 279 U.S. 438, 49 S.Ct. 411, 73 L.Ed. 789 (1929), the Court further explained the doctrine:
Legislative courts also may be created as special tribunals to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it. The mode of determining matters of this class is completely within congressional control. Congress may reserve to itself the power to decide, may delegate that power to executive officers, or may commit it to judicial tribunals.
Id. at 451, 49 S.Ct. at 413 (footnote omitted).
And in Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932), Chief Justice Hughes in distinguishing private versus public rights wrote “the distinction is at once apparent between cases of private rights and those which arise between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.” Id. at 50, 52 S.Ct. at 292. The Court went on to define private rights as “the liability of one individual to another under the law as defined.” Id. at 51, 52 S.Ct. at 292.
*373It is clear that the government is a party to this litigation in its capacity as the sovereign. Although to a certain extent it is also true, as plaintiffs contend, that the United States does carry some attributes of a private party into litigation. For instance, the United States cannot resolve' disputes by legislative or executive fiat; it must provide procedures, which it must follow, through which the rights of both parties are protected. See Perry v. United States, 294 U.S. 330, 55 S.Ct. 432, 79 L.Ed. 912 (1935).
There is nothing in the concept that the United States acts like a private party in its claims against its contractors which mandates that the United States must sue in an Article III court. The concept merely requires that the United States not summarily declare a party in breach of contract. It requires proper procedures consistent with the mandates of due process. These procedures are met by initial placement of government breach of contract claims in the Claims Court or Boards of Contract Appeals with unified review in the Article III United States Court of Appeals for the Federal Circuit. See Ingalls Shipbuilding Co. v. United States, 13 Cl.Ct. 757 (1987).
These cases also involve a constitutional function of Congress as required by Cro-well. Under Article I, section 8 of the Constitution, the legislature has delegated to the executive the power to “conduct the business of the people,”10 by entering into contracts for the sale of United States property and the purchase of goods and services by the United States. No one can argue that Congress does not have the power to do so. Allegheny County, 322 U.S. at 182, 64 S.Ct. at 913. Therefore, this case arises between the government and a private party in connection with the constitutional functions of the executive and legislative branches.11
The Agriculture Board of Contract Appeals has reached the same conclusion on the identical issue. See Gregory Timber Resources, 87-3 BCA (CCH) II 20,086 (Aug. 26, 1987), appeal docketed, No. 87-1598 (Fed.Cir. Sept. 2, 1987). In Gregory Timber the Board relied upon a line of Supreme Court cases holding that claims arising under federal contracts do not necessarily need Article III determination. See United States v. Corliss Steam-Engine Co., 91 U.S. (1 Otto) 321, 23 L.Ed. 397 (1875); United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951); United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288, 94 L.Ed. 256 (1950). The Board concluded that matters arising under government contracts could be determined by non-Article III tribunals.
Reliance upon past cases where the government brought suit in the district courts under 28 U.S. § 1345 (1982) for breach of contract does not prove convincing. Because the sovereign could, prior to the CDA, and pursuant to congressional will, sue for breach of contract in the Article III courts as well as in the state courts, does not mean that jurisdiction must be lodged in those courts. See Crowell, 285 U.S. at 53, 52 S.Ct. at 293. The CDA, which does not create statutory breach of contract claims, but rather establishes direct access jurisdiction over government claims in the Claims Court, could have, like section 1345, provided for jurisdiction over government breach of contract claims to be placed in the District Courts. It, however, did not. The court believes these government claims are of the sort susceptible to both Article III and Article I adjudication.
The case of United States v. Wilkins, 19 U.S. (6 Wheat.) 135, 5 L.Ed. 225 (1821) cited by plaintiffs lends no further support to plaintiffs’ position. Justice Story in that case said:
[I]f there be no specific price agreed upon in the contract for rations issued at any place, the contract leaves the price to be adjusted by the government and the *374contractor. It is to be the joint act of both parties, and not the exclusive act of either. If they cannot agree, then a reasonable compensation is to be allowed, and that reasonable compensation is to be proved by competent evidence, and settled by a jury, as in common cases....
Id. at 142-43. It is clear that Justice Story was talking about factual findings by a jury in a District Court setting, a traditional function of the District Courts when acting as courts of law. There is nothing in his opinion declaring that government claims must be placed in the District Courts. This reading is consistent with the longstanding notion that if Congress places a federal cause of action in District Court, findings of fact are to be made by a jury. The court’s holding that jurisdiction over these government breach of contract claims is properly lodged in this court is consistent with Court of Claims and Federal Circuit precedent binding upon this court. In Maryland Casualty Co. v. United States, 135 Ct.Cl. 428, 141 F.Supp. 900 (1956), the Court of Claims held that it had jurisdiction over a purely government claim against a third party who had no claim against the government. Similarly, the Federal Circuit in Rush v. United States, 804 F.2d 645 (Fed.Cir.1986) upheld a government claim brought in this court against a third party with no claim against the government. In Rusk the third party argued that the Claims Court could not exercise the Article III judicial power required to adjudicate the government’s claims. The court upheld the government claims concluding that “this case involves public rights, i.e., a matter arising between the government and person subject to its authority in connection with the performance of the constitutional functions of the executive and legislative branch and which historically could have been determined exclusively by those branches.” Id. at 647 (citations omitted).
C. Does the Seventh Amendment require a jury trial in these cases?
Plaintiffs argue that the Seventh Amendment provides them with a right to trial by jury. The Seventh Amendment provides: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved....” This argument has been made several times throughout the history of the Court of Claims and the Claims Court. See McElrath v. United States, 102 U.S. (12 Otto) 426, 26 L.Ed. 189 (1880); Rush v. United States, 804 F.2d 645 (Fed. Cir.1986). The cases have all held that the argument has no merit. In McElrath the Supreme Court found that government counterclaims were not suits at common law and that a jury trial in the Court of Claims was, therefore, not required. Similarly, the Federal Circuit in Rush summarily denied a third party defendant’s argument that it was entitled to a jury trial. Rush, 804 F.2d at 647. Because this court holds that the government’s breach of contract claims both involve “public rights” and are not suits at common law requiring an exercise of the Article III judicial power, it follows that a jury trial is not required.
Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987) does not require a different result. In Tull, Congress created, in favor of the government, a statutory civil penalty for violators of the Clean Water Act. The district court allowed the government to proceed without a jury and the court found the defendant liable under the Act. The Supreme Court held that in actions analogous to suits at common law, even when federally created, the Seventh Amendment requires liability to be determined by a jury. The difference between Tull and the present case is that in Tull Congress established a federal cause of action and placed it in a district court where provisions for a jury trial exist. If Congress puts a federally created cause of action analogous to an action at common law in the district courts then Tull requires a jury trial. However, this court does not read Tull to mean that where Congress properly puts a federal cause of action, an action involving “public rights,” or an action otherwise not strictly within the judicial power, in an administrative agency or a legislative court, a jury trial is required. Such a reading would be incon*375sistent with prior Supreme Court decisions which Tull gave no hint of overruling. See Atlas Roofing Co. v. Occupational Safety & Health Comm., 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977); Pernell v. Southall Realty, 416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974), Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865 (1921); Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932).
The plaintiffs’ motion to dismiss the government counterclaims is denied. However, as these cases involve an interlocutory order, and a controlling question of law with respect to which there may be a substantial ground for difference of opinion, an immediate appeal from the order entered herein may materially advance the termination of this litigation. Accordingly, this opinion is certified for immediate appeal pursuant to 28 U.S.C. § 1292(d)(2) (1982), should plaintiffs seek such appeal.
. 41 U.S.C. §§ 601-13 (1982).
. The Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 96 Stat. 25, replaced the Article III Court of Claims with the Article I Claims Court. The Court of Claims appellate Judges along with the Judges of the Court of Customs and Patent Appeals became the United States Court of Appeals for the Federal Circuit.
. In Alpine Veneers, Inc. v. United States, Cl.Ct. No. 664-85C, the contracting officer has satisfied the damage claims by offset, thus, there is no jurisdictional dispute as plaintiffs are suing the United States under 28 U.S.C. § 1491 (1982) for a refund of money. See Ingalls Shipbuilding v. United States, 13 Cl.Ct. 757 (1987). In Mt. Adams Veneer Co. v. United States, Cl.Ct. No. 800-87C, the contract was awarded prior to the effective date of the CDA. In light of the court’s holding that these cases do not require exclusive jurisdiction in the Article III judiciary, there is no merit to the argument that pre-CDA cases must be heard in the United States District Courts pursuant to 28 U.S.C. § 1345 (1982).
. The contracts in Alpine Veneers v. United States, Cl.Ct. No. 681-87C; Alpine Veneers v. United States, Cl.Ct. No. 561-87C; Brazier Forest v. United States, Cl.Ct. No. 363-87C; and Taylor Westbrook v. United States, Cl.Ct. No. 422-86C were all executed after October 1, 1982. Therefore, even if these cases required an exercise of the Article III judicial power, the plaintiffs in those cases could be deemed to have waived any rights to Article III adjudication upon entering into the contracts in question.
. Prior to the October 1, 1982, effective date of the FCIA, the CDA provided for direct access appeal to the Court of Claims. After October 1, 1982, the Court of Claims docket was transferred to the Claims Court and any further direct access appeals were filed in the Claims Court.
. In Pope the Court of Claims held that a Special Act of Congress creating liability, but directing the court to calculate damages, was unconstitutional because it encroached upon the judicial power of the court. The Supreme Court reversed, noting that the Court of Claims performed legislative, administrative, and judicial functions, but that the mathematical calculations involved required an exercise of judicial power and, therefore, the Court of Claims should have decided the case and the Supreme Court could review it.
. U.S. Const, art. IV, § 3, cl. 2 ("The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States_”); U.S. Const, art. 1, § 8, cl. 1 ("The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”); U.S. Const, art. 1, § 8, cl. 18 ("Congress shall have the power ... to make all laws which shall be necessary and proper for carrying into execution the foregoing powers_”). See also United States v. Allegheny Co., 322 U.S. 174, 182, 64 S.Ct. 908, 913, 88 L.Ed. 1209 (1944); Crowell v. Benson, 285 U.S. 22, 51, 52 S.Ct. 285, 292, 76 L.Ed. 598 (1932).
. The Federalist No. 15, at 108 (W. Kendall & G. Carey ed.) (emphasis in original).
. In Clearfield Trust, the Court held that federal law applied in cases involving the rights and duties of the United States on commercial paper issued by the United States. The United States had a strong interest in a uniform rule of law in the area of federal commercial paper. The De Sylva case involved the question of whether an illegitimate child was entitled to share in copyrights which came up for renewal during the widow’s lifetime. The Court held that because there is no federal law of domestic relations, state law should be used to construe the word children as used in the Copyright Act. In Parnell, a diversity case between private parties which involved United States bonds, the Court held that because the only interests implicated were those of private parties, state law should apply.
. Defendant’s Response Brief at 18 (filed December 15, 1986).
. In Crowell the court said "Familiar illustrations of administrative agencies created for the determination of such matters are found in connection with the congressional power as to interstate commerce, taxation, immigrations, the public lands, public health, the facilities of the post office, pensions and payments to veterans." 285 U.S. at 51, 52 S.Ct. at 292 (footnote omitted).
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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/5902393/
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In an action for a judgment declaring that either or both of the defendant insurers are obligated to defend and indemnify the plaintiff for injuries resulting from his negligence, if any, in the use and control of a lawnmower purchased from the defendant Pergament Stores, Inc., the defendant Royal Globe Insurance Company (hereinafter Royal Globe) appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Collins, J.), dated October 27, 1986, as denied its motion for summary judgment dismissing the plaintiff’s complaint as against it.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff seeks a declaration, inter alia, that the defendant Royal Globe is obligated to defend and indemnify him with respect to a pending action for personal injuries in which he has been named as a third-party defendant. The underlying personal injury action is based on an incident which occurred over 10 years ago, on June 2, 1977. According to the plaintiff’s complaint, Royal Globe’s duty to defend and indemnify him derives from the terms of a "general liability homeowner’s insurance policy” which Royal Globe had issued, and which insured premises located at 815 Baldwin Drive, Westbury, New York.
In June 1986 Royal Globe moved for summary judgment *581premised upon an attorney’s affidavit supported by certain exhibits. These motion papers establish, at most, that the original face sheet of Royal Globe’s policy number KB-11-54-89 indicated that that policy would expire on May 19, 1976. This, however, does not prove that the policy was not renewed prior to that date. There is no allegation made by a person with knowledge of the facts that the policy in fact expired, and was never renewed, as of that date.
The plaintiff submitted an affidavit in opposition in which he unequivocally stated that Royal Globe did provide the plaintiff homeowners coverage as of June 2, 1977. In this affidavit, the plaintiff indicated that he was having difficulty locating documentary proof of this, since all of his insurance needs were handled by a broker. It is plausible that an insured homeowner could have difficulty locating records of the insurance coverage which supposedly was in place approximately 10 years ago.
Under these circumstances, we find that Royal Globe failed to prove sufficient facts to warrant summary judgment in its favor (see, Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562). Mangano, J. P., Thompson, Bracken and Spatt, 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/1362372/
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783 F. Supp. 165 (1992)
Mary A. DeSANTIS, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. 91 Civ. 3030 (WCC).
United States District Court, S.D. New York.
January 30, 1992.
*166 Emmet, Marvin & Martin, New York City (Stephen P. Cerow, James C. Hughes, IV, of counsel), for plaintiff.
Otto G. Obermaier, U.S. Atty., S.D.N.Y., New York City (Manvin Mayell, Asst. U.S. Atty., of counsel), for U.S.
OPINION AND ORDER
WILLIAM C. CONNER, District Judge:
Plaintiff Mary A. DeSantis ("DeSantis") brings this action for recovery of federal income tax and interest assessed and collected from her by defendant United States of America ("the Government"). Plaintiff moves the Court pursuant to Fed.R.Civ.P. Rule 56 for summary judgment on the ground that the assessment of taxes against her was untimely pursuant to 26 U.S.C. § 6501. Also before the Court is the Government's motion for judgment on the pleadings pursuant to Fed.R.Civ.P. Rule 12(c).[1]
BACKGROUND
Plaintiff was a limited partner in a partnership known as Merjr Properties ("Merjr"). Complaint at ¶ 6. A dispute arose between plaintiff and the Internal Revenue Service ("IRS") with respect to deductions on plaintiff's income tax returns for the tax years 1975, 1976, and 1977 based upon losses from the Merjr Partnership, which the Commissioner of the IRS had disallowed. Complaint at ¶ 6; Answer at ¶ 6. Before the IRS had made a final determination as to the validity of those deductions, plaintiff and the IRS executed Forms 872-A, Special Consent to Extend the Time to Assess Tax ("Form 872-A Consents").[2] These Consents extended the limitations period for the IRS to assess taxes against plaintiff related to the Merjr Partnership. Pursuant to these agreements, plaintiff and the IRS agreed that income tax relating to plaintiff's investment in Merjr:
may be assessed on or before the 90th (ninetieth) day after: (a) the Internal Revenue Service office considering the case receives Form 872-T, Notice of Termination of Special Consent to Extend the Time to Assess Tax, from the taxpayer(s); or (b) the Internal Revenue Service mails Form 872-T to the taxpayer(s); or (c) the Internal Revenue Service mails a notice of deficiency for such period(s); except that if a notice of deficiency is sent to the taxpayer(s), the time for assessing the tax for the period(s) stated in the notice of deficiency will end 60 days after the period during which the making of an assessment was prohibited.
See Exh. B to the Complaint. Each Form 872-A Consent further provided that:
[t]his agreement ends on the earlier of the above expiration date or the assessment date of an increase in the above tax that reflects the final determination of *167 tax and the final administrative appeals consideration.[3]
See Exh. B to the Complaint.
In 1984, litigation regarding the Merjr Partnership was pending before the United States Tax Court in the cases of Roger Dersarkissian and Kimiko Dersarkissian, et al. v. Commissioner of Internal Revenue, Docket Nos. 10064-82, 15411-82, and 10160-83, 1985 WL 14677. At issue in the Dersarkissian litigation was whether the activities of the Merjr Partnership were engaged in for profit so as to entitle investors to deduct losses associated with their investments in it. The deductions plaintiff included in her income tax returns for the 1975, 1976, and 1977 tax years were similar to the deductions at issue in Dersarkissian. While that case was pending, plaintiff and the IRS executed a Form 906, Closing Agreement on Final Determination Covering Specific Matters (the "Closing Agreement").
The Closing Agreement provides that plaintiff's distributive share from Merjr would be determined in the same manner as in the Dersarkissian case (which the Closing Agreement refers to as the "controlling case"). The Closing Agreement also provided that:
[t]he amount of any Federal income tax attributable to the determination in clause (a)(1) preceding may be assessed by the Commissioner of Internal Revenue on or before the expiration of the one year (365 days) period following the date on which the decision of the controlling case becomes final notwithstanding the expiration of any period of limitation on assessment and collection otherwise prescribed by section 6501 of the Code.
See Exh. D to the Complaint.
On January 30, 1985 the United States Tax Court held in Dersarkissian that claimed losses from the Merjr Partnership were not deductible because Merjr "was not an activity engaged in for profit." T.C.M. (P-H) ¶ 85,049, at 216-85. That decision became final on May 1, 1985. On December 13, 1989, the IRS sent plaintiff a statutory notice of deficiency and, on May 11, 1990 assessed plaintiff with tax deficiencies for the tax years 1975, 1976, and 1977. Plaintiff paid the deficiencies and interest thereon under protest on October 5, 1988, and August 15, 1989, paying a total of $128,020.29 with respect to tax years 1975, 1976, and 1977. Plaintiff's claims for refund of all such taxes and interest paid were disallowed on September 19, 1990.
DISCUSSION
The Standard for Summary Judgment
A party seeking summary judgment must demonstrate that "there is no genuine issue as to any material fact." Fed. R.Civ.P. 56(c); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L. Ed. 2d 762 (1987). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electrical Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). It must establish that there is a "genuine issue for trial." Id. at 587, 106 S. Ct. at 1356. "In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight, 804 F.2d at 11. The inquiry under a motion for summary judgment is thus the same as that under a motion for a directed verdict: "whether the evidence presents a sufficient disagreement to require submission to a *168 jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986).
The Standard for Judgment on the Pleadings
Pursuant to Rule 12(c), judgment on the pleadings is appropriate "where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.1988) (citation omitted). In ruling on such a motion, the trial court must accept as true all of the nonmovant's well-pleaded factual allegations, Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57, 61 (2d Cir.1985), and draw all reasonable inferences therefrom in his favor. Bryson v. Brand Insulations Inc., 621 F.2d 556, 559 (3d Cir.1980). Finally, the court may not grant defendant's Rule 12(c) motion "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir.1977).
Timeliness of the Assessments
The material facts of this case are not in dispute. While the parties do dispute points of law, legal questions present nothing for trial and are thus appropriately resolved on a summary judgment motion. See Flair Broadcasting Corp. v. Powers, 733 F. Supp. 179, 184 (S.D.N.Y.1990). The Court thus decides the parties' motions as a matter of law.
Plaintiff does not here dispute the amount of the assessed deficiencies. Rather, she argues that the assessments were untimely since they were not made within the period set forth in the Closing Agreement on or before one year following the date on which the decision in Dersarkissian became final. Plaintiff argues that although the assessment was made within the time period provided in the Form 872-A Consents, those Consents and the period for assessments provided therein were superseded by the Closing Agreement. The Government argues, however, that since the Form 906 Closing Agreement was not one of the means of termination specified in the Form 872-A Consents, it could not terminate the indefinite extension provided in Form 872-A. Moreover, the Government contends that even if a Form 906 Closing Agreement could terminate the Form 872-A extension, the language of the Closing Agreement between plaintiff and the IRS did not contemplate a termination of that extension.
Pursuant to Section 6501(a) of the Internal Revenue Code, a deficiency in income tax shall be assessed within three years after a return is filed. Section 6501(c)(4) contains an exception to this general rule. It states:
Where, before the expiration of the time prescribed in this section for the assessment of any tax imposed by this title ... both the Secretary [of the Department of Treasury] and the taxpayer have consented in writing to its assessment after such time, the tax may be assessed at any time prior to the expiration of the period agreed upon. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon.
26 U.S.C. § 6501(c)(4).
In the instant action, plaintiff and the IRS reached an agreement and properly executed a Form 872-A, thereby extending the period of assessment of tax for an indefinite time. The Form 872-A extension, although of indefinite duration when executed, provides specific procedures for its termination. In addition to the IRS's mailing of a notice of deficiency or a final determination of tax due, either side, by filing a Form 872-T, can start the running of the ninety-day period within which the Commissioner must act. See Stenclik v. Commissioner of Internal Revenue, 907 F.2d 25, 27 (2d Cir.), cert. denied, ___ U.S. ___, 111 S. Ct. 516, 112 L. Ed. 2d 528 (1990). Plaintiff contends nevertheless that the *169 Form 906 Closing Agreement effectively terminated the agreed upon extension. The Court cannot agree.
The means of termination specified in the Form 872-A Consents are exclusive. See, e.g., Kernen v. Commissioner of Internal Revenue, 902 F.2d 17, 18 (9th Cir. 1990) (per curiam) ("We have previously refused to recognize alternative methods for terminating Form 872-A beyond those specifically listed in the form."); Kinsey v. Commissioner of Internal Revenue, 859 F.2d 1361, 1363 (9th Cir.1988), cert. denied, 489 U.S. 1083, 109 S. Ct. 1540, 103 L. Ed. 2d 844 (1989) ("The Tax Court has several times held that the three means listed in Form 872-A are the exclusive means of termination."); Grunwald v. Commissioner, 86 T.C. 85, 89 (1986) (Form 872-A set forth the three methods by which the period of limitations could be terminated, and a letter of the type sent by the Appeals Officer was not one of them). For example, in Kernen, shortly after the taxpayers and the IRS executed a Form 872-A extending indefinitely the limitations period for assessments in connection with their 1977 tax return, the parties executed a Form 872, which extended the statute of limitations to only a specified date. The IRS assessed a tax after the specified date in the latter agreement had elapsed. Nevertheless, the Ninth Circuit affirmed the Tax Court's ruling that the assessment was timely, holding that "the subsequent execution of a Form 872 does not terminate a Form 872-A extension." 902 F.2d at 18.
In the instant action, neither plaintiff nor the IRS executed and mailed a Form 872-T. Therefore, the Form 872-A extending the period of limitations for the taxable years in issue was not terminated before the mailing of the notice of deficiency to plaintiff on December 13, 1989, and the assessments are not barred as untimely.
Moreover, even if a Form 906 Closing Agreement could terminate the Form 872-A extension, the Court agrees with the Government that the Closing Agreement executed by plaintiff and the IRS did not terminate that extension. The Closing Agreement states only that the IRS "may" assess taxes against plaintiff within one year after the Dersarkissian decision became final "notwithstanding the expiration" of any period of limitations prescribed by Section 6501 of the Internal Revenue Code. The plain language of the provision indicates that it would not be implicated unless the period of limitations on assessment had expired. Thus, in the event that either plaintiff or the IRS had terminated the Form 872-A extension by submitting the Form 872-T before the resolution of the Dersarkissian litigation, the IRS would be given an additional year within which to assess the tax.
Section 7121(a) of the Internal Revenue Code authorizes the Secretary of the Department of Treasury to enter into agreements in writing with any person relating to the liability of that person in respect to any internal revenue tax for the taxable period. Closing agreements are final and binding "only as to the matters agreed upon and may not be modified or disregarded in any proceeding unless there is a showing of fraud, malfeasance, or misrepresentation of a material fact." In re Spendthrift Farm, Inc., 931 F.2d 405, 407 (6th Cir.1991). See also Estate of John J. Magarian, 97 T.C. No. 1, Tax Ct.Rep. (CCH Dec. 47,436) (1991); Zaentz v. Commissioner of Internal Revenue, 90 T.C. 753 (1988).[4] In Spendthrift, the Sixth Circuit summarized the holding of the United States Tax Court in Zaentz as follows:
in Zaentz v. Commissioner, 90 T.C. 753 (1988), the tax court held that if a closing agreement does not specifically cover an issue, the IRS is not foreclosed from claiming it. The tax court found that `section 7121 does not bind the parties as to the premises underlying their agreement; they are bound only as to matters agreed upon.'
Spendthrift, 931 F.2d at 407.
The Form 906 Closing Agreement in the instant action did not refer to the existing *170 Form 872-A extension of the statute of limitations. Thus, it only bound the parties to the specific matters agreed upon namely, in the event the limitations period agreed to in the Form 872-A Consent had expired, the IRS would have one year from the final decision in Dersarkissian to assess taxes against plaintiff. Had plaintiff intended to create a new period of limitations for the assessment of her tax for the 1975, 1976, and 1977 tax years, she had the option of submitting a Form 872-T.
CONCLUSION
For the foregoing reasons, plaintiff's motion for summary judgment is denied. Defendant's cross-motion to dismiss the Complaint under Rule 12(c) is granted, and the Complaint is hereby dismissed with prejudice.
SO ORDERED.
NOTES
[1] Rule 12(c) provides:
After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
On this motion, defendant has not referred to, and the Court has not considered, materials outside the pleadings; therefore, the 12(c) motion will not be treated as one for summary judgment.
[2] These Consents were executed on April 3, 1980 with respect to tax year 1975; June 29, 1982 with respect to tax year 1976; and January 28, 1981 with respect to tax year 1977.
[3] The extension provided for in a Form 872-A Consent would expire 90 days after either the IRS mailed to the taxpayer, or the IRS received form the taxpayer, a Form 872-T, 150 days after the IRS mailed the taxpayer a notice of deficiency, or upon the date the IRS assessed the tax. The 150-day period for assessment following the mailing of a statutory notice of deficiency is calculated by adding the 60-day period set forth in Form 872-A to a 90-day period following the mailing of a statutory notice of deficiency during which the IRS may not assess the tax. See 26 U.S.C. § 6213.
[4] There are three types of closing agreements. The Form 906 closing agreement, at issue in the instant action, is used where there is an agreement as to a specific matter affecting tax liability. See Zaentz, 90 T.C. 753.
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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/5902394/
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OPINION OF THE COURT
Chambers, J.
We are asked on this appeal to determine whether a mortgage given by one joint tenant to a third party without the knowledge of the other joint tenant acts to sever the joint tenancy. We answer this question in the negative.
In February 1999, the plaintiff, the sole owner of real property located in Port Washington (hereinafter the subject property), conveyed, by quitclaim deed, her entire ownership interest in the subject property in equal shares to herself and her boyfriend, David Hassid, as joint tenants with the right of survivorship. Shortly thereafter, the quitclaim deed was recorded in the office of the Nassau County Clerk.
In July 2006, unbeknownst to the plaintiff, the defendant, Bank of America, N.A., made a $300,000 loan to Hassid, secured by a mortgage on the subject property. The mortgage was recorded in the office of the Nassau County Clerk in November 2006.
In January 2009, after Hassid died, the defendant declared the loan to be in default. The plaintiff thereafter commenced this action for a judgment declaring that the mortgage on the subject property is null and void on the theory that, upon Hassid’s death, by operation of law, the mortgage had been *23extinguished and she succeeded to his one-half interest in the subject property free and clear of the mortgage. On this basis, the plaintiff moved for summary judgment on her complaint.
The defendant countered, both in its opposition to the plaintiffs motion, and in its cross motion for summary judgment declaring that the mortgage is valid, that Hassid’s unilateral act of giving a mortgage destroyed the unity of interest, one of the four unities that are essential at common law for the maintenance of a joint tenancy, and thereby severed the joint tenancy. Indeed, the defendant argued that Hassid’s delivery of the mortgage evinced his intent to sever the joint tenancy in accordance with Real Property Law § 240-c (1) (b), which provides that a joint tenant may unilaterally sever a joint tenancy by “[execution of a written instrument that evidences the intent to sever the joint tenancy.” Once the joint tenancy was severed, the plaintiff and Hassid became tenants-in-common. Thus, according to the defendant, upon Hassid’s death, his one-half interest in the subject property passed to his estate and not to the plaintiff and, consequently, the mortgage was valid.
The Supreme Court granted the plaintiffs motion and denied the defendant’s cross motion (2011 NY Slip Op 33634[U] [2011]). Relying on persuasive out-of-state authority, the Supreme Court reasoned that, since, in New York, a mortgage is considered only a lien, and, therefore, not a transfer of title, Hassid’s giving of a mortgage to the defendant did not act to sever the joint tenancy. The court determined that, upon Hassid’s death, his interest in the subject property passed to the plaintiff free and clear of the mortgage. Thus, judgment was entered, inter alia, declaring that the mortgage is null and void. The Nassau County Clerk was directed to vacate and cancel the mortgage.
The defendant now appeals from the order and the judgment.
We begin our analysis with the observation that, by the thirteenth century, the English common law embraced joint tenancy as a form of concurrent ownership (see 7-51 Powell on Real Property § 51.01). Further, with its common-law roots, New York defines “ '[a] joint tenancy [as] an estate held by two or more persons jointly, with equal rights to share in its enjoyment during their lives, and creating in each joint tenant a right of survivorship’ ” (Goetz v Slobey, 76 AD3d 954, 956 [2010], quoting 24 NY Jur 2d, Cotenancy and Partition § 16 at 332-333). Foremost, in a joint tenancy, the joint tenants take and hold property as though they together constitute one person *24(see Moore Lbr. Co., Inc. v Behrman, 144 Misc 291, 292 [1932]). In order to create and maintain a joint tenancy, the four unities—of time, title, interest, and possession—must exist (see Goetz v Slobey, 76 AD3d at 956). Under the common law, as Sir William Blackstone explained, joint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession (see 2 William Blackstone, Commentaries on the Laws of England at 180). Thus, the concept of unity of interest, which is pivotal to our inquiry, refers to the requirement that all joint tenants’ interests must be identical in nature, extent, and duration (see Black’s Law Dictionary 1676 [9th ed 2009]; 2 Tiffany, Real Property § 418).
The issue of whether a mortgage given by one joint tenant without the knowledge of the other acts to destroy the unity of interest and, thus, to sever the joint tenancy, is one of first impression for this Court. That we have never addressed this issue is not surprising. It is, as one leading commentator stated, “like a comet in our law,” for “[i]t is a rare (or negligent) commercial lender who would accept a mortgage from a joint tenant without first seeing that the joint tenancy was severed or that all the joint tenants had signed” (4-31 Thomas, Thompson on Real Property § 31.08 [b] at 61 [2004 ed] [internal quotation marks omitted]). Nevertheless, other jurisdictions have considered this issue.*
For example, in People v Nogarr (164 Cal App 2d 591, 330 P2d 858 [1958]), a husband and wife acquired property as joint tenants. After they separated, the husband borrowed $6,440 from his parents, which was secured by a mortgage held by the parents on the marital home, all without the knowledge of the wife. Less than one year later, the husband died. The State of California attempted to condemn the property, alleging that the wife was the owner of the marital property, subject to a mortgage interest in the marital property held by the late husband’s parents. The wife asserted that she had the sole interest in the property. After trial, the husband’s parents were awarded the outstanding balance on the loan, to be satisfied from the husband’s 50% interest in the property. On appeal to *25the California District Court of Appeal, the judgment was reversed. The court noted that a mortgage was only a charge or a lien on the marital home and, as such, “it did not destroy any of the unities” (164 Cal App 2d at 594, 330 P2d at 860 [emphasis added]). Thus, the joint tenancy was not severed by the husband’s giving of a mortgage to his parents. Once the husband died, his interest in the marital home ceased to exist, as did the mortgage.
In Harms v Sprague (105 Ill 2d 215, 473 NE2d 930 [1985]), two brothers, William Harms and John Harms, owned real property as joint tenants (hereinafter the joint tenancy property). A friend who wanted to purchase a nearby property asked John Harms to cosign a $7,000 promissory note, which was secured by a mortgage on the interest that John Harms had in the joint tenancy property. William Harms was unaware that his brother executed the mortgage. After John Harms died, his brother sought to quiet title to the joint tenancy property. The trial court held that the mortgage given by John Harms severed the joint tenancy. On appeal, the Supreme Court of Illinois disagreed, explaining that Illinois adhered to the theory that a mortgage was merely a lien on the property, and that the recognition of a lien could not effectuate a severance of the joint tenancy. Although, in rendering its decision, the court focused on the concept of unity of title, it cited Van Antwerp v Horan (390 Ill 449, 61 NE2d 358 [1945]). In that case, the pertinent • question was whether the levy, pursuant to a judgment lien, upon a joint tenant’s interest in real property acted to sever the joint tenancy. In concluding that it did not, the court explained that, at the time of the levy, there had “not been . . . the destruction of identity of interest or of any other unity” (390 Ill at 455, 61 NE2d at 360 [emphasis added]). Again, the levy did not interfere or diminish “the interest of the one joint tenant as to enable [the court] to say that there ha[d] been a destruction of the identity of interest” (id.).
A somewhat similar question was considered by the Oklahoma Court of Appeals in American Natl. Bank & Trust Co. of Shawnee v McGinnis (571 P2d 1198, 1977 OK 47 [1977]). In that case, a mortgage loan obtained by one joint tenant did not sever the joint tenancy. The court reasoned that, “[s]ince a mortgage is a mere lien or charge upon mortgagor’s interest which does not transfer any legal title to mortgagees or entitle mortgagees to possession, it does not destroy any unity and, therefore, estate in joint tenancy is not severed and converted to tenancy in common” (571 P2d at 1200, 1977 OK 47, *4).
*26Other cases and authorities are likewise in accord (see Texas Am. Bank/Levelland v Morgan, 105 NM 416, 417, 733 P2d 864 [1987] [holding that because, in New Mexico, a mortgage is considered merely a lien, and title to the mortgaged property does not pass upon the giving of a mortgage, title and joint tenancy unities are unaffected by the execution of a mortgage]; Home Trust Mercantile Bank v Staggs, 714 SW2d 792, 794 [Mo Ct App, ED S Div 1986] [in which a Missouri appeals court explained that the “[imposition of a lien is not inconsistent with the continuation of any of the four unities; and therefore, a mortgage or pledge of one joint tenant’s interest does not work a severance of the joint tenancy”]; D.A.D., Inc. v Moring, 218 So 2d 451, 452 [Fla D Ct App, 4th Dist 1969] [holding that because, in Florida, a mortgage is recognized as only a lien on real property and not as conveyance or a transfer of the right of possession, the execution of a mortgage by one joint tenant without the knowledge of the other joint tenant did not destroy any of the four unities]; 4-31 Thomas, Thompson on Real Property § 31.08 [b] at 62 [2004 ed] [stating that, in jurisdictions where a mortgage is considered a lien, it is “easy to see why a mortgage by one joint tenant is held not to sever the joint tenancy: no more than any other unforeclosed lien does it destroy any of the constitutive unities”]).
The defendant urges us to follow contrary authority found in Matter of Hoffman (175 Misc 607 [1940]) and General Credit Co. v Cleck (415 Pa Super 338, 609 A2d 553 [19892]). We do not, however, find these cases persuasive. In Hoffman, the Surrogate’s Court addressed the issue of severance of joint personal property, not real property. In General Credit Co., the Pennsylvania Superior Court concluded, based on an 1806 Pennsylvania Supreme Court case, Simpson v Ammons (1 Binn [Pa] 175 [1806]), that, despite the fact that Pennsylvania is a lien-theory state, a mortgage executed by one joint tenant acts to sever a joint tenancy. In neither case did the courts support their conclusion with any analysis.
New York is a lien-theory state, that is, a mortgage is considered a lien secured by real property (see Johnson v Augsbury Org., 167 AD2d 783, 784 [1990]; Witschger v Marvin & Co., Inc., 255 App Div 70, 73 [1938]; Matter of City of New York, 251 App Div 669, 672 [1937], affd 278 NY 163 [1938]). Thus, we emphasize that a mortgage does not act to transfer legal title in the underlying property to the lender, as in states that follow the title theory (see 9-95 Warren’s Weed, New York Real Prop*27erty § 95.01). Hence, since a mortgage is only a lien, Hassid’s act of giving a mortgage on the subject property did not act to sever the joint tenancy relationship between him and the plaintiff. We note that, after the mortgage was executed, Hassid and the plaintiff still held equal shares in the subject property, and the defendant acquired no legal or equitable interest in the subject property as a consequence of the mortgage (see 7-51 Powell on Real Property § 51.03; James v ReconTrust Co., 845 F Supp 2d 1145, 1152 [2012]).
Pursuant to Real Property Law § 240-c (1), a joint tenancy with right of survivorship may be severed by destroying one of the four unities. Additionally, a joint tenant may unilaterally sever a joint tenancy in real property without the consent of any nonsevering joint tenant or tenants by, among other things, the execution of a written instrument evincing the intent to sever the joint tenancy (see Real Property Law § 240-c [1]). Here, the mortgage instrument contains no language evincing Hassid’s intent to sever the joint tenancy. In the absence of any such language or some other writing, we cannot conclude that the mere act of delivering a mortgage to the defendant evinced Hassid’s intent to sever the joint tenancy.
Since the mortgage was merely a lien against the subject property and did not act to sever the joint tenancy, upon Hassid’s death, the mortgage ceased to exist, and his interest in the subject property passed to the plaintiff free and clear of the mortgage (see Harms v Sprague, 105 Ill 2d at 224, 473 NE2d at 933; People v Nogarr, 164 Cal App 2d at 594, 330 P2d 2d at 861). Based on the foregoing, the Supreme Court properly declared that the mortgage is null and void.
The appeal from the 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 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
Accordingly, the appeal from the order is dismissed and the judgment is affirmed.
Rivera, J.P, Florio and Cohen, JJ., concur.
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 one bill of costs is awarded to the plaintiff.
The defendant maintains that these other jurisdictions did not consider whether the unilateral act of a joint tenant in giving a mortgage to a third party destroyed the unity of interest. Instead, the defendant argues, they considered only whether the unity of title was destroyed. A careful reading of these determinations, however, shows that this is not the case.
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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/5902395/
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In a claim to recover damages for personal injuries, the claimant appeals from a judgment of the Court of Claims (Silverman, J.), dated August 4, 1986, which, after a nonjury trial, dismissed the claim.
Ordered that the judgment is affirmed, with costs.
*582Based upon our review of the record we find that the claimant’s unauthorized use of a lifeguard stand to execute a backflip was an unforeseeable event which relieves the defendant of liability (see, Boltax v Joy Day Camp, 67 NY2d 617). In addition we note that the determination of the Court of Claims that the lifeguard stand in question was sound and did not constitute a defective condition was supported by the record.
Further, the claimant’s contention that the doctrine of res ipsa loquitur is applicable to the facts of this case is without merit. The claimant failed to establish that the lifeguard stand was within the exclusive control of the defendant or that the fracturing of the stand’s footrest was not due to any voluntary action or contribution on the part of the claimant (see, Butti v Rollins, 133 AD2d 205).
We note that any alleged misinterpretation of the defendant’s expert witness’s testimony by the Trial Judge in his memorandum decision does not alter our determination that the court properly dismissed the claim.
We have reviewed the claimant’s remaining contentions and find them to be without merit. Mangano, J. P., Thompson, Bracken and Spatt, 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/5902396/
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In an action for the partition of real property, the defendant appeals from an order of the Supreme Court, Kings County (Krausman, J.), entered June 16, 1987, which granted the plaintiffs’ motion for summary judgment.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the defendant’s contentions, the record reveals that he was afforded ample opportunity to interpose all relevant objections and defenses in opposition to the plaintiffs’ motion for summary judgment. Moreover, a review of the defendant’s conclusory opposing allegations establishes that the court properly granted summary judgment to the plaintiffs. Lawrence, J. P., Kunzeman, Kooper and Spatt, 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/5902397/
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OPINION OF THE COURT
Chambers, J.
We are asked on this appeal to determine whether a mortgage given by one joint tenant to a third party without the knowledge of the other joint tenant acts to sever the joint tenancy. We answer this question in the negative.
In February 1999, the plaintiff, the sole owner of real property located in Port Washington (hereinafter the subject property), conveyed, by quitclaim deed, her entire ownership interest in the subject property in equal shares to herself and her boyfriend, David Hassid, as joint tenants with the right of survivorship. Shortly thereafter, the quitclaim deed was recorded in the office of the Nassau County Clerk.
In July 2006, unbeknownst to the plaintiff, the defendant, Bank of America, N.A., made a $300,000 loan to Hassid, secured by a mortgage on the subject property. The mortgage was recorded in the office of the Nassau County Clerk in November 2006.
In January 2009, after Hassid died, the defendant declared the loan to be in default. The plaintiff thereafter commenced this action for a judgment declaring that the mortgage on the subject property is null and void on the theory that, upon Hassid’s death, by operation of law, the mortgage had been *23extinguished and she succeeded to his one-half interest in the subject property free and clear of the mortgage. On this basis, the plaintiff moved for summary judgment on her complaint.
The defendant countered, both in its opposition to the plaintiffs motion, and in its cross motion for summary judgment declaring that the mortgage is valid, that Hassid’s unilateral act of giving a mortgage destroyed the unity of interest, one of the four unities that are essential at common law for the maintenance of a joint tenancy, and thereby severed the joint tenancy. Indeed, the defendant argued that Hassid’s delivery of the mortgage evinced his intent to sever the joint tenancy in accordance with Real Property Law § 240-c (1) (b), which provides that a joint tenant may unilaterally sever a joint tenancy by “[execution of a written instrument that evidences the intent to sever the joint tenancy.” Once the joint tenancy was severed, the plaintiff and Hassid became tenants-in-common. Thus, according to the defendant, upon Hassid’s death, his one-half interest in the subject property passed to his estate and not to the plaintiff and, consequently, the mortgage was valid.
The Supreme Court granted the plaintiffs motion and denied the defendant’s cross motion (2011 NY Slip Op 33634[U] [2011]). Relying on persuasive out-of-state authority, the Supreme Court reasoned that, since, in New York, a mortgage is considered only a lien, and, therefore, not a transfer of title, Hassid’s giving of a mortgage to the defendant did not act to sever the joint tenancy. The court determined that, upon Hassid’s death, his interest in the subject property passed to the plaintiff free and clear of the mortgage. Thus, judgment was entered, inter alia, declaring that the mortgage is null and void. The Nassau County Clerk was directed to vacate and cancel the mortgage.
The defendant now appeals from the order and the judgment.
We begin our analysis with the observation that, by the thirteenth century, the English common law embraced joint tenancy as a form of concurrent ownership (see 7-51 Powell on Real Property § 51.01). Further, with its common-law roots, New York defines “ '[a] joint tenancy [as] an estate held by two or more persons jointly, with equal rights to share in its enjoyment during their lives, and creating in each joint tenant a right of survivorship’ ” (Goetz v Slobey, 76 AD3d 954, 956 [2010], quoting 24 NY Jur 2d, Cotenancy and Partition § 16 at 332-333). Foremost, in a joint tenancy, the joint tenants take and hold property as though they together constitute one person *24(see Moore Lbr. Co., Inc. v Behrman, 144 Misc 291, 292 [1932]). In order to create and maintain a joint tenancy, the four unities—of time, title, interest, and possession—must exist (see Goetz v Slobey, 76 AD3d at 956). Under the common law, as Sir William Blackstone explained, joint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession (see 2 William Blackstone, Commentaries on the Laws of England at 180). Thus, the concept of unity of interest, which is pivotal to our inquiry, refers to the requirement that all joint tenants’ interests must be identical in nature, extent, and duration (see Black’s Law Dictionary 1676 [9th ed 2009]; 2 Tiffany, Real Property § 418).
The issue of whether a mortgage given by one joint tenant without the knowledge of the other acts to destroy the unity of interest and, thus, to sever the joint tenancy, is one of first impression for this Court. That we have never addressed this issue is not surprising. It is, as one leading commentator stated, “like a comet in our law,” for “[i]t is a rare (or negligent) commercial lender who would accept a mortgage from a joint tenant without first seeing that the joint tenancy was severed or that all the joint tenants had signed” (4-31 Thomas, Thompson on Real Property § 31.08 [b] at 61 [2004 ed] [internal quotation marks omitted]). Nevertheless, other jurisdictions have considered this issue.*
For example, in People v Nogarr (164 Cal App 2d 591, 330 P2d 858 [1958]), a husband and wife acquired property as joint tenants. After they separated, the husband borrowed $6,440 from his parents, which was secured by a mortgage held by the parents on the marital home, all without the knowledge of the wife. Less than one year later, the husband died. The State of California attempted to condemn the property, alleging that the wife was the owner of the marital property, subject to a mortgage interest in the marital property held by the late husband’s parents. The wife asserted that she had the sole interest in the property. After trial, the husband’s parents were awarded the outstanding balance on the loan, to be satisfied from the husband’s 50% interest in the property. On appeal to *25the California District Court of Appeal, the judgment was reversed. The court noted that a mortgage was only a charge or a lien on the marital home and, as such, “it did not destroy any of the unities” (164 Cal App 2d at 594, 330 P2d at 860 [emphasis added]). Thus, the joint tenancy was not severed by the husband’s giving of a mortgage to his parents. Once the husband died, his interest in the marital home ceased to exist, as did the mortgage.
In Harms v Sprague (105 Ill 2d 215, 473 NE2d 930 [1985]), two brothers, William Harms and John Harms, owned real property as joint tenants (hereinafter the joint tenancy property). A friend who wanted to purchase a nearby property asked John Harms to cosign a $7,000 promissory note, which was secured by a mortgage on the interest that John Harms had in the joint tenancy property. William Harms was unaware that his brother executed the mortgage. After John Harms died, his brother sought to quiet title to the joint tenancy property. The trial court held that the mortgage given by John Harms severed the joint tenancy. On appeal, the Supreme Court of Illinois disagreed, explaining that Illinois adhered to the theory that a mortgage was merely a lien on the property, and that the recognition of a lien could not effectuate a severance of the joint tenancy. Although, in rendering its decision, the court focused on the concept of unity of title, it cited Van Antwerp v Horan (390 Ill 449, 61 NE2d 358 [1945]). In that case, the pertinent • question was whether the levy, pursuant to a judgment lien, upon a joint tenant’s interest in real property acted to sever the joint tenancy. In concluding that it did not, the court explained that, at the time of the levy, there had “not been . . . the destruction of identity of interest or of any other unity” (390 Ill at 455, 61 NE2d at 360 [emphasis added]). Again, the levy did not interfere or diminish “the interest of the one joint tenant as to enable [the court] to say that there ha[d] been a destruction of the identity of interest” (id.).
A somewhat similar question was considered by the Oklahoma Court of Appeals in American Natl. Bank & Trust Co. of Shawnee v McGinnis (571 P2d 1198, 1977 OK 47 [1977]). In that case, a mortgage loan obtained by one joint tenant did not sever the joint tenancy. The court reasoned that, “[s]ince a mortgage is a mere lien or charge upon mortgagor’s interest which does not transfer any legal title to mortgagees or entitle mortgagees to possession, it does not destroy any unity and, therefore, estate in joint tenancy is not severed and converted to tenancy in common” (571 P2d at 1200, 1977 OK 47, *4).
*26Other cases and authorities are likewise in accord (see Texas Am. Bank/Levelland v Morgan, 105 NM 416, 417, 733 P2d 864 [1987] [holding that because, in New Mexico, a mortgage is considered merely a lien, and title to the mortgaged property does not pass upon the giving of a mortgage, title and joint tenancy unities are unaffected by the execution of a mortgage]; Home Trust Mercantile Bank v Staggs, 714 SW2d 792, 794 [Mo Ct App, ED S Div 1986] [in which a Missouri appeals court explained that the “[imposition of a lien is not inconsistent with the continuation of any of the four unities; and therefore, a mortgage or pledge of one joint tenant’s interest does not work a severance of the joint tenancy”]; D.A.D., Inc. v Moring, 218 So 2d 451, 452 [Fla D Ct App, 4th Dist 1969] [holding that because, in Florida, a mortgage is recognized as only a lien on real property and not as conveyance or a transfer of the right of possession, the execution of a mortgage by one joint tenant without the knowledge of the other joint tenant did not destroy any of the four unities]; 4-31 Thomas, Thompson on Real Property § 31.08 [b] at 62 [2004 ed] [stating that, in jurisdictions where a mortgage is considered a lien, it is “easy to see why a mortgage by one joint tenant is held not to sever the joint tenancy: no more than any other unforeclosed lien does it destroy any of the constitutive unities”]).
The defendant urges us to follow contrary authority found in Matter of Hoffman (175 Misc 607 [1940]) and General Credit Co. v Cleck (415 Pa Super 338, 609 A2d 553 [19892]). We do not, however, find these cases persuasive. In Hoffman, the Surrogate’s Court addressed the issue of severance of joint personal property, not real property. In General Credit Co., the Pennsylvania Superior Court concluded, based on an 1806 Pennsylvania Supreme Court case, Simpson v Ammons (1 Binn [Pa] 175 [1806]), that, despite the fact that Pennsylvania is a lien-theory state, a mortgage executed by one joint tenant acts to sever a joint tenancy. In neither case did the courts support their conclusion with any analysis.
New York is a lien-theory state, that is, a mortgage is considered a lien secured by real property (see Johnson v Augsbury Org., 167 AD2d 783, 784 [1990]; Witschger v Marvin & Co., Inc., 255 App Div 70, 73 [1938]; Matter of City of New York, 251 App Div 669, 672 [1937], affd 278 NY 163 [1938]). Thus, we emphasize that a mortgage does not act to transfer legal title in the underlying property to the lender, as in states that follow the title theory (see 9-95 Warren’s Weed, New York Real Prop*27erty § 95.01). Hence, since a mortgage is only a lien, Hassid’s act of giving a mortgage on the subject property did not act to sever the joint tenancy relationship between him and the plaintiff. We note that, after the mortgage was executed, Hassid and the plaintiff still held equal shares in the subject property, and the defendant acquired no legal or equitable interest in the subject property as a consequence of the mortgage (see 7-51 Powell on Real Property § 51.03; James v ReconTrust Co., 845 F Supp 2d 1145, 1152 [2012]).
Pursuant to Real Property Law § 240-c (1), a joint tenancy with right of survivorship may be severed by destroying one of the four unities. Additionally, a joint tenant may unilaterally sever a joint tenancy in real property without the consent of any nonsevering joint tenant or tenants by, among other things, the execution of a written instrument evincing the intent to sever the joint tenancy (see Real Property Law § 240-c [1]). Here, the mortgage instrument contains no language evincing Hassid’s intent to sever the joint tenancy. In the absence of any such language or some other writing, we cannot conclude that the mere act of delivering a mortgage to the defendant evinced Hassid’s intent to sever the joint tenancy.
Since the mortgage was merely a lien against the subject property and did not act to sever the joint tenancy, upon Hassid’s death, the mortgage ceased to exist, and his interest in the subject property passed to the plaintiff free and clear of the mortgage (see Harms v Sprague, 105 Ill 2d at 224, 473 NE2d at 933; People v Nogarr, 164 Cal App 2d at 594, 330 P2d 2d at 861). Based on the foregoing, the Supreme Court properly declared that the mortgage is null and void.
The appeal from the 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 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
Accordingly, the appeal from the order is dismissed and the judgment is affirmed.
Rivera, J.P, Florio and Cohen, JJ., concur.
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 one bill of costs is awarded to the plaintiff.
The defendant maintains that these other jurisdictions did not consider whether the unilateral act of a joint tenant in giving a mortgage to a third party destroyed the unity of interest. Instead, the defendant argues, they considered only whether the unity of title was destroyed. A careful reading of these determinations, however, shows that this is not the case.
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In a negligence action to recover damages for personal injuries, the plaintiff and the third-party defendants Elaine Powers Figure Salon and Vanderbilt Bridge Club separately appeal from an order of the Supreme Court, Nassau County (Brucia, J.), entered June 5, 1986, which granted the motion of the defendant and third-party plaintiff for leave to reargue the plaintiff’s motion to strike its answer and, upon reargument, denied the plaintiff’s motion and reinstated its answer.
Ordered that the order is modified, as a matter of discretion, by adding a provision thereto conditioning the granting of reargument upon the payment by the defendant and third-party plaintiff’s attorney personally of the sum of $250 to the attorney for each of the other parties (for a total sum of $1,250), and providing that, in the event the condition is not complied with, the motion for reargument is denied and defendant and third-party plaintiff’s answer is stricken; as so modified, the order is affirmed, with one bill of costs to the plaintiff payable by the defendant and third-party plaintiff, and the defendant and third-party plaintiff’s time to pay the total of $1,250 is extended until 30 days after service upon him personally of a copy of this decision and order, with notice of entry.
On October 6, 1981, the plaintiff Gerald Halpern was allegedly injured when he came into contact with a plate glass window near the entrance of the defendant and third-party plaintiff’s place of business. The plaintiff commenced this action to recover damages for personal injuries on May 5, 1982. Pursuant to a Part 8-A order dated November 15, 1983, *584and an order dated June 12, 1984, the defendant and third-party plaintiff was directed to appear for an examination before trial. A third order dated November 21, 1984 granted the plaintiff’s motion and the third-party defendant Vanderbilt Bridge Club’s cross motion to strike the defendant and third-party plaintiff’s answer unless it appeared for examination before trial on December 17, 1984 at 9:30 a.m. "by a person or persons having personal knowledge of the occurrence and of the original lease and construction contract between defendant and the contractor who constructed the entranceway and installed the glass doors, etc.”
On the day of the court-ordered examination before trial, the defendant and third-party plaintiff claimed, for the first time, that no person with actual knowledge of the lease was available. The plaintiff subsequently moved to strike the defendant and third-party plaintiff’s answer for failure to comply with the order dated November 21, 1984. The motion was denied by order dated September 25, 1985, based upon the court’s finding that the motion was unnecessary "since the aforesaid order, which was conditional, was self-effectuating and became absolute as against that defendant upon its failure, on December 17, 1984, at 9:30 a.m., to produce a witness who had personal knowledge of the original lease referred to in the order”.
Thereafter, the defendant and third-party plaintiff’s motion for reargument was granted and the court concluded that it had shown that its failure to comply with the prior order was not willful or contumacious.
Failure to comply with a disclosure order authorizes the imposition of appropriate sanctions pursuant to CPLR 3126. We find that, under the circumstances herein, the drastic sanction of the striking of the defendant and third-party plaintiff’s answer was not warranted (see, Plainview Assocs. v Miconics Indus., 90 AD2d 825; Cinelli v Radcliffe, 35 AD2d 829). The Supreme Court therefore properly afforded it the opportunity to defend this matter on the merits. However, given the failure to comply with court-ordered disclosure, relief to the defendant and third-party plaintiff should have been conditioned upon the payment of a monetary sanction (see, Golden v Transport Taxi & Limousine Serv., 80 AD2d 870). Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur.
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Case: 19-40682 Document: 00515416737 Page: 1 Date Filed: 05/14/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-40682 May 14, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KENDRICK WAYNE THOMPSON,
Defendant-Appellant
----------------------------------------------------------------------------------------
Consolidated with No.19-40684
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KENDRICK WAYNE THOMPSON, also known as Ken Ken,
Defendant-Appellant
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 4:17-CR-165-1
USDC No. 4:18-CR-93-2
Case: 19-40682 Document: 00515416737 Page: 2 Date Filed: 05/14/2020
No. 19-40682
c/w No. 19-40684
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Kendrick Wayne Thompson appeals the sentence imposed following his
guilty-plea convictions for conspiracy to possess with intent to distribute more
than one kilogram of heroin and conspiracy to possess with intent to distribute
more than 400 grams of heroin. He argues that the district court erred in
denying him credit for acceptance of responsibility. We affirm.
Section 3E1.1 of the United States Sentencing Guidelines provides for
either a two or three-level adjustment in a defendant’s offense level where he
has “clearly demonstrat[ed]” acceptance of responsibility for the offense.
United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008). We will
affirm a district court’s refusal to award credit under § 3E1.1 unless the court’s
decision is “without foundation,” which is a standard of review more deferential
than the clear error standard. Id. (internal quotation marks and citation
omitted).
The record reveals that while in federal custody pursuant to the
indictment charging him with conspiracy to possess with intent to distribute
more than one kilogram of heroin, Thompson became involved in the drug-
trafficking activities that formed the basis of the second indictment charging
him with conspiracy to possess with intent to distribute more than 400 grams
of heroin. Thompson’s sole contention on appeal is that, despite continuing the
same pattern of illicit activity while in custody, he is entitled to credit for
acceptance of responsibility because he did not deny any facts or put the
Government to its burden of proof and six weeks after his arraignment in the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
2
Case: 19-40682 Document: 00515416737 Page: 3 Date Filed: 05/14/2020
No. 19-40682
c/w No. 19-40684
second case, he pleaded guilty in open court with a written factual basis for the
plea.
His guilty plea, however, does not entitle him to credit for acceptance of
responsibility “as a matter of right.” See U.S.S.G. § 3E1.1, comment. (n.3);
United States v. Patino-Cardenas, 85 F .3d 1133, 1135 (5th Cir. 1996). While
a defendant’s entry of a guilty plea prior to trial in conjunction with the
truthful admission of any relevant conduct constitutes “significant evidence of
acceptance of responsibility,” such evidence may be outweighed by conduct that
is inconsistent with acceptance. § 3E1.1, comment. (n.3). The district court
found that Thompson’s guilty plea to the second-charged offense and his
admission to the elements thereof was overshadowed by his engaging in a
second, near-identical drug trafficking offense while in custody for the first.
Because Thompson engaged in conduct inconsistent with acceptance of
responsibility, the district court’s refusal to award him any credit was not
without foundation. See § 3E1.1, comment. (n.3); Juarez-Duarte, 513 F.3d at
211.
AFFIRMED.
3
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In an action to *585recover damages for libel and slander, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Ruskin, J.), entered March 10, 1987, which denied his motion to restore the action to the Trial Calendar; (2) an order of the same court, dated March 23, 1987, which dismissed the complaint with prejudice, and (3) an order of the same court, entered July 16, 1987, which denied his motion for reargument of the two prior orders.
Ordered that the appeal from the order entered July 16, 1987 is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order entered March 10, 1987, and the order dated March 23, 1987, respectively, are affirmed, and it is further,
Ordered that the respondent is awarded one bill of costs.
Based on the facts of this case, the trial court did not abuse its discretion in dismissing the complaint with prejudice and refusing to restore the case to the Trial Calendar. The plaintiff had been granted several adjournments by the trial court over a period of approximately one year. Moreover, prior to the last adjournment, the plaintiff was informed that no further adjournments would be granted. Despite this warning, the plaintiff was not ready to proceed on the final adjourned date. Mollen, P. J., Lawrence, Eiber and Sullivan, JJ., concur.
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714 S.W.2d 947 (1986)
Charles A. TAYLOR, Appellant,
v.
Paul McNEILL, Director of Revenue, Respondent.
No. WD 37660.
Missouri Court of Appeals, Western District.
August 19, 1986.
Kenneth C. Hensley, Independence, for appellant.
James A. Chenault, III, Sp. Asst. Atty. Gen., Mo. Dept. of Revenue, Jefferson City, for respondent.
Before NUGENT, P.J., and BERREY and GAITAN, JJ.
GAITAN, Judge.
Charles Taylor was arrested for driving while intoxicated and his driver's license was revoked pursuant to §§ 302.500-540, RSMo Supp. 1984. The revocation was affirmed upon trial de novo and Taylor now appeals.
The judgment is affirmed.
A state trooper, responding to a call to investigate a report that a vehicle had been stopped on the roadway with its lights on for an indeterminate amount of time, found Taylor asleep on the passenger side of the front seat. The car was actually parked on the shoulder of the road and Taylor was its sole occupant. The car's lights were on, the engine was running and the transmission was in park.
In the course of questioning Taylor about the situation in which she found him, the trooper detected the odor of alcohol and observed that Taylor had difficulty walking and that his speech was somewhat slurred. Taylor admitted that he had been driving the vehicle and that he had had some beers in Trenton, a town approximately six miles from the location in which he was found. The officer then administered three field sobriety tests. Taylor's overall performance was unsatisfactory and he was arrested for driving while intoxicated. A breathalyzer *948 test was subsequently administered and it indicated a blood alcohol concentration of .13%.
Taylor's driver's license was then revoked by the Department of Revenue in accordance with § 302.520. The revocation was affirmed upon both administrative review and trial de novo, thus prompting this appeal.
Taylor presents two points on appeal, both attacking the trial court's finding that Taylor was arrested upon probable cause to believe he was driving a motor vehicle while his blood alcohol concentration was .13% or more. He argues that there was insufficient evidence to support the finding and that it was against the weight of the credible evidence.
The argument portion of Taylor's brief offers the following support for his contentions: although Taylor admitted that he had driven the car to the scene, there was no evidence as to when he had driven it and thus no probable cause to believe that, at the time he drove the car, he had the requisite blood alcohol concentration. Furthermore, the trooper never personally saw Taylor driving and she had no way of knowing whether he had driven the vehicle within ninety minutes of her arrival.
Taylor was arrested for driving while intoxicated, a violation of § 577.010, RSMo Supp.1984. The statute provides that a person commits the indicated offense if he operates a motor vehicle while in an intoxicated or drugged condition. Under § 577.001, RSMo Supp. 1984, a person is deemed to be operating a motor vehicle if he is physically driving or is in actual physical control of the vehicle. Actual physical control is construed as existing or present bodily restraint, directing influence, domination or regulation of a vehicle and it exists even where the vehicle is motionless as long as the person is keeping the vehicle in restraint or is in a position to regulate its movements, State v. O'Toole, 673 S.W.2d 25, 27 (Mo. banc 1984); City of Kansas City v. Troutner, 544 S.W.2d 295, 300 (Mo. App.1976), and the automobile is running. State v. Liebhart, 707 S.W.2d 427, 430 (Mo. App.1986). Furthermore, a finding of actual physical control is not defeated by the fact that the driver is asleep. State v. O'Toole, 673 S.W.2d at 25; City of Kansas City v. Troutner, 544 S.W.2d at 296.
The only difference between O'Toole and Troutner and the case at bar is the fact that Taylor was seated on the passenger side of the car rather than behind the steering wheel. All of the evidence indicates that Taylor was responsible for starting the car and allowing it to continue to run. While he may not have been in the most convenient position relative to the car's operative controls, they remained within easy reach. We conclude that the evidence was sufficient to establish that Taylor was in actual physical control of the car and that he was driving it within the meaning of § 577.010 when the officer arrived. There is no evidence that Taylor consumed additional intoxicants after the officer reached the scene. In the absence of such evidence, there is a reasonable inference that the arresting officer, having decided to make an arrest, would take sufficient precautions to prevent further intake of intoxicants. State v. Johnston, 670 S.W.2d 552, 556 (Mo.App.1984).
Also of relevance is a recently decided criminal case from the Southern District of Missouri. In that case, the court dealt with a situation similar to the case at bar. In State v. Claude Cook, 711 S.W.2d 208, 209 (1986), the court held that evidence of corroborating circumstances and an extrajudicial admission by the defendant may be considered in determining whether the corpus delicti is proven. State v. Garrett, 595 S.W.2d 422, 430 (Mo.App.1980).
In Cook, a witness testified that he had come upon the defendant on a highway trying to change a flat tire on his truck. His sister-in-law was seated in the passenger seat of the truck. The witness got out of his car to help change the tire. He observed the defendant get in the truck twice on the driver's side without adjusting the seat. He testified that he believed the defendant to be intoxicated and also that *949 he saw numerous beer cans in the bed of the truck; some open and some not open.
Over the defendant's objection that there had not been a sufficient showing of the corpus delicti, the witness was permitted to testify that the defendant had told him that he had had a blow out and had lost control of the truck. Id. p. 210. A highway patrolman arrived and testified that the defendant admitted he had been drinking. There was also evidence that defendant tried to talk the trooper into not taking him to the police station.
The court stated:
Defendant's being in an intoxicated condition while changing the tire of a vehicle in a roadway tends to prove that the offense of intoxicated driving occurred. Although these facts alone may not establish that the crime occurred, they correspond with the circumstances related in defendant's statements ... and make those statements admissable.
Id.
The defendant in Cook also argued that there was no substantial evidence to find that he was driving the vehicle; but even assuming he was driving, there was no substantial evidence to find defendant was intoxicated at the time he may have been driving the vehicle. These arguments are also true in the case of appellant. Cook is a criminal case but the argument is the same. In a circumstantial evidence case, the circumstances must be such as are inconsistent with defendant's innocence, but it is not necessary that they be absolutely conclusive of guilt, nor that they demonstrate an absolute impossibility of innocence. State v. Major, 564 S.W.2d 79, 81 (Mo.App.1978).
Courts take judicial notice of familiar facts attending the use of automobiles. Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9, 12 (1933). The court then stated that if a vehicle is located in the traveled portion of a highway the tire is normally changed as soon as possible. In Cook, the court had no trouble finding beyond a reasonable doubt that he was guilty of operating a vehicle while intoxicated.
In the case at bar, appellant was discovered passed out in the passenger seat of a car on the shoulder of a road in the early morning hours. The car was still running and the headlights were on. The trooper involved smelled alcohol on appellant's breath and observed he had difficulty walking. In addition to all of the above, appellant admitted he had been drinking.
There was sufficient evidence to support the finding of probable cause required by § 302.505 and Taylor's license was properly revoked. Judgment affirmed.
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OPINION OF THE COURT
Mercure, J.P
In October 2009, police investigator Nicholas Demuth applied for a warrant to take a buccal swab from defendant, who was incarcerated and suspected of committing multiple burglaries. One of the victims of the burglary at issue in this case, which took place in the Town of Elmira, Chemung County, found spots of blood on a blanket, bed skirt and robe after the break-in. Demuth sought to compare defendant’s DNA to that in the blood stain evidence from the victims’ home. The People concede that the search warrant application was made without notice to defendant, and that there were no exigent circumstances that prevented notice. Nevertheless, County Court issued the search warrant, and the buccal swab was administered on the same day.
Thereafter, defendant was charged in an indictment with one count of burglary in the second degree and one count of grand larceny in the third degree. County Court denied his subsequent motion to suppress the DNA evidence and, following trial, he was convicted as charged. Defendant was sentenced, as a persistent felon, to an aggregate term of 20 years to life in prison. The sentence imposed on this conviction was set to run concurrently with that imposed on a separate conviction (People v Fomby, 101 AD3d 1355 [2012] [decided herewith]). Defendant appeals and, because we conclude that the DNA evidence should have been suppressed, we now reverse.
“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State” (Schmerber u California, 384 US 757, 767 [1966]). Therefore, a search warrant authorizing an intrusion into the human body for the purpose of obtaining corporeal evidence, such as bodily fluids for DNA analysis, is subject to the constraints of the Fourth Amendment (see id. at 767-768; Matter of Abe A., 56 NY2d 288, 295-299 [1982]; People v Smith, 95 *30AD3d 21, 24-26 [2012]; People v Sterling, 57 AD3d 1110, 1111 [2008], lv denied 12 NY3d 788 [2009]; see also Nicholas v Goord, 430 F3d 652, 656 n5 [2005], cert denied 549 US 953 [2006]). Pursuant to the guidelines established by the Court of Appeals for the collection of corporeal evidence, a search warrant may issue if “the People establish (1) probable cause to believe the suspect has committed the crime, (2) a ‘clear indication’ that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable” (Matter of Abe A., 56 NY2d at 291; accord People v Pryor, 14 AD3d 723, 725 [2005], lv denied 6 NY3d 779 [2006]). In addition, the court issuing the warrant “must give careful consideration to the circumstances of the particular case . . . [, including] the probable worth of the evidence to the investigation” (Matter of Abe A., 56 NY2d at 298).
Particularly relevant here, if there is “no exigency, . . . [then] frustration of the purpose of the application is not at risk” and, in that case, “it is an elementary tenet of due process that the target of the application be afforded the opportunity to be heard in opposition before his or her constitutional right to be left alone may be infringed” (id. at 296 [citations omitted]). As noted above, the People concede that there were no exigent circumstances here. Inasmuch as the buccal swab used to obtain the DNA sample “involved an invasion of defendant’s personal dignity [and] intrusion into his body, procedural due process . . . required notice” (People v Smith, 86 AD2d 251, 254 n [1982]; see People v Smith, 95 AD3d at 25-26; People v Latibeaudierre, 174 Misc 2d 60, 61 [1997]; cf. People v Sterling, 57 AD3d at 1111-1112). Given the People’s further concession that such notice was not provided to defendant, the DNA evidence must be suppressed and reversal is required.
Defendant’s remaining arguments are rendered academic by our decision.
Rose, Kavanagh, Stein and Egan Jr., JJ., concur.
Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Chemung County for further proceedings not inconsistent with this Court’s decision.
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In an action, inter alia, to recover damages for breach of a contract for the sale of the plaintiff’s medical practice, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Joy, J.), dated November 28, 1986, as granted the respondents’ cross motion for summary judgment dismissing the complaint insofar as it is asserted against them.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
In a contract dated June 1, 1983, the plaintiff, a physician, agreed to sell his professional medical practice to the defendants, who are also physicians who belong to a professional medical group. The agreement provided that the defendants were to pay the plaintiff 40% of the gross income from their practice of industrial medicine (the practice of medicine relating exclusively to workers’ compensation, no-fault insurance and preemployment physicals) for a period of three years, and if that amount did not total $140,000, a $140,000 minimum payment. The contract further provided for the plaintiff to *586receive 20% of the gross receipts from the defendants’ practice of industrial medicine for six months following the end of the three-year period.
We find that the agreement in question constituted a voluntary prospective arrangement for the splitting of fees in contravention of Education Law § 6509-a and State public policy (see, Psychoanalytic Center v Burns, 46 NY2d 1002, rearg denied 47 NY2d 951; United Calendar Mfg. Corp. v Huang, 94 AD2d 176) and that the Supreme Court properly granted the respondents’ motion for summary judgment. Nor is the plaintiff entitled to recover under the theory of unjust enrichment. "The denial of relief to the plaintiff in such a case is not based on any desire of the courts to benefit the particular defendant. That the defendant may profit from the court’s refusal to intervene is irrelevant. What is important is that the policy of the law be upheld. Where the parties’ arrangement is illegal 'the law will not extend its aid to either of the parties * * * or listen to their complaints against each other, but will leave them where their own acts have placed them’ ” (United Calendar Mfg. Corp. v Huang, supra, at 180, quoting Braunstein v Jason Tarantella, Inc., 87 AD2d 203, 207).
We have considered the parties’ remaining contentions and find them to be without merit. Lawrence, J. P., Kunzeman, Kooper and Spatt, 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/5902403/
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In an action for a divorce and ancillary relief, the defendant husband appeals from so much of a judgment of the Supreme Court, Westchester County (Delaney, J.), dated February 24, 1986, as granted the plaintiff wife (1) a distributive award of $15,065 premised upon the equitable distribution of the defendant’s individual retirement account (hereinafter IRA) and Keogh account, and (2) the sum of $27,000 as her equitable interest in alleged *587disproportionate payment of taxes, and the plaintiff wife cross-appeals from so much of the same judgment as determined that the proceeds from the sale of the marital residence were equitably divided by the parties prior to the commencement of the action.
Ordered that the judgment is modified, on the facts and in the exercise of discretion, by deleting the second decretal paragraph thereof which (1) awarded the plaintiff wife a distributive award based on the defendant’s IRA and Keogh investments and (2) awarded the plaintiff wife the sum of $15,065 based on disproportionate tax payments, without prejudice to the plaintiff’s commencement of a separate plenary action for recovery of the alleged tax payments; as so modified, the judgment is affirmed insofar as appealed from and cross-appealed from, without costs or disbursements.
The parties, both of whom were middle-aged and independently affluent at the time of their marriage—the second for each—appeal and cross-appeal from stated portions of a judgment of divorce dated February 24, 1986. The principal dispute between the parties concerns the division of the proceeds received upon the 1983 sale of the marital premises. The record reveals that prior to the commencement of the instant action, the parties’ former marital premises was sold and the net proceeds divided between them in a ratio corresponding to their respective separate contributions to the original purchase price of $220,000. Inasmuch as the defendant husband contributed approximately 70% of the purchase price from his separate funds, he retained that portion of the net proceeds and distributed the remainder to the plaintiff wife.
Thereafter, the plaintiff wife commenced the action at bar for a divorce and ancillary relief, contending at trial, inter alia, that she was entitled to an equal share of the net proceeds from the sale of the house. The Supreme Court, in rejecting this contention, concluded that, "the court finds as a matter of fact and law that the parties agreed to an equitable distribution of the pro rata profits on the marital premises and plaintiff received same upon [the] sale in 1983”. We agree.
Contrary to the plaintiff’s contentions, the trial court properly declined to disturb the parties’ prelitigation division of the proceeds realized upon the sale of the marital premises. It is well settled that "equitable distribution is not necessarily equal distribution” (Miller v Miller, 128 AD2d 844, 845; see also, Rodgers v Rodgers, 98 AD2d 386, appeal dismissed 62 NY2d 646). Although at bar the court’s holding resulted in an unequal division of the proceeds, its determination was ration*588ally premised upon its finding, amply supported by the record, that the parties themselves had fashioned an equitable division of the proceeds by reference to their respective original contributions to the purchase of the asset. Under the circumstances, the court appropriately exercised its authority to mold a fair and just result by ratifying the parties’ own fully executed and equitable division of the proceeds.
We further conclude that the court erred in awarding the plaintiff a share of the defendant’s IRA and Keogh accounts. Although pension funds have been subjected to equitable distribution inasmuch as they represent deferred compensation to be enjoyed, presumably, by both spouses at a subsequent date (see, e.g., Damiano v Damiano, 94 AD2d 132), the foregoing rationale has no application within the context of this particular case. At bar, the Supreme Court found, and the record establishes, that there existed a course of conduct by which the parties, both of whom brought substantial assets to this marriage of relatively short duration, separately maintained their respective assets, incomes and liabilities. Moreover, while the plaintiff wife denied that there had been an explicit agreement reached with respect to the separate maintenance of assets, she nevertheless conceded that the parties had "eased into” such an arrangement from the inception of the marriage.
Indeed, it is undisputed, for example, that, with regard to income taxes, the parties established a system by which each spouse would contribute his or her proportionate share of the parties’ joint tax liability premised upon the separate yearly income earned. Further, the record indicates that although the defendant, formerly a financial consultant at E. F. Hutton and Company, advised the plaintiff with respect to the investment of her assets, he made no claim of entitlement to the substantial appreciation in the value of the plaintiff’s portfolio resulting from his management of her assets. Since there is ample support in the record for the Supreme Court’s conclusion that the parties "were not to have access to the other’s funds and/or income”, we conclude that awarding the plaintiff a portion of the defendant’s IRA and Keogh investments was, under the circumstances of this case, unwarranted.
Finally, since the plaintiff did not until the day of trial apprise the defendant of her intent to recoup from him alleged overpayments in her contributions to the parties’ joint income tax liabilities, we conclude that the court improperly awarded the plaintiff reimbursement therefor. Our conclusion in this respect, however, is without prejudice to the plaintiff’s *589commencement of a separate, plenary action for recovery of the alleged tax overpayments.
We have reviewed the parties’ remaining contentions and find them to be without merit. Mollen, P. J., Lawrence, Weinstein and Kooper, 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/5902404/
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OPINION OF THE COURT
Mercure, J.P
In October 2009, police investigator Nicholas Demuth applied for a warrant to take a buccal swab from defendant, who was incarcerated and suspected of committing multiple burglaries. One of the victims of the burglary at issue in this case, which took place in the Town of Elmira, Chemung County, found spots of blood on a blanket, bed skirt and robe after the break-in. Demuth sought to compare defendant’s DNA to that in the blood stain evidence from the victims’ home. The People concede that the search warrant application was made without notice to defendant, and that there were no exigent circumstances that prevented notice. Nevertheless, County Court issued the search warrant, and the buccal swab was administered on the same day.
Thereafter, defendant was charged in an indictment with one count of burglary in the second degree and one count of grand larceny in the third degree. County Court denied his subsequent motion to suppress the DNA evidence and, following trial, he was convicted as charged. Defendant was sentenced, as a persistent felon, to an aggregate term of 20 years to life in prison. The sentence imposed on this conviction was set to run concurrently with that imposed on a separate conviction (People v Fomby, 101 AD3d 1355 [2012] [decided herewith]). Defendant appeals and, because we conclude that the DNA evidence should have been suppressed, we now reverse.
“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State” (Schmerber u California, 384 US 757, 767 [1966]). Therefore, a search warrant authorizing an intrusion into the human body for the purpose of obtaining corporeal evidence, such as bodily fluids for DNA analysis, is subject to the constraints of the Fourth Amendment (see id. at 767-768; Matter of Abe A., 56 NY2d 288, 295-299 [1982]; People v Smith, 95 *30AD3d 21, 24-26 [2012]; People v Sterling, 57 AD3d 1110, 1111 [2008], lv denied 12 NY3d 788 [2009]; see also Nicholas v Goord, 430 F3d 652, 656 n5 [2005], cert denied 549 US 953 [2006]). Pursuant to the guidelines established by the Court of Appeals for the collection of corporeal evidence, a search warrant may issue if “the People establish (1) probable cause to believe the suspect has committed the crime, (2) a ‘clear indication’ that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable” (Matter of Abe A., 56 NY2d at 291; accord People v Pryor, 14 AD3d 723, 725 [2005], lv denied 6 NY3d 779 [2006]). In addition, the court issuing the warrant “must give careful consideration to the circumstances of the particular case . . . [, including] the probable worth of the evidence to the investigation” (Matter of Abe A., 56 NY2d at 298).
Particularly relevant here, if there is “no exigency, . . . [then] frustration of the purpose of the application is not at risk” and, in that case, “it is an elementary tenet of due process that the target of the application be afforded the opportunity to be heard in opposition before his or her constitutional right to be left alone may be infringed” (id. at 296 [citations omitted]). As noted above, the People concede that there were no exigent circumstances here. Inasmuch as the buccal swab used to obtain the DNA sample “involved an invasion of defendant’s personal dignity [and] intrusion into his body, procedural due process . . . required notice” (People v Smith, 86 AD2d 251, 254 n [1982]; see People v Smith, 95 AD3d at 25-26; People v Latibeaudierre, 174 Misc 2d 60, 61 [1997]; cf. People v Sterling, 57 AD3d at 1111-1112). Given the People’s further concession that such notice was not provided to defendant, the DNA evidence must be suppressed and reversal is required.
Defendant’s remaining arguments are rendered academic by our decision.
Rose, Kavanagh, Stein and Egan Jr., JJ., concur.
Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Chemung County for further proceedings not inconsistent with this Court’s decision.
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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/5902406/
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In an action to recover a real estate broker’s commission, the defendant Kin Chevrolet, Inc. (hereinafter Kin) appeals from so much of a judgment of the Supreme Court, Queens County (Graci, J.), dated January 14, 1986, as awarded the defendant William Kreizel, doing business as DeLong Realty Co. (hereinafter Kreizel), judgment on his cross claim against Kin after a nonjury trial, and (2) Kreizel cross-appeals, as limited by his brief, from so much of the same judgment as denied him a recovery for the cost of repairs as an element of damages of his cross claim against Kin. This appeal brings up for review an order of the same court (Lerner, J.), dated October 15, 1985, which denied Kin’s motion to consolidate the instant action with an action pending in the Supreme Court, Kings County, and to change the venue of the consolidated action to Kings County (see, Matter of Aho, 39 NY2d 241).
Ordered that the judgment is affirmed, without costs.
The court did not abuse its discretion in denying, as untimely, Kin’s motion to consolidate the instant action with a declaratory judgment action pending in the Supreme Court, Kings County, and to direct that the venue of the consolidated action be in Kings County. Kin initially moved for consolidation in November 1983 but that motion was denied with leave to renew on proper papers. Kin did not renew the motion until October 1985 when the instant action had been marked "final” for trial. Since substantial delay would have resulted from consolidation of the actions, denial of the motion was warranted (see, e.g., Steuerman v Broughton, 123 AD2d 681; Halpern v Rodway, 3 AD2d 941).
Kin contends that the court erred in granting judgment to Kreizel on his cross claim, which alleged a conspiracy by Kin and the plaintiff to breach the lease between Kin and DeLong Realty Corp. because there is no tort of civil conspiracy (see, e.g., Weissman v Mertz, 128 AD2d 609, appeal dismissed 69 NY2d 1036, lv denied 70 NY2d 607), nor is there a cause of action against a contracting party for conspiracy to breach the *590agreement between them, (see, e.g., North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171). However, since the court may sua sponte amend the pleadings to conform to the proof (see, e.g., Stern v Stem, 114 AD2d 408; CPLR 3025 [c]), we find no error in the court’s decision to treat the cross claim of conspiracy to breach the lease as a simple breach of lease claim. Kin’s allegation of prejudice is unpersuasive. The cross claim put Kin on notice that a breach of the lease was alleged and that the breach entailed permitting a subtenant to occupy the premises without the required consent of the landlord Kreizel.
In addition, Kin contends that the cross claim should have been dismissed because Kreizel had raised a breach of lease claim in the pending Kings County action. We note that Kin failed to raise the defense of another pending action in its answer and failed to timely move for dismissal on this ground. Therefore this defense was waived (see, CPLR 3211 [a] [4]; [e]). Furthermore, since the motion to consolidate had been properly denied, the trial court did not err in reaching the merits of the cross claim.
We find no error in the court’s decision to deny Kreizel, as an element of damages, the cost of repairs to the premises leased to Kin. Although Kreizel testified to the total cost of repairs, he did not qualify as an expert in the field and failed to present competent proof of the fair and reasonable value of the services rendered to make those repairs (see, Richardson, Evidence § 364 [Prince 10th ed]; Teerpenning v Corn Exch. Ins. Co., 43 NY 279). Mangano, J. P., Thompson, Bracken and Spatt, JJ., concur.
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https://www.courtlistener.com/api/rest/v3/opinions/2024718/
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13 B.R. 514 (1981)
In re MARSTON ENTERPRISES, INC./Spring Run Apartments, Co-Debtors,
BUFFALO SAVINGS BANK, Plaintiff,
v.
MARSTON ENTERPRISES, INC., Spring Run Apartments, Defendants.
Bankruptcy No. 180-00532.
United States Bankruptcy Court, E.D. New York.
May 11, 1981.
Leon S. Forman, Wexler, Weisman, Maurer & Forman, P.C., Philadelphia, Pa. S.A. Hauptman, Hauptman & Hauptman, Brooklyn, N.Y., for defendants.
Saperston, Day, Lustig, Gallick, Kirschner & Gaglione, P.C., Frank T. Gaglione and Neil J. Katz, Buffalo, N.Y., Berle & Berle, New York City, Thorold J. Deyrup, New York City, for plaintiff.
CONRAD B. DUBERSTEIN, Bankruptcy Judge.
This case is pending in Chapter 11. Shortly before the petition for relief was filed, Buffalo Savings Bank (hereinafter "Bank") had commenced foreclosure of a first mortgage on real property located in *515 Delaware. When the petition was filed, the Bank's foreclosure was automatically stayed pursuant to 11 U.S.C. § 362. A complaint for relief from the stay was filed by the Bank. The complaint sought as alternative relief, dismissal of the case or conversion to Chapter 7. The co-debtors oppose the relief sought and have filed an amended plan of reorganization. The Bank urges that the amended plan is incapable of confirmation as a matter of law. The parties agreed that the sufficiency of the amended plan be submitted for the court's determination.
It is conceded by both parties that there is no equity in the real property which is security for the debt of the Bank (nine buildings containing 184 rental apartments located in New Castle County (hereinafter "The Project")). A valuation hearing has not been held to this date. During the course of the proceedings, Bankruptcy Judge Costa, before whom the case was pending, died and it was several months before a successor was available. The Bank has generously waived the strict time table set forth in § 362(c) of the Code. Partial relief has been granted permitting the Bank to continue the state court foreclosure to the point of judgment. In addition, 90% of the net monthly income is set aside for payment of interest to the Bank.
The basic facts are not in dispute. The Project is subject to mortgage encumbrances in the approximate amounts and to the creditors listed as follows:
1. To the Bank - First Mortgage
in excess of $2,300,000.
2. To Florence Werb - Second Mortgage
- in excess of 359,000.[1]
3. To the Bank - Third Mortgage
in excess of 100,000.
Counsel for the Bank indicated that its appraisal would not exceed $2,000,000, and the debtor suggested a value of $900,000. This is the same valuation as is stated in the schedules. These figures indicate no equity for the debtor in The Project. In essence, the debtor is seeking to "cramdown" the Bank's first mortgage, (i.e., pay the appraisal value of the property in full satisfaction of the debt).
Section 362(d) requires the court to grant relief from the stay:
"(2) with respect to a stay of an act against property, if
(A) the debtor does not have an equity in such property; and
(B) such property is not necessary to an effective reorganization."
The phrase "necessary to an effective reorganization" means more than that the subject property is the vehicle without which there can be no reorganization. Where the sole asset in an estate is the encumbered real property, the property is obviously sine qua non to a reorganization. Without it, there is nothing to reorganize. The true meaning of the phrase, however, is broader. The key word is "effective." In re Clark Technical Associates, Ltd., 9 B.R. 738, 3 C.B.C.2d (Bkrtcy.D.Conn.1981). Does the proposed plan comply with the provisions of Chapter 11 relative to acceptance and confirmation of the plan? Are there resources at hand or within reach to implement the plan within a reasonable time? In re Terra Mar Associates, 3 B.R. 462 (Bkrtcy.D.Conn. 1980). If the answer to both questions is "yes", there can be an effective reorganization even though there is no equity in the real property for the debtor. The parties have stipulated that if the court finds that the amended plan cannot be confirmed as a matter of law, the stay will be lifted, as such determination would preclude the possibility that the property is necessary to an effective reorganization. However, if the plan as amended is possible of confirmation, a valuation hearing will be assigned promptly.
The amended plan provides that:
*516 (A) A valuation hearing will be held which will classify the Bank's first mortgage debt as
(a) a secured claim equal to the value of the security, and (b) an unsecured debt representing the deficiency. See 11 U.S.C. § 506(a). The subordinate mortgage debts of Werb and the Bank will be declared unsecured.
(B) Creditors and interests will be divided into four classes as follows:
(1) The secured claim of the Bank;
(2) A class of unsecured creditors[2] including:
(a) the unsecured portion of the Bank's first mortgage claim,
(b) the Werb mortgage claim,
(c) the Bank's note secured by the third mortgage;
(3) The partnership interest of the co-debtor, Spring Run Apartments;
(4) The equity security interest of the holders of common stock of the co-debtor, Marston Enterprises, Inc.
(C) The secured claim of the Bank in Class (1) will be paid in full in cash.
(D) The unsecured claims (Class 2) will receive no payments or property and the debts will be cancelled.
(E) The partnership interests in Spring Run Apartments (Class 3) and the stockholders of Marston Enterprises, Inc. (Class 4) will similarly receive no payments and will be extinguished.
(F) The funds necessary to implement the plan will be supplied by the holders of stock of the co-debtor, Marston Enterprises, Inc., who will receive new common stock on a pro rata basis in the reorganized debtor.
In considering whether the proposed plan is viable and can be funded, the court must assume arguendo that each provision of the plan can be implemented. Beyond that, the court must determine whether the plan is capable of confirmation, as urged by the debtor, or is incapable of confirmation, as a matter of law, as argued by the Bank.
The amended plan appears to meet all of the requirements of § 1123 of the Code (Contents of Plan). The plan designates the classes of claims and classes of interests. (§ 1123(a)(1)). The plan further specifies that the secured portion of the Bank's claim will be paid in full and is therefore unimpaired. (§ 1123(a)(2)). All other claims are impaired.[3] The plan provides that all impaired claims receive no payment and that all impaired interests, as such, are cancelled and extinguished. (§ 1123(a)(3)).
All claims or interests in a class are treated equally. (§ 1123(a)(4)) The plan provides that its execution will be accomplished by refinancing the real property of the debtor and by the contribution of such cash as is necessary by the holders of common stock of the corporate debtor, Marston Enterprises, Inc. (§ 1123(a)(5)) The plan restricts the issuance of non-voting equity securities and regulates the voting power between classes of stock. (§ 1123(a)(6)) The plan further provides for one class of voting stock and the submission for the court's approval of charter provisions and by-laws respecting the selection of officers and directors. (§ 1123(a)(7)) This court must conclude that the plan meets all technical requirements and complies with § 1123 as to its content. There remains the question: Can it be confirmed?
Section 1129 sets the criteria for confirmation. All the requirements of § 1129 must be met. The first six requirements are technical in nature and are not relevant *517 to the issues which were joined by the litigants. The seventh requirement is that under the plan each member of the impaired classes must either accept the plan or receive not less than they would receive in a liquidation under Chapter 7. (§ 1129(a)(7))[4] Since there would be no realization for any claim or interest after the secured part of the Bank's claim, this requirement is met. Section 1129(a)(8) requires that each class either have accepted the plan or be unimpaired and § 1129(a)(10) requires that at least one class of claims has accepted the plan.
The Bank has concentrated on two major objections. The first is that the plan is not fair and equitable in that the individuals who are shareholders of the co-debtor corporation, Marston Enterprises, Inc. will retain an equity interest even though the two superior classes, the unsecured creditors and the co-partners in Spring Run Apartments, will receive no payment or property. (Sec. 1129(a)(7)(A)(ii), Sec. 1129(b)) The second objection is that the plan is not capable of being accepted by at least one class of claims, qualified to accept, as required by § 1129(a)(10).
The plan proposes that it be funded by contributions on a pro rata basis by the holders of stock in Marston Enterprises, Inc. The original equity interest of these contributions would be cancelled. Their equity participation in the reorganized corporation would be based upon new contributions and therefore new consideration. Their interest in the reorganized debtor corporation would not be as original stockholders of the debtor, but as investors in the reorganized corporation. The Bank urges that this device is a sham, a fraud on unsecured creditors and is not permissible under § 1129(b). Section 1129(b) contains a modification of the absolute priority rule which was contained in Chapter X of the Bankruptcy Act. It requires that where the dissenting class receives less than the full amount of its claim, no inferior class may retain any interest or receive any distribution. Thus, if no new money were contributed or the amount contributed a trivial sum, the retention of an interest by an inferior class would be a fatal defect in violation of the fair and equitable requirement. Louisville Trust Company v. Louisville, New Albany and Chicago Railway Company 174 U.S. 674, 19 S. Ct. 827, 43 L. Ed. 1130 (1899); Case et al. v. Los Angeles Lumber Products Co. 308 U.S. 106, 60 S. Ct. 1, 84 L. Ed. 110 (1939); In re Landau Boat Co. 7 B.C.D. 255, 8 B.R. 436 (Bkrtcy.W. D.Mo.1981). Similarly, if mortgage financing is available to the full amount necessary to fund the plan, requiring no new investment on the part of the shareholders of the debtor corporation, such an investment would be contrary to the spirit, as well as the letter, of § 1129(b)(2)(B)(ii) and § 1129(b)(2)(C)(ii).
Counsel for the debtor urges that the evidence will show that the amount necessary to finance the plan will be substantial. In his brief he suggests that this would amount to between $300,000 and $400,000 of new money, which he contends is significant enough to justify the inclusion of the individuals who were stockholders, as investors under the plan. The Code is silent as to the right of stockholders in a reorganized corporation to acquire by investment an equity interest where superior classes of creditors or interests have not been paid in full or accepted the plan. Section 1129 of the Code is derived from Chapter X of the Act, which governed corporate reorganizations. *518 Case law had developed under Chapter X that authorizes such participation where fresh contributions are made by existing stockholders. The principle is well summarized in 6A, Collier on Bankruptcy (14th Ed.) Para. 11.06 at p. 228 as follows:
"Circumstances may exist where the success of an undertaking requires that new money be furnished and where the former stockholders are the only or most feasible source of the new capital . . . In such instances, the court may confirm the plan as fair and equitable `provided it satisfactorily appears that full recognition has been given to the value of creditors' claims against the property.'"
In Case v. Los Angeles Lumber Products Co., Ltd. supra, the Supreme Court stated the following:
"[10, 11] It is, of course, clear that there are circumstances under which stockholders may participate in a plan of reorganization of an insolvent debtor. This Court, as we have seen, indicated as much in Northern Pacific Railway Co. v. Boyd, supra [228 U.S. 482, 33 S. Ct. 554, 57 L. Ed. 931] and Kansas City Terminal Ry. Co. v. Central Union Trust Co., supra [271 U.S. 445, 46 S. Ct. 549, 70 L. Ed. 1028]. Especially in the latter case did this Court stress the necessity, at times, of seeking new money `essential to the success of the undertaking' from the old stockholders.15 Where that necessity exists and the old stockholders make a fresh contribution and receive in return a participation reasonably equivalent to their contribution, no objection can be made." Case supra, 308 U.S. at 121, 60 S. Ct. at 10.
The Court went on to state that such a contribution must be substantial. See also, Matter of Dutch Woodcraft Shops, 14 F. Supp. 467 (W.D.Mich.1955).
There is no statutory prohibition against original shareholders making a substantial necessary capital contribution in consideration for which they received shares of stock in the reorganized corporation. There is also nothing in the Code which precludes the case law which developed under Chapter X of the Bankruptcy Act, relating to corporate reorganization, from application to Chapter 11 of the Bankruptcy Code. The case of In re Landau Boat Co., supra, adapts these principles to the Code. If $300,000 to $400,000 of new money were needed to fund the plan, and the consideration came from new investors who were not shareholders, it would not violate the fair and equitable rule to permit them to contribute capital and receive shares of stock in the reorganized corporation. There is no reason why investors of new capital who happen to be shareholders, whose equity interest as old shareholders is extinguished, should be disqualified from investing in the reorganized corporation, where their contribution is substantial, as is the case herein. It would not violate the fair and equitable standard.
The second major objection is that no class of claims will have accepted the plan. The first class consists of the Bank's secured claim which will be paid in full and is not impaired. Section 1126(f) provides that such a claim "is deemed to have accepted the plan."[5] The second class consists of unsecured claims which include the following:
a) general creditors listed in the amended schedules $16,000;
b) the unsecured portion of the Bank's first mortgage which may be $300,000 to $1,400,000;
c) the amount of the Werb mortgage $250,000;
d) the Bank's third mortgage debt $100,000.
The Werb claim, being that of an insider, is ineligible to accept. Sec. 1129(a)(10).[6] The Bank has stated that it will reject any plan. Therefore, the second class of creditors cannot *519 accept the plan by the requisite majority. The members of the third class (copartners in Spring Run Apartments) are insiders not eligible to vote. Furthermore, § 1129(a)(10) requires that "At least one class of claims has accepted the plan . . ." This eliminates the third class of co-partners who have interests but do not have claims. The same disqualification applies to the fourth class which consists of the shareholders of the corporate co-debtor. Even if classes of "interests" could vote, the members of the third and fourth classes, being insiders, are disqualified from voting. There remains the first class.
The debtor urges that since the Bank's secured claim, being unimpaired and paid in full, is deemed to have accepted the plan under § 1126(f), this fulfills the requirement of § 1129(a)(10), that one class of claims must accept the plan. The Code is silent as to this situation. Section 1126(a) provides: "The holder of a claim or interest . . . may accept or reject a plan." Thus, the Bank may, but is not required to, accept or reject the plan. In fact it has rejected it. The language of § 1126(a) suggests an affirmative act of acceptance or rejection by the creditor or interest holder.[7]
The Senate Report No. 95-989, 95th Cong. 2d Sess. (1978) 123, U.S.Code Cong. & Admin.News 1978, p. 5909 commenting on § 1126(f) [referred to in the Senate Report as subsection (e)] states that it "provides that no acceptances are required from any class whose claims or interests are unimpaired under the plan or in the order confirming the plan."
Section 1126(g) provides:
"(g) Notwithstanding any other provision of this section, a class is deemed not to have accepted a plan if such plan provides that the claims or interests . . . do not entitle the holders . . . to any payment or compensation . . . "
The Senate Report, supra comments in part: "Subsection (g) provides that any class denied participation under the plan is conclusively deemed to have rejected the plan." (emphasis added). The difference in language may be significant. The Senate Report noted that an unimpaired class was deemed to accept the plan, whereas an impaired class which received nothing under the plan was conclusively deemed to have rejected the plan. In other words, the presumption of acceptance under § 1126(f) is rebuttable while the presumption of rejection under § 1126(g) is conclusive. Under this analysis, the presumption of acceptance was rebutted by the rejection of the plan by the Bank as an unimpaired creditor (as to its secured claim).
Section 1129(a)(8) further requires as a condition of confirmation that:
"With respect to each class
(A) such class has accepted the plan; or
(B) such class is not impaired under the plan." (emphasis added).
It can be argued that § 1129(a)(8) intended to excuse any class not impaired under the plan from any requirement to vote. In this context, "to deem" that the non-impaired class has accepted the plan is unnecessary and a futile gesture.
The dilemma is recognized by Collier which comments in 5 Collier on Bankruptcy (15th Ed.) at ¶ 1129.02[10]:
"[10] Minimum Acceptance.
Section 1129(a)(10) requires as a condition of confirmation that
`At least one class of claims has accepted the plan, determined without including any acceptance of the plan by any insider holding a claim of such class' . . .
The only issue presented by section 1129(a)(10) is whether the condition set forth in the paragraph is satisfied by section 1126(f) which states that a class which is not impaired under a plan, is deemed to have accepted the plan. Ultimately, *520 this issue will be determined by the courts or by a technical amendment to the Code. On the other hand, it may be argued that Section 1129(a)(10) requires affirmative acceptance and that leaving a class unimpaired is different from obtaining the affirmative acceptance of a class. The language of Section 1129(a)(8) supports this construction.
On the other hand, it may be argued that section 1129(a)(10) represents a compromise between cases following In re Herweg45 which require affirmative voting acceptance of a class of creditors and the position taken in a number of recent bankruptcy court decisions that a Chapter XII plan of arrangement may be confirmed without the consent of any class of creditors.46
Under this construction of subsection (a)(10), implied consent under section 1126(f) satisfies the requirement of section 1129(a)(10), because an unimpaired class would surely vote to accept the plan if permitted to do so.47 Thus while an affirmative vote is not required, the plan cannot be confirmed if every class is impaired and fails to accept the plan." (emphasis added).
Collier thus suggests that "an unimpaired class would surely vote to accept the plan if permitted to do so." If this premise is correct, it is logical therefore to deem that the unimpaired class will accept the plan. The opposite is found to be true in the instant case. The unimpaired creditor will not accept any plan. Collier's reasoning is predicated upon a premise which is not correct in this case. To deem that a party has accepted a plan when the fact is that it has rejected the plan, is Alice in Wonderland reasoning which this court cannot accept.
The verb "deem" is defined in the New Century Dictionary as "to pronounce judgment; to form an opinion; judge; think." In this context it is illogical to "form an opinion" or "pronounce judgment" that the Bank has accepted the plan in the face of a positive rejection.
The quotation from 5 Collier on Bankruptcy (15th Ed.) ¶ 1129.02[10] suggested that "Ultimately this issue will be determined by the courts or by a technical amendment to the Code." Shortly after the enactment of the Code, the drafters recognized many areas of ambiguity in the drafting and a Technical Amendments Bill (S.658) was prepared and introduced on September 11, 1979. While it is not controlling on this court as the law, it reflects the thinking of the drafters. It provided in part:
"Sec. 107.(a) Section 1129(a) of Title 11 of the United States Code is amended
. . . (9) by amending paragraph (10) to read as follows:
`(10) If a class of claims is impaired under the plan, at least one class of claims that is impaired under the plan has accepted the plan, determined without including any acceptance of the plan by any insider.'"
The conclusion reached by this court from an examination of the Code and the Congressional Reports and a consideration of the facts in the instant case is that § 1129(a)(10) requires that one class of impaired claims must actively accept the plan. Even if, arguendo, this conclusion is in error, the provision of § 1126(f) deeming an unimpaired creditor to have accepted the plan is to be considered at best, prima facie acceptance, a presumption which was rebutted by the actual rejection of the plan by the Bank.[8] There being no class of claims *521 capable of accepting the plan, it cannot meet the requirements of § 1129(a)(10) as to confirmation.
It is found that the plan as amended is a viable plan, which technically is capable of acceptance and confirmation as formulated. However, under the admitted facts, the court cannot deem that the first class of claims, the Bank's secured claim, has accepted the plan, when in fact, it has rejected the plan. The only other class of claims, the unsecured, is dominated by the Bank's unsecured deficiency on its two mortgages and it has rejected the plan. Accordingly, the plan cannot meet the criterion for confirmation mandated in § 1129(a)(10) that "at least one class of claims has accepted the plan."
In his brief, counsel for the debtor commented that the Bank had not elected to have its claim treated under § 1111(b)(2) which provides that a secured claim is secured to the full extent that the claim is allowed ($2,300,000) rather than to the extent of the value of the collateral ($900,000 to $2,000,000) as under § 506(a). Had the Bank so elected, counsel indicated a different plan would have to be filed. Since the Bank has not so elected, that possibility is precluded.
In summary, it is concluded that the Bank can meet the first requirement of § 362(d)(2) that there is no equity in the real property, which it seeks to foreclose. However, the debtor has failed to prove that an effective reorganization can be consummated. Accordingly, the Bank's prayer for relief from stay is granted. It is
SO ORDERED.
NOTES
[1] Florence Werb is the wife of Louis Werb, a partner in co-debtor, Spring Run Apartments, and a shareholder in co-debtor, Marston Enterprises, Inc. As such, she is an insider (§ 101(25)(B)(vi) and § 101(25)(C)(ii)), and her acceptance of a plan of reorganization may not be computed in determining whether the class, of which she is a member, has accepted the plan (Sec. 1129(a)(10)).
[2] The schedules and the original plan listed no general creditors. The amended schedules list four creditors whose claims total approximately $16,000.
[3] Section 1124 provides in part:
". . . a class of claims or interests is impaired . . . unless, with respect to each claim or interest of such class, the plan
(1) leaves unaltered the legal, equitable and contractual rights to which such claim or interest entitles the holder of such claim or interest:".
Since the unsecured creditors receive nothing and the interest of the co-partners in Spring Run Apartments and the stockholders of Marston Enterprises, Inc. are extinguished, these classes of creditors and interests are impaired under the plan.
[4] Sec. 1129(a)(7) provides that:
"With respect to each class
(A) each holder of a claim or interest of such class
(i) has accepted the plan; or
(ii) will receive or retain under the plan on account of such claim or interest property of a value, as of the effective date of the plan, that is not less than the amount that such holder would so receive or retain if the debtor were liquidated under Chapter 7 of this title on such date; or
(B) If section 1111(b)(2) of this title applies to the claims of such class, each holder of a claim of such class will receive or retain under the plan on account of such claim property of a value, as of the effective date of the plan, that is not less than the value of such creditor's interest in the estate's interest in the property that secures claims."
[5] Section 1126(f) provides:
"(f) Notwithstanding any other provision of this section, a class that is not impaired under a plan is deemed to have accepted the plan, and solicitation of acceptances with respect to such class from the holders of claims or interest of such class is not required."
[6] See n(1) supra.
[7] The Senate Report describes the predecessor of Section 1129(a)(1) (Section 1130(a)(12) of S. 2266, 95th Cong. 2d Sess.) as follows:
"Paragraph (12) requires that at least one class must accept the plan . . ." (emphasis added). S. Report No. 989, 95th Cong. 2d Sess. 128 (1978), U.S.Code Cong. & Admin. News 1978, pp. 5787, 5914.
[8] The debtor cites In re Bel Air Associates, Ltd., 6 B.C.D. 284, 4 B.R. 168 (Bkrtcy.W.D.Okl. 1980) as supporting its claim that the deemed acceptance of the Bank satisfies the requirement of § 1129(a)(10) that one class of claims must accept the plan. That case is clearly distinguishable on the facts. Under the plan, the real property on which the secured creditor (Hancock) held a mortgage was to be sold subject to the mortgage. The mortgage was not in default, current payments being made by the general partner who filed the petition. In fact, nothing was being done to Hancock's mortgage. It was not affected by the plan. The court observed ". . . a cash sale will insure Hancock's being paid. Hancock is therefore in no way impaired by the plan under 11 USC § 1124 and their deemed acceptance of the plan satisfies the requirements of § 1129(a)(10)." Two additional facts must be noted. The objection to confirmation was filed by a limited partner of the debtor, rather than, as here, by the impaired creditor. Furthermore, Hancock had not filed a formal acceptance or rejection. In the instant case, the Bank affirmatively rejected the plan. Furthermore, the Bank had instituted foreclosure of its mortgage which had been in serious default for months. In Hancock, the mortgage was not in default and foreclosure could not be instituted. Hancock was perfectly content with the plan. In the instant case, the opposite is abundantly clear.
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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/5902408/
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In a negligence action to recover property damages allegedly sustained as a result of a fire which occurred at the plaintiffs’ premises, the plaintiffs appeal, as limited by their brief, from so much of an order and *592judgment (one paper) of the Supreme Court, Nassau County (Wager, J.), entered June 10, 1986, as granted the motion of the defendant Albertson Fire Company and the cross motion of the defendant Garden City Park Water Fire District to dismiss the complaint insofar as it is asserted against them for failure to state a cause of action as against them and denied that branch of the plaintiffs’ cross motion which was for leave to amend the complaint.
Ordered that the order and judgment is affirmed insofar as appealed from, with one bill of costs.
It is well settled that "there can be no cause of action against a fire department for alleged negligence in the methods it uses to fight a fire, absent the assumption of a special duty” (Harland Enters. v Commander Oil Corp., 97 AD2d 785, affd 64 NY2d 708). We agree with the Supreme Court that the allegations in the original and in the proposed amended complaint, if proven, would not establish that the defendant fire companies assumed any special duty towards the plaintiffs (see, Vogel v Liberty Fuel Corp., 52 AD2d 667, 668). Therefore, the plaintiffs’ original complaint as against the defendant fire companies was properly dismissed and that branch of the plaintiffs’ cross motion which was for leave to amend the complaint was properly denied. Lawrence, J. P., Kunzeman, Kooper and Spatt, 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/5902409/
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*33OPINION OF THE COURT
Friedman, J.
This appeal presents for resolution two questions left open by the Court of Appeals’ decision in Matter of Jazmín A. (15 NY3d 439, 443 n [2010]): “whether a properly made motion under Family Court Act § 355.1 to stay, modify or terminate an order of probation based on change of circumstances would provide an alternative means of initiating proceedings to revoke probation, and whether detention would be authorized pending resolution of such a motion” (internal quotation marks and brackets omitted). We answer both questions in the negative.
By a final order of disposition entered April 7, 2011 (the 2010 case), Family Court, Bronx County, adjudicated appellant Rayshawn E a juvenile delinquent, placed him on probation for 18 months, and ordered him to perform 50 hours of community service. The adjudication was based on appellant’s admission that, on October 27, 2010, he had committed an act that, if committed by an adult, would constitute grand larceny in the fourth degree.1 Thereafter, on June 29, 2011, appellant was arrested for resisting arrest after he was apprehended for allegedly punching someone in the face.
On June 30, 2011, upon the application of the detention center holding appellant based on his arrest the previous day, Family Court conducted a pre-petition hearing pursuant to Family Court Act § 307.4.2 The police witness, Officer Jarmarie Flowers, testified that she placed appellant under arrest after he was brought to the precinct station. Officer Flowers stated that she arrested appellant based on information provided to her by her lieutenant, who told Flowers that he had seen appellant “engaging in an assault,” and that as he tried to arrest him, appellant had “started to kick, punch, and throw in the direction of the officers.” Officer Flowers acknowledged that she had no personal knowledge of the events on which the arrest was based.
At the conclusion of the hearing, the court determined that it had jurisdiction over the matter arising from the June 29 arrest. However, the court did not grant the pre-petition detention *34application before it, which, under Family Court Act § 307.4 (7), would have entitled appellant to the filing of a petition and a probable-cause hearing within four days. Instead, the court, at its own instance, and over the objection of appellant’s counsel, reactivated appellant’s 2010 case (for which, as noted, he was already on probation) and stated that it was “remanding the respondent!,] open remand!,] pending modification of that disposition.” The court then dismissed the pre-petition application, without prejudice to the filing of a petition, and adjourned the matter to July 18, 2011.
*33“If a child in custody is brought before a judge of the family court before a petition is filed upon a written application pursuant to subdivision four of section 307.3, the judge shall hold a hearing for the purpose of making a preliminary determination of whether the court appears to have jurisdiction over the child.”
*34The case file contains two written orders of the Family Court bearing the date of June 30, 2011, both under the docket number of the 2010 case, which, as noted, had already been finally adjudicated. One is an order to show cause, which, “[u]pon the Court’s own motion pursuant to Family Court Act § 355.1 (1),” directed appellant to show cause, at a hearing to be held on July 18, 2011,
“(1) why the Court should not make a determination that there has been a substantial change of circumstances since the entry of the order of disposition, in that respondent’s arrest for the commission of one or more acts of juvenile delinquency on 6/30/11, constitutes a violation of the order which placed him under probation supervision in this case; (2) why the Court should not enter an order in accordance with Family Court Act § 355.1 (1) (b) vacating, modifying or terminating the order of disposition based upon such substantial change of circumstances; and (3) why the Court should not enter such interim orders as may be necessary to protect the best interests of the respondent and the safety of the community.”3
The other Family Court order dated June 30, 2011 that is found in the case file is denominated an “Order Directing Detention” (the remand order). Although, as of June 30, 2011, no new delinquency petition (Family Ct Act § 311.1) or petition alleging a violation of probation (Family Ct Act § 360.2) had been filed based on the incident of June 29, the remand order recites that a petition under section 311.1, “including a charge of Violation of Probation,” had been filed. The remand order goes on to state that Family Court had determined that the *35“[d]etention of the [r]espondent is necessary” under the criteria of Family Court Act § 320.5, which addresses an initial appearance after the filing of a petition. Based on findings that “[Respondent did not comply with terms of probation and was arrested” and that he was “likely to commit further acts of delinquency,” the order remanded him to the Administration for Children’s Services “for open detention, to be detained pending further proceedings herein on July 18, 2011.”
On July 1, 2011, the presentment agency filed a new petition, under a new docket number (the 2011 case), based on appellant’s arrest of June 29. On the same day, the presentment agency and counsel for appellant (furnished by the Legal Aid Society) appeared before Family Court; appellant himself was not produced in court that day. The petition in the 2011 case alleged that appellant committed acts that, if committed by an adult, would constitute the crimes of second-degree obstruction of governmental administration, resisting arrest and attempted third-degree assault. In the attached supporting deposition, a police lieutenant stated that, on June 29, he attempted to arrest appellant after observing him run after another person and punch him in the face. When the lieutenant attempted to arrest appellant, the latter began kicking his legs and flailing his arms, and sought to avoid being handcuffed.
Because appellant was not present in court at the July 1 hearing, the presentment agency asked to adjourn the matter to July 5, 2011, for arraignment on the petition in the 2011 case. The presentment agency noted that it was the agency’s “understanding” that, on June 30, 2011, the court had “remanded the respondent on [the court’s] own motion based on Family Court Act [§ ] 355.1 and that the Court filed an Order to Show Cause which was served on the Legal Aid Society this morning.” Family Court confirmed that it had invoked section 355.1 the day before and added that “the parties have been provided with the Order to Show Cause,” which “left out the adjourned date, which is July 18th.” The court then stated that “the pre-petition hearing [on the 2011 case] was heard yesterday and the Court made findings and reopened the disposition [of the 2010 case] based on the testimony of the pre-petition hearing.”
Appellant’s counsel objected that, under Family Court Act § 307.4, the purpose of the June 30, 2011 pre-petition hearing was only to determine whether the court had jurisdiction, and did not provide a basis for remanding appellant to detention or *36revoking his probation. Counsel also maintained that no order to show cause had been served on the Legal Aid Society.4 Counsel argued that the court had unlawfully remanded Rayshawn to detention because no petition alleging a violation of probation (VOP) (see Family Ct Act § 360.2 [1]) had been filed, and that, under Matter of Jazmin A. (15 NY3d 439 [2010]), the court did not have authority to remand a juvenile to detention during the period of probation in the absence of a pending VOP petition. Counsel further asserted that the court could not use section 355.1 to revoke probation, and that, in any event, the court had not complied with that section’s procedural requirements. The judge responded, “I did not revoke probation. I remanded your client pending a determination as to whether or not probation was to be revoked, that is, pursuant to the statute [(§ 355.1)].” The court added that the order to show cause was “to get the parties into court to be heard,” and that the parties had an opportunity to be heard at the pre-petition hearing.
Appellant’s counsel replied that a pre-petition hearing could not serve as the basis for adjudicating a VOP and that the June 30 pre-petition hearing was based on hearsay without any eyewitnesses (see Family Ct Act § 360.2 [2] [“Non-hearsay allegations of the factual part of the (VOP) petition or of any supporting depositions must establish, if true, every violation charged”]). The court noted that the Department of Probation could have filed a VOP petition, which would have provided a basis on which to remand appellant to detention. When counsel again objected that, in fact, no VOP petition had been filed, the court stated that it nonetheless had “found a violation because there was a change in circumstances.” Counsel reiterated that no VOP petition had been filed and that the remand order was therefore improper under Jazmin A.
On July 5, 2011, appellant was arraigned on the petition in the 2011 case, and the agency asked that he be remanded under that docket. The Family Court judge who had presided over the prior proceedings (Alpert, J.) was on vacation, and the judge *37presiding in his absence (Gribetz, J.) declined to remand on the 2011 case because Judge Alpert had not done so. Appellant remained in detention, however, based on the June 30 remand order issued in the 2010 case, until the next day, July 6, when a justice of this Court granted his motion for an interim stay of that order.5 On July 8, Judge Gribetz again denied the presentment agency’s application to remand appellant on the 2011 petition. Because the court did “not want[ ] to interfere with Judge Alpert,” it instead ordered that appellant be placed under “house arrest.”
On July 18, 2011, after Judge Alpert’s return, the presentment agency asked the court to remand appellant on the 2011 case. The court granted the application, due to negative reports from the program that appellant had been ordered to attend. Both the 2010 case and the 2011 case were adjourned one day for fact-finding.
On July 19, 2011, appellant entered an admission to having engaged in acts on June 29, 2011, that, if committed by an adult, would constitute the crime of obstructing governmental administration in the second degree. The presentment agency asked the court to waive its motion under section 355.1, in the expectation that the Department of Probation would file a VOP petition. The court withdrew its motion “without prejudice,” declaring that any issues thereunder were “moot.”
On September 27, 2011, Family Court conducted a hearing to dispose of the 2011 case and to determine the section 355.1 (1) motion to modify the April 2011 disposition of the 2010 case, both on the basis of appellant’s admission at the hearing of July 19.6 With respect to the section 355.1 (1) motion, the hearing resulted in an order, dated September 27, 2011 (the modification order), providing in pertinent part as follows: “PURSUANT TO FCA 355.1, IT IS ORDERED that the disposition dated April 7, 2011 is modified and Respondent Rayshawn [P] is ordered to a term of 24 Months Enhanced Supervision Probation, with 50 Hours Community Service . . . Term of probation is to expire on September 26, 2013.”7
*38Discussion
Appellant now appeals from the remand order of June 30, 2011, and from the modification order of September 27, 2011. In essence, appellant argues (1) that a motion to modify a final disposition under Family Court Act § 355.1 (1) is not available to the court as an alternative to the procedures prescribed by sections 360.1, 360.2 and 360.3 for prosecuting a VOP and (2) that sections 355.1 and 355.2 (the latter of which sets forth the procedures for a motion under section 355.1) do not, in any event, authorize the court to detain a juvenile pending the determination of a motion under section 355.1. The presentment agency agrees that each of these orders should be reversed and vacated but argues that, because procedural errors require reversal in any event, we need not reach the question of the propriety of using a section 355.1 (1) motion to address a VOP We will discuss first the modification order and then the remand order.
The September 27, 2011 Modification Order
When appellant’s arrest of June 29, 2011 was brought to Family Court’s attention at the pre-petition hearing held on June 30, the court responded by initiating a motion, pursuant to Family Court Act § 355.1 (1), to modify the dispositional order of April 7, 2011, which had imposed 18 months of probation on appellant in the 2010 case. Ultimately, the court resolved its section 355.1 (1) motion by issuing the modification order of September 27, 2011, which modified the April 7 dispositional order in the 2010 case by imposing 24 months of enhanced supervision probation, to commence upon the date of the modification order. The modification order has the effect of extending appellant’s term of probation by nearly a year (moving the end date from October 2012 to September 2013) and enhancing the level of supervision to which he is subject. In addressing the June 29 arrest by way of a motion under section 355.1 (1), which authorizes the modification of a dispositional order “[u]pon a showing of a substantial change of circumstances,” Family Court assumed that an act constituting a VOE may be considered “a substantial change of circumstances” under section 355.1 (1) and therefore may be dealt with under section 355.1 (1) as an alternative to the procedures prescribed for prosecuting a VOE by Family Court Act §§ 360.1, 360.2 and *39360.3.8 Appellant contends that this assumption was erroneous, and we agree.
At the outset, the presentment agency argues that we need not consider whether Family Court may use a section 355.1 (1) motion to address an apparent VOF] because, in this particular case, the presentment agency concedes that the modification order must be vacated for procedural infirmity even if the court had authority to move to modify the dispositional order under section 355.1 (1). In this regard, the presentment agency points out, among other things, that Family Court issued the modification order after it had expressly withdrawn its section 355.1 (1) motion on the record at the July 19 hearing, after appellant admitted to second-degree obstruction of governmental administration. Thus, when the court entered the modification order on September 27, no motion to modify the preexisting dispositional order was pending. Besides its having been entered on a motion that had already been withdrawn, the modification order appears to be tainted by still other procedural and substantive errors.9
“Upon a showing of a substantial change of circumstances, the court may on its own motion or on motion of the respondent or his parent or person responsible for his care: “(a) grant a new fact-finding or dispositional hearing; or “(b) stay execution of, set aside, modify, terminate or vacate any order issued in the course of a proceeding under this article.”
*40While it appears that we could, as urged by the presentment agency, vacate the modification order based on Family Court’s failures to comply with the requirements of sections 355.1 and 355.2, without addressing whether the court-initiated section 355.1 (1) motion was proper to begin with, we decline to do so. The parties are in agreement that it is not unusual for Family Court to use section 355.1 (1) motions, rather than the procedures prescribed by section 360.1 et seq., to address VOPs (see Matter of Shatique B., 70 AD3d 1036 [2d Dept 2010]; Matter of Lorenzo A., 59 AD3d 441 [2d Dept 2009]).10 Given that the question of the propriety of this practice is squarely presented by this appeal—and, in this regard, the procedural and substantive requirements of sections 355.1 and 355.2 become relevant only if the section 355.1 (1) motion was authorized in the first place—we choose to address the more fundamental question.
Turning to the question of Family Court’s authority to proceed under section 355.1 (1) to address an apparent VOR we observe that, as appellant correctly points out, the legislature has enacted a detailed statutory scheme setting forth procedures specifically intended to address VOPs. As previously noted, this statutory scheme is set out at sections 360.1, 360.2 and 360.3 of the Family Court Act. Nowhere in these provisions is the court authorized to initiate, sua sponte, proceedings to modify a dispositional order. Rather, section 360.2 (1) authorizes the probation service—not the court—to “file a petition of violation” if the service “has reasonable cause to believe that the respondent has violated a condition” of the probation order.* 11 Further, sections 360.2 and 360.3 set forth specific procedural requirements that must be observed in adjudicating an alleged VOP In particular, under section 360.2 (2), a VOP proceeding must be commenced by the filing of a verified , petition (1) that “stipulate^] the condition or conditions of the order violated and a reasonable description of the time, place and manner in which the violation occurred” and (2) that is supported by “[n]on-hearsay allegations . . . establishing], if true, every *41violation charged” (emphasis added). In addition, unless the respondent enters an admission to the charge in accordance with Family Court Act § 321.2, he or she is entitled to a prompt hearing on the alleged VOP (§ 360.3 [1], [2]), at which only “competent” evidence may be admitted (§ 360.3 [3]). By contrast, on a motion under section 355.1, the respondent is entitled to a hearing only “to resolve any material question of fact” (§ 355.2 [3]), which effectively shifts to the respondent the burden of establishing that a material question of fact exists.12
By proceeding against appellant by way of a motion to modify the dispositional order based on “a substantial change of circumstances” under section 355.1 (1), Family Court effectively circumvented certain procedural requirements of the legislature’s statutory scheme for prosecutions of VOPs at section 360.1 et seq. In particular, unlike a VOP petition under section 360.2 (2), a section 355.1 (1) motion may be—and the motion in this case in fact was—based on hearsay (see § 355.2 [1]). In addition, while a VOP petition “must stipulate the condition or conditions of the order violated and a reasonable description of the time, place and manner in which the violation occurred” (§ 360.2 [2]), the order to show cause by which the court purported to initiate its section 355.1 (1) motion: (1) failed to specify which condition of the dispositional order appellant was alleged to have violated; (2) gave no description of the place and manner in which the VOP occurred (other than noting that appellant had been arrested “for allegedly committing an act, which if committed by an adult, would constitute a crime”); and (3) inaccurately (and repeatedly) described the time of appellant’s arrest as “6/30/11” (in fact, the date of the arrest was June 29, 2011). Finally, by itself initiating the section 355.1 (1) motion, Family Court circumvented the legislature’s delegation to the probation service of the responsibility to determine whether to prosecute an act as a VOP (see § 360.2 [1]).
Family Court’s decision to proceed against appellant under section 355.1 (1) for what was essentially an alleged VOP, thereby avoiding the requirements of the statutory scheme for prosecutions of VOPs, was contrary to basic principles of statutory construction. “[W]here the Legislature enacts a specific provision directed at a particular class, and a more general provision in the same statute which might appear to encompass *42that class, the specific provision will be applied” (New York State Crime Victims Bd. v T.J.M. Prods., 265 AD2d 38, 46 [1st Dept 2000] [internal quotation marks omitted]; see also McKinney’s Cons Laws of NY, Book 1, Statutes § 238). Section 355.1 (1) is a general provision recognizing Family Court’s power to vacate or modify its own orders, analogous to CPLR 5015 and CPL article 440 (see Merril Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 355.1). Section 360.1 et seq., by contrast, specifically address the modification or revocation of probation based on an alleged violation thereof. We agree with appellant that, because the legislature has created a detailed scheme specifically dealing with VOPs, those provisions, not section 355.1 (1), must be applied. It would be illogical for the legislature to have enacted requirements specifically applicable to the prosecution of a VOP only to permit a court to circumvent those requirements by addressing alleged conduct constituting a VOP by moving under section 355.1 (1), the more general provision permitting the court to revoke or modify its orders based on “a showing of a substantial change of circumstances.” Thus, we reject the presentment agency’s position that a motion under section 355.1 (1) and a VOP petition pursuant to section 360.2 should be viewed as “overlapping mechanisms” for addressing conduct constituting a violation of probation.
In sum, Family Court was not authorized to initiate a motion under section 355.1 (1) to modify a prior dispositional order based on alleged conduct by appellant that, if proved, would constitute a VOP. The modification order, because it was rendered pursuant to such an unauthorized motion, must be vacated as invalid.
The June 30, 2011 Remand Order
The remand order of June 30, 2011, pursuant to which appellant was placed in detention pending determination of Family Court’s section 355.1 (1) motion, is now moot, since appellant’s detention pursuant to that order has ended. Both parties agree, however, that we may rule upon the validity of the remand order because it comes within the exception to the mootness doctrine for orders presenting novel and substantial issues that are likely to recur but to evade appellate review (see Mental Hygiene Legal Servs. v Ford, 92 NY2d 500, 505-506 [1998]).
In reviewing the modification order, we have already determined that Family Court was without authority to address appellant’s alleged VOP by initiating a section 355.1 (1) motion *43to modify the preexisting dispositional order. Because the remand order was issued as an adjunct to the section 355.1 (1) motion, and the section 355.1 (1) motion was itself unauthorized, the remand order would be invalid even if section 355.1 or section 355.2 (which sets forth the procedures to be followed on a section 355.1 motion) provided authority for an order detaining a juvenile pending the determination of a section
355.1 motion. But, as the presentment agency concedes, even if Family Court did have the authority to initiate the section 355.1 (1) motion (as the presentment agency maintains the court did), the remand order would still be unauthorized because nothing in section 355.1 or section 355.2 authorized the court to remand appellant to custody pending determination of a motion under section 355.1.
In Matter of Jazmin A. (15 NY3d 439 [2010]), the Court of Appeals held that a juvenile may be remanded to detention only at “specific junctures in a delinquency proceeding” spelled out in the Family Court Act (id. at 444).13 Thus, in Jazmin A., Family Court was held to lack authority to order the detention of the respondent probationer when she appeared in court for a monitoring hearing, before any VOP petition had been filed. As the Court of Appeals explained: “Because the Legislature did not . . . empower Family Court to order detention of a juvenile probationer before the filing of a VOP petition, we are unwilling to imply such authority in the absence of a statutory peg” (id.). The Court of Appeals further noted that Family Court’s “continuing jurisdiction [over a juvenile probationer] does not vest [the court] with the power to take actions not authorized by article 3 [of the Family Court Act]” (id.).
Although the question of “whether detention would be authorized pending resolution of [a section 355.1] motion” (Matter of Jazmin A., 62 AD3d 526, 527 [1st Dept 2009], affd 15 NY3d 439 [2010]) was not presented in Jazmín A., the implication of the decision for that question is clear. Given that neither section 355.1 nor section 355.2 offers any “statutory peg” on which to hang authority for remanding appellant to detention, the remand order in this case was invalid, even if Family Court’s section 355.1 motion were itself authorized (which, as we have *44held, it was not).14 Accordingly, the remand order must be vacated.15
Accordingly, the order of Family Court, Bronx County (Allen Alpert, J.), entered on or about June 30, 2011, which remanded appellant to detention in the custody of the Administration for Children’s Services of the City of New York, and the order, same court and Judge, entered on or about September 27, 2011, which modified an order of disposition dated April 7, 2011, to the extent of imposing upon appellant a term of 24 months of enhanced supervision probation, with the term of such probation set to expire on September 26, 2013, should be reversed, on the law, without costs, and the orders vacated.
Tom, J.P, Acosta and Freedman, JJ., concur.
Order, Family Court, Bronx County, entered on or about June 30, 2011, and order, same court, entered on or about September 27, 2011, reversed, on the law, without costs, and the orders vacated.
. At all relevant times, appellant was under the age of 16.
. Family Court Act § 307.4 (1) provides:
. From subsequent colloquy in the record, it appears that the July 18 return date was inserted after the order to show cause was initially signed.
. On appeal, it is undisputed that the June 30 order to show cause was never served either upon appellant’s counsel personally or upon the offices of the Legal Aid Society before Family Court issued the remand order. Appellant’s appellate counsel represents, without contradiction, that appellant’s counsel in the Family Court discovered the order to show cause on July 1, 2011, in the Family Court’s file for this case, which she had reviewed to obtain a copy of the remand order for the purpose of moving for a stay in this Court. The presentment agency apparently takes the position that counsel’s discovery of the order to show cause in the court file constituted service.
. By order entered October 4, 2011, this Court granted appellant leave to appeal from the remand order but denied the motion for a stay as moot.
. The court addressed the section 355.1 (1) motion at the September 27 hearing notwithstanding its announcement at the July 19 hearing that the section 355.1 (1) motion was being withdrawn.
. The disposition of the 2011 case is not at issue on this appeal.
. Subdivision (1) of Family Court Act § 355.1 (captioned “New hearing; staying, modifying or terminating an order”) provides:
. The modification order’s additional procedural infirmities appear to include: (1) Family Court’s failure to cause the order to show cause to be served on appellant or his counsel in accordance with the CPLR, as required by Family Court Act § 355.2 (2); (2) the court’s failure to afford appellant an opportunity for “oral argument and ... a hearing to resolve any material question of fact” (§ 355.2 [3]), it being conceded by the presentment agency that this hearing requirement was not satisfied by the “cursory pre-petition detention application” on the 2011 case (cf. Matter of Benjamin L., 283 AD2d 646, 647 [2d Dept 2001], lv denied 97 NY2d 603 [2001] [reversing modified dispositional order where VOP petition was converted to petition to modify prior disposition pursuant to section 355.1 “without proper notice and opportunity to be heard”]); and (3) the court’s failure to comply with the directive of section 355.2 (4) to “set forth on the record its findings of fact, its conclusions of law and the reasons for its determination” of the section 355.1 motion (which requires “a showing of a substantial change of circumstances”). Moreover, as the presentment agency also concedes, the modification order, by imposing a term of probation extending beyond the term imposed by the original dispositional order, violates the directive of section 355.1 (3) that, if a new dispositional order is issued pursuant to that statute, “the date such order expires shall not be later than the expiration date of the original order.”
. Although it appears that, in each of Shatique B. and Lorenzo A., Family Court addressed conduct violating probation by way of a motion under section 355.1, this manner of proceeding was not challenged by the probationer on either of those appeals.
. Where the legislature intended to authorize the court to act at its own instance with respect to a possible VOR it expressly so provided (see § 360.1 [3] [“If at any time during the period of probation the court has reasonable cause to believe that the respondent has violated a condition of the probation order, it may issue a search order”]).
. With regard to the last point, appellant in this case did enter an admission to the charge, which, we acknowledge, would have obviated the need for a hearing had the matter been prosecuted pursuant to a VOP petition.
. Jazmín A. notes that the points at which the Family Court Act authorizes detention are the pre-petition hearing (§ 307.4 [4] [c]), the initial post-petition appearance or an adjournment thereof (§§ 320.1, 320.4 [2]), the probable cause hearing (§ 325.3 [3]), and “after a VOP petition is filed” (§ 360.3 [2] [b]) (15 NY3d at 444).
. The presentment agency notes an additional, and independently fatal, procedural infirmity in the remand order—that it was issued before the order to show cause initiating the section 355.1 (1) motion was served on appellant.
. We note that our vacating the modification order and the remand order on this appeal does not affect the final disposition of the 2011 case (based on the same admission, rendered at the same time, and imposing the same sanction as the modification order), which appellant does not challenge on this appeal.
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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/5902591/
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An appeal having been taken to this Court by the above-named appellant from an order of the Supreme Court, New York County (Geoffrey D. Wright, J.), entered on or about August 4, 2011, and said appeal having been argued by counsel for the respective parties; and due deliberation having been had thereon, and upon the stipulation of the parties hereto dated January 11, 2013, it is unanimously ordered that said appeal be and the same is hereby withdrawn in accordance with the terms of the aforesaid stipulation. Concur—Mazzarelli, J.P. Renwick, Richter, Gische and Clark, JJ. [Prior Case History: 2011 NY Slip Op 32134(U).]
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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/6826232/
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ORDER
SMITH, Chief Judge.
This dispute involves a request by defendant to file its affidavits out of time under RUSCC 6(b)(2). The purpose of these affidavits is to supplement defendant’s response to plaintiffs’ cross-motion for partial summary judgment presently pending before the court. Plaintiffs have responded by opposing defendant’s motion contending that these supplemental affidavits were filed in bad faith and if accepted would be of prejudice to plaintiffs’ position. For the reasons set forth below, the court *376believes that defendant’s motion to file its supplemental affidavits out of time under RUSCC 6(b)(2) should be accepted. Therefore, these affidavits will be considered as part of defendant’s response to plaintiffs’ cross-motion for partial summary judgment.1
Undisputed Facts
Plaintiffs brought this action against the United States on April 14, 1983. In their complaint, plaintiffs alleged that the government had so regulated plaintiffs’ property that plaintiffs were entitled to just compensation under the Fifth Amendment.
In 1956, plaintiffs purchased a 250 acre tract of land. By the time this action was instituted, much of the land had been sold, and only 57.4 acres of the original tract remained in plaintiffs’ possession. Out of those 57.4 acres, only 6.4 of those acres were ever developed. The other fifty-one acres were comprised of wetlands, and their development has been side-tracked by state and federal action. The state effectively prevented plaintiffs from developing 38.5 acres of those wetlands when the state refused to issue its required fill permits. The Corps prevented the development of the other 12.5 acres of wetlands when the Corps refused to issue the fill permits, required by the federal government. It is the Corps’ refusal to issue a fill permit for 12.5 acres of plaintiffs’ wetlands which plaintiffs contend constitutes the taking requiring just compensation under the Fifth Amendment.
The period of discovery in this case lasted from March 8, 1985, until October 7 of that same year. In that period, each party formulated their own estimations of the property’s fair market values before and after the permit, was denied. From these investigations, both parties determined that they were in substantial agreement over the value of the 12.5 acres before the permit denial. This value was estimated at approximately $4 million.
Yet, both parties could not agree as to the value of those 12.5 acres after the permit denial. According to plaintiffs’ valuation, conducted by the Ard Appraisal Company (Ard), the value of the land after the denial amounted to $13,725.50. Defendant, on the other hand, while contesting that plaintiffs’ estimates were far too low, could not complete its own estimates of the property’s post-denial value within the discovery period. The only information which defendant could provide to plaintiffs was the names of defendant’s two expert appraisers that defendant intended to call at trial. One of these experts was from the Ragan Design Group and the other was from Todd and Black, Inc.
*377After the conclusion of discovery, both parties kept in contact with each other in order to resolve the problem caused by the delay in defendant’s experts. As a result of those discussions, three points of agreement emerged between the parties. First, defendant indicated to plaintiffs that defendant intended to file a motion for summary judgment. Defendant further indicated to plaintiffs that its summary judgment motion would not relate to the value of the land after the alleged taking and would not related to any other facts which would require the production of defendant’s experts. Lastly, defendant agreed to provide all of the information plaintiffs requested regarding defendant’s experts as soon as that information became available to defendant.
Defendant then filed its motion for summary judgment under RUSCC 56 on December 18,1985, and a corrected version of that motion on January 31, 1986. In its motion, defendant argued that plaintiffs failed to establish that a taking had occurred as a matter of law even if the court assumed that plaintiffs were correct in estimating the post-taking value of the 12.5 acres at $13,725.50. Attached to defendant’s motion for summary judgment was an appendix and its statement of uncontro-verted fact. Both of these attachments treated the $13,725.50 estimation by plaintiffs’ appraiser, Ard, as true for the purpose of defendant’s motion for summary judgment.
The main thrust of the argument raised in defendant’s motion was that the post denial value of the 12.5 acres was irrelevant in the determination of whether or not plaintiffs’ land had been taken under the Fifth Amendment because the court was required to view plaintiffs’ property as a whole. E.g., Penn Cent. Transp. Co. v. N.Y., 438 U.S. 104, 130-31, 98 S.Ct. 2646, 2662-63, 57 L.Ed.2d 631 (1978); Deltona Corp. v. United States, 228 Ct.Cl. 476, 489, 657 F.2d 1184, 1192 (1980) (quoting Penn Cent. Transp. Co. v. United States, 438 U.S. at 130-31, 98 S.Ct. at 2662-63), cert. denied, 455 U.S. 1017, 102 S.Ct. 1712, 72 L.Ed.2d 135 (1982). The whole alleged by defendant was the original 250 acres purchased by plaintiffs or at a bare minimum the 57.4 acres still held by plaintiffs at the time of the permit denial. Therefore, defendant concluded, that even if the permit denial reduced the effected 12.5 acres from a value of approximately $4 million to a value of only $13,725.50, the reduction was a mere diminution in value not compensa-ble by the Fifth Amendment when compared to the value of the 57.4 acre or the 250 acre whole.
Plaintiffs responded to defendant’s motion for summary judgment by opposing defendant’s motion and by filing a cross-motion for partial summary judgment. The purpose of plaintiffs’ cross-motion for partial summary judgment was to request that the court find that defendant’s actions had constituted a taking of plaintiffs’ property as a matter of law.2
Both plaintiffs’ response and cross-motion were filed as one combined brief. See generally RUSCC 83.2(e) (a party filing a cross-motion is required to file its argument in support of the cross-motion and in response to the other parties motion in the same brief). Attached to this brief was a statement of uncontroverted fact and an appendix. Plaintiffs’ statement of uncon-troverted fact alleged that the effected 12.5 acres of property had a value of only $13,-725.50 after the permit denial, and the appendix included Ard’s appraisal in support of that figure.
The central argument of plaintiffs’ brief concerned how plaintiffs’ property should be defined in determining whether or not a taking had occurred. Penn Cent. Transp., 438 U.S. at 130-31, 98 S.Ct. at 2662-63. Specifically, plaintiffs contended that the court should not compare the loss of value in the affected 12.5 acres to the value of the 250 acre tract or to the value of the remaining 57.4 acres as was argued by defendant. Instead, plaintiffs argued that *378only the 12.5 acres should be considered as the whole, and that this court should compare the value of the 12.5 acres before the permit denial to the value of those same 12.5 acres after the permit denial. Having made this comparison, plaintiffs concluded that a taking must have occurred as a matter of law because the 12.5 acres had dropped from a value of approximately $4 million to a value of only $13,725.50.
Defendant’s reply to its own motion for summary judgment and its opposition to plaintiffs’ cross-motion was also filed as one combined brief. See generally RUSGC 83.2(e). Defendant did not attach any appendices or affidavits but only a few responses contesting plaintiffs’ proposed findings of fact. None of defendant’s responses contested the validity of plaintiffs’ Ard appraisal which estimated the post taking value of the effected 12.5 acres at $13,725.50.
By the end of April, all of the supporting and opposing briefs required for defendant’s motion and for plaintiffs’ cross-motion had been submitted to the court. On May 19, the court allowed both parties to file supplemental briefs in order to determine what effect, if any, the Federal Circuit’s decision in Florida Rock Indus., Inc. v. United States had upon plaintiffs’ takings claim. 791 F.2d 893 (Fed.Cir.1986), cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987). Both parties filed these supplemental briefs in early June. Oral argument was then scheduled for July 2, 1986, on both defendant’s motion for summary judgment and plaintiffs’ cross-motion for partial summary judgment.
On June 27, five days before oral argument, defendant filed a motion for leave in order to supplement its response to plaintiffs’ cross-motion for summary judgment.3 The purpose of defendant’s motion was to supplement defendant’s response with the affidavits from the Ragan Design Group and from Todd and Black, Inc. Both of these appraisals maintained that the disputed-12.5 acres had a value of more than a half a million dollars after the permit denial. The appraisals were in direct contrast to plaintiffs’ appraisal which estimated the post permit denial value of the land at $13,725.50. This dispute was not initially raised in defendant’s response to plaintiffs’ cross-motion for partial summary judgment but was later raised a few days before oral argument when it filed a motion to supplement its response.
When oral argument was held, plaintiffs opposed defendant’s motion to supplement. It is this dispute over whether or not this court should allow defendant to supplement its response with the appraisals from the Ragan Design Group and from Todd and Black, Inc. which is the subject of this order.
DISCUSSION
Normally, when a motion or response to a motion is supported by affidavits, those affidavits must be filed with the corresponding motion or response. See RUSCC 56. Therefore, defendant’s affidavits from the Ragan Design Group and from Todd and Black, Inc. challenging plaintiffs’ estimation of the post denial value of the 12.5 acres alleged in plaintiffs’ cross-motion for partial summary judgment should have been attached to defendant’s response. That response was filed in late March.
Defendant failed to attach these affidavits to its response or to at least attach some notification of defendant’s intent to file the affidavits at some later date. Instead, defendant simply submitted these affidavits to the court for the first time in late June. Defendant concedes that the submission of these affidavits was untimely but requests the court’s leave to allow the filing of these affidavits out of time.
While it is within the court’s discretion to allow the submission of untimely affidavits, e.g., In re Buckingham Super Markets, Inc., 534 F.2d 976, 977 (D.C.Cir. 1976) (per curiam); Burton v. Peartree, 326 F.Supp. 755, 759 (E.D.Pa.1971), the court’s discretion to make such an allow-*379anee is not completely unfettered. The court can only allow late filings “where the failure to act was the result of excusable neglect....” and where counsel has filed a motion for enlargement “at the earliest practicable time.” RUSCC 6(b). See generally 4A C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1165 (2d ed. 1987).
Cause Resulting in Both Affidavits’ Delay
Defendant’s failure to submit these affidavits with its response to plaintiffs’ cross-motion for summary judgment did result from excusable neglect. Defendant’s lack of timeliness was not caused by the press of other business or some other significant matter within defendant’s control. RUSCC 6(b) (press of other matters or acts within a party’s control does not constitute excusable neglect); see also McLauglin v. City of Lagrange, 662 F.2d 1385, 1387 (11th Cir.1981) (per curiam) (fact that party was a solo practitioner and engaged with other cases does not constitute excusable neglect for party’s delay), cert. denied, 456 U.S. 979, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982); Mawhinney v. Heckler, 600 F.Supp. 783, 784 (D.Me.1985) (delay caused by backlog of cases does not constitute excusable neglect). Rather, defendant’s delay stemmed solely from its experts who had the task before them but who were slow in formulating their opinions. Bown v. Boles, 258 F.Supp. 111, 113 (N.D.W.Va.1966) (difficulties securing records requested constituted excusable neglect).
This is not to say that the failure to produce an affidavit should always be considered excusable where the fault lies with a party’s witnesses, experts or otherwise. Here, however, the court can excuse such a delay since defendant’s actions were not done in bad faith and since the introduction of defendant’s affidavits at this point in the proceedings will not be of any prejudice to plaintiffs. See, e.g., United States v. Miller Bros. Constr. Co., 505 F.2d 1031, 1035 (10th Cir.1974): Tatterson v. Koppers Co., 104 F.R.D. 19, 20 (W.D.Pa.1984).
The late filing of defendant’s affidavits was not part of some tactical decision or attempt to catch plaintiffs’ counsel off-guard. Defendant’s disagreement with plaintiffs over the value of the 12.5 acres after the permit denial was known to plaintiffs before both parties had filed their motions for summary judgment. Defendant did inform plaintiffs of defendant’s disagreement in its response to plaintiffs’ interrogatories. In that response, defendant also informed plaintiffs of defendant’s intent to utilize two experts at trial; and that one expert would be from the Ragan Design Group, and that the other would be from Todd and Black, Inc.
Yet, plaintiffs contend that defendant’s actions were in bad faith on two grounds. First, plaintiffs assert that defendant’s actions were in bad faith because defendant failed to seasonably supplement its response to plaintiffs’ interrogatories as required by RUSCC 26(e). Although it is clear that defendant was required to seasonably update any newly received information, this court fails to understand how defendant violated that duty. After all, defendant could hardly have supplemented its response with its affidavits before defendant itself had those affidavits. Plaintiffs’ second argument is that defendant’s affidavits were filed in bad faith because defendant was attempting to change its legal position in light of Florida Rock, which had just been issued one month before. This court, however, does not agree with plaintiffs’ analysis of Florida Rock and, therefore, finds this argument equally without merit.4
*380This court also fails to find any resulting prejudice to plaintiffs’ position if defendant’s affidavits are allowed. Although defendant’s affidavits were submitted only a few days before oral argument, the court has provided plaintiffs with an opportunity to offer their reply by admitting certain arguments and affidavits contained in plaintiffs’ response to defendant’s motion to allow its affidavits out of time. See supra note 1. Plaintiffs have only lost their ability to depose defendant’s experts, and that loss too can be mitigated. The court has merely to order the reopening of discovery for the purpose of deposing defendant’s experts should trial in this case be necessary.5
Cause Resulting in Motion for Enlargement’s Delay
As stated above, a party is not only required to show that its late filings resulted from excusable neglect in order to have those filings accepted out of time. That party must further show that it attempted to file its motion for enlargement at the earliest practicable time; or at least, show that the party’s delay in filing a motion for enlargement was also the result of excusable neglect. See Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir.1984); see also Margoles v. Johns, 587 F.2d 885, 888 (7th Cir. 1978) (“It would appear to ... [the court] when facing a procedural deadline because of factors supposedly beyond control counsel are unable to comply that counsel would always be well advised to file before the crucial date a motion for extension setting forth specifically the reasons for the request.”)
The need for defendant’s affidavits arose when its response to plaintiffs’ cross-motion for partial summary judgment was due. It was, at that time, when defendant should have become aware of the fact that a failure to contest plaintiffs’ valuation of the 12.5 acres after the permit denial could have resulted in partial summary judgment in plaintiffs’ favor. Thus, defendant did not file its motion for enlargement at the earliest practicable time, and defendant must show that this delay was the result of excusable neglect.
Defendant’s failure to respond was in part due to its reliance on prior conversations with plaintiff.6 During those conversations, both parties discussed their concern over the problems defendant was having in obtaining its appraisals. In order to prevent those delays from slowing the pace of litigation, defendant informed plaintiffs that it would file a motion for summary judgment which would not require the resolution of the post denial value of the disputed 12.5 acres.
When defendant filed its motion for summary judgment, plaintiffs did not respond as expected. This is because plaintiffs did not merely file a response to defendant’s motion for summary judgment but instead filed a cross-motion for partial summary judgment as well. The cross-motion had no resulting effect upon the legal arguments involved; indeed, those arguments remained exactly the same.
The cross-motion, however, did change the possible procedural outcome of the case. Had defendant’s arguments been rejected by the court and had plaintiffs simply filed a response, the case would have proceeded to trial on both the issues of liability and damages. Defendant was, therefore, able to assume plaintiffs’ appraisal of the 12.5 acres after the permit *381denial as true without compromising its case. Yet, once plaintiffs had filed a cross-motion for partial summary judgment, defendant no longer had the luxury of assuming plaintiffs’ post permit denial valuation. For if defendant’s arguments were then rejected, the issue of liability would have to be resolved in plaintiffs’ favor, and the case could have proceeded to trial only on the issue of damages.
It is clear that defendant failed, at first, to recognize the significance of the procedural effect of plaintiffs’ cross-motion, and that this failure was the central cause of defendant’s delay. Although such delays caused by inadvertence and oversight are normally not considered excusable, e.g., Graham v. Pennsylvania R.R., 342 F.2d 914, 915 (D.C.Cir.1964) (per curiam), cert. denied, 381 U.S. 904, 85 S.Ct. 1446, 14 L.Ed.2d 286 (1965); Jones v. Siegfried Constr. Co., 105 F.R.D. 491, 492 (W.D.N.Y. 1984), defendant’s error can be excused in view of the circumstances of this case. See Poe v. Cristina Copper Mines, 15 F.R.D. 85, 87 (D.Del.1953) (rule 6(b) motions for extensions of time should be granted or denied upon consideration of all the circumstances). This court can easily understand how defendant inadvertently overlooked the subtle effect of plaintiffs’ cross-motion for partial summary judgment which required defendant to file its opposing affidavits. Moreover, the court is especially sensitive to defendant’s oversight where it was compounded in part by the prior conversations defendant had with plaintiffs. Therefore, although defendant’s motion for enlargement of time could have been filed at an earlier date, this court finds that an excusal of defendant’s delay would secure a just determination in this case. See Johnson Chem. Condado Center, 453 F.2d 1044, 1047 (1st Cir.1972) (Rule 6(b) should be construed liberally in light of Rule 1); Anderson v. Stanco Sports Library, Inc., 52 F.R.D. 108, 110 (D.S.C.1971) (Rule 6(b) should be construed liberally in light of Rule 1). See generally RUSCC 1 (“These rules [of civil procedure] shall be construed to secure the just, speedy, and inexpensive determination of every action.”)
CONCLUSION
Having reviewed the reasons behind the untimely filing of defendant’s affidavits, this court finds that the delay resulted from excusable neglect. Accordingly, defendant’s motion to supplement its response out of time under RUSCC 6(b) shall be granted.
IT IS SO ORDERED.
No costs.
. Besides its arguments against the introduction of defendant’s affidavits, plaintiffs’ brief in opposition also contained several arguments and affidavits replying to the substance of defendant’s untimely submissions. These arguments should not have been included in that brief. Rather, plaintiffs should have attached these arguments and affidavits to a motion under RUSCC 6(b) to supplement their reply to their cross-motion for partial summary judgment since these arguments and affidavits should have been attached to plaintiffs’ reply. Nevertheless, these arguments and affidavits will be allowed because they were made in reply to the unanticipated introduction of defendant’s untimely filed affidavits. Cf. RUSCC 6(b) ("Where a motion for enlargement is based on the occurrence of some unanticipated event, counsel must file the motion promptly upon learning of the event.”)
Defendant's reply to its motion to file out of time under RUSCC 6(b) also contains several arguments and affidavits which do not relate to the motion for enlargement. These affidavits and arguments, instead, provide further substantive support to defendant’s untimely filed affidavits. These additional arguments and affidavits will, therefore, not be allowed because they, in effect, amount to a response to plaintiffs’ reply; and the rules of this court do not provide for the filing of such an item. In motions, the rules only allow the parties to file an initial brief in support, a brief in response, and a brief in reply. See RUSCC 83.1; Cf. United States v. IBM Corp., 66 F.R.D. 383, 384 (S.D.N.Y. 1975) (even reply briefs should not be used unless the reply addresses new issues raised in the respondent’s pleading in opposition or unless a request is specifically made by the court.) The rules do not allow for a brief in response to a reply, and the court finds no reason to change that rule since at some point briefing must come to an end. Further, no specific or satisfactory reason has been shown for allowing such a filing here.
. This order is being issued simultaneously with that opinion. See generally Loveladies Harbor, Inc. v. United States, 15 Cl.Ct. 381 (1988).
. Defendant’s motion was only for the purpose of supplementing its response to plaintiffs’ cross-motion for partial summary judgment. Defendant's motion did not include a request to supplement its own motion for summary judgment.
. In defendant’s initial briefs, one of defendant’s arguments was that the regulation was not so intrusive as to constitute a taking because the effected land was left in its natural state, and therefore, the land could still be used or sold for conservational and recreational purposes. It is this contention which plaintiffs allege defendant attempted to change in light of Florida Rock. Specifically, plaintiffs contend that this argument was undercut by the Federal Circuit’s decision, and that defendant’s late filings were submitted in order to mitigate that decision’s impact.
Yet, as stated above, this court disagrees with plaintiffs’ understanding of the Federal Circuit’s decision in Florida Rock on this point. The Federal Circuit’s decision did not undercut de*380fendant’s theory. In fact, it tended to support it. In that case, the Federal Circuit held that a governmental regulation may not constitute a taking even if that regulation left the land with no immediate use. The key question in that situation then would be whether or not the land had any speculative value. See generally Florida Rock Indus. Inc. v. United States, 791 F.2d 900-06. Thus, plaintiffs’ bad faith argument must be rejected in view of its faulty premise.
. Defendant has also informally agreed to provide its expert witnesses for deposition should the court deny both parties summary judgment motions forcing the case to go to trial. Since this court has decided to deny both motions, see generally supra n. 2, it will allow a request by plaintiff for further discovery on both witnesses should one be filed.
. This court does not mean to suggest that plaintiffs’ 'conduct was disingenuous or made in bad faith. The court merely recites the circumstances of the situation in order to show the reasons for defendant’s oversight.
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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/5902412/
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*33OPINION OF THE COURT
Friedman, J.
This appeal presents for resolution two questions left open by the Court of Appeals’ decision in Matter of Jazmín A. (15 NY3d 439, 443 n [2010]): “whether a properly made motion under Family Court Act § 355.1 to stay, modify or terminate an order of probation based on change of circumstances would provide an alternative means of initiating proceedings to revoke probation, and whether detention would be authorized pending resolution of such a motion” (internal quotation marks and brackets omitted). We answer both questions in the negative.
By a final order of disposition entered April 7, 2011 (the 2010 case), Family Court, Bronx County, adjudicated appellant Rayshawn E a juvenile delinquent, placed him on probation for 18 months, and ordered him to perform 50 hours of community service. The adjudication was based on appellant’s admission that, on October 27, 2010, he had committed an act that, if committed by an adult, would constitute grand larceny in the fourth degree.1 Thereafter, on June 29, 2011, appellant was arrested for resisting arrest after he was apprehended for allegedly punching someone in the face.
On June 30, 2011, upon the application of the detention center holding appellant based on his arrest the previous day, Family Court conducted a pre-petition hearing pursuant to Family Court Act § 307.4.2 The police witness, Officer Jarmarie Flowers, testified that she placed appellant under arrest after he was brought to the precinct station. Officer Flowers stated that she arrested appellant based on information provided to her by her lieutenant, who told Flowers that he had seen appellant “engaging in an assault,” and that as he tried to arrest him, appellant had “started to kick, punch, and throw in the direction of the officers.” Officer Flowers acknowledged that she had no personal knowledge of the events on which the arrest was based.
At the conclusion of the hearing, the court determined that it had jurisdiction over the matter arising from the June 29 arrest. However, the court did not grant the pre-petition detention *34application before it, which, under Family Court Act § 307.4 (7), would have entitled appellant to the filing of a petition and a probable-cause hearing within four days. Instead, the court, at its own instance, and over the objection of appellant’s counsel, reactivated appellant’s 2010 case (for which, as noted, he was already on probation) and stated that it was “remanding the respondent!,] open remand!,] pending modification of that disposition.” The court then dismissed the pre-petition application, without prejudice to the filing of a petition, and adjourned the matter to July 18, 2011.
*33“If a child in custody is brought before a judge of the family court before a petition is filed upon a written application pursuant to subdivision four of section 307.3, the judge shall hold a hearing for the purpose of making a preliminary determination of whether the court appears to have jurisdiction over the child.”
*34The case file contains two written orders of the Family Court bearing the date of June 30, 2011, both under the docket number of the 2010 case, which, as noted, had already been finally adjudicated. One is an order to show cause, which, “[u]pon the Court’s own motion pursuant to Family Court Act § 355.1 (1),” directed appellant to show cause, at a hearing to be held on July 18, 2011,
“(1) why the Court should not make a determination that there has been a substantial change of circumstances since the entry of the order of disposition, in that respondent’s arrest for the commission of one or more acts of juvenile delinquency on 6/30/11, constitutes a violation of the order which placed him under probation supervision in this case; (2) why the Court should not enter an order in accordance with Family Court Act § 355.1 (1) (b) vacating, modifying or terminating the order of disposition based upon such substantial change of circumstances; and (3) why the Court should not enter such interim orders as may be necessary to protect the best interests of the respondent and the safety of the community.”3
The other Family Court order dated June 30, 2011 that is found in the case file is denominated an “Order Directing Detention” (the remand order). Although, as of June 30, 2011, no new delinquency petition (Family Ct Act § 311.1) or petition alleging a violation of probation (Family Ct Act § 360.2) had been filed based on the incident of June 29, the remand order recites that a petition under section 311.1, “including a charge of Violation of Probation,” had been filed. The remand order goes on to state that Family Court had determined that the *35“[d]etention of the [r]espondent is necessary” under the criteria of Family Court Act § 320.5, which addresses an initial appearance after the filing of a petition. Based on findings that “[Respondent did not comply with terms of probation and was arrested” and that he was “likely to commit further acts of delinquency,” the order remanded him to the Administration for Children’s Services “for open detention, to be detained pending further proceedings herein on July 18, 2011.”
On July 1, 2011, the presentment agency filed a new petition, under a new docket number (the 2011 case), based on appellant’s arrest of June 29. On the same day, the presentment agency and counsel for appellant (furnished by the Legal Aid Society) appeared before Family Court; appellant himself was not produced in court that day. The petition in the 2011 case alleged that appellant committed acts that, if committed by an adult, would constitute the crimes of second-degree obstruction of governmental administration, resisting arrest and attempted third-degree assault. In the attached supporting deposition, a police lieutenant stated that, on June 29, he attempted to arrest appellant after observing him run after another person and punch him in the face. When the lieutenant attempted to arrest appellant, the latter began kicking his legs and flailing his arms, and sought to avoid being handcuffed.
Because appellant was not present in court at the July 1 hearing, the presentment agency asked to adjourn the matter to July 5, 2011, for arraignment on the petition in the 2011 case. The presentment agency noted that it was the agency’s “understanding” that, on June 30, 2011, the court had “remanded the respondent on [the court’s] own motion based on Family Court Act [§ ] 355.1 and that the Court filed an Order to Show Cause which was served on the Legal Aid Society this morning.” Family Court confirmed that it had invoked section 355.1 the day before and added that “the parties have been provided with the Order to Show Cause,” which “left out the adjourned date, which is July 18th.” The court then stated that “the pre-petition hearing [on the 2011 case] was heard yesterday and the Court made findings and reopened the disposition [of the 2010 case] based on the testimony of the pre-petition hearing.”
Appellant’s counsel objected that, under Family Court Act § 307.4, the purpose of the June 30, 2011 pre-petition hearing was only to determine whether the court had jurisdiction, and did not provide a basis for remanding appellant to detention or *36revoking his probation. Counsel also maintained that no order to show cause had been served on the Legal Aid Society.4 Counsel argued that the court had unlawfully remanded Rayshawn to detention because no petition alleging a violation of probation (VOP) (see Family Ct Act § 360.2 [1]) had been filed, and that, under Matter of Jazmin A. (15 NY3d 439 [2010]), the court did not have authority to remand a juvenile to detention during the period of probation in the absence of a pending VOP petition. Counsel further asserted that the court could not use section 355.1 to revoke probation, and that, in any event, the court had not complied with that section’s procedural requirements. The judge responded, “I did not revoke probation. I remanded your client pending a determination as to whether or not probation was to be revoked, that is, pursuant to the statute [(§ 355.1)].” The court added that the order to show cause was “to get the parties into court to be heard,” and that the parties had an opportunity to be heard at the pre-petition hearing.
Appellant’s counsel replied that a pre-petition hearing could not serve as the basis for adjudicating a VOP and that the June 30 pre-petition hearing was based on hearsay without any eyewitnesses (see Family Ct Act § 360.2 [2] [“Non-hearsay allegations of the factual part of the (VOP) petition or of any supporting depositions must establish, if true, every violation charged”]). The court noted that the Department of Probation could have filed a VOP petition, which would have provided a basis on which to remand appellant to detention. When counsel again objected that, in fact, no VOP petition had been filed, the court stated that it nonetheless had “found a violation because there was a change in circumstances.” Counsel reiterated that no VOP petition had been filed and that the remand order was therefore improper under Jazmin A.
On July 5, 2011, appellant was arraigned on the petition in the 2011 case, and the agency asked that he be remanded under that docket. The Family Court judge who had presided over the prior proceedings (Alpert, J.) was on vacation, and the judge *37presiding in his absence (Gribetz, J.) declined to remand on the 2011 case because Judge Alpert had not done so. Appellant remained in detention, however, based on the June 30 remand order issued in the 2010 case, until the next day, July 6, when a justice of this Court granted his motion for an interim stay of that order.5 On July 8, Judge Gribetz again denied the presentment agency’s application to remand appellant on the 2011 petition. Because the court did “not want[ ] to interfere with Judge Alpert,” it instead ordered that appellant be placed under “house arrest.”
On July 18, 2011, after Judge Alpert’s return, the presentment agency asked the court to remand appellant on the 2011 case. The court granted the application, due to negative reports from the program that appellant had been ordered to attend. Both the 2010 case and the 2011 case were adjourned one day for fact-finding.
On July 19, 2011, appellant entered an admission to having engaged in acts on June 29, 2011, that, if committed by an adult, would constitute the crime of obstructing governmental administration in the second degree. The presentment agency asked the court to waive its motion under section 355.1, in the expectation that the Department of Probation would file a VOP petition. The court withdrew its motion “without prejudice,” declaring that any issues thereunder were “moot.”
On September 27, 2011, Family Court conducted a hearing to dispose of the 2011 case and to determine the section 355.1 (1) motion to modify the April 2011 disposition of the 2010 case, both on the basis of appellant’s admission at the hearing of July 19.6 With respect to the section 355.1 (1) motion, the hearing resulted in an order, dated September 27, 2011 (the modification order), providing in pertinent part as follows: “PURSUANT TO FCA 355.1, IT IS ORDERED that the disposition dated April 7, 2011 is modified and Respondent Rayshawn [P] is ordered to a term of 24 Months Enhanced Supervision Probation, with 50 Hours Community Service . . . Term of probation is to expire on September 26, 2013.”7
*38Discussion
Appellant now appeals from the remand order of June 30, 2011, and from the modification order of September 27, 2011. In essence, appellant argues (1) that a motion to modify a final disposition under Family Court Act § 355.1 (1) is not available to the court as an alternative to the procedures prescribed by sections 360.1, 360.2 and 360.3 for prosecuting a VOP and (2) that sections 355.1 and 355.2 (the latter of which sets forth the procedures for a motion under section 355.1) do not, in any event, authorize the court to detain a juvenile pending the determination of a motion under section 355.1. The presentment agency agrees that each of these orders should be reversed and vacated but argues that, because procedural errors require reversal in any event, we need not reach the question of the propriety of using a section 355.1 (1) motion to address a VOP We will discuss first the modification order and then the remand order.
The September 27, 2011 Modification Order
When appellant’s arrest of June 29, 2011 was brought to Family Court’s attention at the pre-petition hearing held on June 30, the court responded by initiating a motion, pursuant to Family Court Act § 355.1 (1), to modify the dispositional order of April 7, 2011, which had imposed 18 months of probation on appellant in the 2010 case. Ultimately, the court resolved its section 355.1 (1) motion by issuing the modification order of September 27, 2011, which modified the April 7 dispositional order in the 2010 case by imposing 24 months of enhanced supervision probation, to commence upon the date of the modification order. The modification order has the effect of extending appellant’s term of probation by nearly a year (moving the end date from October 2012 to September 2013) and enhancing the level of supervision to which he is subject. In addressing the June 29 arrest by way of a motion under section 355.1 (1), which authorizes the modification of a dispositional order “[u]pon a showing of a substantial change of circumstances,” Family Court assumed that an act constituting a VOE may be considered “a substantial change of circumstances” under section 355.1 (1) and therefore may be dealt with under section 355.1 (1) as an alternative to the procedures prescribed for prosecuting a VOE by Family Court Act §§ 360.1, 360.2 and *39360.3.8 Appellant contends that this assumption was erroneous, and we agree.
At the outset, the presentment agency argues that we need not consider whether Family Court may use a section 355.1 (1) motion to address an apparent VOF] because, in this particular case, the presentment agency concedes that the modification order must be vacated for procedural infirmity even if the court had authority to move to modify the dispositional order under section 355.1 (1). In this regard, the presentment agency points out, among other things, that Family Court issued the modification order after it had expressly withdrawn its section 355.1 (1) motion on the record at the July 19 hearing, after appellant admitted to second-degree obstruction of governmental administration. Thus, when the court entered the modification order on September 27, no motion to modify the preexisting dispositional order was pending. Besides its having been entered on a motion that had already been withdrawn, the modification order appears to be tainted by still other procedural and substantive errors.9
“Upon a showing of a substantial change of circumstances, the court may on its own motion or on motion of the respondent or his parent or person responsible for his care: “(a) grant a new fact-finding or dispositional hearing; or “(b) stay execution of, set aside, modify, terminate or vacate any order issued in the course of a proceeding under this article.”
*40While it appears that we could, as urged by the presentment agency, vacate the modification order based on Family Court’s failures to comply with the requirements of sections 355.1 and 355.2, without addressing whether the court-initiated section 355.1 (1) motion was proper to begin with, we decline to do so. The parties are in agreement that it is not unusual for Family Court to use section 355.1 (1) motions, rather than the procedures prescribed by section 360.1 et seq., to address VOPs (see Matter of Shatique B., 70 AD3d 1036 [2d Dept 2010]; Matter of Lorenzo A., 59 AD3d 441 [2d Dept 2009]).10 Given that the question of the propriety of this practice is squarely presented by this appeal—and, in this regard, the procedural and substantive requirements of sections 355.1 and 355.2 become relevant only if the section 355.1 (1) motion was authorized in the first place—we choose to address the more fundamental question.
Turning to the question of Family Court’s authority to proceed under section 355.1 (1) to address an apparent VOR we observe that, as appellant correctly points out, the legislature has enacted a detailed statutory scheme setting forth procedures specifically intended to address VOPs. As previously noted, this statutory scheme is set out at sections 360.1, 360.2 and 360.3 of the Family Court Act. Nowhere in these provisions is the court authorized to initiate, sua sponte, proceedings to modify a dispositional order. Rather, section 360.2 (1) authorizes the probation service—not the court—to “file a petition of violation” if the service “has reasonable cause to believe that the respondent has violated a condition” of the probation order.* 11 Further, sections 360.2 and 360.3 set forth specific procedural requirements that must be observed in adjudicating an alleged VOP In particular, under section 360.2 (2), a VOP proceeding must be commenced by the filing of a verified , petition (1) that “stipulate^] the condition or conditions of the order violated and a reasonable description of the time, place and manner in which the violation occurred” and (2) that is supported by “[n]on-hearsay allegations . . . establishing], if true, every *41violation charged” (emphasis added). In addition, unless the respondent enters an admission to the charge in accordance with Family Court Act § 321.2, he or she is entitled to a prompt hearing on the alleged VOP (§ 360.3 [1], [2]), at which only “competent” evidence may be admitted (§ 360.3 [3]). By contrast, on a motion under section 355.1, the respondent is entitled to a hearing only “to resolve any material question of fact” (§ 355.2 [3]), which effectively shifts to the respondent the burden of establishing that a material question of fact exists.12
By proceeding against appellant by way of a motion to modify the dispositional order based on “a substantial change of circumstances” under section 355.1 (1), Family Court effectively circumvented certain procedural requirements of the legislature’s statutory scheme for prosecutions of VOPs at section 360.1 et seq. In particular, unlike a VOP petition under section 360.2 (2), a section 355.1 (1) motion may be—and the motion in this case in fact was—based on hearsay (see § 355.2 [1]). In addition, while a VOP petition “must stipulate the condition or conditions of the order violated and a reasonable description of the time, place and manner in which the violation occurred” (§ 360.2 [2]), the order to show cause by which the court purported to initiate its section 355.1 (1) motion: (1) failed to specify which condition of the dispositional order appellant was alleged to have violated; (2) gave no description of the place and manner in which the VOP occurred (other than noting that appellant had been arrested “for allegedly committing an act, which if committed by an adult, would constitute a crime”); and (3) inaccurately (and repeatedly) described the time of appellant’s arrest as “6/30/11” (in fact, the date of the arrest was June 29, 2011). Finally, by itself initiating the section 355.1 (1) motion, Family Court circumvented the legislature’s delegation to the probation service of the responsibility to determine whether to prosecute an act as a VOP (see § 360.2 [1]).
Family Court’s decision to proceed against appellant under section 355.1 (1) for what was essentially an alleged VOP, thereby avoiding the requirements of the statutory scheme for prosecutions of VOPs, was contrary to basic principles of statutory construction. “[W]here the Legislature enacts a specific provision directed at a particular class, and a more general provision in the same statute which might appear to encompass *42that class, the specific provision will be applied” (New York State Crime Victims Bd. v T.J.M. Prods., 265 AD2d 38, 46 [1st Dept 2000] [internal quotation marks omitted]; see also McKinney’s Cons Laws of NY, Book 1, Statutes § 238). Section 355.1 (1) is a general provision recognizing Family Court’s power to vacate or modify its own orders, analogous to CPLR 5015 and CPL article 440 (see Merril Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 355.1). Section 360.1 et seq., by contrast, specifically address the modification or revocation of probation based on an alleged violation thereof. We agree with appellant that, because the legislature has created a detailed scheme specifically dealing with VOPs, those provisions, not section 355.1 (1), must be applied. It would be illogical for the legislature to have enacted requirements specifically applicable to the prosecution of a VOP only to permit a court to circumvent those requirements by addressing alleged conduct constituting a VOP by moving under section 355.1 (1), the more general provision permitting the court to revoke or modify its orders based on “a showing of a substantial change of circumstances.” Thus, we reject the presentment agency’s position that a motion under section 355.1 (1) and a VOP petition pursuant to section 360.2 should be viewed as “overlapping mechanisms” for addressing conduct constituting a violation of probation.
In sum, Family Court was not authorized to initiate a motion under section 355.1 (1) to modify a prior dispositional order based on alleged conduct by appellant that, if proved, would constitute a VOP. The modification order, because it was rendered pursuant to such an unauthorized motion, must be vacated as invalid.
The June 30, 2011 Remand Order
The remand order of June 30, 2011, pursuant to which appellant was placed in detention pending determination of Family Court’s section 355.1 (1) motion, is now moot, since appellant’s detention pursuant to that order has ended. Both parties agree, however, that we may rule upon the validity of the remand order because it comes within the exception to the mootness doctrine for orders presenting novel and substantial issues that are likely to recur but to evade appellate review (see Mental Hygiene Legal Servs. v Ford, 92 NY2d 500, 505-506 [1998]).
In reviewing the modification order, we have already determined that Family Court was without authority to address appellant’s alleged VOP by initiating a section 355.1 (1) motion *43to modify the preexisting dispositional order. Because the remand order was issued as an adjunct to the section 355.1 (1) motion, and the section 355.1 (1) motion was itself unauthorized, the remand order would be invalid even if section 355.1 or section 355.2 (which sets forth the procedures to be followed on a section 355.1 motion) provided authority for an order detaining a juvenile pending the determination of a section
355.1 motion. But, as the presentment agency concedes, even if Family Court did have the authority to initiate the section 355.1 (1) motion (as the presentment agency maintains the court did), the remand order would still be unauthorized because nothing in section 355.1 or section 355.2 authorized the court to remand appellant to custody pending determination of a motion under section 355.1.
In Matter of Jazmin A. (15 NY3d 439 [2010]), the Court of Appeals held that a juvenile may be remanded to detention only at “specific junctures in a delinquency proceeding” spelled out in the Family Court Act (id. at 444).13 Thus, in Jazmin A., Family Court was held to lack authority to order the detention of the respondent probationer when she appeared in court for a monitoring hearing, before any VOP petition had been filed. As the Court of Appeals explained: “Because the Legislature did not . . . empower Family Court to order detention of a juvenile probationer before the filing of a VOP petition, we are unwilling to imply such authority in the absence of a statutory peg” (id.). The Court of Appeals further noted that Family Court’s “continuing jurisdiction [over a juvenile probationer] does not vest [the court] with the power to take actions not authorized by article 3 [of the Family Court Act]” (id.).
Although the question of “whether detention would be authorized pending resolution of [a section 355.1] motion” (Matter of Jazmin A., 62 AD3d 526, 527 [1st Dept 2009], affd 15 NY3d 439 [2010]) was not presented in Jazmín A., the implication of the decision for that question is clear. Given that neither section 355.1 nor section 355.2 offers any “statutory peg” on which to hang authority for remanding appellant to detention, the remand order in this case was invalid, even if Family Court’s section 355.1 motion were itself authorized (which, as we have *44held, it was not).14 Accordingly, the remand order must be vacated.15
Accordingly, the order of Family Court, Bronx County (Allen Alpert, J.), entered on or about June 30, 2011, which remanded appellant to detention in the custody of the Administration for Children’s Services of the City of New York, and the order, same court and Judge, entered on or about September 27, 2011, which modified an order of disposition dated April 7, 2011, to the extent of imposing upon appellant a term of 24 months of enhanced supervision probation, with the term of such probation set to expire on September 26, 2013, should be reversed, on the law, without costs, and the orders vacated.
Tom, J.P, Acosta and Freedman, JJ., concur.
Order, Family Court, Bronx County, entered on or about June 30, 2011, and order, same court, entered on or about September 27, 2011, reversed, on the law, without costs, and the orders vacated.
. At all relevant times, appellant was under the age of 16.
. Family Court Act § 307.4 (1) provides:
. From subsequent colloquy in the record, it appears that the July 18 return date was inserted after the order to show cause was initially signed.
. On appeal, it is undisputed that the June 30 order to show cause was never served either upon appellant’s counsel personally or upon the offices of the Legal Aid Society before Family Court issued the remand order. Appellant’s appellate counsel represents, without contradiction, that appellant’s counsel in the Family Court discovered the order to show cause on July 1, 2011, in the Family Court’s file for this case, which she had reviewed to obtain a copy of the remand order for the purpose of moving for a stay in this Court. The presentment agency apparently takes the position that counsel’s discovery of the order to show cause in the court file constituted service.
. By order entered October 4, 2011, this Court granted appellant leave to appeal from the remand order but denied the motion for a stay as moot.
. The court addressed the section 355.1 (1) motion at the September 27 hearing notwithstanding its announcement at the July 19 hearing that the section 355.1 (1) motion was being withdrawn.
. The disposition of the 2011 case is not at issue on this appeal.
. Subdivision (1) of Family Court Act § 355.1 (captioned “New hearing; staying, modifying or terminating an order”) provides:
. The modification order’s additional procedural infirmities appear to include: (1) Family Court’s failure to cause the order to show cause to be served on appellant or his counsel in accordance with the CPLR, as required by Family Court Act § 355.2 (2); (2) the court’s failure to afford appellant an opportunity for “oral argument and ... a hearing to resolve any material question of fact” (§ 355.2 [3]), it being conceded by the presentment agency that this hearing requirement was not satisfied by the “cursory pre-petition detention application” on the 2011 case (cf. Matter of Benjamin L., 283 AD2d 646, 647 [2d Dept 2001], lv denied 97 NY2d 603 [2001] [reversing modified dispositional order where VOP petition was converted to petition to modify prior disposition pursuant to section 355.1 “without proper notice and opportunity to be heard”]); and (3) the court’s failure to comply with the directive of section 355.2 (4) to “set forth on the record its findings of fact, its conclusions of law and the reasons for its determination” of the section 355.1 motion (which requires “a showing of a substantial change of circumstances”). Moreover, as the presentment agency also concedes, the modification order, by imposing a term of probation extending beyond the term imposed by the original dispositional order, violates the directive of section 355.1 (3) that, if a new dispositional order is issued pursuant to that statute, “the date such order expires shall not be later than the expiration date of the original order.”
. Although it appears that, in each of Shatique B. and Lorenzo A., Family Court addressed conduct violating probation by way of a motion under section 355.1, this manner of proceeding was not challenged by the probationer on either of those appeals.
. Where the legislature intended to authorize the court to act at its own instance with respect to a possible VOR it expressly so provided (see § 360.1 [3] [“If at any time during the period of probation the court has reasonable cause to believe that the respondent has violated a condition of the probation order, it may issue a search order”]).
. With regard to the last point, appellant in this case did enter an admission to the charge, which, we acknowledge, would have obviated the need for a hearing had the matter been prosecuted pursuant to a VOP petition.
. Jazmín A. notes that the points at which the Family Court Act authorizes detention are the pre-petition hearing (§ 307.4 [4] [c]), the initial post-petition appearance or an adjournment thereof (§§ 320.1, 320.4 [2]), the probable cause hearing (§ 325.3 [3]), and “after a VOP petition is filed” (§ 360.3 [2] [b]) (15 NY3d at 444).
. The presentment agency notes an additional, and independently fatal, procedural infirmity in the remand order—that it was issued before the order to show cause initiating the section 355.1 (1) motion was served on appellant.
. We note that our vacating the modification order and the remand order on this appeal does not affect the final disposition of the 2011 case (based on the same admission, rendered at the same time, and imposing the same sanction as the modification order), which appellant does not challenge on this appeal.
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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/5902414/
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OPINION OF THE COURT
Skelos, J.
Elisaul Perez, a defendant in a criminal action being prosecuted by the petitioner, Richard A. Brown, the District Attorney of Queens County (hereinafter the District Attorney), was interviewed, prior to his arraignment, by an assistant district attorney (hereinafter ADA), and gave a videotaped statement. The interview was conducted pursuant to a program instituted by the District Attorney’s office, under which arrested individuals are brought before an ADA just before arraignment, read a *47series of statements followed by Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]), and questioned (hereinafter the Program). Perez moved to suppress his statement, and the respondent Joel L. Blumenfeld, an Acting Justice of the Supreme Court, Queens County, denied the motion, finding that he could not conclude that Perez’s statement was involuntary. Nonetheless, Justice Blumenfeld precluded the People from introducing Perez’s statement at trial on the ground that the District Attorney’s program violated attorney-ethics rules. In this proceeding pursuant to CPLR article 78 in the nature of prohibition, the District Attorney seeks to have this Court prohibit Justice Blumenfeld from enforcing that order. We hold that, under the circumstances of this case, Justice Blumenfeld exceeded his authorized powers in precluding the People from introducing Perez’s statement at trial, such that the remedy of prohibition lies to prevent him from enforcing the order, and that the exercise of this Court’s discretion to grant that remedy is warranted.
In 2007, the District Attorney instituted a program pursuant to which ADAs and detective investigators from the District Attorney’s office interview arrestees who are detained at the Queens County Central Booking facility, awaiting arraignment on felony charges (see Matter of Brown v Blumenfeld, 89 AD3d 94, 97 [2011]). As formal criminal proceedings have not been commenced against these arrestees, who are not represented by counsel and have not requested the assistance of counsel, their indelible rights to counsel have not attached at the time of the interviews (see People v Grice, 100 NY2d 318, 320-321 [2003]; People v Rivers, 56 NY2d 476, 479 [1982]; People v Grimaldi, 52 NY2d 611, 616 [1981]).
Under the Program, arrestees are brought to an interview room where an ADA reads, or permits a detective investigator to read, a preprinted “Interview Form” (hereinafter the Form) (see Matter of Brown v Blumenfeld, 89 AD3d at 97). The Form contains a series of statements that precede the reading of Miranda warnings. (The remarks preceding the Miranda warnings will be referred to herein, consistent with Justice Blumenfeld’s terminology, as the preamble.) Once the Miranda warnings are read, the arrestees are asked whether they are willing to speak with the ADAs and detective investigators, who then proceed to question the individuals upon receiving affirmative responses.
On March 14, 2009, an interview pursuant to the Program was conducted with Elisaul Perez, who later became a defendant in a criminal proceeding entitled People v Perez. The *48proceeding stemmed from an incident, occurring on March 13, 2009, in which two men allegedly beat another man (hereinafter the complainant) on a street in Queens. Allegedly, the perpetrators also took the complainant’s iPod. Approximately 10 minutes later, at about 12:30 a.m., Perez, who allegedly matched the complainant’s description of one of the perpetrators, was stopped by police officers three or four blocks away from the scene of the incident. Perez allegedly had blood on his sneakers. The officers frisked Perez for weapons, and recovered two iPods, one of which had blood on it. When the complainant identified one of the iPods as his, Perez was arrested and later transported to the Queens County Central Booking facility.
At 2:35 p.m., Perez was brought to an interview room, pursuant to the Program’s procedures. ADA Angela Garg, ADA Louisa DeRose, Detective Investigator Mary Picone, and a Spanish interpreter were present in the interview room. Pursuant to the Program’s protocols, Perez was advised of the charges that would be filed against him when he appeared in court that day, and the date, time, and place of the incident underlying the charges. The preamble was then read to Perez (in Spanish) as follows:
“In a few moments I’m going to read you your rights. After that, you will be given an opportunity to explain what happened at that date, time and place.
“If you have an alibi, give us as much information as you can, including the names of any people you were with.
“If your version of the events of that day is different from what we have heard, this is your opportunity to tell us your story.
“If there is something you would like us to investigate concerning this incident, you must tell us now so we can look into it.
“Even if you have already spoken to someone else, you do not have to talk to me.
“This will be the only opportunity you will have to talk to me prior to your arraignment on these charges.”
Perez was told that the entire interview was being recorded on video, was advised of his right to be arraigned without delay, *49and was read Miranda warnings. He indicated that he understood each warning, and then agreed to talk to the AD As and the detective investigator. Perez was then questioned about the incident and gave statements concerning his version of the events.
According to Perez, he and the complainant had both attended Newtown High School, and had both been involved in a romantic relationship with the same female student. Perez maintained that on June 6, 2008, he and the complainant had a physical altercation over the female student, during which the complainant had beaten him so badly that he required treatment at Elmhurst Hospital.
On the day of the subject incident, Perez explained, he happened to see the complainant on the street and they got into an argument. Perez asserted that, during the argument, the complainant picked up, or attempted to pick up, a stone with which to hit Perez, and thus, Perez explained, he punched the complainant in the face two or three times, causing the complainant’s nose to bleed. Perez recalled that the complainant then ran away. According to Perez, he noticed that the complainant had dropped his iPod, and he picked it up.
Perez was subsequently charged in an indictment with, among other crimes, two counts of robbery in the second degree. Perez thereafter moved, inter alia, to suppress the videotaped statement he had given during the interview conducted pursuant to the Program. He argued that he had not properly been advised of his Miranda rights, that he did not knowingly and intelligently waive those rights, and that the statements were “illegally obtained.”
Justice Blumenfeld held a hearing pursuant to People v Huntley (15 NY2d 72 [1965]) with respect to Perez’s suppression motion. At the hearing, the DVD containing Perez’s recorded statement was admitted into evidence and played for Justice Blumenfeld. Justice Blumenfeld also heard testimony from, among others, ADA Garg. During that testimony, Justice Blumenfeld pointed out that, before Perez gave his version of the incident to the ADAs and detective investigators, he had essentially been told, “if there’s anything that you want to tell us, you must tell us now and we’ll investigate it.” Justice Blumenfeld then asked Garg whether there had been “any attempt to verify” Perez’s version of the incident. Garg replied that she did not know, as it would be up to the “assigned [ADA]” to do that investigation.
*50Following the hearing, Justice Blumenfeld informed the People and Perez’s counsel that he would be contacting a professor of legal ethics to explore the issue of the propriety of the Program, which Justice Blumenfeld noted had originally been raised by Judicial Hearing Officer Thomas A. Demakos in a different case. Justice Blumenfeld questioned whether any ethical rules were violated during the course of the interview conducted pursuant to the Program, particularly as to the reading of the preamble. Ultimately, Justice Blumenfeld received a report from Professor Ellen Yaroshefsky, in which she opined that “the conduct in the interview” violated certain of the Rules of Professional Conduct (see 22 NYCRR 1200.0).
After giving the parties an opportunity to respond to the report, Justice Blumenfeld rendered an oral decision, as well as a written “interim” order dated August 12, 2010. Justice Blumenfeld expressed concern about the ethical implications to the “[District Attorney’s] office,” of making a promise, during an interview pursuant to the Program, to investigate a defendant’s version of an incident, and then failing to do so. In this regard, Justice Blumenfeld indicated that such conduct might violate rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0), which prohibits a lawyer from “engaging] in conduct involving dishonesty, fraud, deceit or misrepresentation” (see former Code of Professional Responsibility DR 1-102 [a] [4] [22 NYCRR 1200.3 (a) (4)] [same]). Justice Blumenfeld further determined that, contrary to the People’s contention, it was appropriate to address ethical violations in the context of a motion to suppress a statement that was allegedly made involuntarily.
In support of this determination, Justice Blumenfeld cited CPL 60.45. That statute provides that a defendant’s statement is “involuntarily made” when that statement “is obtained from” the defendant
“[b]y any person by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant’s physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement” (CPL 60.45 [2] [a]).
Thus, Justice Blumenfeld concluded, a suppression court could consider any “improper conduct,” including violations of ethical rules, when determining, pursuant to CPL 60.45 (2), whether a defendant’s statement was involuntarily made. Although Justice *51Blumenfeld decided certain branches of Perez’s omnibus motion which were to suppress certain evidence,1 he concluded that further proceedings were necessary before he could decide that branch of the motion which was to suppress Perez’s videotaped statement.
On September 30, 2010, following the issuance of the interim order, the District Attorney commenced, in this Court, a proceeding pursuant to CPLR article 78 in the nature of prohibition against Justice Blumenfeld (hereinafter Brown I) (see CPLR 506 [b] [1]). The District Attorney sought to have Justice Blumenfeld prohibited from, among other things, ruling upon whether the ADAs who conducted Perez’s interview pursuant to the Program violated attorney-ethics rules (see Matter of Brown v Blumenfeld, 89 AD3d at 101).
This Court denied the petition and dismissed the proceeding in Brown I, reasoning, in pertinent part, as follows:
“Although the Court of Appeals has declined to detail the several categories of excesses of jurisdiction and power arising in criminal actions that merit the abrupt intervention of prohibition, that Court has observed that those categories always invoke . . . unlawful use or abuse of the entire action or proceeding, and implicate the legality of the entire proceeding. This situation is to be distinguished from an unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action or proceeding.
“Furthermore, prohibition is never available merely to correct or prevent a mistake, error in procedure, or error in substantive law, even when such errors may be grievous or egregious . . .
“If Justice Blumenfeld considers and makes a finding with respect to whether the ADAs conducting the interview of Perez violated ethical rules, [Justice Blumenfeld] would be doing so in determining a motion he is authorized to entertain, namely, a motion to suppress a statement on the ground that it was
*52involuntarily made. Under CPL 60.45, a statement is involuntarily made if, among other things, it is obtained ‘[b]y any person ... by means of . . . improper conduct . . . which impaired the defendant’s physical or mental condition to the extent of undermining his [or her] ability to make a choice whether or not to make a statement’ (CPL 60.45 [2]
[a]). We construe the petition before us as a request that we prohibit Justice Blumenfeld from considering and making a finding as to part of the definition of ‘involuntarily made.’ Thus, if the District Attorney is correct that the ADAs’ purported ethical violations have no bearing on whether their conduct was ‘improper conduct’ within the meaning of CPL 60.45, then Justice Blumenfeld may be committing legal error. That legal error, however, would not be the kind of error that implicates an unlawful use or abuse of the entire action or proceeding as distinguished from an unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action or proceeding.
“Consequently, prohibition does not lie under these circumstances” (id. at 102-104 [internal quotation marks and citations omitted]).
Subsequent to this Court’s decision in Brown 1, Justice Blumenfeld granted the People’s application to reopen the suppression hearing in People v Perez, in order to permit Paul Schraeter, an ADA who had been assigned to Perez’s case, to testify as to what investigation was made of Perez’s version of the incident, following the interview conducted pursuant to the Program. At the reopened hearing, Schraeter testified that he contacted the complainant a few days after Perez made his videotaped statement, and, contrary to Perez’s statement, the complainant had denied knowing Perez prior to the incident. In addition, according to Schraeter, although Perez maintained that the complainant had dropped his iPod during a physical altercation, the complainant insisted that Perez had forcibly taken the iPod. Schraeter never contacted Newtown High School to find out whether the complainant and Perez had both attended that school, as Perez claimed, and Schraeter could only say that he may have contacted Elmhurst Hospital to find out whether Perez had ever been treated there for injuries allegedly sustained after being beaten by the complainant on a prior occasion.
*53After the reopened hearing was concluded, Justice Blumenfeld issued an order dated April 17, 2012, addressing that branch of Perez’s omnibus motion which was to suppress his videotaped statement (37 Misc 3d 272 [2012]). Justice Blumenfeld observed that, before being read his Miranda warnings and giving his statement, Perez was told, pursuant to the preamble: “If there is something you would like us to investigate concerning this incident, you must tell us now so that we can look into it” (37 Misc 3d at 276). Justice Blumenfeld viewed that statement as a promise made to Perez that if he did not invoke his rights to remain silent and to counsel, and made a statement concerning the incident, the District Attorney’s office would investigate his version of the incident. Justice Blumenfeld found that the District Attorney’s office failed to fulfill that promise to investigate Perez’s statement.
Justice Blumenfeld then concluded that the preamble was “misleading and deceptive [and thus] violative of rule 8.4 (c) [of the Rules of Professional Conduct]” (id. at 290). In that respect, Justice Blumenfeld reasoned that the preamble contained a false promise to investigate, which was designed to induce the defendant to speak to the ADAs, that it “create[d] an impression” that the interview “exist[ed] to assist the defendant,” that it failed to inform the defendant that he would have an opportunity to have his story investigated after the assignment of counsel, and that it created a “false sense of urgency” to immediately relate his version of events (id. at 288).
Nonetheless, Justice Blumenfeld reasoned, he could not conclude that the “improper conduct”—i.e., the promise to investigate and the failure to do so—“impaired the defendant’s mental condition to the extent of undermining his ability to make a choice whether or not to make a statement” (id. at 291), as is required for a finding of involuntariness under CPL 60.45 (2) (a). Significantly, Justice Blumenfeld indicated, he could not determine that Perez “made the statements . . . because he felt he ‘must’ in order to give his side of the story or [that] he even understood anything in the preamble” (id.). For that reason, “the motion to suppress pursuant to CPL 60.45 [was] denied” (id. at 292).
Justice Blumenfeld concluded, however, that since “the failure to keep the promises made to this defendant in the preamble clearly violated rule 8.4 (c), [he] must fashion an appropriate sanction” (id.). Justice Blumenfeld rejected the proposed sanction of a dismissal in furtherance of justice pursuant to *54CPL 210.20, concluding that this remedy was “draconian” and unwarranted since Perez admitted to assaulting the complainant. Justice Blumenfeld also declined to make a report to the Grievance Committee, since it was unclear who would properly be subject to such discipline.
Justice Blumenfeld observed that, pursuant to Judiciary Law § 2-b (3), “[a] court of record has power ... to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it” (id. at 293). Reasoning that courts have an obligation to report attorneys who commit ethical breaches or to fashion alternative sanctions, and that judges can “take appropriate steps to regulate the conduct of lawyers appearing before them, short of formal discipline” (id.), Justice Blumenfeld decided to invoke Judiciary Law § 2-b (3) to preclude the People from using Perez’s videotaped statement at trial. Justice Blumenfeld indicated that excluding the videotaped statement would assure that the People were “not able to benefit from their improper conduct,” as was “the purpose of a judicial sanction” (id.)
The District Attorney subsequently commenced the subject proceeding pursuant to CPLR article 78, in the nature of prohibition, inter alia, to prohibit Justice Blumenfeld from enforcing the preclusion order.
The writ of prohibition, originally a common-law remedy, is codified in CPLR article 78, which authorizes a proceeding to determine whether a court, among others, “proceeded, is proceeding or is about to proceed without or in excess of jurisdiction” (CPLR 7803 [2]; see Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]). Due to its “extraordinary” nature, however, prohibition lies “only where there is a clear legal right” to such relief, and “only when a court (if a court is involved) acts or threatens to act without jurisdiction in a matter . . . over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” (Matter of State of New York v King, 36 NY2d 59, 62 [1975]; see Matter of Garner v New York State Dept, of Corectional Servs., 10 NY3d 358 [2008]; Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783, 786 [1993]; Matter of Rush v Mordue, 68 NY2d at 352; Matter of Dondi v Jones, 40 NY2d 8, 13 [1976]). In essence, prohibition is available only in “those rare circumstances where an arrogation of power would justify burdening the judicial process with collateral intervention and summary correction” (Matter of *55Rush v Mordue, 68 NY2d at 354). Even in those “rare circumstances,” however, the writ “does not issue as of right, but only in the sound discretion of the court” (id.; see Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d at 786; Matter ofDondi v Jones, 40 NY2d at 13).
Thus, in adjudicating a petition seeking a writ of prohibition, this Court must engage in a two-tiered analysis (see Matter of Holtzman v Goldman, 71 NY2d 564, 568 [1988]). The first question is whether the issue presented is the type for which the remedy of prohibition lies (see id.; Matter of Brown v Blumenfeld, 89 AD3d at 102; Matter of Vinluan v Doyle, 60 AD3d 237, 243 [2009]). If prohibition lies, then this Court must consider whether to exercise its discretion to grant that remedy (see Matter of Pirro v Angiolillo, 89 NY2d 351, 359 [1996]; Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d at 786; Matter of Morgenthau v Erlbaum, 59 NY2d 143, 147 [1983], cert denied 464 US 993 [1983]).
Turning to the question of whether prohibition lies, while one of the functions of a writ of prohibition is to prohibit a lower court from making an unwarranted assumption of subject matter jurisdiction (see Matter of Pirro v Angiolillo, 89 NY2d at 355; Matter of Proskin v County Ct. of Albany County, 30 NY2d 15, 18 [1972]), there is no question here that Justice Blumenfeld, as a Supreme Court Justice, had subject matter jurisdiction to entertain the subject criminal proceeding (see Matter of Jacobs v Altman, 69 NY2d 733, 735 [1987]; see also NY Const, art VI, § 7; Judiciary Law § 140-b).
The other function of a writ of prohibition is to restrain a lower court from exceeding its authorized powers in a proceeding over which it has subject matter jurisdiction (see Matter of Pirro v Angiolillo, 89 NY2d at 355; Matter of Proskin v County Ct. of Albany County, 30 NY2d at 18). In determining whether a writ should issue for this purpose, “it is crucial to distinguish between an error in procedure or substantive law during a litigation and the arrogation of power which is subject to correction by prohibition” (La Rocca v Lane, 37 NY2d 575, 580 [1975], cert denied 424 US 968 [1976]). “The writ does not lie as a means of seeking a collateral review of an error of law, no matter how egregious that error might be . . . but only where the very jurisdiction and power of the court are in issue” (Matter of Steingut v Gold, 42 NY2d 311, 315 [1977]; see Matter of Rush v Mordue, 68 NY2d at 353; Matter of Brown v Blumenfeld, 89 AD3d at 103). As the Court of Appeals has recognized,
*56“there is no sharp line between a court acting in error under substantive or procedural law and a court acting in excess of its powers, if only because every act without jurisdiction or in excess of its powers in a proceeding over which it has jurisdiction of necessity involves an ‘error of law’ ” (La Rocca v Lane, 37 NY2d at 580; see Matter of Rush v Mordue, 68 NY2d at 353).
In drawing the difficult distinction between legal errors and actions taken in excess of power, however, the Court of Appeals has instructed that such excesses of power involve “an unlawful use or abuse of the entire action or proceeding as distinguished from an unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action or proceeding” (Matter of State of New York v King, 36 NY2d at 64; see Matter of Holtzman v Goldman, 71 NY2d at 569).
Here, the District Attorney contends that, even if Justice Blumenfeld correctly concluded that the conduct of the interview pursuant to the Program constituted a violation of rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0), he exceeded his authorized power by precluding Perez’s videotaped statement on that basis. Under the circumstances of this case, the District Attorney is correct.2
Initially, there is no specific statutory authority under which a court is permitted to exclude evidence obtained in violation of attorney-ethics rules. Under Criminal Procedure Law article 710, which is designed to assure that defendants in criminal proceedings have “fair pretrial procedures to address alleged constitutional violations” (People v Mendoza, 82 NY2d 415, 425 [1993]), an aggrieved defendant may move to suppress evidence obtained by enumerated unlawful grounds (see CPL 710.20).
*57The statute expressly permits suppression of statements which were involuntarily made within the meaning of CPL 60.45, but does not address exclusion of statements obtained in violation of ethical rules. In Brown I, this Court refused to prohibit Justice Blumenfeld from making a finding as to whether the conduct of the interview violated ethical rules, in order to ultimately determine whether any such violation constituted “improper conduct” of the kind that would render Perez’s statement involuntary under CPL 60.45 (see Matter of Brown v Blumenfeld, 89 AD3d at 103-104). This Court reasoned that, in making such a finding, Justice Blumenfeld would “be doing so in determining a motion he is ‘authorized’ to entertain,” i.e., a motion to suppress a statement pursuant to CPL 710.20 (3), and would merely be committing a legal error if, in fact, ethical violations could not qualify as “improper conduct” under CPL 60.45 (id. at 103).
Justice Blumenfeld, upon finding that the conduct of the interview violated rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0), did consider whether that violation rendered Perez’s statement involuntary under CPL 60.45. Significantly, Justice Blumenfeld concluded that the evidence did not demonstrate that Perez’s statement was involuntarily made, and, thus, that suppression pursuant to CPL 710.20 (3) was unwarranted. Moreover, the portion of the preamble that Justice Blumenfeld found to be a misrepresentation in violation of rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0) advised Perez that he “must” tell the interviewer about anything he would like investigated. Nonetheless, Justice Blumenfeld found, the evidence did not demonstrate that the defendant made the challenged statements “because he felt he ‘must’ in order to give his side of the story” (37 Misc 3d at 291). In other words, according to Justice Blumenfeld’s findings, there was no nexus between the alleged misrepresentation and Perez’s statement. Indeed, Justice Blumenfeld concluded that the evidence did not even demonstrate that Perez “understood anything in the preamble” (id.). Accordingly, Justice Blumenfeld effectively determined that the evidence did not show that Perez’s videotaped statement was a product of the perceived ethical violation.
Put differently, Justice Blumenfeld did not conclude that there was any violation of Perez’s constitutional or statutory rights, or of Miranda, or even that the challenged statement was demonstrably obtained as a result of the alleged unethical con*58duct.3 Justice Blumenfeld, therefore, did not preclude the statement to remedy any demonstrable prejudice to Perez in the criminal proceeding that was before him, or, in general, to carry out the court’s responsibility in adjudicating that case. Under such circumstances, Justice Blumenfeld exceeded his power by imposing a generalized sanction upon the People, precluding them from presenting the statement as evidence in the criminal proceeding.
The only authority Justice Blumenfeld cites as providing him with the power to preclude the videotaped statement as a general sanction is Judiciary Law § 2-b (3), and the courts’ authority “to regulate the conduct of attorneys appearing before [the court]” (37 Misc 3d at 293), both under its inherent power and pursuant to Judiciary Law § 90 (2). Judiciary Law § 2-b (3) only authorizes a court “to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it” (emphasis added). By its terms, this statute only gives Justice Blumenfeld the power to devise new process to carry out powers that he already possesses (see People v Wrotten, 14 NY3d 33, 37 [2009], cert denied 562 US —, 131 S Ct 1020 [“By enacting Judiciary Law § 2 b (3), the Legislature has explicitly authorized the courts’ use of innovative procedures where ‘necessary to carry into effect the powers and jurisdiction possessed by (the court)’ ”]). Thus, this statute alone does not answer the question of whether Justice Blumenfeld has the power to impose a general sanction on the People, not necessary to the adjudication of the criminal proceeding, for violation of an ethical rule (cf. People v Wrotten, 14 NY3d at 36 [trial court properly invoked Judiciary Law § 2-b in allowing an adult complainant, too ill to appear in court, to testify via real-time, two-way video where it found such testimony necessary to permit the prosecution to proceed]; People v Ricardo B., 73 NY2d 228, 232-233 [1989] [Judiciary Law § 2-b properly invoked to empanel two juries, in order to allow for a joint trial of *59codefendants against whom the People’s evidence was the same]).
Judiciary Law § 90 is entitled “Admission to and removal from practice by appellate division; character committees.” As its title suggests, this lengthy statute lays out the various requirements and procedures for attorney admissions to the bar and concerning attorney discipline. Subdivision (2) of that statute, which is relied upon by Justice Blumenfeld, provides:
“The supreme court shall have power and control over attorneys and counsellors-at-law and all persons practicing or assuming to practice law, and the appellate division of the supreme court in each department is authorized to censure, suspend from practice or remove from office any attorney and counsellor-at-law admitted to practice who is guilty of professional misconduct, malpractice, fraud, deceit, crime or misdemeanor, or any conduct prejudicial to the administration of justice; and the appellate division of the supreme court is hereby authorized to revoke such admission for any misrepresentation or suppression of any information in connection with the application for admission to practice” (Judiciary Law § 90 [2]).
More specifically, Justice Blumenfeld relies upon the first clause of the first sentence—“[t]he supreme court shall have power and control over attorneys and counsellors-at-law”—to contend that he has the power to preclude evidence for an ethical violation, not as a remedy for any prejudicial effect the violation had in the case before him, but as a sanction, merely because unethical conduct was committed. The courts do, of course, have the power to regulate the legal profession in general. The clause of Judiciary Law § 90 (2) invoked by Justice Blumenfeld, which has its origin in the first Constitution of this State, generally confirms what would otherwise have been implied—that attorneys are appointed by the courts, and are to be “regulated by the rules and orders of the said courts” (People ex rel. Karlin v Culkin, 248 NY 465, 471-472, 477 [1928] [internal quotation marks omitted]; see also Gair v Peck, 6 NY2d 97, 110-111 [1959], cert denied 361 US 374 [I960]). That power, however, is principally vested in the Appellate Divisions, which have the exclusive authority to conduct attorney disciplinary proceedings (see Judiciary Law § 90 [2]; Gair v Peck, 6 NY2d at 102, 110 [invoking Judiciary Law § 90 (2) as support for conclu*60sion that the Appellate Division, First Department, had the power to adopt a rule relating to contingent fee arrangements in certain actions]; People ex rel. Karlin v Culkin, 248 NY at 468, 470 [citing Judiciary Law § 90 (2) (former § 88 [2]) as support for its holding that the Appellate Division had the power to direct a general inquiry into the conduct of attorneys, particularly with respect to the practice of “ ‘(a)mbulance chasing,’ ” and in the course of that inquiry to compel an attorney to testify “as to his acts in his professional relations”]; Matter of Brown v Blumenfeld, 89 AD3d at 102 n 5; McNamara v State of New York, 74 AD3d 760 [2010]).4
Moreover, the purpose of the sanction here was not to regulate the conduct of the attorneys appearing before Justice Blumenfeld (cf. Rivera v Lutheran Med. Ctr., 73 AD3d 891 [2010]). Rather, it was addressed to the administration of the Program by the District Attorney’s office, in general. In rejecting the People’s suggestion that an appropriate remedy for the perceived ethical violation would be formal discipline, Justice Blumenfeld indicated that the ethical breach was not “fairly attributable” to the prosecutors who appeared before him or to the prosecu*61tors involved in interviewing Perez, but was the product of an “office-wide failure.” Justice Blumenfeld further indicated during the hearings held in connection with Perez’s suppression motion that he would “like to see [the Program as] a work in progress” and to see that it is “done right.” In that respect, Justice Blumenfeld expressed the following opinion concerning the Program:
“I think you [i.e., the District Attorney, and the ADAs charged with administering the program] are opening up a can of worms. It may not be in this case, but I think you are opening up a can of worms. I think you would be better off with the Miranda warnings” (emphasis added).
Thus, the sanction imposed by Justice Blumenfeld was not meant to regulate the conduct of the attorneys appearing before him in connection with People v Perez, but, rather, to regulate the administration of a program adopted by the District Attorney’s office. In this manner, Justice Blumenfeld exceeded his jurisdiction to adjudicate People u Perez and to regulate the conduct of the attorneys in connection with the adjudication of that case (cf State of New York v Philip Morris Inc., 308 AD2d 57, 68 [2003] [a court’s “control over attorneys appearing before it” and power to “regulate the conduct of attorneys in his courtroom” did not give judge the power to regulate the conduct of attorneys who had not previously appeared before him, or control conduct that did not occur in his courtroom (internal quotation marks omitted)]).
For this reason, the present case is distinguishable from United States v Hammad (858 F2d 834 [2d Cir 1988], cert denied 498 US 871 [1990]), upon which Justice Blumenfeld relies, and which, in any event, is not binding on this Court. In that case, the defendant had moved to suppress audio and video recordings of statements he made, after having retained counsel, to an individual cooperating with the prosecution. The defendant asserted that the prosecutor had, through the “alter ego” of the cooperating witness, communicated with him directly after learning that he had retained counsel, and, thereby, “violated DR 7-104 (A) (1) of the American Bar Association’s Code of Professional Responsibility” (id. at 836). That Rule “prohibited] a lawyer from communicating with a ‘party’ he [knew] to be represented by counsel regarding the subject matter of that representation” (id. at 836). While the United States Court of Appeals for the Second Circuit ultimately concluded that suppression was not appropriate because the law had previously *62been unsettled in this area, it held that suppression may be ordered to remedy violation of a disciplinary rule. In so holding, the court reasoned that “ ‘civilized conduct of criminal trials’ demands federal courts be imbued with sufficient discretion to ensure fair proceedings” (id. at 840-841, quoting Nardone v United States, 308 US 338, 342 [1939]).
Here, Justice Blumenfeld opined that “the purpose of a judicial sanction” was to assure that “the People are not able to benefit from their improper conduct” (37 Misc 3d at 293). However, this observation was directly at odds with Justice Blumenfeld’s conclusion that the evidence did not show that Perez’s videotaped statement was a product of that conduct. In other words, Justice Blumenfeld effectively concluded that there was no evidence that the People did, in fact, benefit from any improper conduct. In light of that conclusion, the preclusion order was not remedial, and was not issued to further the adjudication of the underlying criminal proceeding. Belatedly, the Second Circuit’s holding was made in the context of a case, unlike People v Perez, in which the challenged evidence was unquestionably a product of the violation of a disciplinary rule, and may properly be interpreted as limited to such a factual circumstance (People v Anderson, 66 NY2d 529, 535-536 [1985] [“it is well settled that ‘(t)he language of any opinion must be confined to the facts before the court’ ” (quoting Dougherty v Equitable Life Assur. Socy., 266 NY 71, 88 [1934])]).
Justice Blumenfeld’s reliance upon the New York Court of Appeals’ decisions in People v Skinner (52 NY2d 24 [1980]) and People v Hobson (39 NY2d 479 [1976]) is similarly unavailing. The issue in those cases was whether defendants, known to be represented by a lawyer in connection with criminal charges under investigation, could validly waive their right to counsel and be interrogated, in the absence of their attorney, either in a custodial (see People v Hobson, 39 NY2d at 481) or in a noncustodial (see People v Skinner, 52 NY2d at 26) setting. The Court in both cases, answering in the negative and suppressing the evidence unlawfully obtained, indicated that its determination was based upon the privilege against self-incrimination, the right to counsel, and the right to due process, all guaranteed by the State Constitution (see id. at 28; People v Hobson, 39 NY2d 479 [1976]; see also NY Const, art I, § 6). The Court also noted in those cases that the attempt to secure a waiver of a represented defendant’s right to counsel violated the ethical rule barring communication with a person known to be represented by counsel as to the subject of the representation {see People v *63Skinner, 52 NY2d at 29-30; People v Hobson, 39 NY2d at 484). While this breach of professional ethics was cited in support of the Court’s decision to suppress evidence in those cases, the Court excluded the evidence in Skinner and Hobson not only because it was obtained in violation of ethical rules, but because it was obtained in violation of the defendants’ constitutional rights. Thus, Skinner and Hobson do not stand for the proposition that violation of an ethical rule, by itself, is sufficient to warrant preclusion of evidence. Here, as noted above, Justice Blumenfeld did not conclude that Perez’s statement was obtained in violation of his constitutional rights (and we make no determination in that regard), but only in violation of ethical rules. In any event, People v Perez is distinguishable from Skinner and Hobson because the challenged evidence in those latter cases was a product of the violation of the ethical rule against communicating with a represented defendant on the subject of the representation, whereas here, Justice Blumenfeld did not find that the videotaped statement was a product of the alleged ethical violation.
Under these circumstances, it cannot be said that Justice Blumenfeld’s imposition of a sanction in the form of preclusion of the videotaped statement constituted an “unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action or proceeding” (Matter of State of New York v King, 36 NY2d at 64 [emphasis added]). The proper purpose of the criminal proceeding is to determine whether the prosecution can prove that Perez is guilty of the crimes charged, and if so, to punish him (see People v Roselle, 84 NY2d 350, 355 [1994]). Further, the proper purpose of a pretrial suppression hearing is primarily to address alleged constitutional and statutory violations and to ensure a fair trial (see CPL 710.20; People v Mendoza, 82 NY2d at 425). Here, the criminal proceeding, and more specifically, the suppression hearing, were used to impose a generalized sanction on the District Attorney’s office for its administration of a program. As such, Justice Blumenfeld’s preclusion order constituted a misuse of the entire proceeding (see Matter of State of New York v King, 36 NY2d at 64 [confirming that prohibition is appropriate where criminal action is “used as a pretext”]).
It also cannot be said that, because the court has the power to suppress evidence in a criminal case or to decide a defendant’s motion to suppress evidence, Justice Blumenfeld was acting within his authority, and merely made a legal error in deciding *64to preclude the videotaped statement. Similar assertions were made and rejected in Matter of Holtzman v Goldman (71 NY2d 564 [1988]), in which the People sought to prohibit the trial court from enforcing a trial order of dismissal, entered on the merits, even though no evidence had been presented and the merits had not yet been heard (id. at 566). In granting the petition, the Court concluded: “it is no answer to assert that because the court can dismiss an indictment in some circumstances its improper exercise of that power in others was merely trial error” (id. at 570). Rather, “[t]he court ‘has the power to do for some purposes what it lacks power to do for others’ ” (id., quoting Matter of Proskin v County Ct. of Albany County, 30 NY2d at 20 [the fact that the trial court had the power to grant limited inspection of grand jury minutes for the purpose of determining the sufficiency of the indictment did not render it mere trial error to permit the defendant unlimited inspection of the minutes to assist in the preparation of his case]). Here, Justice Blumenfeld lacked the power to preclude Perez’s statement, since the sanction of preclusion was not imposed to remedy any prejudice to Perez or any violation of Perez’s rights, but for the purpose of sanctioning perceived unethical conduct, in general.5
Accordingly, as Justice Blumenfeld’s order precluding the videotaped statement as a sanction for unethical conduct committed by the District Attorney’s office in administering the Program in general was not mere legal error, but, rather, an improper arrogation of power, the remedy of prohibition lies (see Matter ofPremo v Breslin, 89 NY2d at 997; Matter of Holtzman v Goldman, 71 NY2d at 570; Matter of Phillips v Ramsey, 42 AD3d 456, 458 [2007]).
We further conclude that it is appropriate in this case to exercise our discretion to issue a writ of prohibition, preventing *65Justice Blumenfeld from enforcing the preclusion order. In so exercising its jurisdiction, this Court must consider, inter alia, if the harm that would result from the act to be prohibited can be adequately corrected through an appeal or other proceedings at law or in equity (see Matter of Pirro v Angiolillo, 89 NY2d at 359; Matter of Rush v Mordue, 68 NY2d at 354). A court should be “most reluctant” to grant a writ of prohibition if doing so will “interfere [ ] with normal trial and appellate procedures by permitting collateral review of matters which could be cured upon direct appeal” (Matter of Holtzman v Goldman, 71 NY2d at 569; see Matter of Morgenthau v Erlbaum, 59 NY2d at 147). After all, “if there is an adequate ‘ordinary’ remedy, then there is no need to invoke an extraordinary” one (Matter of Morgenthau v Erlbaum, 59 NY2d at 147).
Under the present circumstances, however, the People would be unable, in People v Perez, to seek appellate review of Justice Blumenfeld’s determination to preclude Perez’s videotaped statement as a sanction for a perceived violation of an ethical rule. “No appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute” (People v Hernandez, 98 NY2d 8, 10 [2002]; see People v Dunn, 4 NY3d 495, 497 [2005]). CPL 450.20 sets forth the orders which are subject to appeal by the People in such an action. Although CPL 450.20 (8) permits the People, under certain circumstances, to appeal from an order suppressing evidence pursuant to CPL 710.20 (see CPL 450.20 [8]; People v Ayala, 89 NY2d 874, 875-876 [1996]), Justice Blumenfeld denied Perez’s motion to suppress his videotaped statement pursuant to that statute. As such, the People could not appeal the preclusion order under CPL 450.20 (8), and no other provision of that statute permits appeal of the subject order. While the nonappealability of an order is not dispositive, it is an “important” consideration (La Rocca v Lane, 37 NY2d at 579). Under the circumstances of this case, where the legislature, in fashioning CPL 450.20, likely did not contemplate the unusual approach invoked by Justice Blumenfeld here, the nonappealability of the preclusion order weighs heavily in favor of invoking the remedy of prohibition.
Accordingly, in light of our determination that prohibition lies, and that the exercise of this Court’s discretion to issue the writ is warranted, the petition is granted, and the respondent Joel L. Blumenfeld, an Acting Justice of the Supreme Court, Queens County, is prohibited from enforcing an order dated April 17, 2012, precluding a videotaped statement given by the *66respondent Elisaul Perez from being admitted into evidence at the trial in an action entitled People v Perez, pending in the Supreme Court, Queens County, under indictment No. 1202/09.
Mastro, J. P, Florio and Hall, JJ., concur.
Adjudged that the petition is granted, without costs or disbursements, and the respondent Joel L. Blumenfeld, an Acting Justice of the Supreme Court, Queens County, is prohibited from enforcing an order dated April 17, 2012, precluding a videotaped statement given by the respondent Elisaul Perez from being admitted into evidence at the trial in an action entitled People v Perez, pending in the Supreme Court, Queens County, under indictment No. 1202/09.
. Justice Blumenfeld suppressed the physical evidence, i.e., the iPods, concluding that they were obtained as a result of an unlawful search. However, he declined to suppress a statement given by Perez to the police prior to the interview pursuant to the Program, which was substantially similar to the statement he made during that interview.
. While the District Attorney takes issue with Justice Blumenfeld’s determination that the conduct of the interview pursuant to the Program constituted a violation of rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0), the District Attorney does not, nor could he properly, seek a writ of prohibition on that basis. The determination by Justice Blumenfeld that rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0) was violated because a misrepresentation was made to Perez during the course of the interview would, if incorrect, merely represent a legal error for which the extraordinary remedy of prohibition is not available (cf. Matter of Brown v Blumenfeld, 89 AD3d at 103-104; Matter of Cuomo v Hayes, 54 AD3d 855, 858 [contention that the court was “acting ultra vires as a result of its legal interpretation of a statute” did not justify invocation of writ of prohibition]). Thus, no review is made of Justice Blumenfeld’s conclusion that rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0) was violated or that misrepresentations were made to Perez during the course of the interview.
. The issue of whether there was a violation of any of Perez’s constitutional or statutory rights, or of Miranda, is not before us, and no conclusions are made in this regard. Further, in observing that Justice Blumenfeld did not find the challenged statement to be a product of the perceived ethical violation, it is noted that the considerations before us in this case, involving remedies for an alleged ethical violation, are distinct from those that may arise from a claim of a constitutional or statutory violation, or a violation of Miranda. It is acknowledged, for example, that where Miranda warnings are not given, a statement must be suppressed without making an assessment of the individual circumstances of a particular defendant (see Miranda v Arizona, 384 US at 468-469).
. Justice Blumenfeld argues in his brief that “[b]ecause courts have the inherent authority to sua sponte dismiss litigation ... it follows that judges also have the authority to impose the lesser sanction of excluding evidence to address attorney misconduct.” Even assuming such a conclusion would follow from that premise, in arguing that “courts have the inherent authority to sua sponte dismiss litigation,” Justice Blumenfeld relies upon the First Department’s decision in a civil case, Wehringer v Brannigan (232 AD2d 206, 207 [1996]). Whether or not the courts have such inherent authority in a civil case, the court, in a criminal case, does not have inherent authority to dismiss an indictment (see Matter of Morgenthau v Roberts, 65 NY2d 749, 751-752 [1985]; People v Douglass, 60 NY2d 194, 205 [1983]). Rather, the court has the authority to dismiss an indictment only by virtue of statute (i.e. CPL 210.20), and only to the extent authorized by that statute (see Matter of Morgenthau, 65 NY2d at 751-752; People v Douglass, 60 NY2d at 205). (Justice Blumenfeld expressly declined to dismiss the indictment in People v Perez pursuant to CPL 210.20.)
Similarly, although trial courts have the authority to preclude evidence as a sanction for discovery abuses, or to impose monetary sanctions for frivolous conduct, such sanctions are expressly permitted by statute (see CPLR 3126 [authorizing a court to make such orders “as are just” with regard to the failure to obey a discovery order or the willful failure to disclose relevant information]; CPL 240.70 [1] [authorizing courts to preclude evidence, or “take any other appropriate action” for the failure to comply with the provisions of article 240, pertaining to discovery]) or court rule (see 22 NYCRR 130-1.1 [authorizing imposition of costs and attorneys fees for engaging in “frivolous conduct”]). Indeed, an attorney can properly be subject to monetary sanctions “only if there is legislation or a court rule authorizing the sanction” (Matter of Premo v Breslin, 89 NY2d 995, 997 [1997]).
. Justice Blumenfeld’s act of sanctioning the People for unethical conduct, after denying Perez’s motion to suppress evidence pursuant to CPL 710.20 and 60.45, distinguishes the present petition from that of Brown I. This Court, in Brown I, contemplated only that Justice Blumenfeld would consider whether the videotaped statement should be suppressed under those statutes as a product of “improper conduct” which rendered the statement involuntary within the meaning of CPL 60.45. This Court held that Justice Blumenfeld’s determination as to whether the conduct of the interview so constituted “improper conduct” would, if erroneous, be mere legal error since Justice Blumenfeld had the power to suppress the statement if found to be involuntary under CPL 60.45. Here, we are faced with a wholly different circumstance in which, having found that the statement was voluntary, Justice Blumenfeld nonetheless precluded its use due to a perceived general ethical violation on the part of the District Attorney’s office as a whole.
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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/5902416/
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In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Planning Board of the Town of Brookhaven (hereinafter the Board), dated October 20, 1986, which approved a site development plan submitted to it by B.W.I. International (hereinafter BWI), the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Abrams, J.), entered February 20, 1987, which dismissed the petition.
Ordered that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, the determination of the Board is annulled, and the matter is remitted to the Board for the preparation of an Environmental Impact Statement (hereinafter EIS) and such further proceedings consistent with the State Environmental Quality Review Act (hereinafter SEQRA) as it deems appropriate.
On or about March 7, 1986, BWI submitted an application for site plan approval to the Board with respect to the proposed construction of a 194,550 square-foot shopping center in an industrially zoned section of Medford which abuts a residential neighborhood. BWI also submitted a long environmental assessment form (hereinafter EAF). Subsequently, the town’s Division of Environmental Protection (hereinafter DEP), as lead agency, determined that the proposed project constituted a Type 1 action with a possible significant impact, a designation which made it more likely that the project would require an EIS. In an effort to minimize adverse environmental effects, the DEP requested that the applicant address several areas identified as having a potentially adverse impact upon the environment. However, no EIS was prepared. Thereafter the DEP sought to minimize adverse environmental effects by requesting that BWI incorporate mitigation measures with respect to the number of parking stalls, sewage disposal, traffic control and landscaping in the proposed site plan. In compliance with the DEP’s request, BWI subsequently submitted a revised site plan. On July 15, 1986, the DEP issued a negative declaration (a determination that a proposed action would not have a significant effect on the environment) with respect to the revised site plan. On July 28, 1986, a public hearing was held and the Board voted to grant conditional approval of the site plan.
The petitioners then brought a proceeding to set aside the site plan approval. However, that proceeding was settled after the parties stipulated that the public hearing and site plan approval were null and void because the contiguous property owners had not been notified of the hearing. Subsequently, the *603applicant submitted another application, duly notified the contiguous property owners and another hearing was held on October 20, 1986. On that same day the Board again voted to approve the site plan for the project.
The petitioner commenced the instant proceeding seeking to set aside the Board’s approval of the site plan on the ground, inter alia, that the DEP’s negative declaration was not issued in accordance with SEQRA.
Special Term held that the Board’s negative declaration and subsequent site plan approval were not arbitrary and capricious and dismissed the petition.
The Environmental Conservation Law mandates that an EIS be prepared where there is to be any proposed action that "may have a significant effect on the environment” (ECL 8-0109 [2] [emphasis added]). Because the operative word triggering the requirement of an EIS is "may”, " ‘there is a relatively low threshold for impact statements’ ” (H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222, 232). Inasmuch as the DEP, as the lead agency, initially determined that the proposed project constituted a Type 1 action with a possibly significant impact upon the environment, an EIS should have been prepared.
Although the respondents argue on appeal that the EIS process was complied with and thus implicitly concede that an EIS statement was required, it is well established that "literal compliance with both the letter and spirit of SEQRA is required and substantial compliance will not suffice” (Inland Vale Farm Co. v Stergianopoulos, 104 AD2d 395, 396, affd 65 NY2d 718; Matter of Rye Town/King Civic Assn. v Town of Rye, 82 AD2d 474, appeals dismissed 55 NY2d 747, lv dismissed 56 NY2d 985, rearg denied 57 NY2d 775). Moreover, as we have previously stated: ‘‘[A]n EIS is meant to be more than a mere disclosure device. Its purpose is, inter alia, ‘to inform the public and other public agencies as early as possible about proposed actions that may significantly affect the quality of the environment, and to solicit comments which will assist the agency in the decision making process in determining the environmental consequences of the proposed action’ (ECL 8-0109 subd 4). The EIS must be ‘made available to the public prior to acting on the proposal which is the subject of the environmental impact statement’ (ECL 8-0109, subd 6)” (Matter of Rye Town/King Civic Assn. v Town of Rye, supra, at 481-482). At bar there is no indication that the DEP took any steps prior to issuing its negative declaration to involve inter*604ested members of the public in the SEQRA process. Thus, even if substantial compliance with SEQRA were acceptable, there was no such compliance here.
Although mindful of the fact that our role in reviewing the respondents’ action is supervisory only and that the lead agency need not consider every conceivable impact (see, Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 418), we also find that the lead agency failed to consider relevant environmental impacts as compared against the criteria listed in 6 NYCRR 617.11. Besides the areas of environmental concern which were identified by the agency, it is obvious that the construction of a 25-acre shopping mall which provides for more than 1,000 parking stalls may have an adverse effect upon air pollution, noise level, drainage and flooding, aesthetics and the existing community (see, 6 NYCRR 617.11; cf., Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215). Nevertheless, the DEP failed to consider these areas of possible adverse impacts, which were identified by local property owners at the public hearing held subsequent to the issuance of the negative declaration. Thus unenlightened by public comment, the DEP failed to take the requisite "hard look” at relevant areas of environmental concern and to make a reasoned elaboration of the basis for its determination (see, Matter of Jackson v New York State Urban Dev. Corp., supra; Matter of Fernandez v Planning Bd., 122 AD2d 139). Accordingly, the matter must be remitted to the respondents for the preparation of an EIS.
We have considered the petitioner’s remaining contentions and find them to be without merit. Mangano, J. P., Thompson, Bracken and Spatt, 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/5902417/
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OPINION OF THE COURT
Skelos, J.
Elisaul Perez, a defendant in a criminal action being prosecuted by the petitioner, Richard A. Brown, the District Attorney of Queens County (hereinafter the District Attorney), was interviewed, prior to his arraignment, by an assistant district attorney (hereinafter ADA), and gave a videotaped statement. The interview was conducted pursuant to a program instituted by the District Attorney’s office, under which arrested individuals are brought before an ADA just before arraignment, read a *47series of statements followed by Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]), and questioned (hereinafter the Program). Perez moved to suppress his statement, and the respondent Joel L. Blumenfeld, an Acting Justice of the Supreme Court, Queens County, denied the motion, finding that he could not conclude that Perez’s statement was involuntary. Nonetheless, Justice Blumenfeld precluded the People from introducing Perez’s statement at trial on the ground that the District Attorney’s program violated attorney-ethics rules. In this proceeding pursuant to CPLR article 78 in the nature of prohibition, the District Attorney seeks to have this Court prohibit Justice Blumenfeld from enforcing that order. We hold that, under the circumstances of this case, Justice Blumenfeld exceeded his authorized powers in precluding the People from introducing Perez’s statement at trial, such that the remedy of prohibition lies to prevent him from enforcing the order, and that the exercise of this Court’s discretion to grant that remedy is warranted.
In 2007, the District Attorney instituted a program pursuant to which ADAs and detective investigators from the District Attorney’s office interview arrestees who are detained at the Queens County Central Booking facility, awaiting arraignment on felony charges (see Matter of Brown v Blumenfeld, 89 AD3d 94, 97 [2011]). As formal criminal proceedings have not been commenced against these arrestees, who are not represented by counsel and have not requested the assistance of counsel, their indelible rights to counsel have not attached at the time of the interviews (see People v Grice, 100 NY2d 318, 320-321 [2003]; People v Rivers, 56 NY2d 476, 479 [1982]; People v Grimaldi, 52 NY2d 611, 616 [1981]).
Under the Program, arrestees are brought to an interview room where an ADA reads, or permits a detective investigator to read, a preprinted “Interview Form” (hereinafter the Form) (see Matter of Brown v Blumenfeld, 89 AD3d at 97). The Form contains a series of statements that precede the reading of Miranda warnings. (The remarks preceding the Miranda warnings will be referred to herein, consistent with Justice Blumenfeld’s terminology, as the preamble.) Once the Miranda warnings are read, the arrestees are asked whether they are willing to speak with the ADAs and detective investigators, who then proceed to question the individuals upon receiving affirmative responses.
On March 14, 2009, an interview pursuant to the Program was conducted with Elisaul Perez, who later became a defendant in a criminal proceeding entitled People v Perez. The *48proceeding stemmed from an incident, occurring on March 13, 2009, in which two men allegedly beat another man (hereinafter the complainant) on a street in Queens. Allegedly, the perpetrators also took the complainant’s iPod. Approximately 10 minutes later, at about 12:30 a.m., Perez, who allegedly matched the complainant’s description of one of the perpetrators, was stopped by police officers three or four blocks away from the scene of the incident. Perez allegedly had blood on his sneakers. The officers frisked Perez for weapons, and recovered two iPods, one of which had blood on it. When the complainant identified one of the iPods as his, Perez was arrested and later transported to the Queens County Central Booking facility.
At 2:35 p.m., Perez was brought to an interview room, pursuant to the Program’s procedures. ADA Angela Garg, ADA Louisa DeRose, Detective Investigator Mary Picone, and a Spanish interpreter were present in the interview room. Pursuant to the Program’s protocols, Perez was advised of the charges that would be filed against him when he appeared in court that day, and the date, time, and place of the incident underlying the charges. The preamble was then read to Perez (in Spanish) as follows:
“In a few moments I’m going to read you your rights. After that, you will be given an opportunity to explain what happened at that date, time and place.
“If you have an alibi, give us as much information as you can, including the names of any people you were with.
“If your version of the events of that day is different from what we have heard, this is your opportunity to tell us your story.
“If there is something you would like us to investigate concerning this incident, you must tell us now so we can look into it.
“Even if you have already spoken to someone else, you do not have to talk to me.
“This will be the only opportunity you will have to talk to me prior to your arraignment on these charges.”
Perez was told that the entire interview was being recorded on video, was advised of his right to be arraigned without delay, *49and was read Miranda warnings. He indicated that he understood each warning, and then agreed to talk to the AD As and the detective investigator. Perez was then questioned about the incident and gave statements concerning his version of the events.
According to Perez, he and the complainant had both attended Newtown High School, and had both been involved in a romantic relationship with the same female student. Perez maintained that on June 6, 2008, he and the complainant had a physical altercation over the female student, during which the complainant had beaten him so badly that he required treatment at Elmhurst Hospital.
On the day of the subject incident, Perez explained, he happened to see the complainant on the street and they got into an argument. Perez asserted that, during the argument, the complainant picked up, or attempted to pick up, a stone with which to hit Perez, and thus, Perez explained, he punched the complainant in the face two or three times, causing the complainant’s nose to bleed. Perez recalled that the complainant then ran away. According to Perez, he noticed that the complainant had dropped his iPod, and he picked it up.
Perez was subsequently charged in an indictment with, among other crimes, two counts of robbery in the second degree. Perez thereafter moved, inter alia, to suppress the videotaped statement he had given during the interview conducted pursuant to the Program. He argued that he had not properly been advised of his Miranda rights, that he did not knowingly and intelligently waive those rights, and that the statements were “illegally obtained.”
Justice Blumenfeld held a hearing pursuant to People v Huntley (15 NY2d 72 [1965]) with respect to Perez’s suppression motion. At the hearing, the DVD containing Perez’s recorded statement was admitted into evidence and played for Justice Blumenfeld. Justice Blumenfeld also heard testimony from, among others, ADA Garg. During that testimony, Justice Blumenfeld pointed out that, before Perez gave his version of the incident to the ADAs and detective investigators, he had essentially been told, “if there’s anything that you want to tell us, you must tell us now and we’ll investigate it.” Justice Blumenfeld then asked Garg whether there had been “any attempt to verify” Perez’s version of the incident. Garg replied that she did not know, as it would be up to the “assigned [ADA]” to do that investigation.
*50Following the hearing, Justice Blumenfeld informed the People and Perez’s counsel that he would be contacting a professor of legal ethics to explore the issue of the propriety of the Program, which Justice Blumenfeld noted had originally been raised by Judicial Hearing Officer Thomas A. Demakos in a different case. Justice Blumenfeld questioned whether any ethical rules were violated during the course of the interview conducted pursuant to the Program, particularly as to the reading of the preamble. Ultimately, Justice Blumenfeld received a report from Professor Ellen Yaroshefsky, in which she opined that “the conduct in the interview” violated certain of the Rules of Professional Conduct (see 22 NYCRR 1200.0).
After giving the parties an opportunity to respond to the report, Justice Blumenfeld rendered an oral decision, as well as a written “interim” order dated August 12, 2010. Justice Blumenfeld expressed concern about the ethical implications to the “[District Attorney’s] office,” of making a promise, during an interview pursuant to the Program, to investigate a defendant’s version of an incident, and then failing to do so. In this regard, Justice Blumenfeld indicated that such conduct might violate rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0), which prohibits a lawyer from “engaging] in conduct involving dishonesty, fraud, deceit or misrepresentation” (see former Code of Professional Responsibility DR 1-102 [a] [4] [22 NYCRR 1200.3 (a) (4)] [same]). Justice Blumenfeld further determined that, contrary to the People’s contention, it was appropriate to address ethical violations in the context of a motion to suppress a statement that was allegedly made involuntarily.
In support of this determination, Justice Blumenfeld cited CPL 60.45. That statute provides that a defendant’s statement is “involuntarily made” when that statement “is obtained from” the defendant
“[b]y any person by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant’s physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement” (CPL 60.45 [2] [a]).
Thus, Justice Blumenfeld concluded, a suppression court could consider any “improper conduct,” including violations of ethical rules, when determining, pursuant to CPL 60.45 (2), whether a defendant’s statement was involuntarily made. Although Justice *51Blumenfeld decided certain branches of Perez’s omnibus motion which were to suppress certain evidence,1 he concluded that further proceedings were necessary before he could decide that branch of the motion which was to suppress Perez’s videotaped statement.
On September 30, 2010, following the issuance of the interim order, the District Attorney commenced, in this Court, a proceeding pursuant to CPLR article 78 in the nature of prohibition against Justice Blumenfeld (hereinafter Brown I) (see CPLR 506 [b] [1]). The District Attorney sought to have Justice Blumenfeld prohibited from, among other things, ruling upon whether the ADAs who conducted Perez’s interview pursuant to the Program violated attorney-ethics rules (see Matter of Brown v Blumenfeld, 89 AD3d at 101).
This Court denied the petition and dismissed the proceeding in Brown I, reasoning, in pertinent part, as follows:
“Although the Court of Appeals has declined to detail the several categories of excesses of jurisdiction and power arising in criminal actions that merit the abrupt intervention of prohibition, that Court has observed that those categories always invoke . . . unlawful use or abuse of the entire action or proceeding, and implicate the legality of the entire proceeding. This situation is to be distinguished from an unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action or proceeding.
“Furthermore, prohibition is never available merely to correct or prevent a mistake, error in procedure, or error in substantive law, even when such errors may be grievous or egregious . . .
“If Justice Blumenfeld considers and makes a finding with respect to whether the ADAs conducting the interview of Perez violated ethical rules, [Justice Blumenfeld] would be doing so in determining a motion he is authorized to entertain, namely, a motion to suppress a statement on the ground that it was
*52involuntarily made. Under CPL 60.45, a statement is involuntarily made if, among other things, it is obtained ‘[b]y any person ... by means of . . . improper conduct . . . which impaired the defendant’s physical or mental condition to the extent of undermining his [or her] ability to make a choice whether or not to make a statement’ (CPL 60.45 [2]
[a]). We construe the petition before us as a request that we prohibit Justice Blumenfeld from considering and making a finding as to part of the definition of ‘involuntarily made.’ Thus, if the District Attorney is correct that the ADAs’ purported ethical violations have no bearing on whether their conduct was ‘improper conduct’ within the meaning of CPL 60.45, then Justice Blumenfeld may be committing legal error. That legal error, however, would not be the kind of error that implicates an unlawful use or abuse of the entire action or proceeding as distinguished from an unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action or proceeding.
“Consequently, prohibition does not lie under these circumstances” (id. at 102-104 [internal quotation marks and citations omitted]).
Subsequent to this Court’s decision in Brown 1, Justice Blumenfeld granted the People’s application to reopen the suppression hearing in People v Perez, in order to permit Paul Schraeter, an ADA who had been assigned to Perez’s case, to testify as to what investigation was made of Perez’s version of the incident, following the interview conducted pursuant to the Program. At the reopened hearing, Schraeter testified that he contacted the complainant a few days after Perez made his videotaped statement, and, contrary to Perez’s statement, the complainant had denied knowing Perez prior to the incident. In addition, according to Schraeter, although Perez maintained that the complainant had dropped his iPod during a physical altercation, the complainant insisted that Perez had forcibly taken the iPod. Schraeter never contacted Newtown High School to find out whether the complainant and Perez had both attended that school, as Perez claimed, and Schraeter could only say that he may have contacted Elmhurst Hospital to find out whether Perez had ever been treated there for injuries allegedly sustained after being beaten by the complainant on a prior occasion.
*53After the reopened hearing was concluded, Justice Blumenfeld issued an order dated April 17, 2012, addressing that branch of Perez’s omnibus motion which was to suppress his videotaped statement (37 Misc 3d 272 [2012]). Justice Blumenfeld observed that, before being read his Miranda warnings and giving his statement, Perez was told, pursuant to the preamble: “If there is something you would like us to investigate concerning this incident, you must tell us now so that we can look into it” (37 Misc 3d at 276). Justice Blumenfeld viewed that statement as a promise made to Perez that if he did not invoke his rights to remain silent and to counsel, and made a statement concerning the incident, the District Attorney’s office would investigate his version of the incident. Justice Blumenfeld found that the District Attorney’s office failed to fulfill that promise to investigate Perez’s statement.
Justice Blumenfeld then concluded that the preamble was “misleading and deceptive [and thus] violative of rule 8.4 (c) [of the Rules of Professional Conduct]” (id. at 290). In that respect, Justice Blumenfeld reasoned that the preamble contained a false promise to investigate, which was designed to induce the defendant to speak to the ADAs, that it “create[d] an impression” that the interview “exist[ed] to assist the defendant,” that it failed to inform the defendant that he would have an opportunity to have his story investigated after the assignment of counsel, and that it created a “false sense of urgency” to immediately relate his version of events (id. at 288).
Nonetheless, Justice Blumenfeld reasoned, he could not conclude that the “improper conduct”—i.e., the promise to investigate and the failure to do so—“impaired the defendant’s mental condition to the extent of undermining his ability to make a choice whether or not to make a statement” (id. at 291), as is required for a finding of involuntariness under CPL 60.45 (2) (a). Significantly, Justice Blumenfeld indicated, he could not determine that Perez “made the statements . . . because he felt he ‘must’ in order to give his side of the story or [that] he even understood anything in the preamble” (id.). For that reason, “the motion to suppress pursuant to CPL 60.45 [was] denied” (id. at 292).
Justice Blumenfeld concluded, however, that since “the failure to keep the promises made to this defendant in the preamble clearly violated rule 8.4 (c), [he] must fashion an appropriate sanction” (id.). Justice Blumenfeld rejected the proposed sanction of a dismissal in furtherance of justice pursuant to *54CPL 210.20, concluding that this remedy was “draconian” and unwarranted since Perez admitted to assaulting the complainant. Justice Blumenfeld also declined to make a report to the Grievance Committee, since it was unclear who would properly be subject to such discipline.
Justice Blumenfeld observed that, pursuant to Judiciary Law § 2-b (3), “[a] court of record has power ... to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it” (id. at 293). Reasoning that courts have an obligation to report attorneys who commit ethical breaches or to fashion alternative sanctions, and that judges can “take appropriate steps to regulate the conduct of lawyers appearing before them, short of formal discipline” (id.), Justice Blumenfeld decided to invoke Judiciary Law § 2-b (3) to preclude the People from using Perez’s videotaped statement at trial. Justice Blumenfeld indicated that excluding the videotaped statement would assure that the People were “not able to benefit from their improper conduct,” as was “the purpose of a judicial sanction” (id.)
The District Attorney subsequently commenced the subject proceeding pursuant to CPLR article 78, in the nature of prohibition, inter alia, to prohibit Justice Blumenfeld from enforcing the preclusion order.
The writ of prohibition, originally a common-law remedy, is codified in CPLR article 78, which authorizes a proceeding to determine whether a court, among others, “proceeded, is proceeding or is about to proceed without or in excess of jurisdiction” (CPLR 7803 [2]; see Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]). Due to its “extraordinary” nature, however, prohibition lies “only where there is a clear legal right” to such relief, and “only when a court (if a court is involved) acts or threatens to act without jurisdiction in a matter . . . over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” (Matter of State of New York v King, 36 NY2d 59, 62 [1975]; see Matter of Garner v New York State Dept, of Corectional Servs., 10 NY3d 358 [2008]; Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783, 786 [1993]; Matter of Rush v Mordue, 68 NY2d at 352; Matter of Dondi v Jones, 40 NY2d 8, 13 [1976]). In essence, prohibition is available only in “those rare circumstances where an arrogation of power would justify burdening the judicial process with collateral intervention and summary correction” (Matter of *55Rush v Mordue, 68 NY2d at 354). Even in those “rare circumstances,” however, the writ “does not issue as of right, but only in the sound discretion of the court” (id.; see Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d at 786; Matter ofDondi v Jones, 40 NY2d at 13).
Thus, in adjudicating a petition seeking a writ of prohibition, this Court must engage in a two-tiered analysis (see Matter of Holtzman v Goldman, 71 NY2d 564, 568 [1988]). The first question is whether the issue presented is the type for which the remedy of prohibition lies (see id.; Matter of Brown v Blumenfeld, 89 AD3d at 102; Matter of Vinluan v Doyle, 60 AD3d 237, 243 [2009]). If prohibition lies, then this Court must consider whether to exercise its discretion to grant that remedy (see Matter of Pirro v Angiolillo, 89 NY2d 351, 359 [1996]; Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d at 786; Matter of Morgenthau v Erlbaum, 59 NY2d 143, 147 [1983], cert denied 464 US 993 [1983]).
Turning to the question of whether prohibition lies, while one of the functions of a writ of prohibition is to prohibit a lower court from making an unwarranted assumption of subject matter jurisdiction (see Matter of Pirro v Angiolillo, 89 NY2d at 355; Matter of Proskin v County Ct. of Albany County, 30 NY2d 15, 18 [1972]), there is no question here that Justice Blumenfeld, as a Supreme Court Justice, had subject matter jurisdiction to entertain the subject criminal proceeding (see Matter of Jacobs v Altman, 69 NY2d 733, 735 [1987]; see also NY Const, art VI, § 7; Judiciary Law § 140-b).
The other function of a writ of prohibition is to restrain a lower court from exceeding its authorized powers in a proceeding over which it has subject matter jurisdiction (see Matter of Pirro v Angiolillo, 89 NY2d at 355; Matter of Proskin v County Ct. of Albany County, 30 NY2d at 18). In determining whether a writ should issue for this purpose, “it is crucial to distinguish between an error in procedure or substantive law during a litigation and the arrogation of power which is subject to correction by prohibition” (La Rocca v Lane, 37 NY2d 575, 580 [1975], cert denied 424 US 968 [1976]). “The writ does not lie as a means of seeking a collateral review of an error of law, no matter how egregious that error might be . . . but only where the very jurisdiction and power of the court are in issue” (Matter of Steingut v Gold, 42 NY2d 311, 315 [1977]; see Matter of Rush v Mordue, 68 NY2d at 353; Matter of Brown v Blumenfeld, 89 AD3d at 103). As the Court of Appeals has recognized,
*56“there is no sharp line between a court acting in error under substantive or procedural law and a court acting in excess of its powers, if only because every act without jurisdiction or in excess of its powers in a proceeding over which it has jurisdiction of necessity involves an ‘error of law’ ” (La Rocca v Lane, 37 NY2d at 580; see Matter of Rush v Mordue, 68 NY2d at 353).
In drawing the difficult distinction between legal errors and actions taken in excess of power, however, the Court of Appeals has instructed that such excesses of power involve “an unlawful use or abuse of the entire action or proceeding as distinguished from an unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action or proceeding” (Matter of State of New York v King, 36 NY2d at 64; see Matter of Holtzman v Goldman, 71 NY2d at 569).
Here, the District Attorney contends that, even if Justice Blumenfeld correctly concluded that the conduct of the interview pursuant to the Program constituted a violation of rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0), he exceeded his authorized power by precluding Perez’s videotaped statement on that basis. Under the circumstances of this case, the District Attorney is correct.2
Initially, there is no specific statutory authority under which a court is permitted to exclude evidence obtained in violation of attorney-ethics rules. Under Criminal Procedure Law article 710, which is designed to assure that defendants in criminal proceedings have “fair pretrial procedures to address alleged constitutional violations” (People v Mendoza, 82 NY2d 415, 425 [1993]), an aggrieved defendant may move to suppress evidence obtained by enumerated unlawful grounds (see CPL 710.20).
*57The statute expressly permits suppression of statements which were involuntarily made within the meaning of CPL 60.45, but does not address exclusion of statements obtained in violation of ethical rules. In Brown I, this Court refused to prohibit Justice Blumenfeld from making a finding as to whether the conduct of the interview violated ethical rules, in order to ultimately determine whether any such violation constituted “improper conduct” of the kind that would render Perez’s statement involuntary under CPL 60.45 (see Matter of Brown v Blumenfeld, 89 AD3d at 103-104). This Court reasoned that, in making such a finding, Justice Blumenfeld would “be doing so in determining a motion he is ‘authorized’ to entertain,” i.e., a motion to suppress a statement pursuant to CPL 710.20 (3), and would merely be committing a legal error if, in fact, ethical violations could not qualify as “improper conduct” under CPL 60.45 (id. at 103).
Justice Blumenfeld, upon finding that the conduct of the interview violated rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0), did consider whether that violation rendered Perez’s statement involuntary under CPL 60.45. Significantly, Justice Blumenfeld concluded that the evidence did not demonstrate that Perez’s statement was involuntarily made, and, thus, that suppression pursuant to CPL 710.20 (3) was unwarranted. Moreover, the portion of the preamble that Justice Blumenfeld found to be a misrepresentation in violation of rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0) advised Perez that he “must” tell the interviewer about anything he would like investigated. Nonetheless, Justice Blumenfeld found, the evidence did not demonstrate that the defendant made the challenged statements “because he felt he ‘must’ in order to give his side of the story” (37 Misc 3d at 291). In other words, according to Justice Blumenfeld’s findings, there was no nexus between the alleged misrepresentation and Perez’s statement. Indeed, Justice Blumenfeld concluded that the evidence did not even demonstrate that Perez “understood anything in the preamble” (id.). Accordingly, Justice Blumenfeld effectively determined that the evidence did not show that Perez’s videotaped statement was a product of the perceived ethical violation.
Put differently, Justice Blumenfeld did not conclude that there was any violation of Perez’s constitutional or statutory rights, or of Miranda, or even that the challenged statement was demonstrably obtained as a result of the alleged unethical con*58duct.3 Justice Blumenfeld, therefore, did not preclude the statement to remedy any demonstrable prejudice to Perez in the criminal proceeding that was before him, or, in general, to carry out the court’s responsibility in adjudicating that case. Under such circumstances, Justice Blumenfeld exceeded his power by imposing a generalized sanction upon the People, precluding them from presenting the statement as evidence in the criminal proceeding.
The only authority Justice Blumenfeld cites as providing him with the power to preclude the videotaped statement as a general sanction is Judiciary Law § 2-b (3), and the courts’ authority “to regulate the conduct of attorneys appearing before [the court]” (37 Misc 3d at 293), both under its inherent power and pursuant to Judiciary Law § 90 (2). Judiciary Law § 2-b (3) only authorizes a court “to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it” (emphasis added). By its terms, this statute only gives Justice Blumenfeld the power to devise new process to carry out powers that he already possesses (see People v Wrotten, 14 NY3d 33, 37 [2009], cert denied 562 US —, 131 S Ct 1020 [“By enacting Judiciary Law § 2 b (3), the Legislature has explicitly authorized the courts’ use of innovative procedures where ‘necessary to carry into effect the powers and jurisdiction possessed by (the court)’ ”]). Thus, this statute alone does not answer the question of whether Justice Blumenfeld has the power to impose a general sanction on the People, not necessary to the adjudication of the criminal proceeding, for violation of an ethical rule (cf. People v Wrotten, 14 NY3d at 36 [trial court properly invoked Judiciary Law § 2-b in allowing an adult complainant, too ill to appear in court, to testify via real-time, two-way video where it found such testimony necessary to permit the prosecution to proceed]; People v Ricardo B., 73 NY2d 228, 232-233 [1989] [Judiciary Law § 2-b properly invoked to empanel two juries, in order to allow for a joint trial of *59codefendants against whom the People’s evidence was the same]).
Judiciary Law § 90 is entitled “Admission to and removal from practice by appellate division; character committees.” As its title suggests, this lengthy statute lays out the various requirements and procedures for attorney admissions to the bar and concerning attorney discipline. Subdivision (2) of that statute, which is relied upon by Justice Blumenfeld, provides:
“The supreme court shall have power and control over attorneys and counsellors-at-law and all persons practicing or assuming to practice law, and the appellate division of the supreme court in each department is authorized to censure, suspend from practice or remove from office any attorney and counsellor-at-law admitted to practice who is guilty of professional misconduct, malpractice, fraud, deceit, crime or misdemeanor, or any conduct prejudicial to the administration of justice; and the appellate division of the supreme court is hereby authorized to revoke such admission for any misrepresentation or suppression of any information in connection with the application for admission to practice” (Judiciary Law § 90 [2]).
More specifically, Justice Blumenfeld relies upon the first clause of the first sentence—“[t]he supreme court shall have power and control over attorneys and counsellors-at-law”—to contend that he has the power to preclude evidence for an ethical violation, not as a remedy for any prejudicial effect the violation had in the case before him, but as a sanction, merely because unethical conduct was committed. The courts do, of course, have the power to regulate the legal profession in general. The clause of Judiciary Law § 90 (2) invoked by Justice Blumenfeld, which has its origin in the first Constitution of this State, generally confirms what would otherwise have been implied—that attorneys are appointed by the courts, and are to be “regulated by the rules and orders of the said courts” (People ex rel. Karlin v Culkin, 248 NY 465, 471-472, 477 [1928] [internal quotation marks omitted]; see also Gair v Peck, 6 NY2d 97, 110-111 [1959], cert denied 361 US 374 [I960]). That power, however, is principally vested in the Appellate Divisions, which have the exclusive authority to conduct attorney disciplinary proceedings (see Judiciary Law § 90 [2]; Gair v Peck, 6 NY2d at 102, 110 [invoking Judiciary Law § 90 (2) as support for conclu*60sion that the Appellate Division, First Department, had the power to adopt a rule relating to contingent fee arrangements in certain actions]; People ex rel. Karlin v Culkin, 248 NY at 468, 470 [citing Judiciary Law § 90 (2) (former § 88 [2]) as support for its holding that the Appellate Division had the power to direct a general inquiry into the conduct of attorneys, particularly with respect to the practice of “ ‘(a)mbulance chasing,’ ” and in the course of that inquiry to compel an attorney to testify “as to his acts in his professional relations”]; Matter of Brown v Blumenfeld, 89 AD3d at 102 n 5; McNamara v State of New York, 74 AD3d 760 [2010]).4
Moreover, the purpose of the sanction here was not to regulate the conduct of the attorneys appearing before Justice Blumenfeld (cf. Rivera v Lutheran Med. Ctr., 73 AD3d 891 [2010]). Rather, it was addressed to the administration of the Program by the District Attorney’s office, in general. In rejecting the People’s suggestion that an appropriate remedy for the perceived ethical violation would be formal discipline, Justice Blumenfeld indicated that the ethical breach was not “fairly attributable” to the prosecutors who appeared before him or to the prosecu*61tors involved in interviewing Perez, but was the product of an “office-wide failure.” Justice Blumenfeld further indicated during the hearings held in connection with Perez’s suppression motion that he would “like to see [the Program as] a work in progress” and to see that it is “done right.” In that respect, Justice Blumenfeld expressed the following opinion concerning the Program:
“I think you [i.e., the District Attorney, and the ADAs charged with administering the program] are opening up a can of worms. It may not be in this case, but I think you are opening up a can of worms. I think you would be better off with the Miranda warnings” (emphasis added).
Thus, the sanction imposed by Justice Blumenfeld was not meant to regulate the conduct of the attorneys appearing before him in connection with People v Perez, but, rather, to regulate the administration of a program adopted by the District Attorney’s office. In this manner, Justice Blumenfeld exceeded his jurisdiction to adjudicate People u Perez and to regulate the conduct of the attorneys in connection with the adjudication of that case (cf State of New York v Philip Morris Inc., 308 AD2d 57, 68 [2003] [a court’s “control over attorneys appearing before it” and power to “regulate the conduct of attorneys in his courtroom” did not give judge the power to regulate the conduct of attorneys who had not previously appeared before him, or control conduct that did not occur in his courtroom (internal quotation marks omitted)]).
For this reason, the present case is distinguishable from United States v Hammad (858 F2d 834 [2d Cir 1988], cert denied 498 US 871 [1990]), upon which Justice Blumenfeld relies, and which, in any event, is not binding on this Court. In that case, the defendant had moved to suppress audio and video recordings of statements he made, after having retained counsel, to an individual cooperating with the prosecution. The defendant asserted that the prosecutor had, through the “alter ego” of the cooperating witness, communicated with him directly after learning that he had retained counsel, and, thereby, “violated DR 7-104 (A) (1) of the American Bar Association’s Code of Professional Responsibility” (id. at 836). That Rule “prohibited] a lawyer from communicating with a ‘party’ he [knew] to be represented by counsel regarding the subject matter of that representation” (id. at 836). While the United States Court of Appeals for the Second Circuit ultimately concluded that suppression was not appropriate because the law had previously *62been unsettled in this area, it held that suppression may be ordered to remedy violation of a disciplinary rule. In so holding, the court reasoned that “ ‘civilized conduct of criminal trials’ demands federal courts be imbued with sufficient discretion to ensure fair proceedings” (id. at 840-841, quoting Nardone v United States, 308 US 338, 342 [1939]).
Here, Justice Blumenfeld opined that “the purpose of a judicial sanction” was to assure that “the People are not able to benefit from their improper conduct” (37 Misc 3d at 293). However, this observation was directly at odds with Justice Blumenfeld’s conclusion that the evidence did not show that Perez’s videotaped statement was a product of that conduct. In other words, Justice Blumenfeld effectively concluded that there was no evidence that the People did, in fact, benefit from any improper conduct. In light of that conclusion, the preclusion order was not remedial, and was not issued to further the adjudication of the underlying criminal proceeding. Belatedly, the Second Circuit’s holding was made in the context of a case, unlike People v Perez, in which the challenged evidence was unquestionably a product of the violation of a disciplinary rule, and may properly be interpreted as limited to such a factual circumstance (People v Anderson, 66 NY2d 529, 535-536 [1985] [“it is well settled that ‘(t)he language of any opinion must be confined to the facts before the court’ ” (quoting Dougherty v Equitable Life Assur. Socy., 266 NY 71, 88 [1934])]).
Justice Blumenfeld’s reliance upon the New York Court of Appeals’ decisions in People v Skinner (52 NY2d 24 [1980]) and People v Hobson (39 NY2d 479 [1976]) is similarly unavailing. The issue in those cases was whether defendants, known to be represented by a lawyer in connection with criminal charges under investigation, could validly waive their right to counsel and be interrogated, in the absence of their attorney, either in a custodial (see People v Hobson, 39 NY2d at 481) or in a noncustodial (see People v Skinner, 52 NY2d at 26) setting. The Court in both cases, answering in the negative and suppressing the evidence unlawfully obtained, indicated that its determination was based upon the privilege against self-incrimination, the right to counsel, and the right to due process, all guaranteed by the State Constitution (see id. at 28; People v Hobson, 39 NY2d 479 [1976]; see also NY Const, art I, § 6). The Court also noted in those cases that the attempt to secure a waiver of a represented defendant’s right to counsel violated the ethical rule barring communication with a person known to be represented by counsel as to the subject of the representation {see People v *63Skinner, 52 NY2d at 29-30; People v Hobson, 39 NY2d at 484). While this breach of professional ethics was cited in support of the Court’s decision to suppress evidence in those cases, the Court excluded the evidence in Skinner and Hobson not only because it was obtained in violation of ethical rules, but because it was obtained in violation of the defendants’ constitutional rights. Thus, Skinner and Hobson do not stand for the proposition that violation of an ethical rule, by itself, is sufficient to warrant preclusion of evidence. Here, as noted above, Justice Blumenfeld did not conclude that Perez’s statement was obtained in violation of his constitutional rights (and we make no determination in that regard), but only in violation of ethical rules. In any event, People v Perez is distinguishable from Skinner and Hobson because the challenged evidence in those latter cases was a product of the violation of the ethical rule against communicating with a represented defendant on the subject of the representation, whereas here, Justice Blumenfeld did not find that the videotaped statement was a product of the alleged ethical violation.
Under these circumstances, it cannot be said that Justice Blumenfeld’s imposition of a sanction in the form of preclusion of the videotaped statement constituted an “unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action or proceeding” (Matter of State of New York v King, 36 NY2d at 64 [emphasis added]). The proper purpose of the criminal proceeding is to determine whether the prosecution can prove that Perez is guilty of the crimes charged, and if so, to punish him (see People v Roselle, 84 NY2d 350, 355 [1994]). Further, the proper purpose of a pretrial suppression hearing is primarily to address alleged constitutional and statutory violations and to ensure a fair trial (see CPL 710.20; People v Mendoza, 82 NY2d at 425). Here, the criminal proceeding, and more specifically, the suppression hearing, were used to impose a generalized sanction on the District Attorney’s office for its administration of a program. As such, Justice Blumenfeld’s preclusion order constituted a misuse of the entire proceeding (see Matter of State of New York v King, 36 NY2d at 64 [confirming that prohibition is appropriate where criminal action is “used as a pretext”]).
It also cannot be said that, because the court has the power to suppress evidence in a criminal case or to decide a defendant’s motion to suppress evidence, Justice Blumenfeld was acting within his authority, and merely made a legal error in deciding *64to preclude the videotaped statement. Similar assertions were made and rejected in Matter of Holtzman v Goldman (71 NY2d 564 [1988]), in which the People sought to prohibit the trial court from enforcing a trial order of dismissal, entered on the merits, even though no evidence had been presented and the merits had not yet been heard (id. at 566). In granting the petition, the Court concluded: “it is no answer to assert that because the court can dismiss an indictment in some circumstances its improper exercise of that power in others was merely trial error” (id. at 570). Rather, “[t]he court ‘has the power to do for some purposes what it lacks power to do for others’ ” (id., quoting Matter of Proskin v County Ct. of Albany County, 30 NY2d at 20 [the fact that the trial court had the power to grant limited inspection of grand jury minutes for the purpose of determining the sufficiency of the indictment did not render it mere trial error to permit the defendant unlimited inspection of the minutes to assist in the preparation of his case]). Here, Justice Blumenfeld lacked the power to preclude Perez’s statement, since the sanction of preclusion was not imposed to remedy any prejudice to Perez or any violation of Perez’s rights, but for the purpose of sanctioning perceived unethical conduct, in general.5
Accordingly, as Justice Blumenfeld’s order precluding the videotaped statement as a sanction for unethical conduct committed by the District Attorney’s office in administering the Program in general was not mere legal error, but, rather, an improper arrogation of power, the remedy of prohibition lies (see Matter ofPremo v Breslin, 89 NY2d at 997; Matter of Holtzman v Goldman, 71 NY2d at 570; Matter of Phillips v Ramsey, 42 AD3d 456, 458 [2007]).
We further conclude that it is appropriate in this case to exercise our discretion to issue a writ of prohibition, preventing *65Justice Blumenfeld from enforcing the preclusion order. In so exercising its jurisdiction, this Court must consider, inter alia, if the harm that would result from the act to be prohibited can be adequately corrected through an appeal or other proceedings at law or in equity (see Matter of Pirro v Angiolillo, 89 NY2d at 359; Matter of Rush v Mordue, 68 NY2d at 354). A court should be “most reluctant” to grant a writ of prohibition if doing so will “interfere [ ] with normal trial and appellate procedures by permitting collateral review of matters which could be cured upon direct appeal” (Matter of Holtzman v Goldman, 71 NY2d at 569; see Matter of Morgenthau v Erlbaum, 59 NY2d at 147). After all, “if there is an adequate ‘ordinary’ remedy, then there is no need to invoke an extraordinary” one (Matter of Morgenthau v Erlbaum, 59 NY2d at 147).
Under the present circumstances, however, the People would be unable, in People v Perez, to seek appellate review of Justice Blumenfeld’s determination to preclude Perez’s videotaped statement as a sanction for a perceived violation of an ethical rule. “No appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute” (People v Hernandez, 98 NY2d 8, 10 [2002]; see People v Dunn, 4 NY3d 495, 497 [2005]). CPL 450.20 sets forth the orders which are subject to appeal by the People in such an action. Although CPL 450.20 (8) permits the People, under certain circumstances, to appeal from an order suppressing evidence pursuant to CPL 710.20 (see CPL 450.20 [8]; People v Ayala, 89 NY2d 874, 875-876 [1996]), Justice Blumenfeld denied Perez’s motion to suppress his videotaped statement pursuant to that statute. As such, the People could not appeal the preclusion order under CPL 450.20 (8), and no other provision of that statute permits appeal of the subject order. While the nonappealability of an order is not dispositive, it is an “important” consideration (La Rocca v Lane, 37 NY2d at 579). Under the circumstances of this case, where the legislature, in fashioning CPL 450.20, likely did not contemplate the unusual approach invoked by Justice Blumenfeld here, the nonappealability of the preclusion order weighs heavily in favor of invoking the remedy of prohibition.
Accordingly, in light of our determination that prohibition lies, and that the exercise of this Court’s discretion to issue the writ is warranted, the petition is granted, and the respondent Joel L. Blumenfeld, an Acting Justice of the Supreme Court, Queens County, is prohibited from enforcing an order dated April 17, 2012, precluding a videotaped statement given by the *66respondent Elisaul Perez from being admitted into evidence at the trial in an action entitled People v Perez, pending in the Supreme Court, Queens County, under indictment No. 1202/09.
Mastro, J. P, Florio and Hall, JJ., concur.
Adjudged that the petition is granted, without costs or disbursements, and the respondent Joel L. Blumenfeld, an Acting Justice of the Supreme Court, Queens County, is prohibited from enforcing an order dated April 17, 2012, precluding a videotaped statement given by the respondent Elisaul Perez from being admitted into evidence at the trial in an action entitled People v Perez, pending in the Supreme Court, Queens County, under indictment No. 1202/09.
. Justice Blumenfeld suppressed the physical evidence, i.e., the iPods, concluding that they were obtained as a result of an unlawful search. However, he declined to suppress a statement given by Perez to the police prior to the interview pursuant to the Program, which was substantially similar to the statement he made during that interview.
. While the District Attorney takes issue with Justice Blumenfeld’s determination that the conduct of the interview pursuant to the Program constituted a violation of rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0), the District Attorney does not, nor could he properly, seek a writ of prohibition on that basis. The determination by Justice Blumenfeld that rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0) was violated because a misrepresentation was made to Perez during the course of the interview would, if incorrect, merely represent a legal error for which the extraordinary remedy of prohibition is not available (cf. Matter of Brown v Blumenfeld, 89 AD3d at 103-104; Matter of Cuomo v Hayes, 54 AD3d 855, 858 [contention that the court was “acting ultra vires as a result of its legal interpretation of a statute” did not justify invocation of writ of prohibition]). Thus, no review is made of Justice Blumenfeld’s conclusion that rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0) was violated or that misrepresentations were made to Perez during the course of the interview.
. The issue of whether there was a violation of any of Perez’s constitutional or statutory rights, or of Miranda, is not before us, and no conclusions are made in this regard. Further, in observing that Justice Blumenfeld did not find the challenged statement to be a product of the perceived ethical violation, it is noted that the considerations before us in this case, involving remedies for an alleged ethical violation, are distinct from those that may arise from a claim of a constitutional or statutory violation, or a violation of Miranda. It is acknowledged, for example, that where Miranda warnings are not given, a statement must be suppressed without making an assessment of the individual circumstances of a particular defendant (see Miranda v Arizona, 384 US at 468-469).
. Justice Blumenfeld argues in his brief that “[b]ecause courts have the inherent authority to sua sponte dismiss litigation ... it follows that judges also have the authority to impose the lesser sanction of excluding evidence to address attorney misconduct.” Even assuming such a conclusion would follow from that premise, in arguing that “courts have the inherent authority to sua sponte dismiss litigation,” Justice Blumenfeld relies upon the First Department’s decision in a civil case, Wehringer v Brannigan (232 AD2d 206, 207 [1996]). Whether or not the courts have such inherent authority in a civil case, the court, in a criminal case, does not have inherent authority to dismiss an indictment (see Matter of Morgenthau v Roberts, 65 NY2d 749, 751-752 [1985]; People v Douglass, 60 NY2d 194, 205 [1983]). Rather, the court has the authority to dismiss an indictment only by virtue of statute (i.e. CPL 210.20), and only to the extent authorized by that statute (see Matter of Morgenthau, 65 NY2d at 751-752; People v Douglass, 60 NY2d at 205). (Justice Blumenfeld expressly declined to dismiss the indictment in People v Perez pursuant to CPL 210.20.)
Similarly, although trial courts have the authority to preclude evidence as a sanction for discovery abuses, or to impose monetary sanctions for frivolous conduct, such sanctions are expressly permitted by statute (see CPLR 3126 [authorizing a court to make such orders “as are just” with regard to the failure to obey a discovery order or the willful failure to disclose relevant information]; CPL 240.70 [1] [authorizing courts to preclude evidence, or “take any other appropriate action” for the failure to comply with the provisions of article 240, pertaining to discovery]) or court rule (see 22 NYCRR 130-1.1 [authorizing imposition of costs and attorneys fees for engaging in “frivolous conduct”]). Indeed, an attorney can properly be subject to monetary sanctions “only if there is legislation or a court rule authorizing the sanction” (Matter of Premo v Breslin, 89 NY2d 995, 997 [1997]).
. Justice Blumenfeld’s act of sanctioning the People for unethical conduct, after denying Perez’s motion to suppress evidence pursuant to CPL 710.20 and 60.45, distinguishes the present petition from that of Brown I. This Court, in Brown I, contemplated only that Justice Blumenfeld would consider whether the videotaped statement should be suppressed under those statutes as a product of “improper conduct” which rendered the statement involuntary within the meaning of CPL 60.45. This Court held that Justice Blumenfeld’s determination as to whether the conduct of the interview so constituted “improper conduct” would, if erroneous, be mere legal error since Justice Blumenfeld had the power to suppress the statement if found to be involuntary under CPL 60.45. Here, we are faced with a wholly different circumstance in which, having found that the statement was voluntary, Justice Blumenfeld nonetheless precluded its use due to a perceived general ethical violation on the part of the District Attorney’s office as a whole.
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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/5902419/
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In a probate proceeding, the objectants appeal from a decree of the Surrogates Court, Kings County (Bloom, S.), dated April 2, 1986, which granted the petitioner’s motion for judgment during trial as a matter of law, and thereupon admitted the will to probate.
Ordered that the decree is affirmed, with costs payable by the appellants personally.
The decedent, an 89-year-old blind woman, executed a will in an attorney’s office in the presence of three subscribing witnesses. The entire execution of the will was tape-recorded. The tape affirmatively demonstrated the decedent’s testamentary capacity; to wit: she knew the nature and extent of her property; she named the natural objects of her bounty, her children and grandchildren; and she stated her reason for leaving her house to one daughter and providing a $1,000 bequest to each of the others, rather than dividing her estate equally. No evidence of fraud was adduced at trial.
In light of the uncontroverted proof of due execution and the decedent’s testamentary capacity, and the absence of proof that the decedent executed the will as a result of fraud or undue influence, there were no issues to submit to the jury (see, Matter of Walther, 6 NY2d 49; Matter of Flynn, 71 AD2d 891). Mangano, J. P., Thompson, Bracken and Spatt, 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/5902420/
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Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of Health of the State of New York, dated May 29, 1986, which, after a hearing, found the petitioner guilty of four charges of misconduct and imposed a penalty.
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
On December 28, 1984, Anna Katz was brought to the petitioner hospital by her daughter. She had fallen approximately 14 to 16 hours earlier and had lain on the floor, unable to move until her daughter found her. She arrived at the hospital at about 12:10 p.m. and subsequently died as the result of a fracture of the cervical spine (broken neck) at 11:41 p.m. that day. Katz was a 78-year-old, arthritic, diet-controlled diabetic with only one kidney. Although an electrocardiogram and X rays of Katz’s upper body were performed, no neurolo*606gical examination was ordered until she had lapsed into a coma. Blood tests were not ordered until 6:20 p.m. and an orthopedic examination of two minutes’ duration was limited to a brief palpating of Katz’s wrist.
Seven charges were raised against the petitioner by the Commissioner of Health, and, on September 18, 1985, a hearing was commenced. The Administrative Law Judge recommended that each of the charges be dismissed; however, the Commissioner dismissed only three, and imposed a civil penalty for violation of the remaining four.
Although the findings of an Administrative Law Judge are entitled to considerable weight, they may be overruled by the official with the power to mete out the discipline if the official's action is supported by substantial evidence (Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Danzo Estate v New York State Liq. Auth., 21 NY2d 469). Upon our review of the record, we conclude that the Commissioner’s action was supported by substantial evidence of violations of 10 NYCRR and his determination is therefore confirmed. Mangano, J. P., Thompson, Bracken and Spatt, 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/5902421/
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OPINION OF THE COURT
Catterson, J.
This appeal arises from a Family Court determination that the respondents, the parents and the nanny of a baby girl, Victoria O., abused the infant and derivatively neglected her siblings. The respondents contend that the court’s finding was not supported by a preponderance of the evidence even though it is undisputed that Victoria O. suffered seven distinct fractures of her arms, legs and skull before reaching the age of five months. The respondents argue nevertheless that the preponderance of evidence standard requires evidence that “pinpoints” the time when the injuries occurred, and thus establishes which caregiver was in control of the child at the time. The respondents misconstrue the precedent on which they purport to rely because, of course, any such requirement would automatically *70immunize entire households where multiple caregivers share responsibility for child care.
The record reflects that on February 16, 2005, flve-month-old Victoria O. was taken to the emergency room with a “painfully” swollen left arm. She was diagnosed with a fracture and admitted for treatment. On February 18, 2005, a pediatrician at New York Presbyterian Hospital examined Victoria and reviewed her medical record and X rays in response to a report of suspected child abuse. The pediatrician discovered that in addition to the fracture for which she was admitted, Victoria had suffered six additional fractures, the oldest of which may have occurred when she was just two months old. The same day, the Administration for Children’s Services (hereinafter referred to as ACS) filed a petition initiating child abuse and neglect proceedings against Victoria’s parents, Kenneth O. and Nancy O., and Merlene R, who worked as a nanny for the family 12 hours a day, five days a week, during the relevant period. The petition alleged that Victoria sustained multiple injuries for which the parents provided no explanation. A separate petition was filed alleging abuse and neglect of Victoria’s three siblings.*
The record further reflects that 11 witnesses testified over 42 days at a fact-finding hearing. Among the witnesses was the pediatrician who diagnosed the fractures. Her testimony adduced the following: Victoria suffered seven fractures—two left elbow fractures, a left-wrist fracture, a fractured left tibia and fibula, and two skull fractures—none of which could have been self-inflicted. Although the elbow fractures could not be dated with certainty, the swelling and Victoria’s distress when she arrived at the hospital indicated “recent trauma; within the past week.” The pediatrician testified that the elbow “corner bucket handle” fractures could not have been accidental, and are seen predominantly in cases of child abuse. She testified that such fractures are caused by “very violent shaking or tearing,” and that it was unlikely that any of Victoria’s siblings could exert the force necessary to cause such fractures. Victoria’s left wrist fracture was *71between two weeks and three months old, and would have initially caused pain and swelling. The fractures to Victoria’s left tibia and fibula would also have initially caused significant pain and swelling. While the pediatrician testified that it was impossible to determine precisely when these fractures occurred due to a lack of medical or other documentation, she surmised that all were at least one week old.
Furthermore, according to her testimony, the pediatrician found that Victoria had suffered two skull injuries: a displaced fracture on the side of her skull, which she determined to be less than three months old, and a non-displaced occipital skull fracture. While the pediatrician was unable to testify to the exact date that the second fracture occurred, she testified that cranial swelling present at the time of her examination was either unrelated to the fracture or suggested that the fracture was “very recent.”
The pediatrician also testified that Victoria was underweight and suffered from moderate malnutrition. The pediatrician attributed the infant’s loss of appetite to the pain of her successive injuries. The pediatrician opined that given the various stages of healing of the fractures, the lack of any explanation as to how they occurred, and Victoria’s very young age, “all of the fractures were inflicted” on the infant. Victoria’s parents and Merlene R also testified at the fact-finding hearing. Merlene K. testified that she worked as the children’s nanny for approximately eight years until February 16, 2005. She testified that there were instances when Victoria appeared to be injured which she reported to Nancy O. She testified that both parents were uninvolved with their children, and that Nancy was a very “disengaged” mother.
The parents testified that they were happy and satisfied with Merlene R.’s care of their children until the birth of Victoria, at which time Merlene became distracted and distant with the children. The parents speculated that personal and family problems affected her job performance. They admitted to allowing the other children to carry Victoria when she was three months old. Kenneth O. testified that Merlene appeared to be depressed and was inattentive to Victoria. With regard to Victoria’s injuries, the parents claimed that they sought medical attention for Victoria, but that no one diagnosed the fractures. Although Nancy O. testified that “[t]he only explanation that I can come up with is that Merlene did this to the baby,” she conceded that she never saw Merlene behave in a manner likely to have caused Victoria’s injuries.
*72In a 61-page decision dated January 8, 2010, Family Court concluded that “the severity and large number of Victoria’s injuries themselves, coupled with her very young age . . . make out a clear case of abuse.” The court further found that although “each [r]espondent denied that they ever injured Victoria and tried to suggest that the others were capable of inflicting these injuries,” none of the testimony specifically “inculpate[d] or exculpate[d]” any of the respondents. The court determined that because all three respondents were responsible for caring for Victoria during the period that the injuries took place, all three respondents had abused Victoria within the meaning of section 1012 (e) (ii) of the Family Court Act. The court also entered findings of derivative neglect with regard to Victoria’s three siblings.
On appeal, the respondents argue that the Family Court’s findings of abuse and derivative neglect were not supported by a preponderance of the evidence. The respondents contend that ACS failed to present expert testimony that Victoria’s injuries fit within the statutory definition of abuse. They further argue that even if Victoria was abused, ACS failed to establish precisely when the injuries occurred, and thus cannot show that any of the injuries can be attributed to a particular respondent. Finally, the respondents argue that because there was no evidence indicating that the other three children were abused or neglected, the finding of derivative neglect should be vacated.
For the reasons set forth below, we affirm the decision of Family Court. A child is abused, within the definition of Family Court Act § 1012 (e) (ii), when a parent or other person legally responsible for the child’s care,
“creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ.”
Contrary to the respondents’ argument, expert testimony is not required in order to determine that the injury sustained constitutes abuse under the statute. (See e.g. Matter of Angelique H., 215 AD2d 318, 319-320 [1st Dept 1995] [medical evidence presented in the hospital records demonstrated that the child sustained an injury that fell within the statutory definition].) Evidence of the severity of the injury may be sufficient to *73meet the statutory definition. (See e.g. Matter of Johnny O., 240 AD2d 179 [1st Dept 1997] [evidence of frequent brutal beatings supported a finding of abuse]; Matter of Robert W., 234 AD2d 23 [1st Dept 1996] [child’s report of being beaten with a stick embedded with nails and corroborating emergency room records was sufficient to support a finding of abuse]; see also e.g. Matter of Christopher P., 30 AD3d 307, 308 [1st Dept 2006], lv denied 7 NY3d 713 [2006] [personal observations of a child protective specialist and medical records corroborated the child’s description of excessive corporal punishment].)
In this case, the testimony of the pediatrician supports a finding of abuse. As Family Court found, the pediatrician’s testimony established that “before she reached the age of six months . . . [someone inflicted] force sufficient to cause seven different fractures on this baby.” The pediatrician specifically testified that two of the fractures Victoria sustained are the type of injuries that occur in child abuse cases as a result of “very violent shaking or tearing.” The testimony of the pediatrician, and indeed of the respondents, indicates that five-month-old Victoria expressed the pain she was suffering as a result of her injuries through symptoms of distress such as fussiness, crying and loss of appetite.
The evidence of the violence perpetrated on a five-month-old infant and the pain she suffered as a result supports Family Court’s finding that respondents abused Victoria by “creating] or allowing] to be created a substantial risk of physical injury to Victoria by other than accidental means which would be likely to cause death . . . disfigurement, or . . . impairment.” Thus, ACS’s failure to present expert testimony that Victoria’s injuries were consistent with the statutory definition is not fatal to ACS’s establishment of a prima facie case of child abuse.
Neither is the inability of ACS to pinpoint the time and date of each injury and link it to an individual respondent fatal to the establishment of a prima facie case against all three respondents. Proof of injuries to a child which would “ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child shall be prima facie evidence of child abuse.” (Family Ct Act § 1046 [a] [ii].) The Court of Appeals, in Matter of Philip M. (82 NY2d 238 [1993]), construed this language to require “(1) an injury to a child which would ordinarily not occur absent an act or omission of respondents, and (2) that respondents were the caretakers of the child at the time the injury occurred.” *74(82 NY2d at 243.) In that case, the Court found that a prima facie case of abuse was established against both parents because “respondents conceded that they were responsible for the children’s care” (82 NY2d at 245) during the period when the abused child contracted a sexually transmitted disease. Such a presumption of culpability extends to all of a child’s caregivers, especially when they are few and well defined, as in the instant case. (See Matter of Fantaysia L., 36 AD3d 813, 814 [2d Dept 2007] [prima facie case of abuse established against the father and paternal grandmother in one household and the mother and stepfather in another household because the child moved between the two households at the time she contracted a sexually transmitted disease]; Matter of Seamus K., 33 AD3d 1030, 1033 [3d Dept 2006] [prima facie case of abuse against both parents where baby suffered multiple brain bleeds in shaken baby syndrome]; see also Matter of Keone J., 309 AD2d 684, 686-687 [1st Dept 2003] [finding of abuse entered against mother and live-in boyfriend because “(e)ven assuming the child suffered his rib injuries . . . while he was under the care of his father . . . their testimony denying any awareness of any symptoms is incredible”].)
The respondents, relying solely upon this Court’s decision in Matter of Veronica C. v Carrion (55 AD3d 411 [1st Dept 2008]), argue that because the agency cannot identify the specific dates and times of the injuries, it cannot point to any one respondent who was the culpable caregiver. Hence, the respondents assert there is insufficient evidence to make out a prima facie case of abuse against them, much less satisfy the preponderance of evidence standard required for a finding of abuse. This reasoning totally misconstrues our analysis in that case.
In Veronica C., the abuse allegation was directed at the infant’s nanny, who was but one of three caregivers in the household. It also related to just one injury of lacerations on the infant’s hands. The evidence established that “both the child’s parents and [the nanny] acted as the caretakers within the 24 hours” (55 AD3d at 412) preceding diagnosis of the injury. The record in that case also reflected that the evidence consisted of an unsworn statement by the father of the child, and the credible testimony of the nanny that the child was unharmed when she handed him over to his father. Thus, we found that the administrative determination that the nanny was culpable was not supported by substantial evidence, because “it could not be determined on [the] record who the child’s caretaker was at the *75time of the injury.” (Id.) Hence, the import of our decision, given the distinguishable facts of the case, was simply, and unsurprisingly, that if allegations of child abuse are brought against just one of a child’s multiple caregivers, then the preponderance of evidence must support a finding that only the accused caregiver was in control of the child at the time of injury. To be more precise, the holding could have read: “it could not be determined that the nanny was the caregiver at the time of the [one] injury.” While, as set forth below, establishing the time of an injury may be used by a respondent to rebut evidence of abuse by such respondent, our holding in Veronica C. does not stand for the proposition that charges of abuse must be dismissed if the time of an injury cannot be precisely “pinpointed.”
In any event, in this case, Victoria suffered seven distinct injuries, which, the pediatrician testified, would have caused a loss of appetite and resultant “moderate malnutrition” over a period of three months. Hence, the abuse was ongoing and apparently evident over a period of three months. Family Court therefore correctly found that “the time period within which the injuries or condition arose” was the entire three-month period rather than the dates of each separate injury which could not be determined. Since the three respondents shared responsibility for Victoria’s care during that period, the court also correctly found that ACS had established a prima facie case against all three respondents.
Family Court further correctly determined that the respondents failed to meet their burden of rebutting the evidence of abuse. It is well settled that once a prima facie case is established, respondents may “simply rest without attempting to rebut the presumption.” (Matter of Philip M., 82 NY2d at 244.) Alternatively, respondents may challenge the establishment of the prima facie case by providing evidence that, inter alia, they were not acting in the capacity of caregivers at the time of the injuries, or that the injuries came about as a result of accidents for which they were not responsible. (Id.; see e.g. Matter of Vincent M., 193 AD2d 398 [1st Dept 1993] [testimony by both parents indicated that the infant was in the care of the respondent father and not the respondent mother at the time the infant was injured].)
In this case, although all three respondents denied culpability, none of the respondents established that Victoria was not in his or her care at the time of any of the injuries. Nor could they do *76so, since, by the respondents’ own argument, the specific dates of the injuries could not be determined. As the court observed “there is no medical proof pinpointing the timing of Victoria’s injuries to a time period specific enough to exculpate or inculpate any of the three [Respondents.”
The court, relying on Matter of Seamus K. (33 AD3d 1030 [2006], supra), observed that “[t]he respondents’ attempts to implicate each other . . . fall short of being satisfactory explanations to rebut the evidence of abuse ... A respondent’s failure to explain a child’s injuries with only a denial that they are at fault is insufficient to rebut a prima facie case of abuse.” Indeed, the court found that there were serious credibility issues with each respondent, and, as the Court of Appeals has observed, the Family Court is in the best position to assess the respondents and their characters. (Matter of Irene O., 38 NY2d 776 [1975].)
Finally, the finding of derivative neglect with respect to Matthew, Katherine and Samantha was supported by substantial evidence. Family Court Act § 1046 (a) (i) states that “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent.” A finding of abuse with regard to a sibling can constitute a prima facie case of neglect of the other children, if the conduct which constituted abuse “is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists.” (Matter of Cruz, 121 AD2d 901, 903 [1st Dept 1986].) It is not necessary for a sibling to suffer physical injury in order for the court to find derivative neglect or abuse of a sibling. (See Matter of Jorge S., 211 AD2d 513 [1st Dept 1995], lv denied 85 NY2d 810 [1995].) Evidence of the abuse of one child supports the conclusion that “the parents have a faulty understanding of the duties of parenthood and that [any] other child [of the family] is therefore neglected because there is a substantial risk that his or her mental, emotional or physical condition is in imminent danger of becoming impaired” by the same abusive conduct. (Matter of Christina Maria C., 89 AD2d 855, 855 [2d Dept 1982], citing Family Ct Act §§ 1046 [a] [i]; 1012 [f] [i] [B].) Thus, in this case, while there is no evidence that Victoria’s siblings suffered any physical harm, the repeated and severe injuries inflicted upon Victoria indicate that her caregivers failed to understand their duties to the children, and that Victoria’s siblings were in imminent danger of being injured.
Accordingly, the order of disposition of the Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about June *777, 2010, which, to the extent appealed from as limited by the briefs, brings up for review a fact-finding determination that respondents had abused the youngest subject child and derivatively neglected the other children, should be unanimously affirmed, without costs.
Tom, J.P, Richter, Abdus-Salaam and Román, JJ., concur.
Order of disposition, Family Court, Bronx County, entered on or about June 7, 2010, affirmed, without costs.
On February 18, 2005, Family Court remanded Victoria and the youngest of her sisters to the care of the Commissioner of Social Services and paroled the two oldest children to the care of the parents. On October 24, 2005, Victoria’s youngest sister was paroled to her parents. On or about January 11, 2006, Family Court paroled Victoria to her parents with specific conditions not relevant to this appeal. ACS requested a removal hearing pursuant to Family Court Act § 1027 opposing the court’s order. At the conclusion of the hearing, Family Court denied the removal application. On or about June 5, 2008, the court discontinued all supervision of the family.
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