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https://www.courtlistener.com/api/rest/v3/opinions/5902423/
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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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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/1787935/
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355 So. 2d 310 (1978)
The HOME INSURANCE COMPANY
v.
M.T. OLMSTEAD and Charline Olmstead.
No. 49980.
Supreme Court of Mississippi.
February 22, 1978.
*311 Watkins & Eager, Velia Ann Mayer, P.N. Harkins, III, Jackson, for appellant.
John G. Corlew, Pascagoula, Frank J. Hammond, Jr., Moss Point, for appellees.
Before INZER, SUGG and WALKER, JJ.
WALKER, Justice, for the Court:
This is an appeal from a judgment entered by the Circuit Court of Jackson County, Mississippi, after a jury verdict in favor of the appellees, M.T. and Charline Olmstead, plaintiffs in the court below, against the appellant, Home Insurance Company. The amount of the judgment was $23,160 in actual damages, plus $4,340 in punitive damages, plus interest at the legal rate on the sum of $16,000 from the date of loss, September 7, 1969.
This case arose out of a fire loss sustained by the Olmsteads on September 7, 1969. Hurricane Camille struck the Mississippi Gulf Coast on August 18, 1969. At the time of Hurricane Camille, the Olmsteads' property was insured by the Hartford Insurance Company through the Davis Insurance Agency in Moss Point, Mississippi. On or about August 20, 1969, the Olmsteads went to the Gary Smith Agency in Pascagoula inquiring about fire insurance on their home. Mrs. Jean Langner, the Smith Agency underwriter for fire insurance, testified that she asked the Olmsteads if they had any damage as a result of Hurricane Camille, and they told her that they did not. Mrs. Langner was not asked at trial if she ever asked the Olmsteads whether they had water in the house from the hurricane.
The Home Insurance Company issued its policy to the Olmsteads on August 21, 1969, which provided $10,000 coverage on the Olmsteads' house and $6,000 on the contents. The policy had a mortgage clause payable to J.C. Wood. By the time of the trial, the mortgage had been paid off and the Olmsteads owed Mr. Wood nothing with respect to the property.
Sometime after noon on Saturday, September 7, 1969, the Olmsteads left their house to spend the weekend with Mr. Olmstead's brother in Fort Walton Beach, Florida. When they returned on Sunday night, all they found was a pile of ashes. It was the testimony of the Olmsteads that the *312 house and all of its contents were destroyed and that they were not able to save anything.
Mr. Olmstead contacted his attorney, Mr. Hammond, who told him to report the fire to their insurance agent. On Monday morning, Mrs. Olmstead went to the Gary Smith Agency and reported the loss. Mr. J.C. Oliver, the adjuster for the Home Insurance Company, testified that he called Mrs. Olmstead on September 13, 1969, and she gave him directions to the house and told him that they had had approximately a foot of water in it from Hurricane Camille. After examining the house site and confirming the high water marks on the property, Mr. Oliver checked with the Davis Agency regarding the possibility of a claim having been made by the Olmsteads under the Hartford policy for damage from Hurricane Camille. Although neither the Hartford nor the Davis Agency could confirm that a claim had been made, someone at the Davis Agency did tell Mr. Oliver that they were of the opinion that a claim had been made for hurricane damage. At the trial, the Olmsteads denied making a claim under the Hartford policy. It was never determined whether or not Mr. Wood, the mortgagee, made a claim.
After discovering the possibility that a claim had been made by the Olmsteads for hurricane damage, Mr. Oliver went back to the Smith Agency and interviewed Mrs. Langner. He submitted all of the information he had to the Home Insurance Company and was instructed by the company to leave a non-waiver agreement at the Smith Agency for the Olmsteads, which he did around the first of October. Mr. Oliver was instructed to suspend his investigation until the Olmsteads executed the non-waiver agreement.
The appellant first assigns as error the refusal by the trial court to grant instruction D-16, which informed the jury that their verdict should be for appellant if they found that the Olmsteads declined to submit to an examination under oath scheduled for February 4, 1970, and did not offer to submit to such an examination until June 14, 1971. The facts relating to this assignment are that on January 16, 1970, Mr. Goodman, the Home's attorney, wrote the Olmsteads a letter, with a copy addressed to Mr. Hammond, the Olmsteads' attorney, demanding that the Olmsteads present themselves at the Jackson County Courthouse in Pascagoula at 11:50 a.m. on Wednesday, February 4, 1970, for an examination under oath. On February 2, 1970, Mr. Hammond called Mr. Goodman on the telephone and told him that the Olmsteads would not be able to make it on February 4, 1970, because they had to go out of town to take care of a sick relative. Mr. Hammond testified that at this time, and on several subsequent occasions, he attempted to make it clear to Mr. Goodman that he was not refusing entirely to submit his clients to the examination under oath, but that his refusal was only limited to February 4, 1970, and they would be available at any reasonable time thereafter. Mr. Hammond admitted, however, that he did not know what Mr. Goodman's understanding was and that he never suggested any specific dates to Mr. Goodman. Mr. Goodman did not testify at the trial.
On February 2, 1970, Mr. Goodman wrote Mr. Hammond confirming their telephone conversation of that date. Mr. Goodman also sent Mr. Hammond a proof of loss form as Mr. Hammond had requested in their telephone conversation. On March 6, 1970, Mr. Hammond wrote a letter back to Mr. Goodman enclosing the signed proof of loss. Mr. Hammond's letter of March 6, 1970, did not mention his offer to have his clients examined under oath after February 4, 1970. On March 9, 1970, Mr. Goodman replied to Mr. Hammond's letter of March 6, 1970, and asked Mr. Hammond to confirm in writing that his clients had refused to submit to the examination under oath on February 4, 1970. Mr. Hammond did not reply to this letter. The first reference to Mr. Hammond's alleged verbal offer was contained in a letter dated June 14, 1971 (16 months after the first scheduled examination) from Mr. Hammond to Mr. Goodman asking Mr. Goodman to advise when the *313 Olmsteads could be examined under oath "[p]ursuant to our previous conversations... ."
On June 16, 1971, Mr. Goodman wrote back to Mr. Hammond stating that his offer to have the Olmsteads examined came too late, that the lapse of sixteen months since the examination was originally requested had resulted in the perishing of any benefits that could have been discovered from the examination demanded on February 4, 1970. The letter stated that it was the position of the Home Insurance Company that the insured by failing and refusing to submit to the examination under oath within a reasonable period of time had wilfully concealed material facts and circumstances relating to the insurance and to the alleged loss and that the Olmsteads were thereby precluded from any right of recovery.
Subsequent attempts to get the Home Insurance Company to reconsider its position proved fruitless and the Olmsteads filed suit on September 3, 1975.
The rule is that the refusal of the insureds to submit to an examination under oath in violation of the express provisions of the insurance policy will result in forfeiture of the insureds' right to recover under the policy and will entitle the insurance company to a peremptory instruction in the trial of an action by the insureds to recover from the insurance company on a policy of fire insurance. Boston Ins. Co. v. Mars, 246 Miss. 36, 148 So. 2d 718 (1963).
Further, if an insured, for a valid reason, is unable to attend an examination under oath, it is incumbent upon the insured, as soon as possible, to offer to submit to an examination at a later date. See Standard Ins. Co. of New York v. Anderson, 227 Miss. 397, 86 So. 2d 298 (1956); Bergeron v. Employers Fire Ins. Co., 115 Cal. App. 672, 2 P.2d 453 (1931).
Clearly, an issue in this case was whether the Olmsteads, after declining to attend the examination scheduled for February 4, 1970, failed to offer to submit to such an examination until June 14, 1971. Thus, it was error for the trial court to refuse to grant instruction D-16.
The appellant next contends that the trial court erred in instructing the jury that they could award the Olmsteads tort damages, including loss of wages and compensation for mental anguish, and punitive damages, if it was found that the insurance company acted in bad faith in refusing to settle the Olmsteads' claim. We agree.
Such instructions could only have been premised on the assumption that there was an agreement between Messrs. Hammond and Goodman as of February 2, 1970, or shortly thereafter, that the Olmsteads would be available for an examination under oath at a convenient time after February 4, 1970. If there had been such an agreement, then the insurance company's refusal to reschedule the examination and its denial of coverage might amount to bad faith.
However, the evidence does not indicate that there was any such agreement. At most, the evidence indicates a misunderstanding between Messrs. Hammond and Goodman. With respect to his refusal to submit the Olmsteads on February 2, 1970, and his verbal offer to make them available at a later date, Mr. Hammond admitted that he did not "... know how Bill [Goodman] took it." It is clear from Mr. Goodman's letters to Mr. Hammond, all of which mention the refusal of the Olmsteads to submit to the examination on February 4, 1970, but none of which acknowledge anything like an offer to submit as alleged by Mr. Hammond, that Mr. Goodman did not "take it" (their conversation) the way Mr. Hammond intended. In view of Mr. Hammond's admission that he might not have made himself understood by Mr. Goodman, we are of the opinion that the evidence did not warrant granting bad faith instructions and it was error for the trial court to give them.
For the same reason, we are of the opinion that the award of prejudgment interest by the trial court was error. While it is true that prejudgment interest may be allowed in cases where the amount due is liquidated when the claim is originally *314 made,[1] we are of the opinion that due to the misunderstanding in this case, prejudgment interest is not appropriate.
This case is a good illustration of the desirability of limiting the imposition of prejudgment interest to those cases where the denial of the claim is frivolous or in bad faith, for not only was the Home's denial not in bad faith, but, in addition, the Olmsteads waited until September 3, 1975, to file suit just before the statute of limitations ran out. In view of Mr. Goodman's letter to Mr. Hammond of June 16, 1971, in which the Home Insurance Company denied the claim, it would be unjust to hold that the insureds could sit by idly and let the interest run up for four years before filing suit. We say this fully aware of Mr. Hammond's explanation that he waited so long to file suit because he thought that Mr. Goodman was trying to get the company to reconsider its position. In the absence of any correspondence between Messrs. Hammond and Goodman following Mr. Goodman's letter of June 16, 1971, and of any testimony concerning conversations between the two subsequent to their telephone conversation following Mr. Hammond's receipt of the letter of June 16, 1971, it was not reasonable for Mr. Hammond to assume that Mr. Goodman would continue to pursue the matter for four years.
The Home Insurance Company's final argument is that the trial court erred in instructing the jury that the burden was on the Home Insurance Company to prove that the Olmsteads wilfully concealed and misrepresented material facts concerning the issuance of the policy. The Home Insurance Company cites no cases in support of its argument. In Interstate Life & Accident Ins. Co. v. Smith, 260 So. 2d 453 (Miss. 1972), we stated that the burden is on the insurer to establish an affirmative defense relied upon to work a forfeiture of the insurance contract. Thus, there was no error by the trial court in this regard.
For the foregoing reasons, we are of the opinion that the judgment of the lower court must be reversed and the cause remanded for a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL.
PATTERSON, C.J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, BROOM, LEE and BOWLING, JJ., concur.
NOTES
[1] Farm Mutual Auto Ins. Co. v. Bishop, 329 So. 2d 670 (Miss. 1976); Commercial Union Ins. Co. v. Byrne, 248 So. 2d 777 (Miss. 1971).
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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/5902430/
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Appeal by the defendant from a judgment of the County Court, Suffolk County (Rohl, J.), rendered January 9, 1987, convicting him of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the seventh degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
*611The defendant complains that certain remarks in the prosecutor’s summation deprived him of a fair trial. However, at trial there was an objection to only one of the comments. Consequently, with that one exception, the defendant’s claim is not preserved for appellate review (see, CPL 470.05 [2]). Moreover, as to the one objected-to remark, the Trial Judge sustained the objection. Since the defendant did not request a curative instruction or move for a mistrial, it must be concluded that any error was cured to the defendant’s satisfaction (see, People v Medina, 53 NY2d 951).
In addition, the Trial Judge did not abuse his discretion in denying the defendant’s motion for a mistrial when an undercover police officer testified that he was investigating the possibility of other criminal activity at the after-hours social club where the drug transactions were consummated. Because the officer did not suggest that the defendant was involved in the other criminal activities, no prejudice to the defendant resulted from this testimony (see, People v Brotherton, 122 AD2d 850, lv denied 69 NY2d 709). In addition, the Trial Judge sustained counsel’s objection, ordered the remark stricken and promptly instructed the jury to disregard the statement (see, People v Brotherton, supra).
We have examined the defendant’s 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/5902432/
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (O’Dwyer, J.), rendered July 9, 1982, convicting him of robbery in the first degree, attempted robbery in the first degree and criminal use of a firearm in the second degree, upon a jury verdict, 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 identification testimony.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620, 621), we find that the trial testimony was legally sufficient for the jury to find the defendant guilty of the charges upon which he was convicted. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]). The conflicting testimony adduced at trial merely created a credibility issue which was resolved by the jury (see, People v Daniels, 134 *612AD2d 361; People v Shapiro, 117 AD2d 688, lv denied 67 NY2d 950).
The defendant’s contention that the showup identification was impermissibly suggestive is without merit. The identification at the scene, which took place only a short time after the incident, was the type of constitutionally appropriate prompt identification procedure that serves to enhance the reliability of identifications and the prompt release of innocent suspects (see, People v Brnja, 50 NY2d 366; People v Hernandez, 127 AD2d 790, lv denied 70 NY2d 648; People v Soto, 87 AD2d 618). In any event, the People proved by clear and convincing evidence that there was a reliable independent source for the complainant’s identification of the defendant (see, Manson v Brathwaite, 432 US 98).
We have reviewed the remainder of the defendant’s contentions and find that they are either without merit or unpreserved for appellate review. 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/5902431/
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OPINION OF THE COURT
Rivera, J.P.
“Auditur et altera pars,” or “The other side shall be heard as well,” are words attributed to Lucius Annaeus Seneca, the Roman philosopher, in the tragedy Medea. This concept is encompassed in the legal principle known as “due process.” The instant appeal involves fundamental due process considerations in the context of Correction Law article 6-C, the Sex Offender Registration Act (hereinafter SORA). Particularly, we are presented with the issue of whether the defendant, a sex offender facing risk level classification under SORA, was deprived of his due process rights, where he did not receive notice of the SORA hearing, he did not waive his right to be present thereat, and the hearing was held in his absence. The Supreme Court determined, and the People presently take the position on appeal, that the defendant’s due process rights were not violated because he was ultimately adjudicated a level one sex offender, the lowest risk level assignable under SORA. Contrary thereto, for the reasons that follow, the defendant’s due process rights were violated and thus, we reverse the order appealed from.
I. Factual and Procedural Background
In 2003, the defendant was charged under Kings County superior court information No. 5518/2003, with attempted sodomy in the first degree (Penal Law §§ 110.00, 130.50), relating to the sexual abuse of his girlfriend’s then-six-year-old daughter. The defendant apparently waived his right to be prosecuted by indictment. He pleaded guilty to the crime charged and was sentenced to a determinate term of imprisonment consisting of 31/2 years, to be followed by five years’ postrelease supervision.
The record on appeal includes a “NOTICE” dated September 2, 2010, pursuant to Correction Law article 6-C, which was purportedly sent by the Supreme Court, Kings County, to the defendant at the Marcy Correctional Facility, directing him to appear before the Supreme Court on October 18, 2010. A copy *91of this notification was also apparently sent to assigned defense counsel Carol Schajer. Further, in an “order to produce,” entered September 2, 2010, the Supreme Court directed the warden or superintendent of Marcy Correctional Facility to produce the defendant for a SORA hearing on October 18, 2010, at 9:30 a.m.
The Case Summary and Risk Assessment Instrument
In a case summary dated August 26, 2010, the Board of Examiners of Sex Offenders (hereinafter the Board) stated that the defendant apparently entered the United States “illegally circa 1992,” and that the Bureau of Immigration and Customs Enforcement had “lodged a deportation order against him.” The Board added, “it is possible that he may be deported to his native country of Mexico.”
In a risk assessment instrument dated August 27, 2010, the defendant was assessed a total of 90 points, which placed him in a presumptive level two category. The Board recommended that a departure from the presumptive risk level was not warranted.
The January 6, 2011, SORA Hearing
On January 6, 2011, the People and defense counsel appeared before the Supreme Court, Kings County, for a SORA hearing. The defendant was not present at this hearing.
At the commencement of the hearing, the People indicated that they had provided the Supreme Court and defense counsel with “documentation” from U.S. Immigration and Customs Enforcement showing that the defendant was deported to Mexico on September 3, 2010. In this regard, a letter addressed to Assistant District Attorney (hereinafter ADA) Allegra Santomauro from U.S. Immigration and Customs Enforcement Deportation Officer Lukasz Kubicz, dated October 29, 2010, states, in pertinent part, as follows:
“As per your office[’]s inquiry regarding [the defendant], ICE [Immigration and Customs Enforcement] official records shows that the subject was removed from the United States on September 03, 2010 from Harlingen, TX to Mexico. Removal was witnessed and confirmed by ICE/ERO officers. For immigration purposes this case is closed.”
Thereafter, the Supreme Court stated that “the presence of the defendant” was “[w]aived for [purposes of] the hearing,” adding “[w]e will do the hearing.” The People, however, interjected:
*92“Your Honor, I want to make a record for the Court. I checked with the Department of Corrections, there is no waiver in the file. I have also spoken with our Appeals Bureau and as such without an effective waiver it is the People’s position that this hearing cannot happen because the defendant did not waive his right to be present.” (Emphasis added.)
The court asked, “[s]o how do I get him here?” The court then stated:
“He could be back in the country right now you [sic] without a requirement to register as a sex offender, I am going to go proceed with the hearing and then you could concede error on an appeal if you wish to. But I am not going to leave this probationer, I should say sex offender who has been deported from this country after serving a prison sentence for a sexual act against a youngster under ten years of age without a designation as a sex offender which would require him to register if he came back into the country.”
At this point, defense counsel registered an objection stating, “I never had contact with this client and to my understanding he has never signed a waiver [of his right to be present at the SORA hearing]. And without my client’s input into this case I am unable to make effective arguments on his behalf.”
The People reiterated to the court that they did not “choose to proceed” with the hearing. Specifically, the ADA asserted, “I don’t know how the defendant would know he is required to register if he is not present for this hearing.”
Notwithstanding the foregoing, the court continued, as follows:
“The Court rules that his being deported amounts to a de facto waiver of this [sic] presence at the hearing and I am going to proceed and I will make my record then you can have your objection and you could find [sic] notice of appeal. We can litigate this issue.”
Defense counsel thereafter stated:
“What I want to put on the record is that I was assigned this case on September 16th [2010]. I wrote a letter to my client at the facility. I was informed I was at—I am handing up a copy of the returned en*93velope. I am asking it be marked Defense A and moved into evidence as Defense A. There is an indication written in red ink 8/27/10, paroled or liens to immigration. So he was sent to immigration even before I was assigned to this case.”
The court then made the following statements:
“I have a letter that is part of, I will make part of the hearing I am about to conduct.
“From the United States Immigration Customs Enforcement Service dated October 29, 2010 indicating that [the defendant] was removed from the United States on September 3, 2010 from Harlingen, H-A-R-L-I-N-G-E-N, Texas to Mexico. Removal was witnessed and confined [sic] by ICU Immigrations Customs Enforcement officers for immigration purposes. The case is closed. The court has a file which contains a risk level assessment instrument and a case summary. The risk factors that are designated by the agency indicates that the defendant scores at 90 points. The only one that I have difficulty with is behavior while confined which is post offense. They assessed ten points for his unsatisfactory performance for behavior while in custody. That is not reflected in the record. The Court adjudicates that those ten points should not be assessed. All the other factors are can [sic] prove [sic] by clear and convincing evidence.
“The Court makes a determination of a risk level assessment point total of 80 points which still places the defendant at a level two sexually violent offender. That is the ruling of the Court. I will sign a ruling to that effect.”
The January 14, 2011, SORA Hearing
On January 14, 2011, the People and defense counsel again appeared before the Supreme Court. The defendant was not present. At this proceeding, the court stated:
“This was a risk level assessment hearing that was before me on January 6th. The People indicated to me that they would not go forward with the hearing because the defendant had been deported and that the court could not have jurisdiction over him.
*94“However, it [was] the court’s opinion that just based on the underlying conviction, if he were here he could not contest the fact that I could adjudge him a risk level 1 offender based on the conviction by itself.
“Balancing the interest of protection of the public and noting that the defendant was deported to the country of Mexico and the well-known ability of people to return to the United States from the country of Mexico, I’m going to in this case, over the objection of both sides, adjudge the defendant a level 1 offender as a risk level with the ability to open up the proceeding to a higher, to a possible higher level should he return to the United States illegally.
“And I’m adjusting my—I’ve done some research and I tend to agree with the People that I would not have the jurisdiction without him being present to indicate the factors that would raise him to a 2 or a 3.
“However, just based on the underlying conviction, I feel that I am balancing the interest of the due process rights of the defendant with the interest and the protection of the public, having him require to register even if he returns to the country illegally for the next twenty years as a Level 1 offender. And that’s my ruling.”
Defense counsel repeated that she had been assigned to represent the defendant after he had already been “taken by immigration” and that the People previously stated that there had been no signed waiver by the defendant of his right to be present at the SORA hearing. The court conceded, “[t]here is no waiver.”
Defense counsel further argued that the case of Doe v Pataki (3 F Supp 2d 456 [1998]) gave the defendant the “absolute right to be present” at the SORA hearing. Counsel added, “[h]e’s clearly not even in the country, as far as we know. He has a right to know this. We have no idea if [the defendant] even received notice in this case. There are no exceptions to Doe versus Pataki that I am aware of.”
At this point, the court stated:
“I am attempting to make one. Because having been *95deported because he was illegally in the country renders him unavailable to my jurisdiction.
“If he were here, the best level assessment he could receive would be a 1 based on his conviction to the crime he was convicted of. And balancing his due process rights to even contest the Level 1 which I don’t believe he would have any legal basis to contest against the protection of the public should he enter this country again illegally, he would be required to register as a sex offender. I am designated [sic] him a Level 1 over your objection and you can file a notice of appeal.”
Defense counsel referred to the case of People v Gonzalez (69 AD3d 819, 819 [2010]), quoting therefrom,
“[t]o establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence.”
The court, however, indicated, “I find exceptional circumstances that I placed on the record to adjudge him a Level 1 offender.” Thus, the court stated that it was “changing the [SORA] designation” to a level one “over the defendant’s objection.” Consistent therewith, in an order dated January 14, 2011, the Supreme Court designated the defendant a level one sex offender.
II. The Parties’ Contentions on Appeal
On appeal, the defendant contends that his due process rights were violated when the SORA hearing was held in his absence and he did not waive his right to be present. He notes that he was deported before receiving any notice of the SORA hearing and his counsel never had an opportunity to communicate with him before the hearing. The defendant adds that both the People and defense counsel repeatedly objected to holding the hearing in the defendant’s absence without a waiver.
In their brief on appeal, the People, in effect, take a position contrary to their original stance in the first hearing. Now, the People argue that the Supreme Court’s decision to conduct the SORA risk assessment hearing in the defendant’s absence was proper because “even though [the] defendant had not waived *96his right to attend the hearing, he was adjudicated a level one (low risk) sex offender, and thus the outcome of the hearing was the most favorable to him that was possible.” Thus, the People contend that this Court should “uphold” the Supreme Court’s determination, designating the defendant a level one sex offender.
In reply, the defendant reiterates that his due process rights were violated. He asserts that the People waived their present claims that the lack of notice and the defendant’s absence from the hearing are inconsequential. Further, he contends that the People’s assertion that it was proper to hold the hearing in the defendant’s absence is without merit. In this regard, the defendant notes that, even with an adjudication as a level one, he nevertheless has protected due process rights. He argues, “[u]nder the People’s reasoning, any offender who is to be adjudicated a level one offender need not receive notice of or be present at a SORA hearing . . . [b]ut due process is not subject to a sliding scale based upon the level of the penalty imposed.” Moreover, he asserts that there are serious consequences relating to the subject sex offender designation which require him to register as a sex offender and subject him to criminal penalties if he fails to do so. In sum, he states that “even when an individual is ultimately adjudicated a level one offender, the risk assessment hearing must ‘comport with minimum State and Federal constitutional requirements of due process.’ ” He insists that those requirements were not met in this case.
III. Legal Analysis
A SORA proceeding “determines the risk of reoffense by a person convicted of a qualifying sex offense and requires that individual to register with law enforcement officials according to that risk level” (People v Pettigrew, 14 NY3d 406, 408 [2010]; see People v Mingo, 12 NY3d 563, 570-571 [2009]). Pursuant to the statutory framework contained in Correction Law article 6-C, the Board “shall” make a recommendation to the court regarding an offender’s risk level classification, “within sixty calendar days prior to” the offender’s discharge, parole, or release from incarceration (Correction Law § 168-l [6]).
“Correction Law § 168-n governs the procedure for the initial judicial determination of a sex offender’s risk level upon release from incarceration” (People v Wyatt, 89 AD3d 112, 117 [2011]). In relevant part, Correction Law § 168-n (3) provides that “[n]o later than thirty days prior to the board’s recommendation, the *97sex offender shall be notified that his or her case is under review and that he or she is permitted to submit to the board any information relevant to the review.”
Further,
“[a]t least twenty days prior to the determination proceeding, the sentencing courtshall notify the district attorney, the sex offender and the sex offender’s counsel, inwriting, of the date of the determination proceeding and shall also provide the district attorney, the sex offender and the sex offender’s counsel with a copy of the recommendation received from the board and any statement of the reasons for the recommendation received from the board” (Correction Law § 168-n [3]).
This statute expressly sets forth that the notice “shall” include the following statement or a substantially similar statement:
“ ‘This proceeding is being held to determine whether you will be classified as a level 3 offender (risk of repeat offense is high), a level 2 offender (risk of repeat offense is moderate), or a level 1 offender (risk of repeat offense is low), or whether you will be designated as a sexual predator, a sexually violent offender or a predicate sex offender, which will determine how long you must register as a sex offender and how much information can be provided to the public concerning your registration. If you fail to appear at this proceeding, without sufficient excuse, it shall be held in your absence. Failure to appear may result in a longer period of registration or a higher level of community notification because you are not present to offer evidence or contest evidence offered by the district attorney’ ” (id.).
“The written notice to the sex offender shall also advise the offender that he or she has a right to a hearing prior to the court’s determination, and that he or she has the right to be represented by counsel at the hearing” (id.).
Correction Law § 168-n (3) also provides that “[t]he court shall allow the sex offender to appear and be heard” (id.). “The state shall appear by the district attorney . . . who shall bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence” (id.).
*98Correction Law § 168-n (6) states that
“[i]f a sex offender, having been given notice, including the time and place of the determination proceeding in accordance with this section, fails to appear at this proceeding, without sufficient excuse, the court shall conduct the hearing and make the determinations in the manner set forth in subdivision three of this section.”
Significantly, a sex offender facing a risk level classification has certain due process rights including (1) a judicial determination of his risk level classification, (2) notice of the risk level assessment proceeding sufficiently in advance of the hearing to prepare a challenge, (3) notice of the proceeding that must include a statement of its purpose and the Board’s recommended risk level classification, (4) representation by counsel, (5) prehearing discovery, (6) proof by the State of the facts supporting each risk factor by clear and convincing evidence, and (7) a right to appeal (see Doe v Pataki, 3 F Supp 2d at 471-473; People v David W., 95 NY2d 130, 133 [2000]; People v Black, 33 AD3d 981, 981-982 [2006]; People v Brooks, 308 AD2d 99, 103 [2003]). These due process rights have been incorporated into Correction Law § 168-n (see People v Black, 33 AD3d at 982).
As stated in Doe v Pataki (3 F Supp 2d at 470), risk level classification hearings fall
“somewhere between a criminal proceeding in which a defendant is entitled to a full panoply of rights . . . and a simple administrative proceeding, in which participants have traditionally been afforded less process. Certainly, the due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial” (id. [internal quotation marks and citation omitted]; see People v Erb, 59 AD3d 1020 [2009]; People v Brooks, 308 AD2d at 105).
Nevertheless, a “SORA determination undeniably has a profound impact on a defendant’s liberty interest due to the registration and community notification provisions” (People v Brooks, 308 AD2d at 105; see Doe v Pataki, 3 F Supp 2d at 466-468). For this reason, in assigning risk levels to convicted sex offenders under SORA, the aforementioned procedural protec*99tions “are required to satisfy procedural due process” (Doe v Pataki, 3 F Supp 2d at 471).
“ ‘A sex offender facing risk level classification under the Sex Offender Registration Act (hereinafter SORA) has a due process right to be present at the SORA hearing but his presence at this noncriminal proceeding is entirely voluntary’ ” (People v Arrahman, 83 AD3d 680, 680 [2011], quoting People v Porter, 37 AD3d 797, 797 [2007]; see People v Jackson, 94 AD3d 961 [2012]; People v Gonzalez, 90 AD3d 1005, 1006 [2011]; People v Gonzalez, 69 AD3d 819 [2010]; People v Brooks, 308 AD2d at 103). Notably, this Court has held that
“ ‘[t]o establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence’ ” {People v Arrahman, 83 AD3d at 680, quoting People v Porter, 37 AD3d at 797; see People v Jackson, 94 AD3d at 961; People v Gonzalez, 90 AD3d at 1006; People v Gonzalez, 69 AD3d at 819; People v Brooks, 308 AD2d at 106).
Where the record contains no evidence that the defendant received notice of the hearing date, this Court has determined that the defendant’s due process rights were violated (see People v Gonzalez, 90 AD3d at 1006; People v Gonzalez, 69 AD3d at 819). Similarly, where a defendant’s failure to appear at the hearing is not deliberate and the defendant did not waive his appearance, this Court has found that the defendant is entitled to a new risk level assessment hearing (see People v Arrahman, 83 AD3d at 680).
Applying the foregoing to the facts of this case, we conclude that the defendant’s due process rights were violated.
First, the record contains no evidence that the defendant ever received notice of the SORA hearing date and his right to be present (see People v Distaffen, 71 AD3d 1597, 1598 [2010]). A “NOTICE” dated September 2, 2010, was sent by the Supreme Court to the defendant at the Marcy Correctional Facility, directing him to appear before the court for a SORA hearing that was to take place on October 18, 2010. Apparently, the defendant had been paroled to immigration authorities on August 27, 2010. The letter from U.S. Immigration and Customs Enforcement confirms that the defendant was deported from Texas to Mexico *100on September 3, 2010. Additionally, defense counsel was assigned to this case on September 16, 2010, approximately two weeks after the defendant had already been deported to Mexico, and counsel had not been able to communicate with the defendant.
Second, at the initial SORA hearing, the People advised the court that the defendant did not waive his right to be present at the hearing. Conceding the defendant’s failure to waive his right to be present, the People stated, “without an effective waiver it is the People’s position that this hearing cannot happen because the defendant did not waive his right to be present.” Defense counsel similarly informed the court, “I never had contact with this client and to my understanding he has never signed a waiver [of his right to be present at the SORA hearing]. And without my client’s input into this case I am unable to make effective arguments on his behalf.” The People reiterated to the court that they did not “choose to proceed” with the hearing. Specifically, ADA Santomauro asserted, “I don’t know how the defendant would know he is required to register if he is not present for this hearing.”
Notwithstanding the foregoing, and despite the protestations by both the People and defense counsel, the Supreme Court proceeded with the SORA hearing in the defendant’s absence, even though he had not received notice, and had not properly waived his right to be present thereat. Although the court later revisited its initial level two designation and changed the defendant’s designation to a level one category, the defendant’s due process protections, as outlined in Doe v Pataki and incorporated into Correction Law § 168-n, were nevertheless violated.
As noted by the court in Doe v Pataki, “[t]he Supreme Court has stressed that ‘fair notice’ is ‘the bedrock of any constitutionally fair procedure’ ” (Doe v Pataki, 3 F Supp 2d at 471, quoting Lankford v Idaho, 500 US 110, 121 [1991]). Sex offenders subject to SORA have a protected liberty interest that entitles them to the procedural due process rights discussed above (see Doe v Pataki, 3 F Supp 2d at 468). The Constitution, Correction Law § 168-n (3), and case law do not confine these constitutional rights to only level two and level three sex offenders. A dangerous precedent would be established if, as urged by the Supreme Court and the People on appeal, the hearing court could simply obviate due process rights by designating a sex offender in a level one category. This reasoning would render the require*101ment of a SORA hearing for, and the assignment of counsel to represent, a level one sex offender unnecessary. The Supreme Court’s belief that there is no basis to contest the outcome because a level one designation is the “best ... he could receive,” creates a scenario that cannot be countenanced.
While, on appeal, the People admit that the defendant’s “due process rights could have been violated by the court’s decision to conduct the risk assessment hearing in his absence without first obtaining from him a valid waiver of his right to be present,” they now claim that level one was “the best possible outcome” and thus, he was not deprived of his right to be present. This new position, which is in stark contrast to their initial stance in the first hearing before the Supreme Court, is disingenuous. In their brief, the People rely upon certain cases where defendants were excluded from a Sandoval hearing and a sidebar conference (see e.g. People v Roman, 88 NY2d 18 [1996]; People v Favor, 82 NY2d 254 [1993]). Those cases involve distinct situations and are therefore inapposite.
Compounding the error, the People, who had the burden of proving the facts supporting the determination by clear and convincing evidence (see Correction Law § 168-n [3]), made no showing whatsoever to establish any SORA risk level determination. Notably, at the initial hearing, the People indicated that they “choose” not to proceed with the hearing. At the second proceeding, the ADA who appeared did not even address the court. Instead, the court assumed the People’s role.
IV Conclusion
The Supreme Court’s attempt to fashion a “remedy” and make an “exception” to Doe v Pataki is offensive to the constitutional principles of due process and cannot be sustained in law and reason. “The primary goal[ ] of SORA ... is to ‘protect the public from the danger of recidivism posed by sex offenders’ ” (People v Buss, 11 NY3d 553, 558 [2008], quoting People v Stevens, 91 NY2d 270, 275 [1998]). In order to ensure that the rights of all persons are protected, that goal must invariably coexist with the fundamental elements of due process, namely, notice and an opportunity to be heard, afforded to all sex offenders facing risk level classification under SORA. Those rights are not confined to only those sex offenders subject to level two and level three designations. Even where a sex offender is adjudicated a level one sex offender, due process requirements must be satisfied. Accordingly, the order is re*102versed, on the law, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
Dickerson, Chambers and Austin, JJ., concur.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
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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/5902434/
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OPINION OF THE COURT
Rivera, J.P.
“Auditur et altera pars,” or “The other side shall be heard as well,” are words attributed to Lucius Annaeus Seneca, the Roman philosopher, in the tragedy Medea. This concept is encompassed in the legal principle known as “due process.” The instant appeal involves fundamental due process considerations in the context of Correction Law article 6-C, the Sex Offender Registration Act (hereinafter SORA). Particularly, we are presented with the issue of whether the defendant, a sex offender facing risk level classification under SORA, was deprived of his due process rights, where he did not receive notice of the SORA hearing, he did not waive his right to be present thereat, and the hearing was held in his absence. The Supreme Court determined, and the People presently take the position on appeal, that the defendant’s due process rights were not violated because he was ultimately adjudicated a level one sex offender, the lowest risk level assignable under SORA. Contrary thereto, for the reasons that follow, the defendant’s due process rights were violated and thus, we reverse the order appealed from.
I. Factual and Procedural Background
In 2003, the defendant was charged under Kings County superior court information No. 5518/2003, with attempted sodomy in the first degree (Penal Law §§ 110.00, 130.50), relating to the sexual abuse of his girlfriend’s then-six-year-old daughter. The defendant apparently waived his right to be prosecuted by indictment. He pleaded guilty to the crime charged and was sentenced to a determinate term of imprisonment consisting of 31/2 years, to be followed by five years’ postrelease supervision.
The record on appeal includes a “NOTICE” dated September 2, 2010, pursuant to Correction Law article 6-C, which was purportedly sent by the Supreme Court, Kings County, to the defendant at the Marcy Correctional Facility, directing him to appear before the Supreme Court on October 18, 2010. A copy *91of this notification was also apparently sent to assigned defense counsel Carol Schajer. Further, in an “order to produce,” entered September 2, 2010, the Supreme Court directed the warden or superintendent of Marcy Correctional Facility to produce the defendant for a SORA hearing on October 18, 2010, at 9:30 a.m.
The Case Summary and Risk Assessment Instrument
In a case summary dated August 26, 2010, the Board of Examiners of Sex Offenders (hereinafter the Board) stated that the defendant apparently entered the United States “illegally circa 1992,” and that the Bureau of Immigration and Customs Enforcement had “lodged a deportation order against him.” The Board added, “it is possible that he may be deported to his native country of Mexico.”
In a risk assessment instrument dated August 27, 2010, the defendant was assessed a total of 90 points, which placed him in a presumptive level two category. The Board recommended that a departure from the presumptive risk level was not warranted.
The January 6, 2011, SORA Hearing
On January 6, 2011, the People and defense counsel appeared before the Supreme Court, Kings County, for a SORA hearing. The defendant was not present at this hearing.
At the commencement of the hearing, the People indicated that they had provided the Supreme Court and defense counsel with “documentation” from U.S. Immigration and Customs Enforcement showing that the defendant was deported to Mexico on September 3, 2010. In this regard, a letter addressed to Assistant District Attorney (hereinafter ADA) Allegra Santomauro from U.S. Immigration and Customs Enforcement Deportation Officer Lukasz Kubicz, dated October 29, 2010, states, in pertinent part, as follows:
“As per your office[’]s inquiry regarding [the defendant], ICE [Immigration and Customs Enforcement] official records shows that the subject was removed from the United States on September 03, 2010 from Harlingen, TX to Mexico. Removal was witnessed and confirmed by ICE/ERO officers. For immigration purposes this case is closed.”
Thereafter, the Supreme Court stated that “the presence of the defendant” was “[w]aived for [purposes of] the hearing,” adding “[w]e will do the hearing.” The People, however, interjected:
*92“Your Honor, I want to make a record for the Court. I checked with the Department of Corrections, there is no waiver in the file. I have also spoken with our Appeals Bureau and as such without an effective waiver it is the People’s position that this hearing cannot happen because the defendant did not waive his right to be present.” (Emphasis added.)
The court asked, “[s]o how do I get him here?” The court then stated:
“He could be back in the country right now you [sic] without a requirement to register as a sex offender, I am going to go proceed with the hearing and then you could concede error on an appeal if you wish to. But I am not going to leave this probationer, I should say sex offender who has been deported from this country after serving a prison sentence for a sexual act against a youngster under ten years of age without a designation as a sex offender which would require him to register if he came back into the country.”
At this point, defense counsel registered an objection stating, “I never had contact with this client and to my understanding he has never signed a waiver [of his right to be present at the SORA hearing]. And without my client’s input into this case I am unable to make effective arguments on his behalf.”
The People reiterated to the court that they did not “choose to proceed” with the hearing. Specifically, the ADA asserted, “I don’t know how the defendant would know he is required to register if he is not present for this hearing.”
Notwithstanding the foregoing, the court continued, as follows:
“The Court rules that his being deported amounts to a de facto waiver of this [sic] presence at the hearing and I am going to proceed and I will make my record then you can have your objection and you could find [sic] notice of appeal. We can litigate this issue.”
Defense counsel thereafter stated:
“What I want to put on the record is that I was assigned this case on September 16th [2010]. I wrote a letter to my client at the facility. I was informed I was at—I am handing up a copy of the returned en*93velope. I am asking it be marked Defense A and moved into evidence as Defense A. There is an indication written in red ink 8/27/10, paroled or liens to immigration. So he was sent to immigration even before I was assigned to this case.”
The court then made the following statements:
“I have a letter that is part of, I will make part of the hearing I am about to conduct.
“From the United States Immigration Customs Enforcement Service dated October 29, 2010 indicating that [the defendant] was removed from the United States on September 3, 2010 from Harlingen, H-A-R-L-I-N-G-E-N, Texas to Mexico. Removal was witnessed and confined [sic] by ICU Immigrations Customs Enforcement officers for immigration purposes. The case is closed. The court has a file which contains a risk level assessment instrument and a case summary. The risk factors that are designated by the agency indicates that the defendant scores at 90 points. The only one that I have difficulty with is behavior while confined which is post offense. They assessed ten points for his unsatisfactory performance for behavior while in custody. That is not reflected in the record. The Court adjudicates that those ten points should not be assessed. All the other factors are can [sic] prove [sic] by clear and convincing evidence.
“The Court makes a determination of a risk level assessment point total of 80 points which still places the defendant at a level two sexually violent offender. That is the ruling of the Court. I will sign a ruling to that effect.”
The January 14, 2011, SORA Hearing
On January 14, 2011, the People and defense counsel again appeared before the Supreme Court. The defendant was not present. At this proceeding, the court stated:
“This was a risk level assessment hearing that was before me on January 6th. The People indicated to me that they would not go forward with the hearing because the defendant had been deported and that the court could not have jurisdiction over him.
*94“However, it [was] the court’s opinion that just based on the underlying conviction, if he were here he could not contest the fact that I could adjudge him a risk level 1 offender based on the conviction by itself.
“Balancing the interest of protection of the public and noting that the defendant was deported to the country of Mexico and the well-known ability of people to return to the United States from the country of Mexico, I’m going to in this case, over the objection of both sides, adjudge the defendant a level 1 offender as a risk level with the ability to open up the proceeding to a higher, to a possible higher level should he return to the United States illegally.
“And I’m adjusting my—I’ve done some research and I tend to agree with the People that I would not have the jurisdiction without him being present to indicate the factors that would raise him to a 2 or a 3.
“However, just based on the underlying conviction, I feel that I am balancing the interest of the due process rights of the defendant with the interest and the protection of the public, having him require to register even if he returns to the country illegally for the next twenty years as a Level 1 offender. And that’s my ruling.”
Defense counsel repeated that she had been assigned to represent the defendant after he had already been “taken by immigration” and that the People previously stated that there had been no signed waiver by the defendant of his right to be present at the SORA hearing. The court conceded, “[t]here is no waiver.”
Defense counsel further argued that the case of Doe v Pataki (3 F Supp 2d 456 [1998]) gave the defendant the “absolute right to be present” at the SORA hearing. Counsel added, “[h]e’s clearly not even in the country, as far as we know. He has a right to know this. We have no idea if [the defendant] even received notice in this case. There are no exceptions to Doe versus Pataki that I am aware of.”
At this point, the court stated:
“I am attempting to make one. Because having been *95deported because he was illegally in the country renders him unavailable to my jurisdiction.
“If he were here, the best level assessment he could receive would be a 1 based on his conviction to the crime he was convicted of. And balancing his due process rights to even contest the Level 1 which I don’t believe he would have any legal basis to contest against the protection of the public should he enter this country again illegally, he would be required to register as a sex offender. I am designated [sic] him a Level 1 over your objection and you can file a notice of appeal.”
Defense counsel referred to the case of People v Gonzalez (69 AD3d 819, 819 [2010]), quoting therefrom,
“[t]o establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence.”
The court, however, indicated, “I find exceptional circumstances that I placed on the record to adjudge him a Level 1 offender.” Thus, the court stated that it was “changing the [SORA] designation” to a level one “over the defendant’s objection.” Consistent therewith, in an order dated January 14, 2011, the Supreme Court designated the defendant a level one sex offender.
II. The Parties’ Contentions on Appeal
On appeal, the defendant contends that his due process rights were violated when the SORA hearing was held in his absence and he did not waive his right to be present. He notes that he was deported before receiving any notice of the SORA hearing and his counsel never had an opportunity to communicate with him before the hearing. The defendant adds that both the People and defense counsel repeatedly objected to holding the hearing in the defendant’s absence without a waiver.
In their brief on appeal, the People, in effect, take a position contrary to their original stance in the first hearing. Now, the People argue that the Supreme Court’s decision to conduct the SORA risk assessment hearing in the defendant’s absence was proper because “even though [the] defendant had not waived *96his right to attend the hearing, he was adjudicated a level one (low risk) sex offender, and thus the outcome of the hearing was the most favorable to him that was possible.” Thus, the People contend that this Court should “uphold” the Supreme Court’s determination, designating the defendant a level one sex offender.
In reply, the defendant reiterates that his due process rights were violated. He asserts that the People waived their present claims that the lack of notice and the defendant’s absence from the hearing are inconsequential. Further, he contends that the People’s assertion that it was proper to hold the hearing in the defendant’s absence is without merit. In this regard, the defendant notes that, even with an adjudication as a level one, he nevertheless has protected due process rights. He argues, “[u]nder the People’s reasoning, any offender who is to be adjudicated a level one offender need not receive notice of or be present at a SORA hearing . . . [b]ut due process is not subject to a sliding scale based upon the level of the penalty imposed.” Moreover, he asserts that there are serious consequences relating to the subject sex offender designation which require him to register as a sex offender and subject him to criminal penalties if he fails to do so. In sum, he states that “even when an individual is ultimately adjudicated a level one offender, the risk assessment hearing must ‘comport with minimum State and Federal constitutional requirements of due process.’ ” He insists that those requirements were not met in this case.
III. Legal Analysis
A SORA proceeding “determines the risk of reoffense by a person convicted of a qualifying sex offense and requires that individual to register with law enforcement officials according to that risk level” (People v Pettigrew, 14 NY3d 406, 408 [2010]; see People v Mingo, 12 NY3d 563, 570-571 [2009]). Pursuant to the statutory framework contained in Correction Law article 6-C, the Board “shall” make a recommendation to the court regarding an offender’s risk level classification, “within sixty calendar days prior to” the offender’s discharge, parole, or release from incarceration (Correction Law § 168-l [6]).
“Correction Law § 168-n governs the procedure for the initial judicial determination of a sex offender’s risk level upon release from incarceration” (People v Wyatt, 89 AD3d 112, 117 [2011]). In relevant part, Correction Law § 168-n (3) provides that “[n]o later than thirty days prior to the board’s recommendation, the *97sex offender shall be notified that his or her case is under review and that he or she is permitted to submit to the board any information relevant to the review.”
Further,
“[a]t least twenty days prior to the determination proceeding, the sentencing courtshall notify the district attorney, the sex offender and the sex offender’s counsel, inwriting, of the date of the determination proceeding and shall also provide the district attorney, the sex offender and the sex offender’s counsel with a copy of the recommendation received from the board and any statement of the reasons for the recommendation received from the board” (Correction Law § 168-n [3]).
This statute expressly sets forth that the notice “shall” include the following statement or a substantially similar statement:
“ ‘This proceeding is being held to determine whether you will be classified as a level 3 offender (risk of repeat offense is high), a level 2 offender (risk of repeat offense is moderate), or a level 1 offender (risk of repeat offense is low), or whether you will be designated as a sexual predator, a sexually violent offender or a predicate sex offender, which will determine how long you must register as a sex offender and how much information can be provided to the public concerning your registration. If you fail to appear at this proceeding, without sufficient excuse, it shall be held in your absence. Failure to appear may result in a longer period of registration or a higher level of community notification because you are not present to offer evidence or contest evidence offered by the district attorney’ ” (id.).
“The written notice to the sex offender shall also advise the offender that he or she has a right to a hearing prior to the court’s determination, and that he or she has the right to be represented by counsel at the hearing” (id.).
Correction Law § 168-n (3) also provides that “[t]he court shall allow the sex offender to appear and be heard” (id.). “The state shall appear by the district attorney . . . who shall bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence” (id.).
*98Correction Law § 168-n (6) states that
“[i]f a sex offender, having been given notice, including the time and place of the determination proceeding in accordance with this section, fails to appear at this proceeding, without sufficient excuse, the court shall conduct the hearing and make the determinations in the manner set forth in subdivision three of this section.”
Significantly, a sex offender facing a risk level classification has certain due process rights including (1) a judicial determination of his risk level classification, (2) notice of the risk level assessment proceeding sufficiently in advance of the hearing to prepare a challenge, (3) notice of the proceeding that must include a statement of its purpose and the Board’s recommended risk level classification, (4) representation by counsel, (5) prehearing discovery, (6) proof by the State of the facts supporting each risk factor by clear and convincing evidence, and (7) a right to appeal (see Doe v Pataki, 3 F Supp 2d at 471-473; People v David W., 95 NY2d 130, 133 [2000]; People v Black, 33 AD3d 981, 981-982 [2006]; People v Brooks, 308 AD2d 99, 103 [2003]). These due process rights have been incorporated into Correction Law § 168-n (see People v Black, 33 AD3d at 982).
As stated in Doe v Pataki (3 F Supp 2d at 470), risk level classification hearings fall
“somewhere between a criminal proceeding in which a defendant is entitled to a full panoply of rights . . . and a simple administrative proceeding, in which participants have traditionally been afforded less process. Certainly, the due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial” (id. [internal quotation marks and citation omitted]; see People v Erb, 59 AD3d 1020 [2009]; People v Brooks, 308 AD2d at 105).
Nevertheless, a “SORA determination undeniably has a profound impact on a defendant’s liberty interest due to the registration and community notification provisions” (People v Brooks, 308 AD2d at 105; see Doe v Pataki, 3 F Supp 2d at 466-468). For this reason, in assigning risk levels to convicted sex offenders under SORA, the aforementioned procedural protec*99tions “are required to satisfy procedural due process” (Doe v Pataki, 3 F Supp 2d at 471).
“ ‘A sex offender facing risk level classification under the Sex Offender Registration Act (hereinafter SORA) has a due process right to be present at the SORA hearing but his presence at this noncriminal proceeding is entirely voluntary’ ” (People v Arrahman, 83 AD3d 680, 680 [2011], quoting People v Porter, 37 AD3d 797, 797 [2007]; see People v Jackson, 94 AD3d 961 [2012]; People v Gonzalez, 90 AD3d 1005, 1006 [2011]; People v Gonzalez, 69 AD3d 819 [2010]; People v Brooks, 308 AD2d at 103). Notably, this Court has held that
“ ‘[t]o establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence’ ” {People v Arrahman, 83 AD3d at 680, quoting People v Porter, 37 AD3d at 797; see People v Jackson, 94 AD3d at 961; People v Gonzalez, 90 AD3d at 1006; People v Gonzalez, 69 AD3d at 819; People v Brooks, 308 AD2d at 106).
Where the record contains no evidence that the defendant received notice of the hearing date, this Court has determined that the defendant’s due process rights were violated (see People v Gonzalez, 90 AD3d at 1006; People v Gonzalez, 69 AD3d at 819). Similarly, where a defendant’s failure to appear at the hearing is not deliberate and the defendant did not waive his appearance, this Court has found that the defendant is entitled to a new risk level assessment hearing (see People v Arrahman, 83 AD3d at 680).
Applying the foregoing to the facts of this case, we conclude that the defendant’s due process rights were violated.
First, the record contains no evidence that the defendant ever received notice of the SORA hearing date and his right to be present (see People v Distaffen, 71 AD3d 1597, 1598 [2010]). A “NOTICE” dated September 2, 2010, was sent by the Supreme Court to the defendant at the Marcy Correctional Facility, directing him to appear before the court for a SORA hearing that was to take place on October 18, 2010. Apparently, the defendant had been paroled to immigration authorities on August 27, 2010. The letter from U.S. Immigration and Customs Enforcement confirms that the defendant was deported from Texas to Mexico *100on September 3, 2010. Additionally, defense counsel was assigned to this case on September 16, 2010, approximately two weeks after the defendant had already been deported to Mexico, and counsel had not been able to communicate with the defendant.
Second, at the initial SORA hearing, the People advised the court that the defendant did not waive his right to be present at the hearing. Conceding the defendant’s failure to waive his right to be present, the People stated, “without an effective waiver it is the People’s position that this hearing cannot happen because the defendant did not waive his right to be present.” Defense counsel similarly informed the court, “I never had contact with this client and to my understanding he has never signed a waiver [of his right to be present at the SORA hearing]. And without my client’s input into this case I am unable to make effective arguments on his behalf.” The People reiterated to the court that they did not “choose to proceed” with the hearing. Specifically, ADA Santomauro asserted, “I don’t know how the defendant would know he is required to register if he is not present for this hearing.”
Notwithstanding the foregoing, and despite the protestations by both the People and defense counsel, the Supreme Court proceeded with the SORA hearing in the defendant’s absence, even though he had not received notice, and had not properly waived his right to be present thereat. Although the court later revisited its initial level two designation and changed the defendant’s designation to a level one category, the defendant’s due process protections, as outlined in Doe v Pataki and incorporated into Correction Law § 168-n, were nevertheless violated.
As noted by the court in Doe v Pataki, “[t]he Supreme Court has stressed that ‘fair notice’ is ‘the bedrock of any constitutionally fair procedure’ ” (Doe v Pataki, 3 F Supp 2d at 471, quoting Lankford v Idaho, 500 US 110, 121 [1991]). Sex offenders subject to SORA have a protected liberty interest that entitles them to the procedural due process rights discussed above (see Doe v Pataki, 3 F Supp 2d at 468). The Constitution, Correction Law § 168-n (3), and case law do not confine these constitutional rights to only level two and level three sex offenders. A dangerous precedent would be established if, as urged by the Supreme Court and the People on appeal, the hearing court could simply obviate due process rights by designating a sex offender in a level one category. This reasoning would render the require*101ment of a SORA hearing for, and the assignment of counsel to represent, a level one sex offender unnecessary. The Supreme Court’s belief that there is no basis to contest the outcome because a level one designation is the “best ... he could receive,” creates a scenario that cannot be countenanced.
While, on appeal, the People admit that the defendant’s “due process rights could have been violated by the court’s decision to conduct the risk assessment hearing in his absence without first obtaining from him a valid waiver of his right to be present,” they now claim that level one was “the best possible outcome” and thus, he was not deprived of his right to be present. This new position, which is in stark contrast to their initial stance in the first hearing before the Supreme Court, is disingenuous. In their brief, the People rely upon certain cases where defendants were excluded from a Sandoval hearing and a sidebar conference (see e.g. People v Roman, 88 NY2d 18 [1996]; People v Favor, 82 NY2d 254 [1993]). Those cases involve distinct situations and are therefore inapposite.
Compounding the error, the People, who had the burden of proving the facts supporting the determination by clear and convincing evidence (see Correction Law § 168-n [3]), made no showing whatsoever to establish any SORA risk level determination. Notably, at the initial hearing, the People indicated that they “choose” not to proceed with the hearing. At the second proceeding, the ADA who appeared did not even address the court. Instead, the court assumed the People’s role.
IV Conclusion
The Supreme Court’s attempt to fashion a “remedy” and make an “exception” to Doe v Pataki is offensive to the constitutional principles of due process and cannot be sustained in law and reason. “The primary goal[ ] of SORA ... is to ‘protect the public from the danger of recidivism posed by sex offenders’ ” (People v Buss, 11 NY3d 553, 558 [2008], quoting People v Stevens, 91 NY2d 270, 275 [1998]). In order to ensure that the rights of all persons are protected, that goal must invariably coexist with the fundamental elements of due process, namely, notice and an opportunity to be heard, afforded to all sex offenders facing risk level classification under SORA. Those rights are not confined to only those sex offenders subject to level two and level three designations. Even where a sex offender is adjudicated a level one sex offender, due process requirements must be satisfied. Accordingly, the order is re*102versed, on the law, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
Dickerson, Chambers and Austin, JJ., concur.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
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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/5902436/
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Calabretta, J.), rendered November 7, 1985, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Balbach, J.), after a hearing, of that branch of the defendant’s omnibus motion which was to suppress certain statements made by him to the police.
Ordered that the judgment is affirmed.
We disagree with the defendant’s contention that the statements made by him to the police prior to the reading of the Miranda warnings should have been suppressed. The minutes of the pretrial hearing reveal that the initial question of the officer who first arrived upon the scene constituted an attempt to clarify a volatile situation rather than an attempt to elicit evidence of a crime (see, People v Johnson, 59 NY2d 1014, 1016; People v Chatman, 122 AD2d 148, 149). In the course of responding to a radio communication regarding a report of *616gunshots, Sergeant Sobocienski heard what appeared to be a gunshot coming from inside the designated apartment. Upon knocking on the door, which was slightly ajar, and identifying himself as a police officer, Sobocienski was directed by a male voice to go away since "the police don’t care what’s going on anyway”. In response to Sobocienski’s queries, the male, who identified himself as the defendant, revealed that there were no injured children inside the apartment and that he had had a problem with his wife, which was no longer a problem inasmuch as he had shot her and she was dead. The police refused the defendant’s request to enter his apartment, and asked the defendant to come out, but he refused. At one point, the defendant gave Sobocienski his telephone number and the two engaged in a telephone conversation for some 2 to hours in duration in the course of which the defendant revealed that he had shot his wife four times. This information was not in response to any question which the police had asked. The defendant agreed to surrender to the police whereupon he was placed in handcuffs.
On these facts, we conclude that the initial questioning of the defendant by Sergeant Sobocienski was conducted in a noncustodial ambiance. At the time of the encounter, the defendant was not in custody nor was he "deprived of his freedom of action in any significant way” (Miranda v Arizona, 384 US 436, 444; see also, People v Chatman, supra, at 149). The evidence rationally points to the conclusion that Sergeant Sobocienski was engaged in the primary role of the police to prevent crime and to provide emergency assistance to those whose lives may be in danger (see, People v Krom, 61 NY2d 187, 198). Nor does the fact that the defendant’s revelations went far beyond the scope of the initial inquiry cast the shadow of interrogation upon the inquirer. Clearly, "[t]he police are not obligated to silence a talkative defendant” (People v Krom, supra, at 199). Under the circumstances, the hearing court’s determination that the defendant was not in custody at the time he made the subject inculpatory statements is supported by the evidence and should not be disturbed (see, People v Busuttil, 115 AD2d 655, 656).
Viewing the evidence in a light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient. Testimony to the effect that the defendant appeared to have been drinking at the time of the killing does not warrant a contrary result. "Even an intoxicated person may be capable of forming the intent” (People v Bell, 111 AD2d 926, 927, lv denied 66 NY2d 917). Moreover, upon *617the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).
Finally, we find that the sentence imposed was not unduly harsh or excessive under the circumstances of this case. Therefore, we decline to disturb the sentencing court’s sound exercise of its discretion in this regard (see, People v Suitte, 90 AD2d 80). Brown, J. P., Weinstein, Hooper 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/5902437/
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Giaccio, J.), rendered May 21, 1986, convicting her of criminal sale of a controlled substance in the fifth degree, criminal possession of a controlled substance in the fifth degree and criminal possession of a weapon in the third degree, upon her plea of guilty, and imposing sentence. The appeal brings up for review the denial (Pitaro, J.), after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence obtained pursuant to a search warrant.
Ordered that the judgment is affirmed.
The only issue raised involves the propriety of the search warrant issued in this case. We find that the search warrant was properly issued for reasons stated by Justice Pitaro in his decision denying suppression. 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/5902438/
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*104OPINION OF THE COURT
Per Curiam.
Thomas J. Bailey, admitted as Thomas Joseph Bailey, has submitted an affidavit dated August 13, 2012, wherein he tenders his resignation as an attorney and counselor-at-law (see 22 NYCRR 691.9). Mr. Bailey was admitted to the bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on January 18, 1995, under the name Thomas Joseph Bailey.
Mr. Bailey is currently the subject of an investigation by the Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) involving allegations of neglecting a legal matter entrusted to him; failing to keep a client reasonably informed about the status of the matter; failing to promptly comply with a client’s reasonable requests for information; misappropriating client funds; failing to render appropriate accounts to a client regarding client funds in his possession; failing to promptly pay or deliver to a client or third person funds in his possession that the client or third person was entitled to receive; and engaging in conduct prejudicial to the administration of justice by failing to promptly or completely cooperate with the Grievance Committee.
Mr. Bailey has submitted an affidavit of resignation dated August 13, 2012, wherein he avers that he would not be able to successfully defend himself on the merits against charges predicated upon the foregoing.
Mr. Bailey further acknowledges that his resignation is freely and voluntarily rendered; that he is not being subjected to coercion or duress by anyone; and that he is fully aware of the implications of submitting his resignation, including the fact that he is barred from seeking reinstatement for a minimum period of seven years.
Mr. Bailey avers that his resignation is submitted subject to any application which could be made by the Grievance Committee for an order directing that he make restitution and that he reimburse the Lawyer’s Fund for Client Protection pursuant to Judiciary Law § 90 (6-a) (a). He further acknowledges the continuing jurisdiction of the Court to make such an order, which could be entered as a civil judgment against him by Judiciary Law § 90 (6-a) (d), and he specifically waives his opportunity pursuant to Judiciary Law § 90 (6-a) (f) to be heard in opposition thereto. The Grievance Committee recommends that the proffered resignation be accepted.
*105Inasmuch as the proffered resignation comports with the requirements of 22 NYCRR 691.9, it is accepted, and, effective immediately, Thomas J. Bailey, admitted as Thomas Joseph Bailey, is disbarred, and his name is stricken from the roll of attorneys and counselors-at-law.
Eng, P.J., Mastro, Rivera, Skelos and Dickerson, JJ., concur.
Ordered that the resignation of Thomas J. Bailey, admitted as Thomas Joseph Bailey, is accepted and directed to be filed; and it is further,
Ordered that pursuant to Judiciary Law § 90, effective immediately, Thomas J. Bailey, admitted as Thomas Joseph Bailey, is disbarred, and his name is stricken from the roll of attorneys and counselors-at-law; and it is further,
Ordered that Thomas J. Bailey, admitted as Thomas Joseph Bailey, 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, effective immediately, Thomas J. Bailey, admitted as Thomas Joseph Bailey, is commanded to 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 Thomas J. Bailey, admitted as Thomas Joseph Bailey, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and he 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/4141989/
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01-03-2023
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02-18-2017
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https://www.courtlistener.com/api/rest/v3/opinions/5902439/
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered April 24, 1986, convicting him of criminal sale of a controlled substance in the first degree, criminal sale of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree (three counts), and criminal possession of a controlled substance in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and determined to have been established.
During the defendant’s trial, one of the sworn jurors was observed talking to a spectator. The trial court conducted an inquiry of the juror in the presence of both counsel. The juror informed the court that the spectator worked at a dentist’s office where the juror had been a patient. The spectator had recognized the juror in the elevator and asked her when she was returning to the dentist. That evening, the spectator telephoned the juror at home to inquire about an outstanding bill. The spectator also asked the juror what she thought about the case. The juror told the spectator that she had taken an oath and could not discuss the case.
Thereafter, a second inquiry of the juror was conducted at the prosecutor’s request. In response to questions posed by the court and respective counsel, the juror unequivocally indicated that she could remain impartial. Later in the trial, the prosecution moved for removal of the juror on the ground that she was "less than candid with the court”. Specifically, they claimed that their investigation revealed that she did not have an outstanding bill with the dentist. Over the defendant’s objection, the court removed the juror, stating: "I don’t see the tampering at all. I do see the need for further inquiry and I do see that we may have a circumstance which may influence the juror’s judgment”. After the jury’s verdict, it was determined that the juror did in fact have an outstanding dentist’s bill.
*618Upon this record, the trial court’s discharge of the juror was improper. Once a trial jury has been sworn, the court must discharge a juror when it "finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature, but not warranting the declaration of a mistrial” (CPL 270.35).
Clearly, the actions of the juror in this case cannot be characterized as misconduct, let alone "misconduct of a substantial nature” (CPL 270.35). In fact, it appears that the juror was completely candid with the court.
Nor can it be said that the juror was rendered "grossly unqualified” (CPL 270.35) to serve as a juror by virtue of her contact with the spectator. A juror is grossly unqualified to serve when "it becomes obvious that [she] possesses a state of mind which would prevent the rendering of an impartial verdict” (People v West, 92 AD2d 620, 622 [Mahoney, P. J., dissenting], revd on dissenting opn below 62 NY2d 708; People v Galvin, 112 AD2d 1090, 1091, lv denied 66 NY2d 919). In concluding that a juror is grossly unqualified, "the trial court may not speculate as to the likelihood of partiality, but rather, must be convinced, after a probing and tactful inquiry, that the sworn juror will be unable to deliberate fairly and render an impartial verdict” (People v Cargill, 70 NY2d 687, 689; People v Buford, 69 NY2d 290, 299).
Under the circumstances, it was error to discharge the juror, and, because that error violated the defendant’s constitutionally guaranteed rights, there should be a new trial (see, People v West, 62 NY2d 708, supra).
We find no merit to the remaining contentions raised by the defendant. 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/8076602/
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No opinion. Determination affirmed, with costs. Order filed. See 96 N. Y. Supp. 274.
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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/5902440/
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dunkin, J.), rendered November 21, 1984, convicting him of robbery in the first degree, robbery in the second degree and criminal possession of stolen property in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The proof of the defendant’s guilt was overwhelming, and there is no possibility that the jury would have returned a different verdict in the absence of certain improper remarks by the prosecutor (see, People v Crimmins, 36 NY2d 230; *619People v Roopchand, 107 AD2d 35, affd 65 NY2d 837). However, while we affirm the defendant’s conviction, we repeat our previous admonishment to prosecutors and advise the trial bench that remarks of an inflammatory nature or content have no place in the conduct of the People’s representatives in court (see, People v Roopchand, supra, at 37).
The defendant’s remaining contention regarding his sentence is without merit. Mangano, J. P., Brown, Lawrence 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/4147581/
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Matter of Lliviganay v Fajardo (2017 NY Slip Op 01362)
Matter of Lliviganay v Fajardo
2017 NY Slip Op 01362
Decided on February 22, 2017
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on February 22, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
JOHN M. LEVENTHAL
L. PRISCILLA HALL
COLLEEN D. DUFFY, JJ.
2016-03840
(Docket No. V-308-14)
[*1]In the Matter of Jose F. Lliviganay, respondent,
v Olga L. Fajardo, appellant.
Larry S. Bachner, Jamaica, NY, for appellant.
Karina E. Alomar, Ridgewood, NY, for respondent.
Toba Beth Stutz, Jamaica, NY, attorney for the child.
DECISION & ORDER
Appeal from an order of the Family Court, Queens County (Jane A. McGrady, Ct. Atty. Ref.), dated April 7, 2016. The order, after a hearing, granted the father's petition for residential custody of the subject child with regularly scheduled visitation to the mother.
ORDERED that the order is affirmed, without costs or disbursements.
In December 2013, the father filed a petition for residential custody of the subject child. The Family Court conducted a seven-day hearing that commenced in December 2014 and concluded in March 2016. Additionally, the court conducted an in camera interview with the child. In the order appealed from, the Family Court awarded residential custody to the father with regularly scheduled visitation to the mother. The mother appeals.
The essential consideration in determining custody is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171; Matter of Sahadath v Andaverde, 145 AD3d 731), and no parent has a prima facie right to the custody of the child (see Domestic Relations Law §§ 70[a]; 240[1][a]; Friederwitzer v Friederwitzer, 55 NY2d 89, 93; Matter of Schultheis v Schultheis, 141 AD3d 721, 722; Matter of Wallace v Roberts, 105 AD3d 1053, 1053). In determining a custody arrangement that is in the child's best interests, the court must consider several factors, including "the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent" (Salvatore v Salvatore, 68 AD3d 966, 966 [internal quotation marks omitted]; see Eschbach v Eschbach, 56 NY2d at 171-173). The child's expressed preference is an additional factor to be considered, taking into account the child's age, maturity, and any potential influence that may have been exerted on him or her (see Eschbach v Eschbach, 56 NY2d at 173; Matter of Tejada v Tejada, 126 AD3d 985, 986; Bressler v Bressler, 122 AD3d 659, 659). The court is to consider the totality of the circumstances, and the existence of any one factor is not determinative (see Eschbach v Eschbach, 56 NY2d at 174; Matter of Bowe v Bowe, 124 AD3d 645, 646; Matter of Bosede v [*2]Agbaje, 121 AD3d 675, 676).
Since custody determinations necessarily depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, the hearing court's determination should not be set aside unless it lacks a sound and substantial basis in the record (see Matter of D'Alleva v Neilson, 141 AD3d 716; McDonald v McDonald, 122 AD3d 911, 911-912).
Here, the Family Court, after having the opportunity to evaluate the testimony and interview the child, determined that an award of residential custody to the father was in the best interests of the child. This determination has a sound and substantial basis in the record, and will not be disturbed on appeal (see Eschbach v Eschbach, 56 NY2d at 167; Matter of Tejada v Tejada, 126 AD3d at 986).
The mother's remaining contentions are without merit.
RIVERA, J.P., LEVENTHAL, HALL and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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02-22-2017
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Appeal by the defendant from a judgment of the County Court, Nassau County (Goodman, J.), rendered July 12, 1985, convicting him of robbery in the first degree, upon his plea of guilty, 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 statements to police officers and identification testimony.
Ordered that the judgment is affirmed.
The defendant claims that the People failed to prove at the Huntley hearing (1) that he was properly advised of his Miranda rights, and (2) that he knowingly and voluntarily waived those rights before making an incriminating statement to Police Officer Campo. However, the testimony of Police Officer Campo that he read the Miranda rights to the defendant verbatim from a card and that the defendant indicated that he understood these rights and did not request an attorney is sufficient to establish that the defendant was properly advised of his rights (see, People v Gonzalez, 55 NY2d 720, cert denied 456 US 1010).
Further, the absence of testimony concerning an express waiver of rights before the defendant gave his statement is attributable to the defendant’s failure to raise this issue as a ground for suppression. In any event, under all the circumstances of this case, a waiver may be fairly implied (see, People v Dunwoody, 89 AD2d 569, 570). In light of these determinations, the defendant’s argument that his subsequent written statement given to another police officer was tainted by a continuation of unlawful interrogation is also without merit.
The defendant’s challenge to the identification procedures is similarly unavailing. The record demonstrates that neither the photographic arrays, from which the defendant was not selected, nor the lineup, from which the victim of this robbery selected the defendant, was unduly suggestive. Thus, there *620was no evidence of police conduct so suggestive and conducive to irreparable misidentification as to deny the defendant due process of law (see, Manson v Brathwaite, 432 US 98, 107; Neil v Biggers, 409 US 188). Accordingly, that branch of the defendant’s motion which was to suppress the identification testimony was properly denied. Mangano, J. P., Thompson, Bracken and Spatt, JJ., concur.
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Appeal by the defendant, as limited by his brief, from a sentence of the County Court, Suffolk County (Weissman, J.), imposed February 25, 1987, upon his conviction of burglary in the third degree (two counts), upon his plea of guilty, the sentence being an indeterminate term of 2 to 4 years’ imprisonment as to each count as a second felony offender, to run consecutively to each other and to any parole time owed, and a mandatory $100 surcharge on each of the counts.
Ordered that the sentence is affirmed.
The sentencing court properly exercised its discretion in imposing consecutive terms of imprisonment for the two counts of burglary in the third degree. Consecutive sentences may be imposed for crimes committed by disparate and separate acts (see, Penal Law § 70.25 [2]; People v Underwood, 52 NY2d 882; People v Sanchez, 131 AD2d 606, 609, lv denied 70 NY2d 717). Although the burglaries charged may be said to have occurred in the course of a single extended transaction, *621they involved the illegal entry into separate business establishments and clearly resulted from separate acts on the part of the defendant (see, People v Brathwaite, 63 NY2d 839, 843; People v Sanchez, supra; People v Blowe, 130 AD2d 668, 671). The sentence being lawful and being the term promised as part of a negotiated plea bargain, it should be sustained (see, People v Perkins, 130 AD2d 521, lv denied 70 NY2d 716; People v Kazepis, 101 AD2d 816).
The defendant’s remaining contentions are addressed to the court’s imposition of the mandatory surcharge as to each count. Penal Law § 60.35 (2) forbids the imposition of multiple surcharges upon the defendant’s conviction of multiple crimes arising from the commission of a single act. However, it follows that where, as here, the imposition of consecutive sentences for crimes committed by separate acts is proper, the imposition of a surcharge as to each crime arising from a disparate and separate act is also lawful. We therefore reject the defendant’s contention that the imposition of multiple surcharges at bar was illegal. The defendant’s further contention that the surcharges should be vacated because of his indigency has not been preserved for appellate review as a matter of law as neither the defendant nor his counsel requested a waiver of the surcharge prior to sentencing (see, CPL 470.05 [2]; People v Naumann, 131 AD2d 705; People v Baker, 130 AD2d 582, lv denied 70 NY2d 709). In any event, any application for a waiver of the mandatory surcharge would be premature in view of the defendant’s incarceration (see, People v West, 124 Misc 2d 622; People v Williams, 131 AD2d 525, lv denied 70 NY2d 718; People v Peralta, 127 AD2d 803, 804, lv denied 69 NY2d 953). Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur.
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered March 19, 1985, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The evidence, when viewed in the light most favorable to the People, was legally sufficient to support the defendant’s conviction (see, People v Contes, 60 NY2d 620). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
We have examined the remainder of the defendant’s contentions, including the one raised in his supplemental pro se brief, and find them to be without merit or unpreserved for appellate review. Mangano, J. P., Thompson, Bracken and Spatt, JJ., concur.
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OPINION OF THE COURT
Mazzarelli, J.P.
Plaintiffs, all women, worked for defendant and another doctor, in their medical office. Plaintiff Hernandez was employed in defendant’s office from January 2006 through December 2006, as a medical clerk, and then as an assistant office manager. Plaintiff Herarte was employed by defendant as a medical clerk for over three years. Plaintiff Stern began working in the office as a physician’s assistant in June 2003.
Plaintiffs allege that, in violation of the New York State Human Rights Law (State HRL) (Executive Law § 296) and the New York City Human Rights Law (City HRL) (Administrative Code of City of NY § 8-107), defendant created a sexually hostile work environment in the office. Most of the incidents of which they complain occurred in the latter half of 2006, at which time plaintiffs left defendant’s employ. The focus of plaintiffs’ complaint is on a series of emails sent by defendant in October and November 2006 containing what plaintiffs describe as offensive and obscene material.
The first of these emails was sent to all three plaintiffs as well as other male and female employees. The body of the email read, “This is hysterical. Do not listen if u are potentially offended,” and attached an audio clip of a lecture given by a “professor” on the many uses of the word “Fuck,” including its sexual connotation.
The second email was sent to all three plaintiffs as well as other male and female employees, and was titled “How to choose your holiday turkey.” It attached a video of volunteers on a hidden camera style show who had been blindfolded and asked to feel what they thought were Butterball turkeys. The camera ultimately revealed that the subjects were actually feeling the naked buttocks of a man.
The third email contained a moving image of a snow sculpture in the shape of a penis “ejaculating” snow balls. The body of the email read “You know how every winter we have everybody send the snowball email thing out to everybody. Well this is pay*109backs for all that crap they have sent out to me. PS Don’t send it back to me!!!!” The email also instructed that “you have been hit with a snow ball” and urged the viewer to send the email on to others.
The fourth email was sent to plaintiffs Hernandez and Herarte, as well as other male and female employees, and was titled “Birthday Vibrator.” The email attached a scene from the R-rated 2001 movie “Not Another Teen Movie,” in which a girl attempts to masturbate with a large vibrator under her bed covers on her birthday and her family enters her room with a birthday cake. The scene ends with the vibrator landing in the cake and splattering cake on everyone.
The fifth email was sent to plaintiff Hernandez as well as other male and female employees and was titled “The Perfect Woman.” It attached an image of a headless female body with two pairs of legs.
In addition to the emails, plaintiffs further alleged that defendant told Hernandez that she should get breast implants and offered to take her to a doctor who could perform the procedure; that defendant pointed out to Hernandez on one occasion that her underwear was exposed but told her that she should not have adjusted her pants because he had been “enjoying” himself; that defendant placed whipped cream on the side of his mouth and asked Hernandez if “this looked familiar”; that defendant referred to himself as “pimp Kaisman”; that defendant repeatedly told Herarte that she needed to lose weight; that defendant once touched Herarte’s rear end and told her she needed to “tighten it up”; that defendant attempted to get Herarte to socialize with his male friends despite her refusal; that Stern found condoms placed by defendant in a drawer that was accessible to all employees; that all the plaintiffs were aware that defendant took females, including other female employees, into rooms for extended periods of time; that defendant often spoke in public about his affinity for women with large breasts; that defendant frequently walked around the office in only long johns and a tee shirt; and that defendant showed Hernandez and Herarte a pen holder which was a model of a person and in which the pen would be inserted into its “rectum.”
Defendant moved for summary judgment dismissing plaintiffs’ claims under the State HRL and the City HRL. He argued that plaintiffs’ claims for hostile work environment under the State HRL should be dismissed because the evidence failed to satisfy the “severe and pervasive” standard required for a claim, and *110because no reasonable jury could find that plaintiffs perceived the environment to be hostile or abusive on account of their gender. He also asserted that the evidence showed that none of plaintiffs’ employment was altered as a result of any alleged harassment and that plaintiffs could not demonstrate that they were treated differently from male employees or that the alleged conduct occurred because of their sex. Acknowledging the relaxed standard under the City HRL, defendant asserted that the evidence was nevertheless inadequate to prove a violation of the statute.
In opposition, plaintiffs argued that defendant committed numerous perverted actions between September 2006 and December 2006 which were directed at women and derogatory in nature, thereby creating a hostile work environment. They further claimed that defendant’s acts were clearly gender based and were subjectively intolerable to plaintiffs. They added that the totality of the circumstances demonstrated that the conduct alleged was so pervasive as to create an objectively hostile work environment. Plaintiffs separately contended that the court was required to resolve all issues of fact in their favor and that defendant’s actions interfered with their ability to perform their jobs and forced them to leave the office.
The court granted defendant’s motion, finding that the evidence did not support plaintiffs’ hostile environment claim under the State HRL since much of the complained-of conduct was directed at both the men and the women in the office and could be perceived as offensive to people of either sex (2011 NY Slip Op 31182[U] [2011]). It further found that the conduct directed specifically at the plaintiffs due to their gender was too sporadic to rise to an actionable level.
The motion court observed that plaintiffs did not miss work due to defendant’s behavior and that their salaries were not impacted. The court concluded that, even considering the totality of the circumstances in a light most favorable to plaintiffs, a reasonable person could not find that plaintiffs were subjected to a hostile work environment because they had only been exposed to “mere offensive utterance[s]” on several occasions, as opposed to pervasive, ongoing harassment (id. at *12). In that regard, the court remarked that while Herarte and Stern worked for defendant for over three years, the emails were sent over a one-month time period and defendant’s other behavior was sporadic.
As for the comments defendant made to Hernandez about her breasts and her buttocks, the court found that they were not so *111extraordinarily severe as to sustain a claim. The court also found that much of what plaintiffs stated about defendant’s alleged sexual behavior with other employees and visitors was seconder third-hand and did not amount to a change in the terms of plaintiffs’ employment.
While acknowledging the broader reach of the City HRL, the court held that plaintiffs nevertheless failed to rebut defendant’s prima facie showing that they were treated no worse than the male employees in the office. Indeed, the court noted, much of defendant’s behavior could be considered equally offensive and inappropriate to male and female employees. The court separately found that the clear gender-based conduct could be reasonably found to be no more than “petty slights and trivial inconveniences” (id. at *20).
The United States Supreme Court, in cases brought under title VII of the Civil Rights Act of 1964, has held that a hostile work environment exists “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” (Harris v Forklift Systems, Inc., 510 US 17, 21 [1993] [citations and internal quotation marks omitted]).
“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required” (id. at 23).
In addition, “the conduct must both have altered the conditions of the victim’s employment by being subjectively perceived as abusive by the plaintiff, and have created an objectively hostile or abusive environment—one that a reasonable person would find to be so” (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 311 [2004], citing Harris at 21).
Of course, there can be no claim for sexual discrimination, including that based on a hostile work environment, unless the *112plaintiff was treated differently because of her sex (see Oncale v Sundowner Offshore Services, Inc., 523 US 75, 80 [1998]).
“The mere fact that men and women are both exposed to the same offensive circumstances on the job site, however, does not mean that, as a matter of law, their work conditions are necessarily equally harsh. The objective hostility of a work environment depends on the totality of the circumstances. Further, the perspective from which the evidence must be assessed is that of a reasonable person in the plaintiffs position, considering all the circumstances [including] the social context in which particular behavior occurs and is experienced by its target” (Petrosino v Bell Atl., 385 F3d 210, 221 [2d Cir 2004] [internal quotation marks and citations omitted]).
Here, defendant argues that plaintiffs were not treated differently based on their sex because both women and men were exposed to the emails distributed by him. This, however, ignores the “social context” in which the emails were distributed. That context involved several incidents in which defendant clearly objectified women. These included touching Herarte’s backside and suggesting she “tighten” it up, telling Hernandez she should get a breast enlargement and that he “enjoyed” looking at her exposed underwear, and generally commenting that he liked large-breasted women. Considering the totality of the circumstances, a jury could reasonably determine that the emails were sent in an effort to specifically provoke a reaction from the women in the office, and that they were therefore singled out from the male employees.
This does not mean that plaintiffs have submitted sufficient evidence to establish an issue of fact whether they were subjected to a hostile workplace environment. We accept as true plaintiffs’ deposition testimony that, subjectively, they viewed defendant’s behavior as offensive and that it made coming to work extremely stressful and upsetting. We must determine, however, whether a reasonable person would have objectively considered the environment to have been sexually hostile.
Until recently, New York State courts routinely analyzed this element of the hostile workplace environment claims in the same manner, whether brought under the State HRL or the City HRL (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 n 3 [2004]). Courts subjected both types of claims to the *113“severe and pervasive” standard. Under this standard, courts were required to dismiss hostile work environment claims brought under the State and City Human Rights Laws where the environment was not objectively hostile because the behavior complained of amounted to no more than “mild” or “isolated” incidents that could not be said to permeate the workplace (id. at 311 [finding that racial epithets did not “pervade” the workplace, having allegedly occurred on three occasions over nine years]; Alfano v Costello, 294 F3d 365 [2d Cir 2002] [reversing verdict in favor of plaintiff based on five incidents when she was told she ate carrots and other food “seductively,” carrots were placed in her presence arranged to mimic male genitalia, and a vulgar cartoon was left in plaintiffs mailbox]; Brennan v Metropolitan Opera Assn., Inc., 192 F3d 310 [2d Cir 1999] [one episode of “lewd banter” over the course of three years]). At the same time, courts would uphold sexual discrimination claims brought under both statutes where women were subjected to sexual ridicule “day after day over the course of several years without supervisory intervention” (Petrosino, 385 F3d at 222; see Raniola v Bratton, 243 F3d 610, 621 [2d Cir 2001] [finding triable issue of fact where plaintiff was allegedly subjected to offensive sex-based remarks, workplace sabotage, disproportionately burdensome work assignments, and one serious public threat of physical harm over 30 months]).
The “severe and pervasive” standard was intended to forge “a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury” (Harris, 510 US at 21). However, in Williams v New York City Hous. Auth. (61 AD3d 62 [1st Dept 2009]), this Court concluded that the standard no longer applied to the New York City HRL. That was because the City HRL had been amended by the Local Civil Rights Restoration Act of 2005, which expressly mandated that the City HRL be “construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human'rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed” (Local Law No. 85 [2005] of City of NY § 7). Bearing this principle in mind, this Court held in Williams that, for purposes of hostile workplace environment claims brought under the City HRL, “questions of ‘severity’ and ‘pervasiveness’ are applicable to consideration of the *114scope of permissible damages, but not to the question of underlying liability” (61 AD3d at 76). On the other hand, however, Williams recognized that the City HRL is not a “general civility code,” such that an employer can be held liable for “petty slights and trivial inconveniences” (id. at 79-80). At bottom, Williams held,
“[f]or [City] HRL liability . . . the primary issue for a trier of fact in harassment cases, as in other terms and conditions cases, is whether the plaintiff has proven by a preponderance of the evidence that she has been treated less well than other employees because of her gender. At the summary judgment stage, judgment should normally be denied to a defendant if there exist triable issues of fact as to whether such conduct occurred” {id. at 78).
Because of Williams, we are required to analyze plaintiffs’ State and City HRL claims separately. Subjecting the state claim to the “severe and pervasive” standard, plaintiffs fall short. There is no question that the emails that defendant circulated in the office were inappropriate. However, their distribution by defendant is closer to what would be described as “boorish” behavior than the “severe” types of incidents which have been found to create a hostile workplace environment (see e.g. Patane v Clark, 508 F3d 106 [2d Cir 2007] [plaintiff stated claim for hostile workplace discrimination by alleging she was regularly required to handle pornographic videotapes while opening supervisor’s mail and supervisor once viewed hard core pornographic websites on her workplace computer]). The only email that contained what could arguably be described as pornographic material was the video excerpt entitled “Birthday Vibrator” and it does not appear that the clip was explicit. The other offensive incidents, including defendant’s touching Herarte’s rear end and suggesting she “tighten” it up, telling Hernandez she should get a breast enlargement and that he “enjoyed” looking at her exposed underwear, and generally commenting that he liked large-breasted women, are too sporadic to be considered “pervasive.”
While we find that the complained-of incidents do not rise to the level of “severe and pervasive” for purposes of a claim pursuant to the State HRL, this does not dispose of the question whether plaintiffs’ City HRL claim is still viable. Indeed, we can only dismiss the latter claim if we determine that this is a “truly insubstantial case” in which defendant’s behavior can*115not be said to fall within the “broad range of conduct that falls between ‘severe and pervasive’ on the one hand and a ‘petty slight or trivial inconvenience’ on the other” (Williams, 61 AD3d at 80). Considering the totality of the circumstances, this is not a “truly insubstantial case.” Viewed independently, defendant’s dissemination of emails containing mildly offensive sexual media content may not have been enough to rise to the level of a hostile environment under the City HRL. However, the overall context in which the emails were sent cannot be ignored. The record supports plaintiffs’ claim that defendant took a perverse pleasure in demeaning and embarrassing his female employees. This was obvious from his statements, related by plaintiffs, concerning, in the case of Hernandez, the size of her breasts, and in the case of Herarte, the size of her backside. While such statements may have been isolated, that is irrelevant under the City HRL, since “[o]ne can easily imagine a single comment that objectifies women being made in circumstances where that comment would, for example, signal views about the role of women in the workplace and be actionable” (Williams, 61 AD3d at 80 n 30). Here, the comments and emails objectifying women’s bodies and exposing them to sexual ridicule, even if considered “isolated,” clearly signaled that defendant considered it appropriate to foster an office environment that degraded women.
As this Court recognized in Williams,
“the text and legislative history [of the Restoration Act] represent a desire that the City HRL ‘meld the broadest vision of social justice with the strongest law enforcement deterrent.’ Whether or not that desire is wise as a matter of legislative policy, our judicial function is to give force to legislative decisions” (id. at 68-69). *121ting the late filing of proof of service, absent an order curing the irregularity, the default judgment was a ‘nullity requiring vacatur’ (71 AD3d at 1414, quoting Rosato v Ricciardi, 174 AD2d 937, 938 [1991]).
*115Because, at the very least, defendant’s conduct can be characterized as having subjected plaintiffs to “differential treatment,” the broad remedial purposes of the City HRL would be countermanded by dismissal of the claim.
Accordingly, the order of the Supreme Court, New York County (Debra A. James, J.), entered April 19, 2011, which granted defendant’s motion for summary judgment dismissing the cause of action alleging violations of the New York State and City Human Rights Laws, should be modified, on the law, to reinstate plaintiffs’ claim for sexual discrimination brought under the city law, and otherwise affirmed, without costs.
*116Tom, J.P., Saxe, Catterson and DeGrasse, JJ., concur.
Order, Supreme Court, New York County, entered April 19, 2011, modified, on the law, to reinstate plaintiffs’ claim for sexual discrimination brought under the New York City Human Rights Law, and otherwise affirmed, without costs.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-07-00715-CR
Jack Carlton Wilkin, Jr., Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-07-475, HONORABLE JACK H. ROBISON, JUDGE PRESIDING
MEMORANDUM OPINION
After the district court denied his motion to suppress, appellant Jack Carlton Wilkin,
Jr. pleaded guilty to three counts of possession of a controlled substance with intent to deliver,
see Tex. Health & Safety Code Ann. §§ 481.112, .113 (West Supp. 2009), and was sentenced to
twenty years in prison on each count. In a single issue, Wilkin argues that the district court erred
in denying his motion to suppress. He argues that the affidavit underlying the search and
arrest warrant did not create a substantial basis for concluding that a controlled substance would be
found at the premises. We affirm the judgment of conviction.
According to the affidavit for the search and arrest warrant, the affiant had
received information from “several confidential sources,” as well as from a Hays County Narcotics
Task Force confidential informant (CI), that a person referred to as “Possum” was distributing
crystal methamphetamine and other narcotics in the City of San Marcos. Although none of the
confidential sources knew where Possum was living, the Hays County confidential informant
reported and confirmed that Possum resides at 816 West Hopkins in San Marcos.
The affidavit states that “‘Possum’ is documented by the Hays County Narcotics
Task Force as a narcotics distributor” and “is identified as Jack C. Wilkin DOB 051762.” It goes
on to outline Wilkin’s “extensive criminal history” and states that Wilkin is “currently on parole
until 2008.”
The affidavit concludes by stating that “[t]he CI has proven to be credible and reliable
in the past by providing information that has led to the seizure of illicit narcotics,” but that the CI
has requested to remain anonymous. According to the affiant, the CI stated that within the past
72 hours, he/she had been inside the residence in question, where he/she found Wilkin and a
distributable amount of methamphetamine in Wilkin’s possession.
Arguing that the affidavit was insufficient to support a finding of probable cause,
Wilkin filed two motions to suppress. At the hearing, the district court determined that there was
probable cause to support the issuance of the warrant and, accordingly, denied Wilkin’s motions.
Wilkin pleaded guilty to the three counts of possession of a controlled substance, as alleged in the
indictment, and was sentenced to twenty years in prison on each count.
We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); see also Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court’s denial of a motion to suppress is
reviewed for abuse of discretion, Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999), but
2
when the trial court’s rulings do not turn on the credibility and demeanor of the witnesses, we apply
a de novo standard of review, Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).
Wilkin asserts that the affidavit does not establish probable cause because the
confidential informant is unreliable, and nothing in the affidavit provides corroboration. Wilkin
also challenges certain “conclusory statements” and questions the timeliness of information
presented in the affidavit.
Probable cause to support the issuance of a search warrant exists when the facts
submitted to the magistrate are sufficient to justify a conclusion that the object of the search
is probably on the premises to be searched at the time the warrant is issued. Cassias v. State,
719 S.W.2d 585, 587 (Tex. Crim. App. 1986); State v. Bradley, 966 S.W.2d 871, 873
(Tex. App.—Austin 1998, no pet.). The sufficiency of the affidavit is determined by considering
the totality of the circumstances set forth within the four corners of the document. Illinois v. Gates,
462 U.S. 213, 238 (1983); Bradley, 966 S.W.2d at 873. The affidavit must be interpreted in a
common sense and realistic manner, recognizing that reasonable inferences may be drawn from the
affidavit. Hedspeth v. State, 249 S.W.3d 732, 737 (Tex. App.—Austin 2008, pet. ref’d). The issuing
magistrate’s determination of probable cause must be given great deference and will be sustained
if the magistrate had a substantial basis for concluding that probable cause was shown. Gates,
462 U.S. at 236-37; Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004).
When the police receive information from an informant, the totality of the
circumstances includes the veracity and reliability of the informant and the informant’s information,
as well as the basis for the informant’s knowledge. See Gates, 462 U.S. at 230-31. An anonymous
3
tip alone will rarely establish the level of reasonable suspicion required to justify a detention.
Florida v. J.L., 529 U.S. 266, 270 (2000); Alabama v. White, 496 U.S. 325, 329 (1990). There must
be some further indicia of reliability, some additional facts from which a police officer may
reasonably conclude that the tip is reliable and a detention is justified. Pipkin v. State, 114 S.W.3d
649, 654 (Tex. App.—Fort Worth 2003, no pet.).
Here, although the critical information was provided by a confidential informant, the
affiant states, based on past experience with the informant, that the informant is reliable. According
to the affiant, “[t]he CI has proven to be credible and reliable in the past by providing information
that has led to the seizure of illicit narcotics, namely methamphetamine.” Citing the court of
criminal appeals in Avery v. State, 545 S.W.2d 803, 804 (Tex. Crim. App. 1977), Wilkin asserts that
“the minimal requirement is that the affidavit recite that the informant has no criminal record, and
enjoys a good reputation among his associates in the community.” As the affidavit here did not
contain such a statement, Wilkin argues that there was not a showing that the informant was reliable.
As the court of criminal appeals later held, however, that the informant was known
to the affiant and has given him reliable information in the past is sufficient to show that the
informant is reliable. Capistran v. State, 759 S.W.2d 121, 128 (Tex. Crim. App. 1988). In such
circumstance, no corroborating information is necessary. Id. Here, the affiant’s statement that
“[t]he CI has proven to be credible and reliable in the past by providing information that has
led to the seizure of illicit narcotics, namely methamphetamine,” is sufficient to establish the
informant’s reliability.
4
Wilkin also argues that the affidavit cannot establish probable cause because Wilkin’s
identity is stated in a “conclusory” manner. Although a search warrant affidavit may not be based
solely on hearsay or conclusory statements, a search warrant affidavit is not to be deemed insufficient
on those grounds so long as a substantial basis for crediting the hearsay exists or corroborating facts
within the officer’s knowledge exist. See Gates, 462 U.S. at 241-43. Here, the affidavit states that
“‘Possum’ is identified as Jack C. Wilkin DOB 051762.” Additional facts recited in that paragraph
show that “Possum” has been documented as Jack C. Wilkin by the Hays County Narcotics
Task Force based on his “extensive criminal history” involving narcotics abuse. Moreover, the
informant identified Wilkin as the person he or she encountered inside the residence in question
and stated that it was Wilkin who was in possession of a distributable amount of methamphetamine.
Indeed, the critical portions of the affidavit identify Wilkin, not “Possum,” as the suspect. This
identification is based on the CI’s face-to-face encounter with Wilkin. To the extent that the affiant’s
identifying statement could be considered “conclusory,” these additional facts provide sufficient
corroboration to establish probable cause. See id.
Wilkin also challenges the timeliness of the information presented in the affidavit.
Specifically, Wilkin challenges the statement that “[d]uring a recent conversation, the CI told Affiant
that within the past 72 hours he/she had been inside” the residence in question. Although the time
of the “recent conversation” is not specified, the contents of the affidavit show that the informant
had been in the residence within 72 hours of speaking with the affiant and that, soon thereafter, the
affiant executed the subject affidavit. Interpreting this statement in a common sense and realistic
5
manner, as we are required, see Hedspeth, 249 S.W.3d at 737, we find the timeliness of the affidavit
to be sufficient.
Based on the totality of the circumstances set forth within the four corners of the
affidavit, and affording “great deference” to the issuing magistrate’s determination of probable cause,
we find that the magistrate had a substantial basis for concluding that probable cause was shown,
and the district court acted within its discretion in denying Wilkin’s motions to suppress. See Gates,
462 U.S. at 236-37; Carmouche, 10 S.W.3d at 327. Wilkin’s issue is overruled, and the judgment
of conviction is affirmed.
__________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Jones, Justices Pemberton and Waldrop
Affirmed
Filed: March 25, 2010
Do Not Publish
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Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Sangiorgio, J.), rendered November 3, 1983, convicting him of attempted murder in the first degree and attempted murder in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to support the defendant’s conviction (see, People v Contes, 60 NY2d 620). Minor discrepancies in a witness’s testimony do not warrant an impeachment of the jury’s verdict (see, People v Martin, 108 AD2d 928; People v Di Girolamo, 108 AD2d 755, lv denied 64 NY2d 1133; People v Rodriguez, 72 AD2d 571). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
*624Contrary to the defendant’s further contention, the admission into evidence of testimony which, in effect, established that certain items in the defendant’s vehicle were stolen property taken during a robbery, was not error. Evidence of uncharged crimes may be introduced in order to show the defendant’s motive or intent (see, People v Vails, 43 NY2d 364; People v Molineux, 168 NY 264). In this case, the aforementioned testimony was probative of the defendant’s motive and intent in engaging in a later shooting incident with the police, which resulted in the instant charges against the defendant. Although some prejudicial effect will necessarily result from the introduction of uncharged criminal conduct, the probative value of the evidence herein clearly outweighed any prejudicial effect (see, People v Vails, supra, at 368-369). Moreover, the court carefully circumscribed the scope of the permissible testimony and gave a jury instruction concerning the use to which the testimony concerning the items found in the defendant’s vehicle was to be considered by the jury, to wit, that such evidence was to be considered solely "on the question of motive and intent * * * and for no other purpose”.
We find no basis for disturbing the sentence (see, People v Suitte, 90 AD2d 80). Lawrence, J. P., Kunzeman, Kooper and Spatt, JJ., concur.
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OPINION OF THE COURT
Leventhal, J.
On this appeal, we are asked to decide whether the 20-day time period to file proof of service of process, when service is made upon a person of suitable age and discretion pursuant to CPLR 308 (2), applies to an action commenced in the Civil Court of the City of New York. For the reasons discussed below, we find that the 20-day time period does not apply.
In August 2007 the plaintiff commenced this action in the Civil Court of the City of New York, Queens County (hereinafter the Civil Court), to recover damages for personal injuries against Perdomo M. Rodriguez, Gabriel Perez, and Carmen Perez. The plaintiff alleged that on June 11, 2005, he was a passenger in a vehicle owned and operated by Rodriguez which collided with another vehicle owned by Carmen Perez and operated by Gabriel Perez. The plaintiff alleged that the defendants’ combined negligence and recklessness in the operation of the respective vehicles was the proximate cause of the serious injuries he allegedly sustained as a result of the accident.
*119According to the affidavit of service from the plaintiffs process server dated December 18, 2007, a copy of the summons and complaint was delivered to Rodriguez’s wife at his home on December 13, 2007. On the following day, the plaintiffs process server mailed copies of those documents to Rodriguez’s residence. However, proof of service was not filed with the Civil Court until January 2, 2009, more than one year after “suitable age and discretion” service was effected. Rodriguez did not appear in the action or answer the complaint.
On March 4, 2009, the plaintiff filed a notice of inquest against Rodriguez only. On July 14, 2009, following an inquest, judgment was entered against Rodriguez and in favor of the plaintiff in the principal sum of $25,000. In September 2009, the plaintiff commenced a separate action against Long Island Insurance Company, Rodriguez’s insurer, to enforce the judgment.
In February 2010, Rodriguez moved pursuant to CPLR 2004 and 2005 to vacate the default judgment upon the grounds that “said default upon which the judgment was entered into should not have been granted, was excusable and was based upon a meritorious defense.” In an affidavit, Rodriguez averred that neither he nor his wife were ever served with the summons and complaint.
In an order entered February 17, 2010, the Civil Court granted Rodriguez’s motion to vacate the default judgment in “the interest of justice,” stressing the strong public policy in favor of resolving cases on the merits. The plaintiff then appealed to the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts (hereinafter the Appellate Term). Before the Appellate Term, the plaintiff contended that since service had allegedly been effected by delivering the summons and complaint to Rodriguez’s wife, he was required to submit an affidavit from her in order to rebut the presumption of proper service created by the process server’s affidavit of service. As Rodriguez failed to submit an affidavit from his wife, and failed to explain that failure, the plaintiff argued that the Civil Court erred in vacating the default judgment.
By order dated March 2, 2011, the Appellate Term affirmed the order of the Civil Court (36 Misc 3d 76 [2011]). Initially, the Appellate Term agreed with the plaintiff that Rodriguez’s affidavit in support of his motion “was insufficient to refute the presumption of proper service created by the affidavit of plaintiffs process server” (id. at 77). Nevertheless, the Appel*120late Term found that the plaintiffs failure to file proof of service within the 20-day period set forth in CPLR 308 (2) rendered the default judgment a nullity. In reaching its conclusion, the Appellate Term reasoned:
“CPLR 308 (2) requires that where, as here, service is made by delivering the summons within the state to a person of suitable age and discretion followed by mailing, ‘proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing . . . .’ The New York City Civil Court Act similarly requires the filing of proof of service to complete service (CCA 410 [b]), and specifies that service of the summons and complaint shall be made within 120 days of the filing of the summons and complaint (CCA 411; cf. CPLR 306-b). In the Civil Court, following the filing of proof of service, which completes substituted service (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, CCA 402; cf CPLR 308 [2] [service is complete 10 days after proof of service is filed]), the defendant has 30 days within which to appear and answer (CCA 402 [b]).
“The rules set forth in the Civil Practice Law and Rules respecting the filing of proof of service in the event of substituted service by the ‘nail and mail’ method are identical to the rules for filing proof of service in the event of substituted service by service on a person of suitable age and discretion followed by mailing (compare CPLR 308 [2] with CPLR 308 [4]). In Discover Bank v Eschwege (71 AD3d 1413 [2010]), where the plaintiff served by the ‘nail and mail’ method (see CPLR 308 [4]) but, without obtaining judicial permission to do so, filed proof of service more than 20 days following such service, the Appellate Division, Fourth Department, vacated the default judgment that had been entered against the defendant; in so doing, that court commented that, while the failure to file proof of service within the time specified in CPLR 308 (4) was not a jurisdictional defect but was rather a ‘procedural irregularity’ that could be cured by an order permit-
*121“Here, without obtaining an order permitting late filing, plaintiff filed proof of service of the summons with endorsed complaint approximately 375 days after serving defendant Rodriguez by substituted service pursuant to CPLR 308 (2). As there was no order permitting the late filing of plaintiffs proof of service, the default judgment ‘was a nullity requiring vacatur’ (id.), and we conclude that the Civil Court did not improvidently exercise its discretion in granting defendant Rodriguez’s motion to vacate the default judgment that had been entered against him. Accordingly, the order of the Civil Court is affirmed” (Rodriguez v Rodriguez, 31 Misc 3d 76, 77-78 [2011]).
The plaintiff moved for leave to reargue his opposition to Rodriguez’s motion to vacate, or, in the alternative, for leave to appeal to this Court. In support of his motion, the plaintiff argued, among other things, that the Appellate Term erred in applying the 20-day time period to file proof of service pursuant to CPLR 308 (2) to this action because the New York City Civil Court Act (hereinafter the CCA) has its own provisions regarding the filing of proof of service.
In an order dated May 23, 2011, the Appellate Term denied the plaintiffs motion (2011 NY Slip Op 74017[U] [2011]). By decision and order on motion dated August 31, 2011, this Court granted the plaintiffs motion for leave to appeal from the order dated March 2, 2011 (2011 NY Slip Op 82318[U] [2011]). On appeal, the plaintiff contends that the 20-day time period for filing proof of service pursuant to CPLR 308 (2) is not applicable to an action commenced in the Civil Court.
This action was commenced in the Civil Court to recover damages for personal injuries in a sum not exceeding $25,000, which is the maximum amount recoverable in that court (see CCA 202). According to the affidavit of service submitted by the plaintiff, Rodriguez was served by service upon a person of “suitable age and discretion,” in that, on December 13, 2007, the summons and complaint were left with Rodriguez’s wife, at his home, and the summons and complaint were mailed to *122Rodriguez’s home on the following day. Service upon a party by way of delivery to a person of “suitable age and discretion” and then mailing is not explicitly provided for in the CCA. However, CCA 403, entitled “Summons; method and place of service,” effectively incorporates the method of service provisions of the CPLR by providing, as pertinent here, that “[s]ervice of summons shall be made in the manner prescribed in supreme court practice” (see Matter of Ebanks v Skyline NYC, LLC, 70 AD3d 943, 944 [2010]; see also CCA 400 [2]).
CPLR 308 (2), in turn, provides that personal service upon a person can be made
“by delivering the summons within the state to a person of suitable age and discretion at the . . . dwelling place or usual place of abode of the person to be served and by . . . mailing the summons to the person to be served at his or her last known residence ... in an envelope bearing the legend ‘personal and confidential’ . . . such delivery and mailing to be effected within twenty days of each other.”
The affidavit of service submitted by the plaintiff’s process server complied with these provisions.
However, CPLR 308 (2) further provides that “proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing.” The plaintiff asserts that this provision requiring the filing of proof of service is not applicable to an action brought in Civil Court. In support of this contention, the plaintiff relies upon the history of article 4 of the CCA.
Prior to 2005, CCA 409 required that a copy of a summons and complaint with proof of service be filed within 14 days after service. In September 2005, various provisions of the CCA were amended in order to implement a commencement by filing system in the Civil Court (see L 2005, ch 452; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, NY City Civ Ct Act § 411, 2012 Pocket Part at 63) which was analogous to the commencement by filing system in effect in, inter alia, the Supreme Court (see CPLR 304; L 1992, ch 216). As pertinent here, CCA 409 was amended to provide that “[p]roof of service of the summons and complaint. . . shall be filed with the clerk of the court in the county in which the action is brought” (CCA 409 [a]).
*123The 2005 amendment of CCA 409 eliminated the 14-day time period to file proof of service in an action commenced in the Civil Court. Discussing the import of the amendment in a practice commentary, Professor David Siegel notes that “ [section 409 was amended in 2005 to eliminate all reference to time periods for filing proof of service, substituting a simple requirement that the proof be filed with the clerk of the civil court in the county of venue, but specifying no time limit” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, NY City Civ Ct Act § 409, 2012 Pocket Part at 60).
Another provision relevant to our consideration is CCA 411. As part of the implementation of a commencement by filing system in the Civil Court, CCA 411 currently provides that service of a summons and complaint must be made within 120 days of the filing thereof and permits a court, upon good cause shown, to extend the time for service. In addition, under the CCA’s scheme for service of process, unless service is made by personal deliveiy, service in the Civil Court is complete upon filing of proof of service (see CCA 402 [b]; 410). By contrast, where a defendant is served by personal delivery, service is complete immediately (see CCA 402 [a]; 410).
A review of the foregoing provisions makes clear that the 20-day time period to file proof of service contained in CPLR 308 (2) was never applicable to an action commenced in the Civil Court because, prior to 2005, proof of service had to be filed within 14 days of service. Presently, there is no deadline to file proof of service in an action commenced in the Civil Court (see CCA 409). In practical terms, this means that a defendant’s time to answer a complaint in the Civil Court is not triggered until proof of service is filed, unless that defendant was personally served (see CCA 402 [if personally served, a defendant has 20 days to appear and answer; if not personally served, a defendant has 30 days from filing of proof of service to appear and answer]; 410).
CCA 2102, entitled “Civil practice; general provisions; CPLR applicable,” states: “The CPLR and other provisions of law relating to practice and procedure in the supreme court, notwithstanding reference by name or classification therein to any other court, shall apply in this court as far as the same can be made applicable and are not in conflict with this act” (emphasis added).
Just such a conflict would be created if the CPLR 308 (2) 20-day deadline for filing proof of service is applied to Civil Court *124actions. Considering that CCA 409 previously required a plaintiff to file proof of service (except with personal delivery) within 14 days of service, and the current version of CCA 409 eliminated the 14-day time period for filing proof of service, the application of the 20-day time period to file proof of service set forth in CPLR 308 (2) conflicts with CCA 409. The replacement of that portion of CCA 409 which required the filing of proof of service within 14 days of service, with a provision deleting such a deadline, reflects a deliberate choice by the legislature to discard a specific time period to file proof of service in actions commenced in the Civil Court. Moreover, while some may question why no deadline was imposed by the legislature for the filing of proof of service in a Civil Court action, it is not for the courts to legislate such a deadline. If the legislature deems it prudent to require a plaintiff to file proof of service with the clerk of the Civil Court within a certain time period, it can enact such legislation. For example, the legislature can mandate that the filing provisions of CPLR 308 (2) apply to the filing of proof of service in Civil Court actions. Absent any legislative directive, we are constrained to allow the plaintiff to file his proof of service more than one year after such service.
Thus, the Appellate Term should not have applied the 20-day time period to file proof of service set forth in CPLR 308 (2), as that provision conflicts with the current version of CCA 409 (see CCA 2102). Since the current version of CCA 409 does not include a deadline for filing the proof of service, the Appellate Term erred when it found that the plaintiffs filing of the proof of service approximately 375 days after serving Rodriguez was untimely (cf. Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 [2007]).
Rodriguez’s reliance upon Discover Bank v Eschwege (71 AD3d 1413 [2010]) to impose a 20-day time period to file proof service pursuant to CPLR 308 (2) is misplaced, as that case involved an action commenced in the Supreme Court, not the Civil Court.
Once proof of filing of service in this case was actually filed on January 2, 2009, service became complete. Accordingly, Rodriguez had 20 days to answer or move to extend his time. He did neither. Hence, Rodriguez defaulted. As the Appellate Term correctly determined, Rodriguez’s affidavit submitted in support of his motion was insufficient to vacate the judgment. Although Rodriguez did not specify which paragraph of CPLR 5015 (a) he relied upon, his affidavit suggested that he was *125seeking to vacate his default pursuant to CPLR 5015 (a) (4) on the ground of lack of jurisdiction. However, he failed to demonstrate his entitlement to vacatur on this ground.
The affidavit from the plaintiffs process server constituted prima facie evidence of proper service pursuant to CPLR 308 (2), and Rodriguez’s unsubstantiated denial of receipt was insufficient to rebut the presumption of proper service (see US Natl. Bank Assn, v Melton, 90 AD3d 742 [2011]; Prospect Park Mgt., LLC v Beatty, 73 AD3d 885, 886 [2010]; Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327 [2009]; Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d 984 [2009]; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983 [2008]). Furthermore, since Rodriguez did not submit an affidavit from his wife, to whom the summons and complaint were delivered, Rodriguez failed to rebut the presumption of proper service.
Rodriguez’s remaining contention is without merit.
Accordingly, the order of the Appellate Term dated March 2, 2011, is reversed, on the law, the order of the Civil Court entered February 17, 2010, is reversed, and Rodriguez’s motion, in effect, pursuant to CPLR 5015 (a) (4) to vacate the judgment of the Civil Court entered July 14, 2009, is denied.
Rivera, J.P, Angiolillo and Cohen, JJ., concur.
Ordered that the order of the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts dated March 2, 2011, is reversed, on the law, with costs, the order of the Civil Court of the City of New York, Queens County, entered February 17, 2010, is reversed, and the motion of the defendant Perdomo M. Rodriguez, in effect, pursuant to CPLR 5015 (a) (4) to vacate the judgment of the same court entered July 14, 2009, is denied.
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Appeal by the defendants from three judgments (one as to each of them) of the Supreme Court, Kings County (Slavin, J.), all rendered November 19, 1986, convicting them of criminal possession of a controlled substance in the third degree, upon jury verdicts, and imposing sentences.
Ordered that the judgments against the defendants Massene and Alexander are affirmed; and it is further,
Ordered that the judgment against the defendant Gayle is modified by reducing the sentence imposed from an indeterminate term of 8V3 to 25 years, to one of from 5 to 15 years; as so modified, the judgment against the defendant Gayle is affirmed.
The defendants were apprehended in the living room of an apartment. The People’s witnesses testified that in this modified railroad-type apartment, the kitchen could be seen from the living room and the defendants were seated on a couch facing the kitchen when the police arrived. Upon entering the apartment and in open view on the kitchen counters, the police found, among other things, three scales; bags of white *625powder, later identified as cocaine; manila envelopes and plastic envelopes.
Under these circumstances, we find that the evidence amply supported the defendants’ convictions for criminal possession of a controlled substance in the third degree. When narcotics are found in open view in a room, other than a public place, "under circumstances evincing an intent to unlawfully mix * * * package or otherwise prepare for sale such controlled substance[s]”, every person in close proximity to the narcotics at the time of their discovery is presumed to have knowingly possessed them (Penal Law § 220.25 [2]). Although this presumption is rebuttable, in this case, the jury could properly, upon all the evidence, draw the inference of criminal possession from the defendants’ presence at the place of discovery (see, People v Daniels, 37 NY2d 624; People v Hylton, 125 AD2d 409, lv denied 69 NY2d 881). We note that close proximity does not require that the defendants be found in the same room as the narcotics (see, People v Daniels, supra). Further, the jury’s conclusion was not against the weight of the evidence (see, CPL 470.15 [5]; People v Chandler, 121 AD2d 644, lv denied 68 NY2d 913).
In addition, while the trial court’s conduct left much to be desired, we find that it does not warrant directing a new trial. A review of the record reveals that virtually all the challenged remarks made by the trial court to various defense counsel were made outside of the jury’s presence (see, United States v Robinson, 635 F2d 981, cert denied 451 US 992; cf., People v De Jesus, 42 NY2d 519). Moreover, the record indicates that all defense counsel, regardless of the trial court’s criticisms, vigorously and zealously represented their clients (see, United States v Robinson, supra). Under the circumstances, we are satisfied that the defendants were not denied the effective assistance of counsel or a fair trial because of the trial court’s conduct.
We find that the sentence imposed upon the defendant Johnny Gayle was excessive to the extent indicated (see, People v Suitte, 90 AD2d 80).
We have examined the defendants’ other contentions, and find them to be without merit. Lawrence, J. P., Kunzeman, Kooper and Spatt, JJ., concur.
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kramer, J.), entered September 5, 1986, convicting him of criminal posses*626sion of a controlled substance in the second degree, upon a jury verdict, 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 evidence.
Ordered that the judgment is affirmed.
The question of whether the controlled substance found in the defendant’s car was in plain view of the arresting officer is a question hinging upon the credibility of the witnesses. As such, we perceive no reason to overturn the determination of the hearing court. "Issues of credibility are primarily for the hearing court and its findings should be upheld unless they are clearly erroneous” (People v Armstead, 98 AD2d 726; see also, People v Duncan, 75 AD2d 823).
We have considered the defendant’s other contentions and find them to be without merit. Lawrence, J. P., Kunzeman, Kooper and Spatt, JJ., concur.
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OPINION OF THE COURT
Spain, J.
Petitioner and respondent Joshua SS. (hereinafter respondent) are the parents of Cadence SS., a child born in 2004 who is the subject of this proceeding. In 2006, respondent caused the death of Jada TT., another child of petitioner, while caring for both children, by violently shaking her and hitting her head against the bathtub causing cranial cervical dislocation. As a result, Family Court in Greene County (Lalor, J.) determined that respondent had abused Jada and derivatively neglected Cadence. Cadence was briefly in the custody of her maternal grandmother during the investigation, but returned to the custody of petitioner in May 2007, where she remains. In 2008, respondent was convicted of manslaughter in the second degree for Jada’s death, and sentenced to a prison term of 5 to 15 years; his judgment of conviction was affirmed on appeal.
In June 2010, petitioner filed this petition seeking to terminate respondent’s parental rights as to Cadence on the ground that he had “severely abused” her by causing the death of Jada, for whose care he was legally responsible, resulting in the manslaughter conviction (see Social Services Law § 384-b [3] [b]; [8] [a] [iii] [A]). Petitioner subsequently moved to join, as necessary parties, (1) the Greene County Department of Social Services, which had prosecuted the abuse and neglect proceeding against respondent, and (2) the Albany County Department for Children, Youth and Families, the child protective agency in the county where petitioner and Cadence resided when this petition was filed. Petitioner also sought a judicial declaration that *128it would not be in the child’s best interests to make diligent efforts to encourage and strengthen any relationship with respondent (see Social Services Law § 384-b [8] [a] [iv]). Family Court dismissed the petition, in a written decision, finding that petitioner lacked standing to commence a termination of parental rights proceeding against respondent under Social Services Law § 384-b. Petitioner now appeals.
The threshold issue presented by petitioner’s petition is whether a parent who possesses custody of a child has the statutory authority to institute proceedings to terminate the parental rights of that child’s other parent, on any grounds. Because we find no such authority, we affirm.
Social Services Law § 384-b provides that the guardianship of a child may, by court order, be committed to an authorized agency, a foster parent or “a relative with care and custody of the child” (Social Services Law § 384-b [3] [a]). That statute specifically provides that proceedings to terminate parental rights “may be originated by an authorized agency or by a foster parent . . . or by a relative with care and custody of the child,” and that a child’s attorney or guardian ad litem may initiate such a proceeding at the court’s direction where the authorized agency fails to do so after being court ordered (Social Services Law § 384-b [3] [b]). Petitioner’s claim to standing relies on the supposition, unsupportable in our view, that she is “a relative with care and custody of [Cadence]” (Social Services Law § 384-b [3] [b]).
Here, Cadence remains in the care and custody of petitioner, who has an inherent constitutional right, as a fit parent (which is not controverted), to parent her child (see Santosky v Kramer, 455 US 745, 753, 758-759 [1982]). In this situation, the child’s custody has not been committed by court order to a nonparent and there is no need or cause for such an order (see Social Services Law § 384-b [3] [a]). Indeed, according to the legislative findings and intent expressly embodied in Social Services Law § 384-b, this statute was enacted to provide a timely procedure, in appropriate cases, to terminate parental rights and free for adoption children in foster care, who experience “unnecessarily protracted stays in such care without being adopted or returned to their parents or other custodians,” depriving them of “positive, nurturing family relationships” (Social Services Law § 384-b [1] [b]). Given that petitioner retains—and by all expectations will continue to retain—full care and custody of Cadence as her mother, a termination petition against respon*129dent could and would not result in the child being freed for adoption, the very purpose of this parental termination statute (see Matter of Lucinda G., 122 Misc 2d 416, 422 [1983]; compare Matter of Alicia EE. [Adam FF.], 86 AD3d 663, 664 [2011], lv denied 17 NY3d 713 [2011]). While the phrase “a relative with care and custody of the child” is not defined (Social Services Law § 384-b [3] [b]), it can only be interpreted—consistent with the legislative purpose—to mean a nonparent relative with care and custody of a child who could be freed for adoption (see Matter of Paul Z. [Karen AA.—Paul N.], 68 AD3d 1473, 1475 [2009], lv dismissed 14 NY3d 749 [2010]).
To be sure, there appears to be no real dispute that respondent “severely abused” Cadence within the meaning of Social Services Law § 384-b (8) (a) (iii) (A) (see e.g. Matter of Jamaal NN., 61 AD3d 1056, 1056-1057 [2009], lv denied 12 NY3d 711 [2009]). However, the dispositional alternatives upon such a finding are limited to “(i) committing the guardianship and custody of the child, pursuant to this section, or (ii) suspending judgment” (Social Services Law § 384-b [8] [f]; see Matter of Kailynn WW. [Jeremy WW.], 80 AD3d 839, 840 [2011]). Petitioner already has the care and custody of Cadence and, clearly, is not seeking any change thereto and, as such, no dispositional order would be appropriate were her petition granted. Consequently, a parent with inherent rights to and full custody of a child, such as petitioner, does not fall within the statutory meaning of “a relative with care and custody of the child” for purposes of instituting a termination proceeding against the child’s other parent. Simply put, termination of parental rights, a predicate for adoption, is not a statutory option for a parent of a severely abused child to pursue against the abusive parent where the child has remained in the care and custody of the nonabusing parent (see Matter of Dale P., 84 NY2d 72, 81 [1994]; see also Family Ct Act § 1055 [d]).
Peters, P.J., Rose, McCarthy and Garry, JJ., concur.
Ordered that the order is affirmed, without costs.
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Appeal by the defendant from three judgments of the Supreme Court, Queens County (Sherman, J.), all rendered March 8, 1984, convicting him of attempted robbery in the second degree under indictment No. 1668/83, robbery in the first degree under indictment No. 3052/83, and robbery in the first degree under indictment No. 3132/83, 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). Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur.
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OPINION OF THE COURT
Spain, J.
Petitioner and respondent Joshua SS. (hereinafter respondent) are the parents of Cadence SS., a child born in 2004 who is the subject of this proceeding. In 2006, respondent caused the death of Jada TT., another child of petitioner, while caring for both children, by violently shaking her and hitting her head against the bathtub causing cranial cervical dislocation. As a result, Family Court in Greene County (Lalor, J.) determined that respondent had abused Jada and derivatively neglected Cadence. Cadence was briefly in the custody of her maternal grandmother during the investigation, but returned to the custody of petitioner in May 2007, where she remains. In 2008, respondent was convicted of manslaughter in the second degree for Jada’s death, and sentenced to a prison term of 5 to 15 years; his judgment of conviction was affirmed on appeal.
In June 2010, petitioner filed this petition seeking to terminate respondent’s parental rights as to Cadence on the ground that he had “severely abused” her by causing the death of Jada, for whose care he was legally responsible, resulting in the manslaughter conviction (see Social Services Law § 384-b [3] [b]; [8] [a] [iii] [A]). Petitioner subsequently moved to join, as necessary parties, (1) the Greene County Department of Social Services, which had prosecuted the abuse and neglect proceeding against respondent, and (2) the Albany County Department for Children, Youth and Families, the child protective agency in the county where petitioner and Cadence resided when this petition was filed. Petitioner also sought a judicial declaration that *128it would not be in the child’s best interests to make diligent efforts to encourage and strengthen any relationship with respondent (see Social Services Law § 384-b [8] [a] [iv]). Family Court dismissed the petition, in a written decision, finding that petitioner lacked standing to commence a termination of parental rights proceeding against respondent under Social Services Law § 384-b. Petitioner now appeals.
The threshold issue presented by petitioner’s petition is whether a parent who possesses custody of a child has the statutory authority to institute proceedings to terminate the parental rights of that child’s other parent, on any grounds. Because we find no such authority, we affirm.
Social Services Law § 384-b provides that the guardianship of a child may, by court order, be committed to an authorized agency, a foster parent or “a relative with care and custody of the child” (Social Services Law § 384-b [3] [a]). That statute specifically provides that proceedings to terminate parental rights “may be originated by an authorized agency or by a foster parent . . . or by a relative with care and custody of the child,” and that a child’s attorney or guardian ad litem may initiate such a proceeding at the court’s direction where the authorized agency fails to do so after being court ordered (Social Services Law § 384-b [3] [b]). Petitioner’s claim to standing relies on the supposition, unsupportable in our view, that she is “a relative with care and custody of [Cadence]” (Social Services Law § 384-b [3] [b]).
Here, Cadence remains in the care and custody of petitioner, who has an inherent constitutional right, as a fit parent (which is not controverted), to parent her child (see Santosky v Kramer, 455 US 745, 753, 758-759 [1982]). In this situation, the child’s custody has not been committed by court order to a nonparent and there is no need or cause for such an order (see Social Services Law § 384-b [3] [a]). Indeed, according to the legislative findings and intent expressly embodied in Social Services Law § 384-b, this statute was enacted to provide a timely procedure, in appropriate cases, to terminate parental rights and free for adoption children in foster care, who experience “unnecessarily protracted stays in such care without being adopted or returned to their parents or other custodians,” depriving them of “positive, nurturing family relationships” (Social Services Law § 384-b [1] [b]). Given that petitioner retains—and by all expectations will continue to retain—full care and custody of Cadence as her mother, a termination petition against respon*129dent could and would not result in the child being freed for adoption, the very purpose of this parental termination statute (see Matter of Lucinda G., 122 Misc 2d 416, 422 [1983]; compare Matter of Alicia EE. [Adam FF.], 86 AD3d 663, 664 [2011], lv denied 17 NY3d 713 [2011]). While the phrase “a relative with care and custody of the child” is not defined (Social Services Law § 384-b [3] [b]), it can only be interpreted—consistent with the legislative purpose—to mean a nonparent relative with care and custody of a child who could be freed for adoption (see Matter of Paul Z. [Karen AA.—Paul N.], 68 AD3d 1473, 1475 [2009], lv dismissed 14 NY3d 749 [2010]).
To be sure, there appears to be no real dispute that respondent “severely abused” Cadence within the meaning of Social Services Law § 384-b (8) (a) (iii) (A) (see e.g. Matter of Jamaal NN., 61 AD3d 1056, 1056-1057 [2009], lv denied 12 NY3d 711 [2009]). However, the dispositional alternatives upon such a finding are limited to “(i) committing the guardianship and custody of the child, pursuant to this section, or (ii) suspending judgment” (Social Services Law § 384-b [8] [f]; see Matter of Kailynn WW. [Jeremy WW.], 80 AD3d 839, 840 [2011]). Petitioner already has the care and custody of Cadence and, clearly, is not seeking any change thereto and, as such, no dispositional order would be appropriate were her petition granted. Consequently, a parent with inherent rights to and full custody of a child, such as petitioner, does not fall within the statutory meaning of “a relative with care and custody of the child” for purposes of instituting a termination proceeding against the child’s other parent. Simply put, termination of parental rights, a predicate for adoption, is not a statutory option for a parent of a severely abused child to pursue against the abusive parent where the child has remained in the care and custody of the nonabusing parent (see Matter of Dale P., 84 NY2d 72, 81 [1994]; see also Family Ct Act § 1055 [d]).
Peters, P.J., Rose, McCarthy and Garry, JJ., concur.
Ordered that the order is affirmed, without 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/6826233/
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OPINION
SMITH, Chief Judge.
This case comes before this court on defendant’s motion for summary judgment and on plaintiffs’ cross-motion for partial summary judgment. In plaintiffs’ motion for partial summary judgment, it is claimed that the Army Corps of Engineers’ refusal to issue a fill permit for the development of 12.5 acres of plaintiffs’ wetlands constituted a taking under the Fifth Amendment to the United States Constitution. Defendant’s motion for summary judgment argues that no such taking has occurred. For the reasons set forth below, this court must deny the motions of both parties. Instead, this court will require further proceedings consistent with this opinion.
Facts
In 1956, plaintiffs purchased approximately 250 acres of vacant land located on Long Beach Island in Ocean County, New Jersey for $300,000. Much of this land was wetlands which had to be filled before it could be developed. By 1972, plaintiffs had filled and constructed hundreds of homes on 199 acres of this land. By May 5, 1982,1 all but 6.4 sporadically held acres of this 199 acre area were sold to the general public. None of these 6.4 acres were adjacent to the property in dispute.
Plaintiffs’ plans to develop the remaining fifty-one acres of their original 250 acre purchase were not as successful. The development of these fifty-one acres fell into difficulty as a result of both state and federal law enacted in the early 1970’s. Compare the New Jersey Wetlands Act of 1970, N.J.S.A. 13:9A-1 et seq. with the Water Pollution Prevention and Control Act, 33 U.S.C. §§ 1251-1376 (Supp. II 1972). Under state law, owners of wetlands, such as plaintiffs, were required to obtain a permit from New Jersey’s Department of Environmental Protection (“NJDEP”) before their wetlands could be filled. Under federal law, owners of wetlands were required to obtain a permit from the Army Corps of Engineers. It is these permit requirements which have brought plaintiffs’ plans to a standstill.
The first barriers to development were principally caused by the state. In 1973, plaintiffs submitted a permit application *384for the development of the fifty-one acres, but that permit was denied without prejudice because the application failed to contain sufficient information. Plaintiffs again applied for a permit in 1977. This application was rejected on its merits, but the NJDEP rejected the application without prejudice in order to provide plaintiffs with another opportunity to submit an alternative plan.
Rather than submit an alternative plan, plaintiffs appealed the 1977 permit denial to the Commissioner of NJDEP. Before the NJDEP administrative hearing began, NJDEP’s officials made a settlement offer to plaintiffs which would have allowed plaintiffs to fill 12.5 acres out of the total fifty-one acres in dispute at that time. This offer was rejected.
During the administrative hearing, plaintiffs asserted, among other issues, that the denial of a fill permit constituted a taking of plaintiffs’ property under the Fifth Amendment. The NJDEP upheld the denial of the permit and found there was no taking because the NJDEP’s settlement offer would have allowed plaintiffs to utilize 12.5 acres of their land. Plaintiffs continued to challenge the denial by resorting to state court where plaintiffs again met with no success. In re Loveladies Harbor, Inc., 176 N.J.Super. 69, 422 A.2d 107 (1980), cert. denied, 85 N.J. 501, 427 A.2d 588 (1981).
In 1981, plaintiffs applied for still another fill permit. Yet, this time plaintiffs sought to fill only 12.5 acres of the original fifty-one acre area in accordance with the NJDEP’s previously rejected settlement offer. Although the NJDEP held that plaintiffs’ proposal still did not meet its qualifications, the NJDEP agreed to the issuance of the permit because the NJDEP felt bound by that offer. However, the NJDEP did not issue a permit for the entire 12.5 acres. Rather, the state issued a permit for only 11.5 of these acres because it was determined that one acre had already been filled and thus did not require authorization from the NJDEP.
When plaintiffs began their mostly unsuccessful effort at obtaining a state permit for their entire fifty-one acres of undeveloped land, plaintiffs also sought the issuance of a land permit from the Army Corps of Engineers. Plaintiffs’ first and second applications with the Army Corps of Engineers were filed at approximately the same time in which plaintiffs filed their first and second application with the NJDEP. Both of these applications were rejected on the basis of the NJDEP’s corresponding refusals.
In 1981, after plaintiffs’ claims were denied in state court, plaintiffs sought the issuance of a permit from the Army Corps of Engineers for a third time. This application only included a request for the fill of the 12.5 acres of wetlands later allowed by the NJDEP. The application was then reduced to a request for the development of only 11.5 acres when it was discovered that one of the acres was uplands and thus did not require the authorization of the Corps. This application also eliminated the use of bulkhead material from the original proposals filed in the 1970’s.
Despite the above modifications, this third application for a fill permit was ultimately denied on May 5, 1982. The central reason behind the denial was the government’s desire to preserve the wetlands along with its attendant wildlife and vegetation. Plaintiffs later challenged the validity of the denial in federal district court, but the denial was upheld. The district court’s decision was subsequently affirmed on appeal. Loveladies Harbor Inc. v. Baldwin, Civil No. 82-1948 slip op. (D.N.J. Mar. 12, 1984) (unpublished), aff'd without opinion, 751 F.2d 376.
After their failure to overturn the Army Corps of Engineers’ permit denial in federal district and appellate court, plaintiffs initiated the present action. Plaintiffs now concede that the permit denial issued on May 5, 1982, was valid. Instead, they contend that this permit denial effected a Fifth Amendment taking of plaintiffs’ property. Their claim seeks recovery for the loss of value to the 11.5 acres of wetlands and to the one acre of uplands which could have otherwise been developed under the permit requirements of New Jersey.
*385DISCUSSION
The Fifth Amendment guarantees that private property shall not “be taken for public use, without just compensation.” This constitutional guarantee is more than just a limitation against the physical seizure or invasion of property by the government in the name of the public good. The Fifth Amendment also provides just compensation against governmental regulations which effectively accomplish the same destructive end. See, e.g., English Evangelical First Lutheran Church v. Los Angeles County, 482 U.S. 304, 107 S.Ct. 2378, 2386-87, 96 L.Ed.2d 250 (1987) (interim ed.). The issue here is whether the Army Corps of Engineers’ denial of a fill permit constitutes so great an intrusion as to mandate just compensation.
Jurisdiction
Before this court can reach the merits of plaintiffs’ takings claim, it must first decide a question of jurisdiction initially raised by the government during oral argument. At that time, defendant argued that this court was without jurisdiction because the controversy at bar was not sufficiently ripe for the court’s review.
It is well-settled that a takings claim is premature where the private litigant never submitted a plan or application for development to the governing body whose approval was required. E.g., Agins v. Tiburon, 447 U.S. 255, 261, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980); Burlington N.R.R. Co. v. United States, 752 F.2d 627, 630 (Fed. Cir.1985). In this case, plaintiffs have met this requirement. They submitted their application for a fill permit to the Army Corps of Engineers as was required by the Clean Water Act, and that application did contain a proposed plan for development. Plaintiffs’ application was then denied after a lengthy administrative review.
Defendant concedes that plaintiffs’ actions met this threshold but contends that more activity was required in order to make this controversy sufficiently ripe for litigation. In particular, defendant contends that plaintiffs were required to submit alternative applications containing less ambitious proposals as well as at least one application for variance.
Defendant’s contention that less ambitious proposals are required is grounded in Supreme Court precedent. It stems from the Court’s decision in MacDonald, Sommer & Frates v. Yolo County which states that the “[Rejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews.” 477 U.S. 340, 353 n. 9, 106 S.Ct. 2561, 2569 n. 9, 91 L.Ed.2d 285 (1986).
Upon review of that decision, this court must agree that the Court in MacDonald did require the private litigant in that case to submit other less ambitious proposals besides the one plan rejected. The problem with requiring plaintiffs to submit other proposals in this case, however, is that the facts of MacDonald are distinguishable in an important respect.
In MacDonald, the local permit request was for the development of 159 single-family and multi-family housing units. That request was denied by the local county planning commission on the basis of four objections: (1) the plan did not provide any access to the public street, (2) the plan did not provide for any sewer systems, (3) the plan was too intense for an adequate level of local police protection, and (4) that no provision was made for the creation or maintenance of a water system. MacDonald, Sommer & Frates v. Yolo County, 477 U.S. at 342-43, 106 S.Ct. at 2563-64. In sumf the local county did not reject the housing plan because housing construction was unacceptable per se, but rather because the plan was lacking in certain limited respects.2 Thus, the controversy in *386MacDonald could not be considered sufficiently final or definitive since there was no way of determining the amount of housing units that the county commission would have allowed if its objections were ultimately met. See MacDonald, Sommer & Frates v. Yolo County, 477 U.S. at 351-53, 106 S.Ct. at 2568-69.
In contrast with the facts in MacDonald, the objections encountered by plaintiffs’ 11.5 acre fill permit application in this case rendered housing development on the 11.5 acres of wetlands unacceptable per se. The objections were based upon environmental concerns, and any such plan for development would have had a destructive effect to the 11.5 acres of wetlands and their attendant wildlife. Moreover, the Army Corps of Engineers failed to provide any alternative option for development. The only alternative that the Army Corps of Engineers did suggest was the possible utilization of the one adjacent acre of uplands3 as long as that one acre could be developed without filling the wetlands. Even defendant’s experts base their estimates solely on the possible value of utilizing the one acre of uplands. A final, definitive, govermental position as required by MacDonald, therefore, does exist here, and the submission of other less ambitious proposals must be considered unnecessary.
Even if this court were to accept defendant’s dubious premise that MacDonald required the submission of less ambitious alternative proposals in all instances, plaintiffs’ claim would still have to be considered ripe for review. Plaintiffs’ plan rejected by the Army Corps of Engineers in 1982 was not the first of plaintiffs’ development plans to come before the Army Corps of Engineers. The plan rejected in 1982 was modified some months earlier. That modification was less ambitious since it eliminated the use of bulkhead material from the original proposal. It also reduced the other fill material required since it was discovered that one of the 12.5 acres of wetlands was actually uplands.
Moreover, this court is not unmindful of the previous two proposals for development of its fifty-one acre area of wetlands submitted in the 1970's. While this court realizes that these plans were ultimately rejected because of obstacles imposed by the State of New Jersey and not because of obstacles imposed by the Army Corps of Engineers, the court, nevertheless, feels compelled to allow plaintiffs an opportunity to present their case. Plaintiffs should not be forced to resort to piecemeal litigation nor some endless series of requirements. See MacDonald, Sommer & Frates v. Yolo County, 477 U.S. at 350 n. 7, 106 S.Ct. at 2567 n. 7. The requirements of ripeness in the area of Fifth Amendment takings also cannot be so extended as to become more exhaustive than the substantive issues presented by the taking claim itself.
As previously stated, defendant also contends that the plaintiff is required to submit an application for variance before this case can be considered ripe for review. Defendant bases this argument on Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 57 L.Ed.2d 126 (1985). Williamson was the first Supreme Court decision to increase the ripeness requirement beyond the mere submission and rejection of a permit application. In that decision, the court additionally required, as defendant contends, that a private litigant submit an application for variance and await its denial.
The problem with applying Williamson to this case, however, is that Williamson involved an alleged taking by a local county zoning commission. It did not involve an alleged taking by the federal government, like the taking claim presented here. The progeny of that decision has been limited to those situations involving alleged violations by local zoning commissions as well. E.g., Culebras Enter.’s Corp. v. Rivera Rios, 813 F.2d 506, 515 (1st Cir.1987); Lit-*387tlefield v. City of Afton, 785 F.2d 596, 609 (8th Cir.1986); see also, e.g., Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454 (9th Cir.1987) (plaintiff was generally required to seek a variance from permit denial by the city, but was not required to seek the variance where that application would be futile), cert. denied, — U.S. -, 108 S.Ct. 775, 98 L.Ed.2d 861 (1988); Corn v. City of Lauderdale Lakes, 816 F.2d 1514, 1515 (11th Cir.1987) (plaintiff was generally required to seek a variance from a permit denial by the city, but was not required to seek the variance where that application would be futile); Kaiser Dev. Co. v. City and County of Honolulu, 649 F.Supp. 926, 940 (D.Hawaii 1986) (variance not required where it would be futile to pursue). Therefore, the question of extending the variance requirement into the context of federal takings law presents a novel issue before the court.
It is easy to understand the rationale behind the Supreme Court’s variance requirement in a takings case involving local zoning law. Variances are a feature commonly provided under state and local zoning enabling acts. A. Dawson, Land-Use Planning and the Law 38 (1982). They, in effect, provide the holder of this special permit with the privilege of violating the law created by the zoning plan. C. Crawford, Jr., Strategy and Tactics in Municipal Zoning 35 (1979). Besides creating flexibility, the variance procedure was created as a safety valve in order to avoid overly strict ordinances which would make the property so unusable as to constitute a Fifth Amendment taking. F. Schniman, S. Abrams, J. Delaney, Handling the Land Use Case § 1.3.6, at 20 (1984); A. Dawson, Land-Use Planning and the Law 38 (1982); D. Hagman, Urban Planning and Land Development Control Law § 106, at 196 (1971). Thus, the Supreme Court has required the variance requirement on the issue of ripeness in order to prevent judicial decisions on constitutional takings questions where decisions on those questions would be unnecessary. See Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. at 186-97, 105 S.Ct. at 3116-22.
In this situation, the variance procedure or some similar alternative that would avoid unnecessary litigation does not exist. The Water Pollution Prevention and Control Act and its attendant regulations which imposed the restriction on plaintiffs’ property generally do not provide a safety valve in order to prevent taking claims. There is only one limited exception in which the restrictions of the Act and its attendant regulations can be overridden. This exception occurs in instances where the restrictions may cause a detrimental effect on navigation and anchorage. The Water Pollution and Control Act as amended by the Clean Water Act of 33 U.S.C. § 1344(b)(2) (Supp. I 1977); Fisher, Minnesota Water Management Law and Section 404 Permits: A Practitioner’s Perspective, 7 Hamline L.Rev. 249, 309 (1984) (explaining 33 U.S.C. § 1344(b)(2)). Since plaintiffs’ permit request was solely for the development of residential housing, it is hard to imagine any detrimental effect to navigation or anchorage that would have resulted from a denial of plaintiff’s permit application. The pursuit of a variance or some similar alternative, therefore, should not be imposed in this instance where no such alternative was available. See Corn v. City of Lauderdale Lakes, 816 F.2d at 1516; Kaiser Dev. Co. v. City and County of Honolulu, 649 F.Supp. at 940-42. This court, accordingly, holds that plaintiffs’ claim is ripe for review.
Merits
A constitutional taking by the government can be established in one of two ways. First, a taking can occur where the imposition of a government regulation fails to substantially advance a legitimate governmental interest. E.g., Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 1242, 94 L.Ed.2d 472 (1987) (interim ed.) (quoting Agins v. Tiburon, 447 U.S. at 260, 100 S.Ct. at 2141). Second, a taking can occur where the imposition of a governmental regulation has the effect of depriving the owner’s land of all economic value. See, e.g., id.
*388The Substantial Advancement Test
The determination of whether there is a substantial advancement of a legitimate governmental interest necessarily requires that the governmental regulation was intended to promote the public welfare, rather than some private interest. See Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. at 485-93, 107 S.Ct. at 1242-46. However, the mere fact that the governmental regulation was intended to promote a public benefit is not sufficient to satisfy the test. This determination must also involve the court’s weighing of that intended public benefit against the harm inflicted upon the landowner involved. Agins v. Tiburon, 447 U.S. at 261, 100 S.Ct. at 2141.
The requirement that the Army Corps of Engineers issue a fill permit before wetlands can be developed clearly falls within the promotion of the public welfare. This statutory requirement was enacted for the preservation of wetlands as a productive and valuable resource. Avoyelles Sportmen’s League v. Alexander, 473 F.Supp. 525, 531 (W.D.La.1979). Furthermore, wetlands unquestionably constitute navigable waters, e.g., Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 647 (5th Cir. 1983), and the restoration and maintenance of the chemical, physical, and biological integrity of these waters was Congress’ central objective. See 33 U.S.C. at § 1251(a) (Supp. I 1977).
Weighing against this public interest is plaintiffs’ right to fill and develop their land. According to plaintiffs, the government’s refusal to issue a fill permit for plaintiffs’ property has, in effect, practically nullified the value of its 12.5 acres. Plaintiffs estimate that these acres have been reduced from a value of $3,790,000 to a value of only $13,725.50.4
In balancing the governmental interest in preserving wetlands under section 404 of the Clean Water Act against the value of plaintiffs’ land, other jurisdictions have found the balance in favor of the government. Smithwick v. Alexander, 12 Envtl. L.Rep. (Envtl.L.Inst.) 20790, (E.D.N.C.1981) (LEXIS, Genfed library, Dist. file); Am. Dredging Co. v. State Dept. of Envtl. Protection, 161 N.J.Super. 504, 391 A.2d 1265, 1270 (1978), aff'd, 169 N.J.Super. 18, 404 A.2d 42 (1979) (per curiam); Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761, 767 (1972). Indeed, this was the position of the Court of Claims. Deltona Corp. v. United States, 228 Ct.Cl. 476, 489, 657 F.2d 1184, 1192 (1981). Yet, these decisions from other jurisdictions have no binding precedence upon this court. See Alaskan Arctic Gas Pipeline Co. v. United States, 9 Cl.Ct. 723, 726 (1986) aff'd on other grounds, 831 F.2d 1043 (Fed.Cir.1987). As for the Court of Claims’ decision in Deltona, it was only binding precedent on this court until a contrary decision was issued by the Federal Circuit. See RUSCC General Order No. 1, 1 Cl.Ct. XXI.
When the Federal Circuit balanced the governmental interest in preserving wetlands against the loss of value to the landowner’s property, the Federal Circuit found that the balance fell in favor of the landowner. Florida Rock Indus., Inc. v. United States, 791 F.2d 893 (Fed.Cir.1986), cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987) (interim ed.). Specifically, the court stated that “[t]his appears to be a situation where the balancing of public and private interests reveals a private interest much more deserving of compensation for any loss actually incurred.” Id. at 904. The court found the balance in favor of the landowner because the Clean Water Act’s preservation of wetlands was not for the prevention of a public harm but rather for the maintenance of a public benefit. Id.
Defendant contends, however, that the Federal Circuit Court’s discussion of this balance was merely obiter dicta because the issue was never briefed on appeal and *389because the court noted at the beginning of its opinion that it would not be a finder of facts. Id. at 893. This court does not agree. An appellate decision on an issue cannot be rendered dicta simply because that issue was not fully briefed by either party.5 United States v. Pierre, 781 F.2d 329, 333 (2d Cir.1986); Monell v. New York City Dept. of Social Serv.’s, 436 U.S. 658, 709, 98 S.Ct. 2018, 2045, 56 L.Ed.2d 611 (1977) (Powell, J. concurring) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)). Nor could it be said that the Federal Circuit acted as finder of facts as defendant contends. All the Federal Circuit did was to require the lower court to act “according to the right principles.” Florida Rock Indus., Inc. v. United States, 791 F.2d at 894.6 The Federal Circuit’s balancing of governmental and private interests in Florida Rock, therefore, should not be ignored but instead should be treated as one of those binding “right principles” enunciated by the court.
Defendant alternatively argues that the Federal Circuit’s decision to hold the balance in favor of the private interest should not apply even if that holding was not obiter dicta. Defendant attempts to distinguish this holding by reminding the court that each takings claim must rest on its own facts and circumstances. E.g., Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 224, 106 S.Ct. 1018, 1025, 89 L.Ed.2d 166 (1986); see, e.g., Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1961). While it is, indeed, true that takings claims must rest on their own facts and circumstances, there are no grounds for distinguishing this case from the facts involved in Florida Rock. In both cases, the public interest in preserving the wetlands was the same. Moreover, the pollution caused by plaintiff in this case, like that caused by the private litigant’s in Florida Rock, cannot be considered harmful since the possible pollution is of a kind that is merely incidental to any human action undertaken. See Florida Rock Indus., Inc. v. United States, 791 F.2d at 904 (private litigants who intended to mine the property were merely pro for-ma polluters). In fact, the possible pollution involved in this case seems to be even less substantial. Plaintiffs in this case are merely seeking to develop residential lots and make this acreage part of a beachfront community — they are not intending to disturb the land through the more intrusive procedure of blasting and dredging in order to mine limestone as was desired by the private litigants in Florida Rock. Id. at 895-96.
While the balancing of plaintiffs’ private interests and the government’s public interests reveals a private interest much more deserving of compensation, this court is most reluctant to hold that a taking has occurred on this basis alone. The court’s reluctance is grounded on two concerns. First, there are problems with using the harm/benefit distinction as a method for balancing both the private and public interests. Second, the overall balancing of the private and public interests involved, as required under the legitimate state interest test, see generally, Agins v. Tiburon, 447 U.S. at 261, 100 S.Ct. at 2141, is generally not a useful guideline for making a takings determination.
The problem with the harm/benefit distinction is. that it is often difficult to differentiate between the situation where the government is acting to preserve benefits from the situation where the government is acting to prevent harm. The facts present*390ed in Florida Rock are squarely on point. Though it could be held, as the Federal Circuit did in Florida Rock, that the Act preserving the wetlands was only for the preservation of aesthetic benefits, it could have also been argued that the Act preserving the wetlands was for the prevention of harm to the environment. Thus, both characterizations used in the harm/benefit distinction can often be used for the same act since there is no benchmark standard of objectivity. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘‘Just Compensation Law,” 80 Harv.L. Rev. 1165, 1197 (1967).
The difficulty that this court has with the legitimate state interest test as originally espoused in Agins v. Tiburon, 447 U.S. at 261, 100 S.Ct. at 2141, stems from that test’s application in prior federal court decisions. While the Supreme Court and other federal courts have consistently stated that a taking occurs “if the [governmental action] does not substantially advance a legitimate state interest ... or denies the owner economically viable use of his land,” e.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126, 106 S.Ct. 455, 459, 88 L.Ed.2d 419 (1985) (quoting Agins v. Tiburon, 447 U.S. at 260, 100 S.Ct. at 2141), no court has ever found that a taking has occurred solely because a legitimate state interest was not substantially advanced.7 In fact, federal courts have liever rested their decision on that determination alone but have found it necessary in every case to include a discussion on the economically viable use of the property at issue.8 E.g., Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. at 493-506, 107 S.Ct. at 1246-53; Florida Rock Indus., Inc. v. United States, 791 F.2d at 904; Rymer v. Douglas County, 764 F.2d 796, 800-01 (11th Cir.1985) (per curiam).
Therefore, because of the lack of precision in the harm/benefit distinction and because of prior federal court precedent in this area, this court cannot find a taking simply because there was no substantial advancement of a legitimate state interest. Instead, the lack of a legitimate state interest in this case must be considered as one of several overall factors used to determine whether or not just compensation is required. See Belk v. United States, 12 Cl.Ct. 732, 733-35 (1987), appeal docketed, No. 87-1631 (Fed.Cir. Sept. 29, 1987) (Shanghai Power Co. v. United States, 4 Cl.Ct. 237, 243 (1983)), aff'd without opinion, 765 F.2d 159 (Fed.Cir.1985), cert. denied, 474 U.S. 909, 106 S.Ct. 279, 88 L.Ed.2d 243 (1985).
The Economic Viability Test
There is no set formula which delineates the exact line where a regulation ends and a constitutional taking begins. E.g., Goldblatt v. Hempstead, 369 U.S. at 594, 82 S.Ct. at 990. Thus, as already stated above, this court is required to review the *391facts and circumstances in each particular case. E.g., Connolly v. Pension Benefit Guar. Corp., 475 U.S. at 224, 106 S.Ct. at 1025. Yet, three factors have consistently been influential in this analysis: (1) the character of the governmental action; (2) the economic impact of the regulation on the claimant, and (3) the extent to which the regulation has interfered with reasonable investment-backed expectations. Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. at 495, 107 S.Ct. at 1247 (citing Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S.Ct. 383, 390, 62 L.Ed.2d 332 (1979)); Connolly v. Pension Benefit Guar. Corp., 475 U.S. at 224-25, 106 S.Ct. at 1025-26.
When examining the character of the governmental action as required under the first factor, this court must determine whether the act closely parallels an act of eminent domain. In other words, the central question is whether the act is equivalent to the physical invasion or destruction of substantial rights held in the property. See, e.g., Nollan v. Ca. Coastal Comm’n, — U.S.-, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987) (governmental action mandating that landowner allow public access onto part of his property constituted a taking); Pumpelly v. Greenbay Co., 80 U.S. (13 Wall.) 166, 20 L.Ed. 557 (1872) (construction of a dam which permanently flooded plaintiff’s property constituted a taking); Kaiser Aetna v. United States, 444 U.S. at 164, 100 S.Ct. at 384 (the imposition of a navigational servitude requiring public access to a pond constituted taking); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (governmental action requiring the landowner to permit a cable television company to install its cable facilities upon the landowner’s property constituted a taking). These substantial rights include the right to possess, use, and dispose of the property, Loretto v. Teleprompter, 458 U.S. at 435, 102 S.Ct. at 3176 (citing United States v. GM Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945)), as well as the right to exclude others. Kaiser Aetna v. United States, 444 U.S. at 179, 100 S.Ct. at 392. While plaintiffs have been prevented from a substantial use in their property, their rights to possess, dispose, and exclude others have not been directly hindered. Therefore, the character of the governmental action in this case cannot be considered equivalent to the physical destruction or intrusion attendant with an act of eminent domain.
The second and third factors, i.e., the regulations’ economic impact and its interference with reasonable investment-backed expectations, do not focus directly upon the rights lost in the property. Instead, each factor compares the property before and after the regulation’s interference. The economic impact approach measures the differing fair market values in the property. Yet, even though these approaches attempt to resolve the same question of when the regulation goes so far as to constitute a taking from alternative perspectives, the application of each of these approaches is frequently intertwined. See for example, e.g., Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. at 494-506, 107 S.Ct. at 1247-53; Deltona Corp. v. United States, 228 Ct.Cl. at 489-93, 657 F.2d at 1184.
The Parcel As a Whole
Central to the dispute in this case is which property should be considered when measuring both the severity of the regulation’s impact and its frustration of reasonable investment-backed expectations. Plaintiffs and defendant agree that:
‘Taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this court focuses rather on both the character of the action and on the nature of the interference with rights in the parcel as a whole....
Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 130-31, 98 S.Ct. 2646, 2662-63, 57 L.Ed.2d 631. In this case, however, the critical issue is how to define what the whole parcel includes. It is plaintiffs’ contention that this court should only include *392the effected 12.5 acres as the whole and then compare the reduced value of the 12.5 acres after the permit denial to the value of those 12.5 acres before the permit denial. Defendant, on the other hand, urges that the original 250 acre purchase should be considered as the whole, and that the reduced value of the 12.5 acres after the permit denial should be compared to the value of the original 250 acre parcel.
Most of the case law provides little guidance as to which property should be included in the parcel as a whole where only part of the landowner’s originally purchased acreage was still owned when the claimed taking was said to have occurred. This is because in most cases the original acreage purchased and the acreage held by the landowner at the time of the taking have been one and the same. See for example, e.g., Agins v. United States, 447 U.S. at 257, 100 S.Ct. at 2139; Jentgen v. United States, 228 Ct.Cl. at 533-34, 657 F.2d at 1211-12. The only case of binding precedent in this court in which the landowner owned a different amount of acreage at the time of the taking from the amount which he originally purchased was in Deltona v. United States. In that case, the Court of Claims did compare the reduced value of the landowner’s property still owned after the claimed taking to “the total acreage of Deltona’s original purchase.” 228 Ct.Cl. at 490, 657 F.2d at 1188-89. Yet, the Court of Claims only made this comparison as the first of “[a] few statistics.” Id. The other comparisons only included property which was held by the landowner when the claimed taking already occurred. Of these two comparisons, the one which the Court of Claims found to be “most striking” was not only limited to property held at the time of the claimed taking but also further limited to planned areas which were effected by the interfering regulation. Id. Thus, Deltona v. United States cannot be read to require a rigid rule that the parcel as a whole must include all land originally owned by plaintiffs.
Additional guidance on how to define the parcel as a whole, has also been enunciated by the Supreme Court in Keystone Bituminous Coal Ass’n v. DeBenedictis. 480 U.S. at 497, 107 S.Ct. at 1248. Keystone involved several companies which had been extracting coal from certain mines in Western Pennsylvania since the turn of the century. Keystone Bituminous Coal Ass’n v. DeBenedictis, 771 F.2d 707, 710 aff'd, 480 U.S. at 470, 107 S.Ct. at 1232. The coal companies brought suit alleging that a taking had occurred as a result of a Pennsylvania statute enacted in 1966 which required the companies to leave a portion of their coal in place. One of the central issues addressed by the Supreme Court was how to define the parcel as a whole. In formulating a definition, the Supreme Court included more than the affected property, i.e., that portion of the coal which the statute required to remain in place. Yet, the Supreme Court did not include all the property which was held at the time of the original purchase, i.e., all of the coal which was in the ground when the property was originally purchased in the early 1900’s. Rather, the Supreme Court defined the value of the parcel as a whole as “the value that remain[ed] in the property” when the taking was said to have occurred. Keystone Bituminous Coal Ass’n v. DeBenedictis. 480 U.S. at 497, 107 S.Ct. at 1248. The Court then treated the value of the 1.46 billion tons of coal which still remained in the ground as the whole. Therefore, on the basis of Keystone, this court cannot include the value of all of the property originally purchased as the parcel as a whole. Instead, this court must limit its focus upon the value of that property which plaintiffs held when the taking was said to have occurred.9 This property amounted to 57.4 acres out of the original 250 acre parcel.
Not all properties held at the time of the taking can always be considered as part of the parcel as a whole. In Florida Rock, the Federal Circuit excluded 1,462 acres out of a 1,560 acre total even though plaintiffs in Florida Rock held a total parcel of 1,560 at the time of the claimed taking. 721 F.2d at 904-05. While the Federal Circuit stated that the comparison *393of the property taken to all of the property held was normally of decisive importance, the Federal Circuit excluded 1,462 of those acres because it was a near certainty that these acres would not be able to obtain the permits needed for those acres utilization. Specifically, the court stated that it did “not think that the mere possibility one might put a pot of water on a hot stove and have it freeze, is a reality requiring ... [the Court] to deem that viewing the 1,560 acres[, rather than just the 98 acres of property claimed taken,] as a whole.” Id. In this case, 38.5 acres of plaintiffs’ presently held land must be excluded under the same rationale. After all, there is no possibility one might put a pot of water on a hot stove and have it freeze in this instance since these 38.5 acres have already been denied the necessary permits from the State of New Jersey.
With respect to the remaining 18.9 acres of property, only 12.5 of those acres are at issue in this case. The other 6.4 acres were part of the original 250 acre purchase and were in plaintiffs’ possession when plaintiffs filed their complaint with the court. These 6.4 acres, however, were not effected by the Army Corps of Engineers’ permit denial and were, accordingly, not claimed as part of the 12.5 acre parcel taken by defendant. While property so characterized would normally be considered as part of the whole, see Deltona Corp. v. United States, 228 Ct.Cl. at 489-92, 657 F.2d at 1192-94; Jentgen v. United States, 228 Ct.Cl. at 533-34, 657 F.2d 1213-14, these 6.4 acres must, nonetheless, be excluded. The reason for this exclusion is that all of these 6.4 acres had become sporadically held units of property, all of which were no longer contiguous with the 12.5 acres at issue. Such physically nonadjacent or non-contiguous property cannot be considered as part of the single parcel as a whole just because it was formerly owned by plaintiff at one time. Am. Savings and Loan Assoc. v. County of Mann, 653 F.2d 364, 369 (9th Cir.1981).
Indeed, even in Penn Central, the leading takings case which required property to be viewed as a whole, such noncontiguous property was excluded from consideration. 438 U.S. at 131, 98 S.Ct. at 2663. In Penn Central, the effected area, designated as the landmark site, was only one of a number of scattered properties in downtown Manhattan held by the Penn Central Transportation Company at the time that the taking was said to have occurred. Id. at 115, 98 S.Ct. at 2654. Nevertheless, the parcel as a whole designated by the court only included “the city tax bloc designated as the landmark site” and failed to include these other scattered noncontiguous properties. Id. at 130-31, 98 S.Ct. at 2662-63.10 Thus, by implication, non-contiguous properties not directly at issue cannot be said to fall within the parcel as a whole.
The ultimate amount of property to be considered part of the parcel as a whole in this case is, accordingly, the 12.5 acres at issue. Because the cross motions here are predicated upon different questions of material fact, the facts of each motion must be reviewed separately. The facts under defendant’s motion for summary judgment will be reviewed first, followed by a review of the facts under plaintiffs’ cross-motion.
A.
Review of Defendant’s Motion for Summary Judgment
For the purposes of defendant’s motion for summary judgment, both par*394ties agreed on the values and potential uses for the 12.5 acres in question so there would be no genuine issues of material fact. See generally RUSCC 56(c). Both parties agreed that the value of the property before the permit denial was approximately $4 million and that the property could have been used for residential development if the permit had not been denied. As to the value of that property after the permit denial, both parties agreed to the valuation made by the Ard Appraisal Company (Ard). The Ard appraisal estimated the value of the property after the permit denial at $13,725.50. That $13,725.50 valuation was based on the possibility that the property could have been purchased by the private sector for conservational uses or by the government for additional space in a nearby wildlife refuge.
In order to resolve a takings claim, it is first required that the value taken from a property be compared with that value remaining. Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. at 497, 107 S.Ct. at 1248. This comparison cannot simply reveal a mere diminution of value for “government could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” Pa. Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322 (1922); accord, e.g., Skaw v. United States, 740 F.2d 932, 939 (Fed.Cir.1984); Jentgen v. United States, 228 Ct.Cl. at 532, 657 F.2d at 1213. Upon review of the undisputed facts included within defendant’s motion, it is clear that more than just a mere diminution of value has taken place. The undisputed facts of this motion instead indicate a diminution in value which was severe; so severe, in fact, that the resultant value of the property was but a negligible portion of the property’s value before the permit denial. The loss of value incurred was over 98%, with the value of the property falling from $3,790,000 before the permit denial to a value of only $13,725.50 afterward.
Nevertheless, it is still possible for defendant’s motion for summary judgment to be granted against plaintiffs’ takings claim as a matter of law. A reduction in value to the land as a result of the permit denial is only one relevant factor in the determination of a takings question; it is not conclusive. See Goldblatt v. Hempstead, 369 U.S. at 594, 82 S.Ct. at 990. This is because a reduction in value to plaintiffs’ property is not sufficient grounds for establishment of a taking where that reduction in value was the sole basis for the taking claim. E.g., Penn Cent. Transp. Co. v. New York City, 438 U.S. at 131, 98 S.Ct. at 2662; Goldblatt v. Hempstead, 369 U.S. at 594, 82 S.Ct. at 990; Jentgen v. United States, 228 Ct.Cl. at 532, 657 F.2d at 1213. Indeed, even losses amounting to as much as approximately 90% of a property’s value have not been held as a sufficient reduction for takings purposes under such circumstances.11 See Hadacheck v. Sebastian, 239 U.S. 394, 405, 36 S.Ct. 143, 144, 60 L.Ed. 348 (1915); see also Village of Euclid v. Amber Realty Co., 272 U.S. 365, 384, 47 S.Ct. 114, 117, 71 L.Ed. 303 (1926) (reduction of value of 75% alone is insufficient to establish a taking); cf. Q. C. Constr. Co. v. Gallo, 649 F.Supp. 1331 (plaintiff was entitled to compensation under the Fifth Amendment where the land had suffered a 90% reduction in value and only had passive use as an empty lot), aff'd without opinion, 836 F.2d 1340 (1st Cir. 1987).
The establishment of a takings claim also requires the allegedly injured plaintiffs to show that the property involved has been deprived of all economically viable use. E,g., Lake Nacimento Ranch Co. v. County of San Luis Obispo, 830 F.2d 977, 981 (9th Cir.1987); 1902 Atlantic Ltd. v. Hudson, 574 F.Supp. 1381, 1405 (E.D.Va.1983); *395see Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 14-15, 104 S.Ct. 2187, 2196-97, 81 L.Ed.2d 1 (1984) (the substantial reduction in value to the property was held insufficient where the petitioner was free to make whatever use it pleased of the property, including the cutting down of trees or the development of the land in some way). In other words, after a showing of devaluation has been made, the focus of inquiry must turn to the remaining possible uses that the interfering regulations permit. Penn Central Trans. Co. v. New York City, 438 U.S. at 131, 98 S.Ct. at 2662; Deltona Corp. v. United States, 228 Ct.Cl. at 488-89, 657 F.2d at 1191. These uses need not be limited to those activities which are commercially profitable but also can include those activities of recreational value. Hendricks v. United States, 14 Cl.Ct. 143, 156-57 (1987) (recreational uses such as the hunting of deer, ducks, and other wildlife, were sufficient uses to defeat a takings claim).
Under the undisputed facts provided by defendant’s motion for summary judgment, the property in question was left with no viable commercial or recreational uses. The land could no longer be developed in any manner nor was there any evidence presented which showed that the land could have been an attractive purchase for speculators. See Florida Rock Indus., Inc. v. United States, 791 F.2d at 901-03. The only possible use for the land, at one time, may have been for hunting. Yet, it is highly doubtful that hunting would have been permitted on the property after the permit denial since the denial was in part motivated to preserve certain endangered species which existed in these wetlands. It is clear then that the only use remaining for the 12.5 acres was for the land to remain in its natural state as an empty lot. This court is compelled to view such property as taken. See Q.C. Constr. Co. v. Gallo, 649 F.Supp. at 1337, 1902 Atlantic Ltd. v. Hudson, 574 F.Supp. at 1405.
Yet, defendant cites several cases to the contrary. These cases have held that land cannot be viewed as taken where that land must remain in its natural state since an “owner of land does not have an absolute and unlimited right to change the essential character of ... [its] land so as to use it for a purpose for which it was unsuited in its natural state.” Smithwick v. Alexander, 114 N.H. 124, 336 A.2d 239, 243 (1975); Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761, 768 (Wis.1972).12 Apart from the inherent illogic of these formulations, there exists one central problem in applying these decisions to our jurisdiction. Each of these decisions are in part based on the rationale of “the importance of wetlands to the public health and welfare [and have found that the importance of the wetlands] clearly outweighs the degree of damage sustained by plaintiff[s involved].” Id. This rationale, however, as stated earlier, is contrary to the Federal Circuit’s conclusion holding that the “balancing of public and private interests [in preserving wetlands] reveal[ed] a private interest much more deserving of compensation for any loss actually incurred.” Florida Rock Indus., Inc. v. United States, 791 F.2d at 904. Thus, this court is most reluctant to follow non-binding precedent, e.g., Town of N. Bonneville Wash. v. United States Dist. Court, W. Dist. of Wash., 732 F.2d 747, 751 (9th Cir.1984) (“Neither the District Court or the Claims Court is bound by the determination of the other as to its jurisdiction.”); see, e.g., Key v. Wise, 629 F.2d 1049, 1058 (5th Cir.1980) (“[Fjederal courts are not bound by state decisions on matters of federal law”), cert. denied, 454 U.S. 1103, 102 S.Ct. 682, 70 L.Ed.2d 647 (1980), where this court’s binding precedent speaks with a different voice. RUSCC General Order No. 1(1), (XXI); see Dean v. United States, 10 Cl.Ct. 563, 567 (1986).
Even if the cases cited by defendant were not partially based on a policy rationale rejected by the Federal Circuit, this *396court still would be most reluctant to adopt the holding which they espouse. Under the undisputed facts given, it is hard to imagine a takings claim more deserving of compensation. Plaintiffs’ land has suffered a severe economic impact. The permit denial has reduced the property’s current value to, at most, only two percent of what it was previously. Moreover, plaintiffs’ reasonable, investment-backed expectations have been frustrated. Plaintiffs intended to purchase the land for development or at least for resale. The undisputed facts provided show that the possibility for development no longer exists. The most these facts provide for is the resale of the property at a mere fraction of the property’s original value. This court must, therefore, reject the idea that a Fifth Amendment takings claim can be avoided by requiring citizens to sell their property where the government’s intrusion has reduced the value of the property to a mere fraction and where the property was left with no other available uses. See Althaus v. United States, 7 Cl.Ct. 688, 695 (1985) (a taking was found where the government’s classification of the land required the land to be left in its primitive and primeval state and where the resale value was reduced to a fraction of the property’s value). But cf. Kirby Forest Industries, Inc. v. United States, 467 U.S. at 1, 104 S.Ct. at 2189 (1984) (the substantial reduction to the property’s value was held insufficient where the petitioner was free to make whatever use it pleased of the property, including the cutting down of trees or the development of the land in some way). For should this court rule otherwise, the Fifth Amendment would be effectively turned on its head, and that noble protection of the citizenry would be rendered meaningless.
In its motion for summary judgment, defendant also raises an issue with respect to the one acre of uplands involved in this case. Specifically, defendant makes reference to the fact that the one acre of uplands is outside the jurisdiction of the Army Corps of Engineers. According to defendant then, the one acre cannot be held as taken since the fill of that land could proceed with or without the approval of the Corps.
The problem with defendant’s argument is that it ignores the particular location of the one acre of uplands involved. The one acre of uplands is not adjacent to other uplands property. Rather, the one acre of uplands is, in effect, an island surrounded by a sea of wetlands. Property so situated can be considered taken even though that property itself is not directly effected by the regulation at issue. A taking of such property is found where the government’s regulations imposed on the surrounding wetlands have cut off all the routes of access to the property or have cut off all the property’s routes of access which remain. Laney v. United States, 228 Ct.Cl. 519, 523, 661 F.2d 145, 149 (1981) (case involving the possible denial of access through wetlands to plaintiff’s upland property not subject to the Corps’ jurisdiction).
Therefore, defendant is not entitled to prevail on its motion with respect to this one acre of uplands because the known facts do not exclude the possibility that plaintiffs have been effectively denied all meaningful access to this “island.” As for the 12.5 acres as a whole, defendant’s motion for summary judgment must be denied as well since the regulation’s intrusion on the property and interference with plaintiffs’ reasonable investment-backed expectations cannot be considered so slight as to refute plaintiffs’ takings claim as matter of law. In fact, the assumptions provided under defendant’s motion so strongly favor plaintiffs’ position that plaintiffs’ claim would have prevailed as a matter of law had the court been able to utilize those assumptions in its review of plaintiffs’ cross-motion for partial summary judgment.
B.
Review of Plaintiffs’ Cross-Motion for Partial Summary Judgment
The facts provided in plaintiffs’ cross-motion for partial summary judgment are somewhat different than those provided in defendant’s initial motion. Both parties do *397agree that the property was worth approximately $4 million before the permit denial and that the property could have been used for residential development at that time.13 Yet, there is considerable disagreement with respect to the use and value of the property after the permit denial.14
According to defendant, the property has substantial post-denial value and use. Defendant’s experts estimate the post-denial value of the property at $680,000. They have determined that the one acre of uplands could still be used for residential development, but that the 11.5 acres could no longer be used for that purpose. The only remaining use available to the 11.5 acres of wetlands indicated by defendant’s experts was as a lagoon access to and from the one acre of uplands.15 This access could theoretically be created by bulkhead-ing the surrounding wetlands and would provide the uplands with a right of way for passage; for the placement of a sewage system; and for the placement of underground electric, cable television, and gas connections.
Plaintiffs, on the other hand, contend that the property was rendered completely useless after the permit denial. Its expert, Ard, estimates the post-denial value at $13,-725.50. This $13,725.50 valuation was based on the property’s possible purchase as an extension of a wildlife reserve or for some other conservational use.16
Because this court is resolving plaintiffs’ cross motion for partial summary judgment, this court is obligated to view both parties’ contentions of fact in a light most favorable to the nonmovant defendant. See, e.g., Hodosh v. Block Drug Co., 786 F.2d 1136, 1141 (Fed.Cir.1986), cert. denied, 479 U.S. 827, 107 S.Ct. 106, 93 L.Ed. 2d 55; S. La. Grain Serv., Inc. v. United States, 1 Cl.Ct. 281, 289 (1982). Thus, this court must resolve plaintiffs’ cross-motion for partial summary judgment by assuming that the property had a post-denial value of $680,000. This court must also assume that the one acre of uplands could have been used for residential development and that the 11.5 acres of surrounding wetlands could have been used as a right-of-way.
Plaintiffs argue, however, that defendant’s version of the facts should not be accepted for the purposes of plaintiffs’ cross-motion because defendant’s expert appraisals have formulated a plan which is so implausible that it creates no genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see, e.g., Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560 (Fed.Cir.1987). In particular, plaintiffs contend, along with various attached affidavits, that defendant’s proposed development of the 12.5 acres in dispute could not have been achieved because the state government and the Army Corps of Engineers would never have issued the necessary permits. Plaintiffs additionally argue that the plan was infeasible because it would have required an easement through neighboring private property.
Plaintiffs attempt to have this court find its version of the facts as true by motion, however, this cannot be accepted. While plaintiffs’ criticisms of defendant’s plan have put the credibility of such a plan in doubt, the court is most reluctant to deny *398defendant an opportunity to refute plaintiffs’ criticisms in the factual context of a trial. After all, doubts, inferences, or issues of credibility under this motion must be resolved against the moving party, Candeleria v. United States, 5 Cl.Ct. 266, 271 (1984); see, e.g., United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam), for such issues are better suited for resolution at trial. This general rule with respect to the nonmovant defendant’s position is even more desirable in this situation because of the fact-intensive nature of just compensation cases. Yuba Goldfields, Inc. v. United States, 723 F.2d 884, 887 (Fed.Cir.1983); Anchor Estates, Inc. v. United States, 9 Cl. Ct. 618, 622 (1986). If indeed such criticism proves to be well-founded, and if defendant’s arguments in opposition are completely frivolous, Rule 11 provides plaintiff with an appropriate remedy. Fed. R.Civ.P. 11. See generally Oliphant, Rule 11 Sanctions and Standards: Blunting the Judicial Swords, 12 Wm. Mitchell L.Rev. 731 (1986).
As discussed in this court’s review of defendant’s motion for summary judgment, the resolution of a takings claim first requires that the value taken from the property be compared with that value remaining. Keystone Bituminous Coal Ass’n v. DeBenedictis, 107 S.Ct. at 1248. This comparison must reveal a reduction of substantial value. Althaus v. United States, 7 Cl.Ct. at 693; see, e.g., Skaw v. United States, 740 F.2d at 939 (a mere diminution in value is not enough to establish a taking); Jentgen v. United States, 228 Ct.Cl. at 532, 657 F.2d at 1213 (a mere diminution in value is not enough to establish a taking). Moreover, even if that reduction turns out to be substantial, a taking cannot be found where that reduction in value stands alone as the basis for the claim. E.g., Penn Cent. Transp. Co. v. New York City, 438 U.S. at 131, 98 S.Ct. at 2662; Goldblatt v. Hempstead, 369 U.S. at 594, 82 S.Ct. at 990; see Kirby Forest Indus., Inc. v. United States, 467 U.S. at 14-15, 104 S.Ct. at 2196-97 (the substantial reduction in value to the property was held insufficient where the petitioner was free to make whatever use it pleased of the property, including the cutting down of trees or the development of the land in some way); see also Hadacheck v. Sebastian, 239 U.S. at 405, 36 S.Ct. at 143 (a reduction in value of ninety percent alone is an insufficient basis for the establishment of a taking); Village of Euclid v. Amber Realty Co., 272 U.S. at 384, 47 S.Ct. at 117 (reduction of value of 75% alone is an insufficient basis for establishment of a taking). A taking claim also requires that the effected property be deprived of all its economically viable use. E.g., Lake Nacimento Ranch v. San Luis Obispo County, 830 F.2d at 981; 1902 Atlantic Ltd. v. Hudson, 574 F.Supp. at 1405.
In view of these principles and in view of the facts being taken in a light most favorable to nonmovant defendant, this court cannot hold that a taking claim exists as a matter of law. While the impact on the value of plaintiffs’ land may have been severe, a reduction in value from $3,790,-000 to a value of only $680,000, see Athaus v. United States, 7 Cl.Ct. at 695 (a reduction of a property’s value to less than a third of its original fair market value is no mere diminution in value); A.J. Hodges Indus., Inc. v. United States, 174 Ct.Cl. 259, 273-74, 355 F.2d 592, 601 (1966) (a reduction from $216,300 to a value of only $155,-200 is not sufficient to constitute a taking), that reduction in value stands alone as the basis of the takings claim under the facts required for resolving plaintiffs’ motion. Plaintiffs’ land still has some reasonable economic uses. The one acre of uplands, according to these facts, could still be developed for residential housing. The other 11.5 acres could not be so developed but could act as a right-of-way to and from the uplands.
Plaintiffs’ cross-motion for partial summary judgment then, like defendant’s motion for summary judgment, must be denied. The facts available for the court’s review in plaintiffs’ motion, i.e., the facts most favorable to nonmovant defendant, do not exclude the possibility that the 12.5 acres in dispute have some remaining use.
CONCLUSION
Having reviewed defendant’s motion for summary judgment and plaintiffs’ cross-*399motion for partial summary judgment, this court holds that neither motion can prevail as a matter of law. Nevertheless, while the resolution of both motions has not disposed of the case, it has had the effect of significantly narrowing and clarifying the issues for trial.
Upon examination of the regulation’s public purpose, plaintiffs have shown that their private interest in developing and utilizing their property outweighs the public value in preserving these wetlands. Turning to the more important test of whether or not the land has been deprived of all its economic viability, it seems clear that no determination can be made at this point, for there is a significant dispute of material fact. The court has indicated, however, that it will view the property as a whole and that the whole includes only the 12.5 acres in dispute.
This court’s review of the remaining value of these 12.5 acres as a whole has further shown that a substantial reduction in value has taken place under both parties’ version of the facts. Yet, there is still some question as to whether the property has any remaining commercial or economic use or whether the property must remain in its natural state as an empty lot. Therefore, if plaintiffs are able to prove that the land must remain as an empty lot, plaintiffs will be entitled to prevail at trial. On the other hand, if plaintiffs cannot prove that the land was without any significant remaining commercial or recreational use, plaintiffs’ claim will have to be denied.
For the above reasons, the court denies both defendant’s motion for summary judgment and plaintiffs’ cross-motion for partial summary judgment. Both parties are directed to confer within thirty days and to informally determine whether any further discovery is necessary. Both parties are also directed to recommend an approximate date for trial.
IT IS SO ORDERED.
No costs.
. May 5, 1982, was also the date on which the alleged taking is claimed to have occurred.
. In fact, the county's limited objections over the lack of street access, sewer facilities, and water facilities may not have required any reduction at all in petitioners’ planned development of the 159 family homes. The only objection which may have required some reduction in home development was the county’s concern that the development was too intense under the then present level of police protection. Thus, while the reduction required was unknown, it seems certain that compliance would not have *386altogether precluded the planned development of all 159 homes.
. As stated earlier, the development of this acre was only possible because the acre was uplands and thus outside the jurisdiction of the Army Corps of Engineers.
. Defendant concedes plaintiffs’ $13,725.50 post-denial valuation for the sole purpose of resolving defendant’s motion for summary judgment. Defendant contests the $13,725.50 post-denial valuation, however, with respect to plaintiffs’ cross-motion for partial summary judgment. According to defendant’s estimates, the post-denial value of the land is instead worth $680,000. See generally Loveladies Harbor, Inc. v. United States, 15 Cl.Ct. 375 (1988).
. Moreover, even if this balancing test in Florida Rock were dicta, it would be entitled to great weight since there is no Supreme Court precedent to the contrary. See Max M. v. Thompson, 585 F.Supp. 317, 324 (N.D.Ill.1984).
. This court must also emphasize that the Federal Circuit’s view of the harm done to the wetlands was not an issue of casual importance. The Federal Circuit devoted an entire section of its opinion to the issue and felt that the issue was significant enough to include in the opinion’s conclusion. In that conclusion, the court once again stated "that the tried court committed an error of law in investigating and determining [that the intrusion to the wetlands created a public harm], notwithstanding the district engineer’s finding that there was at least some de jure pollution to be anticipated from Florida Rock’s project, [where] in reality there was none." Florida Rock Indus., Inc. v. United States, 791 F.2d at 903.
. The substantial advancement test, however, • has been applied to deny takings claims in certain instances. Denial of takings claims in such circumstances has occurred where “the government [was] exercis[ing] its unquestioned authority to prevent a property owner from using his property to injure others_” Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. at 511, 107 S.Ct. at 1256 (Rehnquist, J., dissenting). This situation, referred to as the nuisance exception, id., has been held to deny takings claims even where the property in question has undergone a severe reduction in value and use. See Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928) (the state was allowed to destroy cedar trees without providing compensation where infected trees posed a threat to apple orchards in the region); Allied-Gen. Nuclear Serv.'s v. United States, 839 F.2d 1572, 1576-77 (Fed.Cir.1988) (processing of nuclear fuel could be prevented without constituting a taking because it was perceived as injurious to the public safety).
. Even the decision which originated the substantial advancement of a legitimate state interest test, Agins v. Tiburon, failed to rely upon that test alone. See 447 U.S. at 260-62, 100 S.Ct. at 2141-42. That opinion, like all the other takings opinions, included an additional discussion concerning the possible economically viable uses remaining in the property claimed as taken. See id.
The Supreme Court’s use of prior court precedent in Agins v. Tiburón is also of interest. That test was not formulated by the Court out of previous takings cases but rather from a case concerning alleged violations of due process. See id. (citing Nectow v. Cambridge, 277 U.S. 183, 188, 48 S.Ct. 447, 448, 72 L.Ed. 842 (1928) (case involving a due process claim against the validity of a local ordinance)).
. The date of the claimed taking was May 5, 1982. Footnote 1.
. In reaching this court’s interpretation of Penn Central, this court has not ignored Penn Central’s later discussion with respect to those nonadjacent properties. Id. 98 S.Ct. at 2656-57. This discussion of those other properties did not emerge in the context of viewing the property as a whole but rather as a consequence of the mitigation provided by the local ordinance. In Penn Central, the local ordinance did not just deny plaintiff the right to utilize its air property rights; the local ordinance also provided transferable development air rights in order to mitigate plaintiffs loss. These transferable development rights, in effect, gave plaintiff additional zoning development opportunities with respect to plaintiffs other nonadjacent, nearby properties. Thus, the nearby, adjacent properties became part of the court’s consideration because their value was enhanced in order to offset the loss of value to the property in dispute.
Yet, in this case, no offset has been provided to the 6.4 acres of sporadically held properties. Plaintiffs’ 12.5 acres have simply been reduced in value. Therefore, in the absence of any such enhancement, these 6.4 acres must be excluded from this court’s consideration.
. This court realizes that the 98% reduction shown here is greater than the reductions shown in Hadacheck v. Sebastion and in Village of Euclid v. Amber Realty Co. In fact, the reduction in value in this case amounts to the almost total elimination of the value of the property involved. Therefore, it is possible that a court could hold such a loss as sufficient grounds for the establishment of a takings claim in and of itself. Yet, this court need not reach this issue at this juncture for the property’s reduction in value does not stand as the sole basis of plaintiffs’ taking claim.
. Defendant also cites Buttrey v. United States, 690 F.2d 1170, 1177 (5th Cir.1982), cert. denied, 461 U.S. 927, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983), as support for its proposition that no taking can occur where the land must be left in its natural state. This case, however, is clearly inapplicable since it concerns a due process claim and not one for Fifth Amendment compensation.
. This pre-denial value and use of the 12.5 acres agreed to by both parties for the purposes of plaintiffs’ cross-motion for partial summary judgment is the same as that agreed to by both parties for the purposes of defendant’s initial motion for summary judgment.
. Defendant initially accepted plaintiffs' post-denial estimation of the land’s value and use. Defendant then changed its position a few days before oral argument and introduced two affidavits indicating that the land was left with much greater potential. See generally Loveladies Harbor, Inc. v. United States, 15 Cl.Ct. 375 (1988).
. Defendant’s experts also briefly mentioned that the 11.5 acres of wetlands could be used for water-related marine activities, or as a fishing and crabbing dock over the existing channel ways.
. The post-denial value and use of the land alleged by plaintiffs here is the same as that value and use alleged by plaintiffs in their opposition to defendant’s initial motion for summary judgment.
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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/5902462/
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Bourgeois, J.), rendered October 11, 1985, convicting him of rob*633bery in the first degree, robbery in the second degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The trial court permitted the victim to testify regarding a prior robbery committed by the defendant which she witnessed provided she referred to the robbery only as an “incident”. The defendant contends that the testimony constituted inadmissible evidence of an uncharged crime (see, People v Molineux, 168 NY 264). We disagree. As the trial court ruled, the testimony was relevant to the issue of identification and did not reveal the nature of the incident witnessed. Furthermore, the term could not be redacted without changing the meaning of the testimony (cf., People v Crandall, 67 NY2d 111).
The defendant also contends that the prosecutor improperly impeached the key alibi witness with his purported failure to come forward (see, People v Dawson, 50 NY2d 311). The defendant has failed to properly preserve this claim for appellate review. In any event, the claim is without merit. Defense counsel first raised the issue by eliciting from the witness that he was unaware of the date of the alleged robbery until a representative from the District Attorney’s office spoke to him and that he then informed the representative that the defendant was at a party with the witness that night. On cross-examination the witness testified that this conversation took place in the summer of 1985, and denied having received a letter about the case from the prosecutor in March of 1985. At that point the court held a bench conference and prohibited further questioning, but permitted defense counsel to establish on redirect examination that in October of 1984 she instructed the witness not to come forward. Furthermore, the defendant failed to request an instruction that the witness was under no duty to come forward (see, People v Dawson, supra, at 322). Under these circumstances we cannot conclude that the prosecutor’s questioning denied the defendant a fair trial.
We have examined the defendant’s remaining contentions and find them to be without merit. Thompson, J. P., Rubin, Fiber and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902463/
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OPINION OF THE COURT
Per Curiam.
Respondent was admitted to the practice of law by this Court on February 6, 2004, and maintains an office in Clark Mills. The Grievance Committee filed a petition charging respondent with acts of misconduct, including making misrepresentations to opposing counsel in a judgment enforcement matter and failing to cooperate with the investigation of the Grievance Committee. Respondent filed an answer denying material allegations of the petition, and a Referee was appointed to conduct a hearing. Prior to the hearing, the parties filed amended pleadings resolving all outstanding issues of fact. The Referee thereafter filed a report sustaining the charges based upon the amended pleadings and various evidentiary documents. The Grievance Committee moves to confirm the findings of the Referee and, in response to the motion, respondent submitted materials in mitigation of the charges. The parties appeared before this Court on the return date of the Grievance Committee’s motion, and respondent was heard in mitigation at that time.
Respondent admits that, in 2005, she was retained to draft a last will and testament on behalf of a client and, consistent with the wishes of her client, the will named respondent as trustee of a testamentary trust that was to be established upon the client’s death. The client died shortly thereafter and, in addition to her duties as trustee of the testamentary trust, respondent was retained to represent the executor of the estate.
The Referee found that, in August 2005, before she had been granted legal authority to do so by Surrogate’s Court, respondent disbursed estate funds to the beneficiary of the testamentary trust. The Referee additionally found that, in February 2006, respondent hired a company that she owned to make *132repairs to certain real property owned by the testamentary trust without disclosing her ownership interest to the executor of the estate or the beneficiary of the trust.
With respect to respondent’s alleged misconduct in relation to the judgment enforcement matter, the Referee found that, in July 2008, after the testamentary trust had been formally established, respondent was contacted by an attorney on behalf of a client who had previously obtained a civil judgment against the named beneficiary of the testamentary trust. Shortly thereafter, the attorney served respondent in her capacity as trustee with an information subpoena and restraining notice directed to the assets of the trust. The Referee found that respondent failed to respond to the information subpoena in a timely fashion and failed to comply with the restraining notice when she subsequently distributed funds to the trust beneficiary. In addition, the Referee found that respondent falsely told the attorney that she was complying with the restraining notice and preserving in her attorney trust account the funds belonging to the testamentary trust.
With respect to a separate estate matter, the Referee found that, from April 2010 through February 2011, respondent made four disbursements from her attorney trust account that, at the time they were made, caused the balance of the account to fall below that necessary to satisfy her obligations to the estate.
Finally, the Referee found that respondent failed to respond to inquiries from the Grievance Committee regarding certain of the above-referenced matters.
We confirm the findings of fact made by the Referee and conclude that respondent has violated the following former Disciplinary Rules of the Code of Professional Responsibility and the following Rules of Professional Conduct:
DR 1-102 (a) (5) (22 NYCRR 1200.3 [a] [5]) and rule 8.4 (d) of the Rules of Professional Conduct (22 NYCRR 1200.0)—engag-ing in conduct that is prejudicial to the administration of justice;
DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]) and rule 8.4 (h) of the Rules of Professional Conduct (22 NYCRR 1200.0)—engag-ing in conduct that adversely reflects on her fitness as a lawyer;
DR 5-104 (a) (22 NYCRR 1200.23 [a])—entering into a business transaction with a client if they have differing interests therein and if the client expects her to exercise professional judgment therein for the protection of the client without disclosing the terms of the transaction to the client in writing and obtaining in writing the consent of the client to those terms and to her inherent conflict of interest in the transaction;
*133DR 7-102 (a) (5) (22 NYCRR 1200.33 [a] [5])—knowingly making a false statement of law or fact in the representation of a client;
DR 9-102 (j) (22 NYCRR 1200.46 [j]) and rule 1.15 (j) of the Rules of Professional Conduct (22 NYCRR 1200.0)—failing to produce required bookkeeping records in response to a notice issued by the Grievance Committee;
rule 1.15 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0) —misappropriating funds belonging to another person that are in her possession incident to her practice of law; and rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0) —engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
Although the Referee made advisory findings that, by virtue of her admitted conduct, respondent violated Estates, Powers and Trusts Law § 11-1.6 (a) and numerous other disciplinary rules, we decline to conclude that respondent committed those additional violations inasmuch as they either are not supported by the record in this matter or have been rendered superfluous by virtue of our determinations set forth herein.
We have considered, in determining an appropriate sanction, the matters submitted by respondent in mitigation, including her expression of remorse and her statement that, during the relevant time period, she suffered from anxiety and depression for which she has sought treatment. We have additionally considered that respondent did not intend to harm her clients or to benefit personally from the misconduct. With respect to respondent’s misappropriation of client funds, we have considered that the misconduct was caused by inattentiveness and careless bookkeeping, rather than venal intent, and that no clients were permanently deprived of their funds. With respect to the judgment enforcement matter, we have considered that the evidentiary documents indicate that, at all relevant times, respondent was attempting to fulfill the wishes of her deceased client and she had a good faith belief that the subject funds were being held in a spendthrift trust pursuant to New York law. Finally, we have considered respondent’s statement that she has taken steps to ensure that the misconduct does not recur. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be censured.
Centra, J.P., Peradotto, Lindley, Whalen and Martoche, JJ., concur.
Order of censure entered.
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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/5902465/
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OPINION OF THE COURT
Per Curiam.
Respondent was admitted to the practice of law by this Court on February 6, 2004, and maintains an office in Clark Mills. The Grievance Committee filed a petition charging respondent with acts of misconduct, including making misrepresentations to opposing counsel in a judgment enforcement matter and failing to cooperate with the investigation of the Grievance Committee. Respondent filed an answer denying material allegations of the petition, and a Referee was appointed to conduct a hearing. Prior to the hearing, the parties filed amended pleadings resolving all outstanding issues of fact. The Referee thereafter filed a report sustaining the charges based upon the amended pleadings and various evidentiary documents. The Grievance Committee moves to confirm the findings of the Referee and, in response to the motion, respondent submitted materials in mitigation of the charges. The parties appeared before this Court on the return date of the Grievance Committee’s motion, and respondent was heard in mitigation at that time.
Respondent admits that, in 2005, she was retained to draft a last will and testament on behalf of a client and, consistent with the wishes of her client, the will named respondent as trustee of a testamentary trust that was to be established upon the client’s death. The client died shortly thereafter and, in addition to her duties as trustee of the testamentary trust, respondent was retained to represent the executor of the estate.
The Referee found that, in August 2005, before she had been granted legal authority to do so by Surrogate’s Court, respondent disbursed estate funds to the beneficiary of the testamentary trust. The Referee additionally found that, in February 2006, respondent hired a company that she owned to make *132repairs to certain real property owned by the testamentary trust without disclosing her ownership interest to the executor of the estate or the beneficiary of the trust.
With respect to respondent’s alleged misconduct in relation to the judgment enforcement matter, the Referee found that, in July 2008, after the testamentary trust had been formally established, respondent was contacted by an attorney on behalf of a client who had previously obtained a civil judgment against the named beneficiary of the testamentary trust. Shortly thereafter, the attorney served respondent in her capacity as trustee with an information subpoena and restraining notice directed to the assets of the trust. The Referee found that respondent failed to respond to the information subpoena in a timely fashion and failed to comply with the restraining notice when she subsequently distributed funds to the trust beneficiary. In addition, the Referee found that respondent falsely told the attorney that she was complying with the restraining notice and preserving in her attorney trust account the funds belonging to the testamentary trust.
With respect to a separate estate matter, the Referee found that, from April 2010 through February 2011, respondent made four disbursements from her attorney trust account that, at the time they were made, caused the balance of the account to fall below that necessary to satisfy her obligations to the estate.
Finally, the Referee found that respondent failed to respond to inquiries from the Grievance Committee regarding certain of the above-referenced matters.
We confirm the findings of fact made by the Referee and conclude that respondent has violated the following former Disciplinary Rules of the Code of Professional Responsibility and the following Rules of Professional Conduct:
DR 1-102 (a) (5) (22 NYCRR 1200.3 [a] [5]) and rule 8.4 (d) of the Rules of Professional Conduct (22 NYCRR 1200.0)—engag-ing in conduct that is prejudicial to the administration of justice;
DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]) and rule 8.4 (h) of the Rules of Professional Conduct (22 NYCRR 1200.0)—engag-ing in conduct that adversely reflects on her fitness as a lawyer;
DR 5-104 (a) (22 NYCRR 1200.23 [a])—entering into a business transaction with a client if they have differing interests therein and if the client expects her to exercise professional judgment therein for the protection of the client without disclosing the terms of the transaction to the client in writing and obtaining in writing the consent of the client to those terms and to her inherent conflict of interest in the transaction;
*133DR 7-102 (a) (5) (22 NYCRR 1200.33 [a] [5])—knowingly making a false statement of law or fact in the representation of a client;
DR 9-102 (j) (22 NYCRR 1200.46 [j]) and rule 1.15 (j) of the Rules of Professional Conduct (22 NYCRR 1200.0)—failing to produce required bookkeeping records in response to a notice issued by the Grievance Committee;
rule 1.15 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0) —misappropriating funds belonging to another person that are in her possession incident to her practice of law; and rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0) —engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
Although the Referee made advisory findings that, by virtue of her admitted conduct, respondent violated Estates, Powers and Trusts Law § 11-1.6 (a) and numerous other disciplinary rules, we decline to conclude that respondent committed those additional violations inasmuch as they either are not supported by the record in this matter or have been rendered superfluous by virtue of our determinations set forth herein.
We have considered, in determining an appropriate sanction, the matters submitted by respondent in mitigation, including her expression of remorse and her statement that, during the relevant time period, she suffered from anxiety and depression for which she has sought treatment. We have additionally considered that respondent did not intend to harm her clients or to benefit personally from the misconduct. With respect to respondent’s misappropriation of client funds, we have considered that the misconduct was caused by inattentiveness and careless bookkeeping, rather than venal intent, and that no clients were permanently deprived of their funds. With respect to the judgment enforcement matter, we have considered that the evidentiary documents indicate that, at all relevant times, respondent was attempting to fulfill the wishes of her deceased client and she had a good faith belief that the subject funds were being held in a spendthrift trust pursuant to New York law. Finally, we have considered respondent’s statement that she has taken steps to ensure that the misconduct does not recur. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be censured.
Centra, J.P., Peradotto, Lindley, Whalen and Martoche, JJ., concur.
Order of censure entered.
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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/5902466/
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Appeal by the defendant from four judgments of the Supreme Court, Kings County (Maraño, J.), all rendered June 18, 1985, convicting him of criminal sale of a controlled substance in the third degree under indictment No. 3141/84, criminal sale of a controlled substance in the third degree under indictment No. 3870/84, criminal possession of a controlled substance in the third degree under indictment No. 7319/84, and criminal sale of a controlled substance in the third degree under indictment No. 2509/85, 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., Brown, Weinstein, Eiber 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/1889137/
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603 F. Supp. 364 (1985)
Gary ORGERON
v.
MINE SAFETY APPLIANCES COMPANY, et al.
Civ. A. No. 81-2699.
United States District Court, E.D. Louisiana.
February 27, 1985.
*365 Joseph M. Bruno, Bruno, Bruno & Blouin, New Orleans, La., for plaintiff.
Craig R. Nelson, Christina Fay, Hulse, Nelson & Wanek, New Orleans, La., for defendants.
MEMORANDUM OPINION
MENTZ, District Judge.
The defendant, E.D. Bullard, filed a motion for summary judgment on the plaintiff's claim that he contracted silicosis due to the negligence of the defendant. On October 17, 1984, the Court heard oral argument on the summary judgment motion and at that time denied the motion on the basis that insufficient evidence had been presented that plaintiff's claim had prescribed. Then, Bullard filed a motion for reconsideration of its motion for summary judgment. At the hearing on January 9, 1985, the Court took the motion filed on behalf of Bullard under submission. The Court has now considered the memoranda, the pleadings, exhibits and the affidavits submitted in this matter and, based on the record and the law, concludes that its original ruling was in error and that defendant Bullard's motion should be granted.
I. FACTUAL BACKGROUND
Although the factual setting in this case is not complex, some facts are in dispute and the date of occurrence of certain events are crucial to the determination of whether plaintiff's action has prescribed. They are recounted here, as must be done, with all factual inferences resolved in the non-movant's favor. Casey Enterprises, Inc. v. American Hardware Mutual Insurance Co., 655 F.2d 598, 602 (5th Cir. 1981); C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2727 (2d Ed.1983). Plaintiff was employed as a "roustabout" by Camcraft, Inc. from March 23rd, 1976 to June 20th, 1980. During his employment with Camcraft, he would at times engage in sandblasting, *366 painting and general cleaning as the job required.
On June 4th, 1980, plaintiff visited Dr. Villemerette at the Avenue "C" Clinic at which time x-rays were taken of the plaintiff's chest. The x-rays indicated that plaintiff had "low grade chronic lung changes, bilaterally". (See October 25, 1984 Deposition of Dr. Fitzgerald, pp. 7-8). Subsequently, on June 12th, 1980, plaintiff consulted Dr. Fitzgerald at the Avenue "C" Clinic for a hand injury. Dr. Fitzgerald gave plaintiff two notes to give to his employer. The first note, referring to his hand injury, stated he could not work. Dr. Fitzgerald's second note dated 6-12-80 and written on a medical prescription note pad stated that
The above patient [Gary Orgeron] has early changes of chronic lung disease on chest x-ray. I feel he should work in a clean air area from now on.
(See note marked as defendant's Exhibit B-2). Dr. Fitzgerald testified by deposition that he only would have given this second note to plaintiff if plaintiff had so requested it. (See Dr. Fitzgerald's deposition pp. 15-16).
Plaintiff saw Dr. Fitzgerald again the next day to redress his hand injury at which time the doctor wrote a third note on a medical prescription note pad, dated 6-13-80, stating that
The above patient [Gary Orgeron] has low grade chronic lung changes on x-ray. This is probably caused by exposure to sandblasting dust. This is not contagious.
(See note marked as defendant's Exhibit B-3; emphasis added). Subsequent thereto, on June 19th, 1980 through June 25th, 1980, plaintiff was admitted to West Jefferson General Hospital for extensive testing and evaluation. At that time he was under treatment by Dr. Morton Brown, a pulmonary specialist. Immediately upon his discharge from the hospital on June 25, 1980, Mr. Orgeron was informed by his employers at Camcraft, Inc. that, if he could not sandblast at all, there was no paid position for him. (See September 10, 1984 deposition of Gary Orgeron, pp. 57-60).
Soon after Camcraft informed Mr. Orgeron that he no longer had a job, plaintiff hired Joseph M. Bruno, attorney at law, to act on his behalf to obtain workmen's compensation benefits. By demand letter, dated July 2nd, 1980, Bruno advised Camcraft that he represented Orgeron "with reference to his claim for workmen's compensation benefits arising out of his contraction of the occupational diseasesilicosis".[1] (Emphasis added). Dr. Brown informed the plaintiff on July 12, 1980 that his condition was caused by an occupational disease known as silicosis. (See January 15, 1985 affidavit of Dr. Brown). Then, on July 6, 1981, plaintiff filed his suit against the defendants.
On the basis of this record, the defendant contends that plaintiff's action has prescribed on two grounds: (1) that the plaintiff had constructive knowledge of his lung condition in June 1980 but did not file his action until July 6, 1981; and further, (2) that plaintiff's attorney, Joseph Bruno, had at least constructive knowledge of plaintiff's condition on July 2, 1980, which knowledge is imputed to the plaintiff, but failed to file plaintiff's action within the one year prescriptive period. The Court will review the claims of the defendant. *367 But first, the Court will set the legal standard against which defendant's claim must be tested.
II. CONSTRUCTIVE KNOWLEDGE EXISTED MORE THAN ONE YEAR PRIOR TO FILING OF SUIT
Louisiana Civil Code Article 3492[2] (formerly Articles 3536 and 3537) clearly states that tort actions are subject to a one year prescriptive period. The prescriptive period commences to run when the plaintiff has either actual knowledge or at least constructive knowledge. In other words, prescription begins to run when the plaintiff actually becomes aware of information such as would simply "excite the attention" of a reasonable person and "put him on inquiry". Moreover, in Louisiana, even constructive notice is sufficient to toll the prescriptive period of one year. See Louisiana Civil Code Article 3492. As the Louisiana Supreme Court stated in Cartwright v. Chrysler Corporation, 255 La. 597, 232 So. 2d 285, 287 (1970), "... it is not necessary that the party have actual knowledge of the conditions as long as there is `constructive notice.'" Further, the Court defined constructive notice to be
whatever notice is enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of everything to which inquiry may lead and such information and knowledge as ought to reasonably put the owner on inquiry is sufficient to start the running of prescription.
232 So.2d at 287; See also Bennett v. General Motors Corp., 420 So. 2d 531, 537 (La. App. 2nd Cir.1982); Nivens v. Signal Oil & Gas Co., Inc., 520 F.2d 1019, 1023 (5th Cir.1975); Breaux v. Aetna Casualty & Surety Co., 272 F. Supp. 668, 672 (E.D.La. 1967); Coates v. Fibreboard Corp., 583 F. Supp. 504, 506 (M.D.La.1984); Woessner v. Johns-Manville Sales Corp., 576 F. Supp. 596, 599 (E.D.La.1984).
Further, in Yarbrough v. Louisiana Cement Company, Inc., 370 So. 2d 602 (La. App. 4th Cir.1979), writ denied 373 So. 2d 531 (La.1979), Mr. Yarbrough brought suit to recover for pulmonary difficulties allegedly caused by defendants' various business operations that exposed plaintiff to noxious substances while he was at work. The Louisiana Fourth Circuit found that more than one year had lapsed from the occurrence (ceasing work and removed from a work related condition) and the filing of the action. 307 So. 2d at 602. The evidence indicated that the plaintiff had consulted his doctor in 1972 complaining of shortness of breath and pulmonary difficulties, and thereafter during the course of his employment he made a number of complaints to his employers concerning the environment of his place of employment. Further, plaintiff consulted the same doctor on January 16, 1974 with the complaint of shortness of breath and on that occasion he informed the doctor that he worked in a dusty environment and that he was having trouble breathing. The Court concluded that the
... evidence preponderates that the plaintiff's knowledge of pulmonary problems and the symptoms arising from exposure to noxious elements at various times during his working hours was sufficient to begin the running of the prescriptive period, although he may not have known of the precise effect it had on him.
370 So.2d at 604. The plaintiff ceased work on August 1, 1974 and filed his suit in tort on December 4, 1975. The Fourth Circuit held that this action had prescribed. See also Duhon v. Saloom, 323 So. 2d 202 (La.App. 3rd Cir.1975); Marcel v. Hospital Corp. of the Sisters of St. Joseph, 322 So. 2d 302 (La.App. 1st Cir.1975); Lasseigne v. Earl K. Long Hospital, 316 So. 2d 761 (La.App. 1st Cir.1975).
In the case at bar, the plaintiff visited the Avenue "C" Clinic on three separate *368 occasions in June 1980. It is not clear from the record why Mr. Orgeron visited the Clinic on June 4th, 1980; however, the evidence indicates that x-rays were taken of Orgeron which showed that plaintiff had "low grade chronic lung changes, bilaterally". (See Dr. Fitzgerald's deposition, pp. 7-8). Plaintiff again visited the Clinic for a hand injury on June 12, 1980, at which time Dr. Fitzgerald gave plaintiff a note which stated that plaintiff had early signs of lung disease and that he should work in a clean air environment. (See Dr. Fitzgerald's deposition, pp. 15-16). The next day, June 13, 1980, when plaintiff saw Dr. Fitzgerald again to redress his hand injury, the doctor wrote Mr. Orgeron a third note stating that his low-grade chronic lung condition was probably caused by sandblasting dust. (emphasis added).
Applying Cartwright's definition of actual and constructive notice, it is obvious that Dr. Fitzgerald's notes stating that Mr. Orgeron should only work in clean air areas and not to sandblast anymore were sufficient to excite Mr. Orgeron's attention and put him on guard that he needed to inquire further into the actual cause of his lung condition. In fact, Mr. Orgeron did inquire further as is evident by Mr. Orgeron checking himself into a hospital on June 19, 1980 for pulmonary tests. Mr. Orgeron wanted to find out the cause of his deteriorating lungs that was preventing him from sandblasting, thus he sought to have his condition evaluated by the West Jefferson hospital and its staff. Therefore, Mr. Orgeron's act of checking himself into the hospital is sufficient evidence that the inquiry process had commenced. The plaintiff had at least constructive notice; he knew he had lung problems and had a reasonable belief that his condition was work-related due to the facts that (1) Dr. Fitzgerald told him to work only in clean air areas and not to sandblast since his condition was probably caused by sandblasting dust, (See 6-13-80 note of Dr. Fitzgerald's); and (2) on July 2, 1980, he filed a workmen's compensation claim stating he had silicosis. (See Bruno to Camcraft demand letter, supra).
Although Mr. Orgeron did not know the exact diagnosis or name of his lung condition until July 12, 1980 when Dr. Morton Brown told him, (See January 15, 1985 affidavit of Dr. Brown). Mr. Orgeron knew in June 1980 that he had lung problems, knew he could no longer sandblast, knew that it probably was work-related, and as a result checked himself into the hospital to find out what was causing his lung problems. Thus, under the Cartwright definition, Mr. Orgeron had at least constructive notice of his condition in June of 1980 which led to his inquiry as to what specifically was causing his condition and all information flowing from that inquiry is considered at the least constructive notice or knowledge. Such information Mr. Orgeron received from Dr. Fitzgerald reasonably put him on inquiry notice and as such was sufficient to start the running of prescription. See Yarbrough v. Louisiana Cement Company, Inc., supra.
Plaintiff's reliance on Williams v. Public Grain Elevator of New Orleans, Inc., 417 So. 2d 398 (La.App. 4th Cir.1982), not considered, 422 So. 2d 160 (La.1982), is misplaced. The plaintiff in Williams filed a workmen's compensation action more than six months after he quit work for shortness of breath but within six months of being notified by Dr. Morton Brown (the same doctor as in the present case) that he had pneumoconiosis, an occupational disease caused by exposure to grain dust and pesticides. The Williams court held that the plaintiff did not have actual or constructive notice knowledge that his condition was work-related until that time. Therefore, to determine when prescription begins to run it must be decided when the plaintiff "knew or had reasonable grounds to believe that his condition was work-related". (emphasis added) 417 So. 2d at 399.
Mr. Orgeron in the present case suggests that a diagnosis of a disease as occupationally related requires expert testimony. Under Williams that is correct, but an actual diagnosis of a disease as an occupational disease by an expert is not necessary *369 to put one on constructive or actual notice that his disease might be work-related. As long as the plaintiff had reasonable grounds to believe his condition was workrelated that is sufficient to commence the running of prescription. Williams v. Public Grain Elevator of New Orleans, Inc., supra. Mr. Orgeron had reasonable grounds to believe his condition was workrelated after Dr. Fitzgerald's examination, even though a confirmed diagnosis that his lung condition was caused by silicosis was not given at that time. Further, plaintiff was sufficiently put on notice that he needed to inquire further as to whether his condition was work-related when Dr. Fitzgerald told him he should not sandblast anymore since his condition was probably caused by sandblasting which he did at work. Thus, prescription began to run in June 1980 not July 12, 1980 when Dr. Morton Brown diagnosed plaintiff's condition to be caused by silicosis. Since plaintiff did not file his tort suit until July 6, 1981, the one year prescriptive period had run and this suit should be dismissed.
III. THE KNOWLEDGE OF AN ATTORNEY IS IMPUTABLE TO HIS CLIENT
Under Louisiana and federal law, it is well settled that the knowledge of an attorney is imputable to his client. Link v. Wabash Railroad, 370 U.S. 626, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962); T.H. Martin v. Schwing Lumber & Shingle Co., Inc., 228 La. 175, 81 So. 2d 852 (1955); Martin v. White, 219 So. 2d 219 (La.App. 1st Cir.1969) Barber v. Testa, 331 So. 2d 139 (La.App. 3rd Cir.1976); See also Marpco, Inc. v. South States Pipe & Supply, 377 So. 2d 525 (La. App. 3d Cir.1979). A number of courts have held a suit to have prescribed when the plaintiff's attorney had knowledge but failed to file the action timely. See Martin v. White, supra; Barber v. Testa, supra. Further, the Supreme Court in Link v. Wabash Railroad stated that keeping a suit alive merely because a plaintiff should not be penalized for omissions of his own attorney would be visiting the sins of plaintiff's lawyer upon the defendant. 370 U.S. 634 n. 10, 82 S. Ct. 1390 n. 10. A plaintiff must be bound by the acts of his attorney.
It is true that this steadfast premise seems to conflict with Williams v. Public Grain Elevator of New Orleans, Inc., 417 So. 2d 398, 399 (La.App. 4th Cir.1982) which states that only an expert can diagnose an occupational disease. The Court agrees with plaintiff that his counsel, Joseph Bruno, is not a medical expert, but that is not the issue. The issues are whether plaintiff had a reasonable belief that his condition was occupationally related on June 2, 1980 when his attorney sent a demand letter to plaintiff's employer, Camcraft, Inc., and/or whether Mr. Bruno's reasonable belief that Mr. Orgeron's condition was caused by silicosis is imputable to the plaintiff as of June 2, 1980. However, these issues need not be addressed, since it is apparent that plaintiff was put on inquiry notice by the chain of events that occurred in June of 1980 as well as by his act to hire an attorney, all indicating that plaintiff had at least constructive knowledge of his lung condition in June of 1980. Plaintiff had sufficient notice of his condition even though he did not have an exact label to describe it at the time he hired Joseph Bruno as his attorney. Contacting Mr. Bruno only confirms that he had sufficient notice of his condition, and that he reasonably believed it was work-related. Thus, such actions only confirm that he had commenced inquiry into his situation.[3]
CONCLUSION
The plaintiff has stated a valid claim against E.D. Bullard Company, however, plaintiff has failed to timely file his action. The plaintiff had at least constructive if not *370 actual knowledge of his lung condition and that it was probably work-related in June 1980. Suit was not filed until July 6, 1981. Therefore, plaintiff's action has unfortunately prescribed. Thus, E.D. Bullard's motion for summary judgment will be GRANTED dismissing the plaintiff's claims against E.D. Bullard Company on the basis of one year prescription. IT IS SO ORDERED.
NOTES
[1] Bruno's demand letter to Camcraft reads as follows:
July 2nd, 1980
Re: Gary Orgeron
Dear Sir:
This is to advise that I have the privilege of representing Mr. Gary Lee Orgeron with reference to his claim for workmen's compensation benefits arising out of his contraction of the occupational disease-silicosis. We hereby formally make demand against you for workmen's compensation benefits due and owing from June 20th, 1980 to the present be paid together with all medical expenses which Mr. Orgeron had incurred during that time. Please have your attorney contact me as soon as it is received. Failure to respond will force me to take the necessary legal steps to protect my client's interest. I remain ...
Very truly yours,
Joseph M. Bruno
Bruno, Bruno & Blouin
(Emphasis added).
[2] Article 3492
Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.
[3] The Court is admittedly puzzled by Mr. Bruno's statement that he filed the workmen's compensation claim on the basis that plaintiff had contracted the occupational disease-silicosis prior to Dr. Brown's diagnosis because he did not want prescription to run on plaintiff, but then failed to file the tort claim against the defendants for one year and four days. However, even though Bruno is not a medical expert, his demand letter to plaintiff's employer also was sufficient to give plaintiff reasonable grounds to believe that his condition was work-related.
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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/5902467/
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Finnegan, J.), rendered November 4, 1985, convicting him of robbery in the first degree and criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
*634Ordered that the judgment is 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). 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/5902468/
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by the defendant from a judgment of the Supreme Court, Kings County (Kramer, J.), rendered February 20, 1986, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is 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). Mangano, J. P., Kunzeman, Rubin, 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/5902469/
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Di Tucci, J.), rendered October 24, 1984, convicting him of robbery in the first degree and robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The evidence, when viewed in a light most favorable to the People, was legally sufficient to support the defendant’s conviction (see, People v Contes, 60 NY2d 620). Moreover, upon the exercise of our factual review power, we find that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]). Three officers testified as to their observations of the defendant’s participation in the crimes charged. Each officer had known the defendant before the commission of the crimes and recognized him as one of the assailants.
The Trial Judge’s instructions on identification adequately conveyed to the jury the applicable law governing its deliberations. The Trial Judge instructed the members of the jury that they "must be convinced beyond a reasonable doubt that each of the defendants is one of the individuals who in fact commit*635ted the crime or crimes charged” and also gave a general instruction on weighing the witnesses’ credibility (see, People v Whalen, 59 NY2d 273, 279). Nor was the defendant denied a fair trial by the prosecutor’s claimed misconduct (see, People v Johnson, 57 NY2d 969; People v Crimmins, 36 NY2d 230; People v Roopchand, 107 AD2d 35, affd 65 NY2d 837). We also find no error in the Trial Judge’s refusal to allow the defendant to exercise an additional peremptory challenge or to exclude a retired policeman from the jury for cause (see, People v Williams, 63 NY2d 882, 884). The juror was retired from the police force for 19 years and when questioned as to whether he would more readily accept the testimony of a policeman because he was once a police officer, he replied, "No. I would not.” He was also asked, "Do you think that as of now, because of your experience and the fact [that] a police officer made an arrest, you are inclined to think those individuals must be guilty and they are going to have to go some to prove they are not?” He responded, "I would not draw that conclusion”. Such "[an] expurgatory oath is still an operative device under which a prospective juror may satisfactorily show his impartiality” (People v Branch, 59 AD2d 459, 462, affd 46 NY2d 645).
We have considered the defendant’s 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/8076603/
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No opinion. Final order of the Municipal Court affirmed, with costs.
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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/5902470/
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Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), rendered April 22, 1987, convicting him of criminal sale of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant pleaded guilty with the understanding that he would receive the sentence which was thereafter actually imposed. Under the circumstances, he has no basis now to complain that his sentence was excessive (see, People v Kazepis, 101 AD2d 816). In any event, the sentence imposed was neither unduly harsh nor excessive and was a proper exercise of the court’s discretion.
Although the defendant concedes on appeal that mandatory sentences are constitutional (see, People v Broadie, 37 NY2d 100, cert denied 423 US 950), he contends that Penal Law § 70.00 which mandates an indeterminate minimum sentence of three years for class A-II felonies, is unconstitutional as *636applied to him. Although the defendant had no prior criminal history, the record reveals that he was a willing participant in the sale of over two ounces of cocaine. We find that the instant case is not the rare case contemplated in People v Broadie (supra). Mangano, J. P., Kunzeman, Rubin, 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/5902473/
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Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), rendered July 1, 1986, convicting him of insurance fraud in the first degree (two counts) and grand larceny in the second degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the People, we find that it is legally sufficient to support the defendant’s conviction of the crimes charged (see, People v Contes, 60 NY2d 620). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]). Matters of credibility and reliability of the witnesses’ testimony are primarily for the jury to decide and on this record the jury’s determination should not be disturbed (see, People v McCrimmon, 131 AD2d 598, lv dismissed 70 NY2d 714).
We further find that there was sufficient independent evidence to corroborate the accomplice testimony (see, People v Harris, 126 AD2d 745, lv denied 69 NY2d 1004).
Although certain of the prosecutor’s comments were improper, the defendant was not denied a fair trial.
*637The defendant’s claim that the closure of the courtroom during the charge deprived him of his right to a public trial has not been preserved for appellate review. In any event, as this court has recently held, such a claim is without merit (see, People v Zenger, 134 AD2d 640).
We have considered the defendant’s remaining contentions and find that they are unpreserved for appellate review or 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/5902474/
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OPINION OF THE COURT
Per Curiam.
Respondent Michael Steven Samuel was admitted to the practice of law in the State of New York by the First Judicial Department on July 12, 1993. At all times relevant to the misconduct which underlies this proceeding, he maintained an office for the practice of law within the First Judicial Department.
In 2003, respondent, whose law practice focused on debt collection and personal injury litigation, founded Sterling Recoveries, Inc. (Sterling), a company which engaged in the purchase of distressed debt portfolios and thereafter, the collection of the debts within those portfolios. In 2004, Abraham Pustilnik (Pustilnik) invested $50,000 with Sterling via AAA Empire Medical Management, Pustilnik’s company. Pursuant to the agreement between Pustilnik and respondent, Pustilnik’s investment would be used to acquire a debt portfolio and once Pustilnik recouped his initial investment, he would thereafter receive 50% of Sterling’s profits. In March 2005, after Pustilnik had recouped his initial investment, respondent learned that Pustilnik had been indicted by the New York County District Attorney’s Office (District Attorney’s Office) for activities unrelated to Pustilnik’s relationship with Sterling. Respondent also learned that as a result of the indictment, Supreme Court, New York County had issued a civil forfeiture order, freezing Pustilnik’s income and all of his assets. Because respondent had never seen nor had been served with the forfeiture order, he believed that the forfeiture order did not apply to, bind, nor restrain him.
In 2006, respondent, who was told by Pustilnik that he had no money for food, wrote a check for $20,000 from Sterling’s account to one of Pustilnik’s relatives. Moreover, despite being aware of the forfeiture order, respondent continued to reinvest Pustilnik’s profits in Sterling by purchasing more debt portfolios.
In 2007, the District Attorney’s Office contacted respondent during the course of its investigation of the case it had brought *136against Pustilnik. Respondent fully cooperated with the investigation and on September 20, 2010, because respondent made several cash payments to Pustilnik after respondent became aware of the forfeiture order, he was charged with one count of criminal contempt in the second degree (Penal Law § 215.50 [3]), an A misdemeanor. That same day, upon realizing that the fact that he had not been served with the forfeiture order did not obviate compliance with it and thus proscribed him from disbursing any money to Pustilnik and/or reinvesting Pustilnik’s profits in Sterling, respondent pleaded guilty to one count of criminal contempt in the second degree. In so pleading, respondent admitted that
“[although I subsequently became aware that Mr. Pustilnik was the subject of a civil forfeiture order imposed by the New York County Supreme Court in or about January 2005 that froze Mr. Pustilnik’s income and assets, I made several cash payments to him from monies that he earned from [his] investment.”
Pursuant to the plea agreement, respondent was sentenced to three years’ probation, was ordered to forfeit $60,000 and directed to pay $53,000 to Pustilnik. Additionally, respondent was required to report the conviction to the Departmental Disciplinary Committee (Committee).
On May 5, 2011, the Committee filed a petition seeking an order declaring that the crime of which respondent was convicted, contempt in the second degree, constituted a “serious crime” pursuant to Judiciary Law § 90 (4) (d) and 22 NYCRR 603.12 (b). By unpublished order dated October 14, 2011, we granted the Committee’s petition and pursuant to 22 NYCRR 603.4 (d), referred this matter to a Hearing Panel (Panel) to conduct a hearing on sanctions. The Panel conducted a hearing, respondent was present, represented by counsel, was afforded an opportunity to be heard, and presented evidence. In addition to respondent’s testimony, the Panel was provided with a stipulation between the parties establishing the above-mentioned facts. Additionally, the Panel also heard from several witnesses who testified about respondent’s good character. The Panel issued its report, finding no aggravating factors warranting suspension and finding several mitigating factors supporting public censure, inter alia, that respondent acted from a misapprehension of the law, he fully cooperated with the authorities and their investigation, he demonstrated remorse for his actions, and he did not profit by violating the forfeiture order. Thus, rather than suspension, the sanction sought by the Committee, the Panel recommended public censure.
*137The Committee now petitions this Court for an order pursuant to 22 NYCRR 603.4 (d), 605.15 (e) (2) and Judiciary Law § 90 (2), confirming the findings of fact and conclusions of law made by the Panel. The Committee does not seek confirmation of the Panel’s recommended sanction, leaving it to us to impose whatever sanction we deem appropriate. Upon a review of the Panel’s report, which details the testimony of all witnesses who testified at the hearing and based on the stipulation of facts submitted to the Panel, we hereby confirm the Panel’s report in its entirety.
As in all serious crime cases, the only issue for this Court to decide is the appropriate sanction (Matter of Balis, 70 AD3d 76, 79 [1st Dept 2009]; Matter of Novak, 200 AD2d 66, 68 [1st Dept 1994]). With regard to prescribing a sanction, the fact that an attorney has been convicted of a misdemeanor does not in and of itself mandate suspension (Matter of Molina, 88 AD3d 363, 367 [1st Dept 2011]). Instead, no one fact is dispositive and the proper sanction depends on “the offense committed and any mitigating or aggravating circumstances” (Balis at 79; Novak at 68). As in all disciplinary proceedings “[our purpose] is not to punish the respondent attorney, but rather to determine the fitness of an officer of the court and to protect the courts and public from attorneys that are unfit for practice” (Balis at 79).
As noted above, both respondent’s testimony before the Panel and the stipulation of facts demonstrate that, by disbursing funds to Pustilnik despite knowledge of the forfeiture order, respondent is guilty of criminal contempt. However, the evidence also established that respondent only disbursed funds to Pustilnik in violation of the forfeiture order because he believed that since he was never served with the order, it was not binding on him. Moreover, the record evinces that respondent was remorseful, fully cooperated with the criminal investigation by the District Attorney’s Office, and pleaded guilty to the criminal charge, thereby accepting responsibility for his actions. Lastly, the evidence demonstrates that after pleading guilty, respondent then immediately reported the conviction to the Committee, fully cooperating with its investigation, he had a deep commitment to charitable work, was actively involved in several charitable organizations, enjoyed a good reputation in the legal community, and did not profit from the disbursements he made to Pustilnik.
Given the absence of any aggravating circumstances and the existence of several mitigating circumstances, we agree with the *138Panel’s recommended sanction of public censure. Specifically, respondent committed the crime alleged under a misapprehension of the law and cooperated both with the District Attorney’s Office’s and the Committee’s investigation. Furthermore, respondent took full responsibility for his actions, did not profit from them, and has a good reputation in the legal community.
Accordingly, public censure is in accord with this Department’s precedent for analogous conduct resulting in a misdemeanor conviction (Matter of Molina, 88 AD3d 363 [1st Dept 2011] [attorney convicted of misdemeanor publicly censured in light of mitigation, including mistaken belief that behavior did not constitute a crime, admission of responsibility for crime, cooperation with Committee’s investigation, and fact that crime was not committed to fund a lavish lifestyle or accumulate wealth]; Matter of Clark, 60 AD3d 159 [1st Dept 2009] [attorney convicted of misdemeanor publicly censured in light of mitigation, including a reasonable excuse for actions, apparent remorse for having committed the crime, admission of responsibility for crime, cooperation with Committee and the authority’s investigation, and fact that crime was not committed to fund a lavish lifestyle or accumulate wealth]; Matter of Meyerson, 46 AD3d 141 [1st Dept 2007] [attorney convicted of misdemeanor publicly censured in light of mitigation, including mistaken belief that behavior did not constitute a crime, admission of responsibility for crime, and cooperation with Committee’s investigation]). Moreover, absent evidence that the behavior underpinning the conviction for criminal contempt was “both willful and ongoing” (Matter of Cutler, 227 AD2d 8, 10 [1st Dept 1996]), public censure rather than suspension is the appropriate sanction (Matter of Kunstler, 194 AD2d 233 [1st Dept 1993]; Matter of Mangiatordi, 123 AD2d 19 [1st Dept 1987]).
Accordingly, the Committee’s petition should be granted, the Panel’s findings of fact and conclusions of law confirmed, and respondent publicly censured.
Freedman, J.P., Richter, Abdus-Salaam, Manzanet-Daniels and Roman, JJ., concur.
Respondent publicly censured.
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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/5902476/
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vinik, J.), rendered January 6, 1986.
Ordered that the judgment is affirmed (see, People v Pellegrino, 60 NY2d 636; People v Harris, 61 NY2d 9; People v Serrano, 15 NY2d 304; People v Kazepis, 101 AD2d 816; People v Suitte, 90 AD2d 80). Mollen, P. J., Lawrence, 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/5902477/
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Appeal by the defendant, as limited by his brief, from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), rendered September 18, 1985, convicting him of criminal sale of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant’s sole contention on appeal, this is not one of those "rare case[s]” in which the sentence imposed is unconstitutionally harsh as applied (People v Broadie, 37 NY2d 100, 119, cert denied 423 US 950; People v Donovan, 89 AD2d 968, affd 59 NY2d 834; cf., People v Robinson, 68 AD2d 413). 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/5902478/
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OPINION OF THE COURT
Per Curiam.
The Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts (hereinafter the Grievance Committee) served the respondent with a petition dated April 27, 2011, containing four charges of professional misconduct. After a prehearing conference on January 12, 2012, and a hearing on January 26, 2012, the Special Referee issued a report, which sustained all of the charges. The Grievance Committee now moves to confirm the Special Referee’s report and impose such discipline upon the respondent as the Court deems just and proper. Although afforded an opportunity to respond to the motion, the respondent has not submitted any papers.
Charge one alleges that the respondent failed to cooperate with a legitimate investigation by the Grievance Committee into a complaint of professional misconduct, in violation of rule 8.4 (d) and (h) of the Rules of Professional Conduct (22 NYCRR 1200.0). On October 19, 2009, the Grievance Committee received a complaint of professional misconduct from Ruby Harrison against the respondent regarding an estate matter. By letter dated November 9, 2009, a copy of the complaint was forwarded to the respondent. He was directed to submit an answer within 10 days of receipt of the letter, and was advised that an unexcused failure to submit an answer would constitute professional misconduct, independent of the merits of the underlying complaint. The respondent submitted a written answer dated February 19, 2010, to the Harrison complaint.
By letter dated April 22, 2010, sent to the respondent’s then attorney, Alfred Toussaint, Esq., the Grievance Committee requested certain documents and bank records relating to the underlying estate matter in the complaint. The respondent was *141thereafter directed to appear at the offices of the Grievance Committee on June 4, 2010, for an examination under oath. On June 4, 2010, Mr. Toussaint appeared without the respondent. None of the requested documents were produced.
By letter to Mr. Toussaint dated July 26, 2010, the respondent was directed to appear at the Grievance Committee’s offices on August 16, 2010, to be examined under oath about the Harrison complaint. In a letter to the Grievance Committee dated July 27, 2010, the respondent stated that he was returning to Barbados in the immediate future “to undergo a surgical procedure.” Consequently, the examination under oath was rescheduled for October 21, 2010. On October 20, 2010, the Grievance Committee received a letter from the respondent, faxed by Mr. Toussaint, stating that the surgical procedure had been rescheduled for November 15, 2010. The respondent failed to appear for examination on October 21, 2010.
By letter to Mr. Toussaint dated January 3, 2011, the respondent was directed to provide the previously requested documents and bank records on or before January 12, 2011. He was also directed to provide proof of travel outside the United States in June 2010. The respondent failed to do so. In or about January 2011, Mr. Toussaint withdrew as counsel for the respondent.
By letter dated January 14, 2011, the Grievance Committee directed the respondent to appear at its offices for an examination under oath on February 3, 2011. On February 2, 2011, the respondent hand delivered to the Grievance Committee a notice of appearance from Stacey-Ann Harris, Esq. By letter dated February 4, 2011, the Grievance Committee rescheduled the examination under oath to February 10, 2011. On that date, Ms. Harris appeared without the respondent. At Ms. Harris’s request, the examination was again adjourned to February 17, 2011. On February 17, 2011, the respondent appeared at the Grievance Committee’s offices and handed a paper to Ms. Harris and then left without being examined and without providing an explanation for his departure.
Charge two alleges that the respondent failed to cooperate with a legitimate investigation by the Grievance Committee into a complaint of professional misconduct, in violation of rule 8.4 (d) and (h) of the Rules of Professional Conduct (22 NYCRR 1200.0). On December 17, 2010, the Grievance Committee received a complaint of professional misconduct from Gwendolyn L. Knight. By letter dated January 5, 2011, a copy of the *142complaint was forwarded to the respondent. He was directed to submit an answer within 10 days of receipt of the letter, and was advised that an unexcused failure to submit an answer, or otherwise cooperate in the matter, would constitute professional misconduct, independent of the merits of the underlying complaint.
By letter dated January 14, 2011, the Grievance Committee directed the respondent to appear at its offices for an examination under oath on February 3, 2011. By that same letter, the respondent was directed to provide documentation regarding the whereabouts of $33,667 that had been entrusted to him by Ms. Knight, on or before February 3, 2011. The respondent failed to provide the requested documentation. On February 2, 2011, the respondent hand delivered to the Grievance Committee a notice of appearance from Stacey-Ann Harris, Esq. By letter dated February 4, 2011, the Grievance Committee rescheduled the examination under oath to February 10, 2011. On that date, Ms. Harris appeared without the respondent. At Ms. Harris’s request, the examination was again adjourned to February 17, 2011. On February 17, 2011, the respondent appeared at the Grievance Committee’s offices and handed his written answer to the Knight complaint to Ms. Harris. The respondent then immediately left without being examined and without providing an explanation for his departure.
Charge three alleges that the respondent failed to cooperate with legitimate investigations by the Grievance Committee into a complaint of professional misconduct, in violation of rule 8.4 (d) and (h) of the Rules of Professional Conduct (22 NYCRR 1200.0). In September and October 2010, the Grievance Committee, sua sponte, commenced investigations against the respondent upon receipt of four separate dishonored check reports regarding the respondent’s IOLA account from the Lawyers’ Fund for Client Protection. Although he was forwarded copies of the reports and directed to submit written answers within 20 days of receipt, along with six months of specified bookkeeping records from his IOLA account, the respondent failed to provide the requested written answers to these matters, and failed to provide the requested bookkeeping records. The respondent was advised with each copy of the report that was sent that unexcused failure to submit an answer, or failure to produce the requested records, would constitute professional misconduct, independent of the merits of the underlying complaint.
By letter dated January 8, 2011, the respondent requested a 90-day continuance to prepare the specified bookkeeping rec*143ords. By letter dated January 11, 2011, the Grievance Committee directed the respondent to appear at its offices for an examination under oath on February 3, 2011, with regard to the aforementioned matters. He also was directed to bring a written answer and all previously requested records and documents.
Charge four alleges that the respondent converted guardianship funds entrusted to him as a fiduciary, incident to his practice of law, to his own use and benefit, in violation of rules 1.15 (a) and (b) and 8.4 (h) of the Rules of Professional Conduct (22 NYCRR 1200.0). On September 5, 2007, Gwendolyn L. Knight was appointed to serve as guardian of the person and property for her uncle, Wilbur Earl Durham, an incapacitated person. On or about February 6, 2008, Ms. Knight gave the respondent a check in the amount of $33,667, drawn on the guardianship account she maintained on behalf of Mr. Durham. These funds were intended to pay Mr. Durham’s nursing home bill. The memo portion of the check states, “Wilbur Durham, Highland Care.” On February 7, 2008, the respondent deposited this check into his law office’s business checking account, at Commerce Bank (now TD Bank). Thereafter, the respondent used these funds for his own personal purposes, without Ms. Knight’s knowledge or consent.
The respondent mostly denied the allegations and denied the charges, but elected not to appear at the hearing, leaving only his attorney to make an appearance. His attorney, however, called no witnesses and presented no evidence on the respondent’s behalf.
Based on the evidence adduced, the Special Referee properly sustained all of the charges. Accordingly, the Grievance Committee’s motion to confirm the Special Referee’s report is granted.
With respect to prior disciplinary history, the respondent was admonished on May 28, 2009, for engaging in an impermissible conflict of interest, for failing to safeguard funds that were entrusted to him as a fiduciary, and for failing to adequately supervise the accounting work he had delegated to a family member.
Under the totality of circumstances, in particular, the respondent’s flagrant noncooperation with the Grievance Committee, as demonstrated by his nonappearance at the hearing, failure to produce any requested records, and failure to appear at scheduled examinations under oath, and his misappropriation of escrowed funds for personal use, the respondent is disbarred, effective immediately.
*144The respondent has communicated through his attorney that he does not contest his disbarment.
Eng, P.J., Mastro, Rivera, Skelos and Dickerson, JJ., concur.
Ordered that the petitioner’s motion to confirm the Special Referee’s report is granted; and it is further,
Ordered that the respondent, Colvin C. Goddard, admitted as Colvin Cleon Goddard, is disbarred, effective immediately, and his name is stricken from the roll of attorneys and counselors-at-law; and it is further,
Ordered that the respondent, Colvin C. Goddard, admitted as Colvin Cleon Goddard, shall continue to 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, effective immediately, the respondent, Colvin C. Goddard, admitted as Colvin Cleon Goddard, shall continue to 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, Colvin C. Goddard, admitted as Colvin Cleon Goddard, 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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01-13-2022
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5234
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT JOHNSON, a/k/a Robert Leslie, a/k/a Lavon White,
a/k/a Dre,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:08-cr-00084-FDW-1)
Submitted: January 18, 2011 Decided: January 25, 2011
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Johnson pled guilty, pursuant to a written plea
agreement, to conspiracy to possess with intent to distribute
and to distribute fifty grams or more of a mixture and substance
containing a detectable amount of cocaine base, in violation of
21 U.S.C. § 846 (2006). The district court granted the
Government’s substantial assistance motion and sentenced Johnson
to 168 months’ imprisonment. Counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), in which he asserts
there are no meritorious issues for appeal but questions the
reasonableness of Johnson’s sentence. Johnson was notified of
his right to file a pro se supplemental brief, but he has not
done so. Finding no error, we affirm.
Appellate review of a sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” is for
abuse of discretion. Gall v. United States, 552 U.S. 38, 41
(2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id. at
51. This court must assess whether the district court properly
calculated the advisory Guidelines range, considered the 18
U.S.C. § 3553(a) (2006) factors, analyzed any arguments
presented by the parties, and sufficiently explained the
selected sentence. Id. at 49-50; see also United States v.
Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (“[A]n individualized
2
explanation must accompany every sentence.”); United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009). We may presume a
sentence imposed within the properly calculated Guidelines range
is reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212,
217 (4th Cir. 2010).
We have reviewed the record with these standards in
mind. Our examination leads us to conclude that Johnson’s
sentence is procedurally and substantively sound. Therefore,
the district court did not abuse its discretion in imposing the
chosen sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Johnson, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Johnson requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Johnson. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
3
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01-26-2011
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PER CURIAM.
Order affirmed, with $10 costs and disbursements. Held, it appearing that the expenditures authorized were very prop£ly 3°®e whi?h seem,.t0 be.necessary f°r the safe and present operation of the railroad> and *at the value of the lien of the apPlants -will not be materially affected thereby, concur in the direction exercised by the Special lerm.
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09-09-2022
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Appeal by the People from an order of the County Court, Nassau County (Delin, J.), dated May 1, 1987, which, after a hearing, granted that branch of the defendant’s omnibus motion which was to suppress physical evidence.
Ordered that the order is reversed, on the law and the facts, and that branch of the defendant’s omnibus motion which was to suppress physical evidence is denied.
On July 31, 1986, at about 11:30 A.M., Police Officer Dennis Sharp was working in plain clothes in an unmarked car and pulled into the parking lot of Centennial Avenue Park in Roosevelt, Long Island. He observed several people in the immediate area and one person, the defendant, standing about 100 feet away. The defendant was seen to stand up and crouch down repeatedly in a short period of time and to be holding a small black change purse. As the officer approached the defendant, someone in the park shouted a phrase which indicated that police were in the area. At that point, the defendant snapped the purse shut and placed it under the side of a rock and walked about 100 feet away from it. Officer Sharp walked to the rock, picked the purse up and, looking inside, found several small plastic vials containing cocaine. A marked police car pulled up to the area and the defendant immediately walked away towards the exit. Officer Sharp walked up to the defendant and placed him under arrest.
We find the seizure to have been proper on the ground of abandonment. The fact that the defendant placed the purse under the side of a rock does not preclude such a finding (see, People v Williams, 123 AD2d 652, 653, lv denied 69 NY2d *639718). The actions of the defendant indicated a deliberate intent to divest himself of possession of the purse (see, People v Brown, 40 AD2d 527) and were not the result of any illegal or coercive police conduct. Rather, it was an independent act involving a calculated risk that the item would be retrieved (see, People v Prewitt, 120 AD2d 551, 552; People v Ford, 82 AD2d 923, 924; see also, People v Boodle, 47 NY2d 398, 404, cert denied 444 US 969). Inasmuch as the purse containing the cocaine had been abandoned by the defendant, that branch of his omnibus motion which was to suppress physical evidence should have been denied (see, People v Fraumeni, 108 AD2d 756; People v Brown, supra). Lawrence, J. P., Kunzeman, Kooper and Spatt, JJ., concur.
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OPINION OF THE COURT
Per Curiam.
The Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts (hereinafter the Grievance Committee) served the respondent with a petition dated April 27, 2011, containing four charges of professional misconduct. After a prehearing conference on January 12, 2012, and a hearing on January 26, 2012, the Special Referee issued a report, which sustained all of the charges. The Grievance Committee now moves to confirm the Special Referee’s report and impose such discipline upon the respondent as the Court deems just and proper. Although afforded an opportunity to respond to the motion, the respondent has not submitted any papers.
Charge one alleges that the respondent failed to cooperate with a legitimate investigation by the Grievance Committee into a complaint of professional misconduct, in violation of rule 8.4 (d) and (h) of the Rules of Professional Conduct (22 NYCRR 1200.0). On October 19, 2009, the Grievance Committee received a complaint of professional misconduct from Ruby Harrison against the respondent regarding an estate matter. By letter dated November 9, 2009, a copy of the complaint was forwarded to the respondent. He was directed to submit an answer within 10 days of receipt of the letter, and was advised that an unexcused failure to submit an answer would constitute professional misconduct, independent of the merits of the underlying complaint. The respondent submitted a written answer dated February 19, 2010, to the Harrison complaint.
By letter dated April 22, 2010, sent to the respondent’s then attorney, Alfred Toussaint, Esq., the Grievance Committee requested certain documents and bank records relating to the underlying estate matter in the complaint. The respondent was *141thereafter directed to appear at the offices of the Grievance Committee on June 4, 2010, for an examination under oath. On June 4, 2010, Mr. Toussaint appeared without the respondent. None of the requested documents were produced.
By letter to Mr. Toussaint dated July 26, 2010, the respondent was directed to appear at the Grievance Committee’s offices on August 16, 2010, to be examined under oath about the Harrison complaint. In a letter to the Grievance Committee dated July 27, 2010, the respondent stated that he was returning to Barbados in the immediate future “to undergo a surgical procedure.” Consequently, the examination under oath was rescheduled for October 21, 2010. On October 20, 2010, the Grievance Committee received a letter from the respondent, faxed by Mr. Toussaint, stating that the surgical procedure had been rescheduled for November 15, 2010. The respondent failed to appear for examination on October 21, 2010.
By letter to Mr. Toussaint dated January 3, 2011, the respondent was directed to provide the previously requested documents and bank records on or before January 12, 2011. He was also directed to provide proof of travel outside the United States in June 2010. The respondent failed to do so. In or about January 2011, Mr. Toussaint withdrew as counsel for the respondent.
By letter dated January 14, 2011, the Grievance Committee directed the respondent to appear at its offices for an examination under oath on February 3, 2011. On February 2, 2011, the respondent hand delivered to the Grievance Committee a notice of appearance from Stacey-Ann Harris, Esq. By letter dated February 4, 2011, the Grievance Committee rescheduled the examination under oath to February 10, 2011. On that date, Ms. Harris appeared without the respondent. At Ms. Harris’s request, the examination was again adjourned to February 17, 2011. On February 17, 2011, the respondent appeared at the Grievance Committee’s offices and handed a paper to Ms. Harris and then left without being examined and without providing an explanation for his departure.
Charge two alleges that the respondent failed to cooperate with a legitimate investigation by the Grievance Committee into a complaint of professional misconduct, in violation of rule 8.4 (d) and (h) of the Rules of Professional Conduct (22 NYCRR 1200.0). On December 17, 2010, the Grievance Committee received a complaint of professional misconduct from Gwendolyn L. Knight. By letter dated January 5, 2011, a copy of the *142complaint was forwarded to the respondent. He was directed to submit an answer within 10 days of receipt of the letter, and was advised that an unexcused failure to submit an answer, or otherwise cooperate in the matter, would constitute professional misconduct, independent of the merits of the underlying complaint.
By letter dated January 14, 2011, the Grievance Committee directed the respondent to appear at its offices for an examination under oath on February 3, 2011. By that same letter, the respondent was directed to provide documentation regarding the whereabouts of $33,667 that had been entrusted to him by Ms. Knight, on or before February 3, 2011. The respondent failed to provide the requested documentation. On February 2, 2011, the respondent hand delivered to the Grievance Committee a notice of appearance from Stacey-Ann Harris, Esq. By letter dated February 4, 2011, the Grievance Committee rescheduled the examination under oath to February 10, 2011. On that date, Ms. Harris appeared without the respondent. At Ms. Harris’s request, the examination was again adjourned to February 17, 2011. On February 17, 2011, the respondent appeared at the Grievance Committee’s offices and handed his written answer to the Knight complaint to Ms. Harris. The respondent then immediately left without being examined and without providing an explanation for his departure.
Charge three alleges that the respondent failed to cooperate with legitimate investigations by the Grievance Committee into a complaint of professional misconduct, in violation of rule 8.4 (d) and (h) of the Rules of Professional Conduct (22 NYCRR 1200.0). In September and October 2010, the Grievance Committee, sua sponte, commenced investigations against the respondent upon receipt of four separate dishonored check reports regarding the respondent’s IOLA account from the Lawyers’ Fund for Client Protection. Although he was forwarded copies of the reports and directed to submit written answers within 20 days of receipt, along with six months of specified bookkeeping records from his IOLA account, the respondent failed to provide the requested written answers to these matters, and failed to provide the requested bookkeeping records. The respondent was advised with each copy of the report that was sent that unexcused failure to submit an answer, or failure to produce the requested records, would constitute professional misconduct, independent of the merits of the underlying complaint.
By letter dated January 8, 2011, the respondent requested a 90-day continuance to prepare the specified bookkeeping rec*143ords. By letter dated January 11, 2011, the Grievance Committee directed the respondent to appear at its offices for an examination under oath on February 3, 2011, with regard to the aforementioned matters. He also was directed to bring a written answer and all previously requested records and documents.
Charge four alleges that the respondent converted guardianship funds entrusted to him as a fiduciary, incident to his practice of law, to his own use and benefit, in violation of rules 1.15 (a) and (b) and 8.4 (h) of the Rules of Professional Conduct (22 NYCRR 1200.0). On September 5, 2007, Gwendolyn L. Knight was appointed to serve as guardian of the person and property for her uncle, Wilbur Earl Durham, an incapacitated person. On or about February 6, 2008, Ms. Knight gave the respondent a check in the amount of $33,667, drawn on the guardianship account she maintained on behalf of Mr. Durham. These funds were intended to pay Mr. Durham’s nursing home bill. The memo portion of the check states, “Wilbur Durham, Highland Care.” On February 7, 2008, the respondent deposited this check into his law office’s business checking account, at Commerce Bank (now TD Bank). Thereafter, the respondent used these funds for his own personal purposes, without Ms. Knight’s knowledge or consent.
The respondent mostly denied the allegations and denied the charges, but elected not to appear at the hearing, leaving only his attorney to make an appearance. His attorney, however, called no witnesses and presented no evidence on the respondent’s behalf.
Based on the evidence adduced, the Special Referee properly sustained all of the charges. Accordingly, the Grievance Committee’s motion to confirm the Special Referee’s report is granted.
With respect to prior disciplinary history, the respondent was admonished on May 28, 2009, for engaging in an impermissible conflict of interest, for failing to safeguard funds that were entrusted to him as a fiduciary, and for failing to adequately supervise the accounting work he had delegated to a family member.
Under the totality of circumstances, in particular, the respondent’s flagrant noncooperation with the Grievance Committee, as demonstrated by his nonappearance at the hearing, failure to produce any requested records, and failure to appear at scheduled examinations under oath, and his misappropriation of escrowed funds for personal use, the respondent is disbarred, effective immediately.
*144The respondent has communicated through his attorney that he does not contest his disbarment.
Eng, P.J., Mastro, Rivera, Skelos and Dickerson, JJ., concur.
Ordered that the petitioner’s motion to confirm the Special Referee’s report is granted; and it is further,
Ordered that the respondent, Colvin C. Goddard, admitted as Colvin Cleon Goddard, is disbarred, effective immediately, and his name is stricken from the roll of attorneys and counselors-at-law; and it is further,
Ordered that the respondent, Colvin C. Goddard, admitted as Colvin Cleon Goddard, shall continue to 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, effective immediately, the respondent, Colvin C. Goddard, admitted as Colvin Cleon Goddard, shall continue to 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, Colvin C. Goddard, admitted as Colvin Cleon Goddard, 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 from a judgment of the County Court, Suffolk County (Namm, J.), rendered September 1, 1983, convicting him of assault in the first degree, robbery in the first degree, and attempted robbery in the first degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that Stanley J. Krawitz is relieved as attorney for the defendant and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,
Ordered that Alan Schneier, of 115 South Corona Avenue, Valley Stream, New York, 11580, is assigned as counsel to perfect the appeal; and it is further,
Ordered that the People are directed to furnish a copy of the stenographic minutes to the new assigned counsel; and it is further,
Ordered that new counsel shall serve and file a brief on behalf of the defendant within 90 days of the date of this decision and order and the People shall serve and file their brief within 120 days of the date of this decision and order; by prior decision and order of this court, the defendant was granted leave to prosecute the appeal on the original papers (including the typewritten stenographic minutes) and on the typewritten briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.
Although the defendant in his pro se supplemental brief argues that his warrantless arrest was unlawful and the statements he made to the police should have been suppressed, assigned counsel submitted a brief on behalf of the defendant in which he addressed the identical issue including *640that certain police conduct was lawful and that statements made by the defendant to law enforcement authorities were properly admitted into evidence at trial. Moreover, assigned counsel maintained that the only meritorious issue which could be raised on the appeal pertained to an erroneous charge by the court, which was rendered moot, and he requested that he be relieved of his assignment since the appeal was wholly frivolous and without merit.
As the Court of Appeals noted in its recent decision in People v Vasquez (70 NY2d 1, 4, rearg denied 70 NY2d 748), counsel thereby disparaged a claim that his client wanted addressed "and for all practical purposes, precluded his client [if he was so advised] from presenting [it] effectively in a pro se brief’. Accordingly, new counsel must be assigned. Lawrence, J. R, Kunzeman, Kooper and Spatt, JJ., concur.
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldman, J.), rendered September 18, 1984, convicting her of criminal sale of a controlled substance in the third degree, upon her plea of guilty, and imposing sentence.
Ordered that the judgment is 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 and Sullivan, JJ., concur.
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*147OPINION OF THE COURT
McCarthy, J.
In 2008, in an effort to reduce traffic congestion, pollution and abuse of parking permits and to encourage the use of public transportation, petitioner City of New York enacted a city-wide plan to reduce the number of parking permits issued to municipal employees for parking on city streets. Prior to enactment of this plan, all employees of the Department of Education of the City of New York (hereinafter DOE), including custodian engineers employed by petitioner Board of Education of the City School District of the City of New York (hereinafter the Board), would apply for parking permits through DOE. The applications were routinely granted. In the 2007-2008 school year, DOE produced more than 63,000 parking permit placards that it issued to DOE employees. Those DOE placards could be used for any of the 10,007 on-street parking spaces marked with signs by the Department of Transportation of the City of New York (hereinafter DOT) exclusively for DOE employees, or any of the 15,060 off-street parking spaces located on DOE property. Possession of a placard did not guarantee a parking space, but permitted a person to park in a space if one could be found. Not every school building had both on-street and off-street parking, and approximately 280 buildings had no parking at all.
After the plan was enacted, DOT was responsible for issuing all parking permits for on-street parking city-wide.1 The former DOE placards would no longer be considered valid for parking on city streets. In the fall of 2008, DOT provided DOE with 10,007 placards, one for each parking space on city streets that was marked with a sign for DOE employee use. The new parking permits are also site-specific, so they can only be used for parking spaces in proximity to a specific school building, rather than city-wide. DOT also issued DOE approximately 1,000 three-hour parking placards that could be used for on-street parking associated with agency business anywhere in the city. Under the new rules, most of the custodian engineers who applied to DOE for parking permits were denied.
Respondent Local 891, International Union of Operating Engineers, AFL-CIO (hereinafter Local 891), the union representing custodian engineers employed by the Board,2 filed an improper practice charge with respondent Public Employment
*148Relations Board (hereinafter PERB) alleging that the Board unilaterally changed a condition of employment by eliminating the automatic grant of parking permits (see Civil Service Law § 209-a [1] [d]). Following a hearing, an Administrative Law Judge (hereinafter ALJ) determined that free parking was a term and condition of employment that was a mandatory subject of bargaining and could not be unilaterally altered. The ALJ found that the Board committed an improper practice and ordered it to post a notice, restore to Local 891 members the practice of granting parking permits upon request and make members whole for wages or benefits lost as a result of the improper practice. The Board appealed and PERB affirmed the ALJ’s decision. Petitioners commenced this proceeding seeking to annul PERB’s decision. PERB counterclaimed seeking enforcement of its remedial order. Supreme Court dismissed the petition and granted PERB’s counterclaim. The court later denied petitioners’ request for reconsideration. Petitioners appeal.
Supreme Court properly determined that the City did not have standing to bring this proceeding. Civil Service Law § 213 (a) permits review of PERB orders “by an aggrieved party.” Petitioners concede that the City and the Board are separate legal entities (see Perez v City of New York, 41 AD3d 378, 379 [2007], lv denied 10 NY3d 708 [2008]). The City was not a party to the PERB proceeding. Respondents contend that the City could have intervened, but the regulation only permits intervention by public employees, a union acting on their behalf or a public employer (see 4 NYCRR 212.1 [a]). It is unclear whether the City could have intervened under that regulation because, despite being a public employer in general, it was not the employer of the employees who filed the grievance at issue (see Education Law § 2590-g [2]). Regardless of whether the City could have been a party in the administrative proceeding, it was not “an aggrieved party” because PERB’s order did not make any findings against the City or order it to do anything.3 Thus, the City did not have standing to commence a proceeding seeking to annul PERB’s decision and Supreme Court properly dismissed the portion of the petition brought by the City.
In reviewing a PERB determination, courts assess whether it is supported by substantial evidence, which depends *149on whether there is a rational basis in the record to support the underlying findings (see Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d 1231, 1233-1234 [2009]; Matter of Romaine v Cuevas, 305 AD2d 968, 969 [2003]). We accord PERB “deference in matters falling within its area of expertise, including the resolution of improper practice charges” and will not “disturb its determination unless irrational” (Matter of Poughkeepsie Professional Firefighters’ Assn., Local 596, IAFF, AFL-CIO-CLC v New York State Pub. Empl. Relations Bd., 6 NY3d 514, 522 [2006]). An order devised by PERB to remedy an improper practice should be upheld it if can be reasonably applied (see Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d at 1234-1235).
It is undisputed that free parking is a term and condition of employment and the proof established that DOE provided parking permits to Local 891’s members upon request for more than 30 years, creating a past practice that must be continued unless altered through the collective bargaining process. It is also undisputed that the Board stopped issuing parking permits to custodian engineers upon their request, and changed the method of distributing parking permits without negotiating with Local 891. The Board argues that this was not an improper practice, however, because the Board contends that it had no control over this change that was imposed upon it by the City, and therefore had no power to negotiate anything regarding this parking permit situation. The power to regulate traffic and parking on city streets is expressly delegated to the City (see NY Const, art IX, § 2 [a], [c] [6]; Vehicle and Traffic Law §§ 1640 [a] [6]; 1642 [a] [2]; Municipal Home Rule Law § 10 [1] [ii] [a] [6]; Matter of Council of School Supervisors & Adm’rs, Local 1, Am. Fedn. of School Adm’rs, AFL-CIO v New York City Dept, of Educ., 87 AD3d 883, 885 [2011], lv denied 19 NY3d 803 [2012]). The relevant questions for us to address are whether the Board had any control over the change in producing and distributing parking permits and whether PERB intruded on an area under the authority of the City or its DOT.
We agree with PERB that the Board did have control over some aspects of the new parking permit situation. DOT produced and provided to DOE 10,007 site-specific placards and 1,000 three-hour permits for on-street parking. According to the record, including testimony from the Board’s own witness, DOE had control over those placards once they were issued to it by *150DOT. DOT had no control over, and did not dictate any conditions for, how those placards would be distributed by DOE. DOE could have distributed, from the 10,007 on-street placards it received from DOT, a site-specific placard to any custodian engineer who worked at a building with identified on-street parking. DOT had no authority over, and DOE had complete control over, the 15,060 off-street parking spaces located on DOE’s own property. DOE could have produced more off-street parking permits than it had off-street spaces and distributed the permits to any staff members, including custodian engineers, with no guarantee of a parking space.4 This would have continued the prior practice, at least as far as off-street parking spaces are concerned. While this may not have supported the plan of the City’s Mayor and its goals of reducing pollution, congestion and permit abuse and encouraging use of public transportation, DOE is a separate legal entity from the City and is not directly obligated to further the Mayor’s initiatives (but see Matter of Council of School Supervisors & Adm’rs, Local 1, Am. Fedn. of School Adm’rs, AFL-CIO v New York City Dept, of Educ., 87 AD3d at 886). Thus, DOE could have continued to issue parking permits to custodian engineers despite the changes imposed upon it by the City. DOE could have done so without requiring the City or DOT to issue more permits for on-street parking, and would not have intruded on their constitutional and statutory authority to regulate parking on city streets.
The Board further argues that it could not choose any manner it desired to distribute placards, but was required to adhere to the method included in an agreement between the Mayor and the United Federation of Teachers (hereinafter UFT), the union representing teachers employed by the Board (compare Matter of Germantown Cent. School Dist. v Public Empl. Relations Bd. of State of N.Y., 205 AD2d 961, 963 [1994]). That agreement provided that DOE would produce the same number of off-street permits as it had off-street parking spaces. It also provided that in issuing both on-street and off-street parking permits, principals and UFT chapter leaders from each building must choose one of three distribution methods: “(1) assignment to individual staff; (2) pooling of placards for use each day; or (3) *151some combination of these two options.” If the principals and UFT representatives could not agree, the default method was for the principal to receive one placard and the remainder would be pooled and available to all building staff on a first come, first served basis each day. As part of this agreement, UFT held in abeyance its grievance over the parking permit situation.
The record is unclear as to how the Mayor’s office became involved in negotiations and reached an agreement with UFT. That union represents employees of the Board (see Education Law § 2590-g [2]), which is a separate public employer from the City (see Perez v City of New York, 41 AD3d at 379), and the City has no employment relationship with UFT’s members. Under the circumstances, the Mayor and the City do not appear to have had any authority to enter into an agreement with UFT. The Board’s witness acknowledged that DOE did not have any agreement with UFT on the parking issue. Although its failure to abide by that agreement may result in a grievance by UFT, DOE is not bound by an agreement entered into by an unauthorized third party with a union representing DOE’s employees (compare Matter of Hirsch v Hirsch, 4 AD3d 451, 453 [2004]). DOE could have negotiated with Local 891 concerning the change in parking permit distribution. By deferring to the agreement between the Mayor and UFT rather than engaging in negotiations with Local 891 or any other unions, DOE impermissibly preferred one union—presumably the one representing the largest number of its employees—over the others. PERB correctly held that this constituted an improper practice (see Civil Service Law § 209-a [1] [d]). Based on the record before us, the remedy of requiring DOE to restore the practice of granting Local 891 members a parking permit upon request—as described above—can be reasonably applied (compare Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d at 1235).
Contrary to the Board’s assertion, the recent decision in Matter of Council of School Supervisors & Adm’rs, Local 1, Am. Fedn. of School Adm’rs, AFL-CIO v New York City Dept. of Educ. (87 AD3d 883 [2011], supra) is not controlling. The facts and legal discussion indicate that the First Department addressed only permits for on-street parking, while this case deals with permits for on-street and off-street parking. This factual difference is supported by the record, because Local 891 presented proof regarding the 15,060 off-street parking spaces and DOE’s authority to issue permits for them without restriction from *152outside agencies such as DOT. Additionally, the arbitrator’s award in that case required DOE to ‘‘return[ ] all parking permits previously held by [the union’s] bargaining unit members” (id. at 884). That award at least appeared to require DOE to give some employees parking permits that did not distinguish between on-street and off-street parking, as was the situation with the previous DOE-produced permits, which would not be recognized as valid and could result in the users receiving parking tickets if they parked on city streets. In this case, PERB required DOE to restore the practice of granting Local 891’s members a parking permit upon request, but it does not state that the permits must be exactly the same as the prior permits. To the extent that the First Department found irrational the union’s argument that the underlying determination did not violate the City’s and DOT’s authority to regulate traffic and parking because DOT issued approximately 10,000 on-street permits and DOE was simply allocating them, we disagree (see id. at 886). PERB’s order directs DOE to provide Local 981 members—at most 950 employees—with parking permits from among the 10,007 site-specific and 1,000 three-hour on-street permits issued by DOT and provided to DOE and the 15,060 (or more if DOE chooses to produce more) off-street permits that DOE produced. This order does not infringe on the City’s and DOT’s authority over parking on city streets and is not irrational.
Supreme Court did not err in denying petitioners’ motion to renew. Motions for leave to renew are left to the sound discretion of the trial court (see Johnson v State of New York, 95 AD3d 1455, 1456 [2012]; Abrams v Berelson, 94 AD3d 782, 787-788 [2012], appeal dismissed 19 NY3d 949 [2012]). Renewal can be based upon, among other things, “a change in the law that would change the prior determination” (CPLR 2221 [e] [2]). The First Department’s reversal of the trial court decision in Matter of Council of School Supervisors & Adm’rs, Local 1, Am. Fedn. of School Adm’rs, AFL-CIO v New York City Dept. of Educ. (supra) did constitute a change in the law, especially considering that Supreme Court here referred to and relied upon that trial court decision. But considering our analysis of the appellate decision in that case and our determination that it is not controlling here, we cannot say that Supreme Court erred in finding that this change in the law would not change its prior determination (see 515 Ave. I Corp. v 515 Ave. I Tenants Corp., 44 AD3d 707, 708 [2007]). Thus, the court did not abuse its discretion in denying the motion to renew.
*153Rose, J.E, Lahtinen, Spain and Kavanagh, JJ., concur. Ordered that the judgment and order are affirmed, without costs.
. Although not relevant here, the New York City Police Department was also authorized to issue parking permits, mainly to law enforcement agencies.
. The Board employs approximately 950 custodian engineers.
. The City also would not qualify to intervene as of right in this Court proceeding because, due to the PERB decision not ordering the City to do anything, it would not be bound by any judgment (see CPLR 1012 [a] [2]).
. If a custodian engineer works in one of the 280 buildings that has no on-street or off-street parking, issuing a permit for off-street parking would leave him or her in the same position as under the old procedure, with a permit that provides no direct benefit at that particular building, but may be useful if he or she must travel to another building that does have off-street parking and may have an available parking space.
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Appeal by the petitioner from so much of an order of the Family Court, Dutchess County (Bernhard, J.), dated October 19, 1987, as granted the respondent unsupervised visitation with his children and granted custody of the children to the respondent.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements, for reasons stated in the decision of Judge Bernhard.
We note that, as a result of this court’s order, dated Novem*641ber 12, 1987, the provisions of the order appealed from which established a period of transition for the return of the children from placement with the appellant to the respondent were stayed. The order of placement with the appellant expires on February 10, 1988. It has come to our attention, however, that there is presently pending before the Family Court, Dutchess County, an application for a further extension of placement. The court, in that proceeding, may, if the circumstances warrant, provide for a further period of transition by extending the placement for such time as is necessary to accomplish that result. We also note that we find Judge Bernhard’s initial determination with respect to a period of transition to have been prudent and wise. Brown, J. P., Rubin, Fiber and Sullivan, JJ., concur.
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Application by Sheldon Joel Sanders, a disbarred attorney and counselor-at-law, for reinstatement to the Bar of the State of New York.
Upon the papers filed in support of the application and the papers filed in opposition thereto, it is
Ordered that the application is denied. Mollen, P. J., Mangano, Thompson, Brown and Rubin, JJ., concur.
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*147OPINION OF THE COURT
McCarthy, J.
In 2008, in an effort to reduce traffic congestion, pollution and abuse of parking permits and to encourage the use of public transportation, petitioner City of New York enacted a city-wide plan to reduce the number of parking permits issued to municipal employees for parking on city streets. Prior to enactment of this plan, all employees of the Department of Education of the City of New York (hereinafter DOE), including custodian engineers employed by petitioner Board of Education of the City School District of the City of New York (hereinafter the Board), would apply for parking permits through DOE. The applications were routinely granted. In the 2007-2008 school year, DOE produced more than 63,000 parking permit placards that it issued to DOE employees. Those DOE placards could be used for any of the 10,007 on-street parking spaces marked with signs by the Department of Transportation of the City of New York (hereinafter DOT) exclusively for DOE employees, or any of the 15,060 off-street parking spaces located on DOE property. Possession of a placard did not guarantee a parking space, but permitted a person to park in a space if one could be found. Not every school building had both on-street and off-street parking, and approximately 280 buildings had no parking at all.
After the plan was enacted, DOT was responsible for issuing all parking permits for on-street parking city-wide.1 The former DOE placards would no longer be considered valid for parking on city streets. In the fall of 2008, DOT provided DOE with 10,007 placards, one for each parking space on city streets that was marked with a sign for DOE employee use. The new parking permits are also site-specific, so they can only be used for parking spaces in proximity to a specific school building, rather than city-wide. DOT also issued DOE approximately 1,000 three-hour parking placards that could be used for on-street parking associated with agency business anywhere in the city. Under the new rules, most of the custodian engineers who applied to DOE for parking permits were denied.
Respondent Local 891, International Union of Operating Engineers, AFL-CIO (hereinafter Local 891), the union representing custodian engineers employed by the Board,2 filed an improper practice charge with respondent Public Employment
*148Relations Board (hereinafter PERB) alleging that the Board unilaterally changed a condition of employment by eliminating the automatic grant of parking permits (see Civil Service Law § 209-a [1] [d]). Following a hearing, an Administrative Law Judge (hereinafter ALJ) determined that free parking was a term and condition of employment that was a mandatory subject of bargaining and could not be unilaterally altered. The ALJ found that the Board committed an improper practice and ordered it to post a notice, restore to Local 891 members the practice of granting parking permits upon request and make members whole for wages or benefits lost as a result of the improper practice. The Board appealed and PERB affirmed the ALJ’s decision. Petitioners commenced this proceeding seeking to annul PERB’s decision. PERB counterclaimed seeking enforcement of its remedial order. Supreme Court dismissed the petition and granted PERB’s counterclaim. The court later denied petitioners’ request for reconsideration. Petitioners appeal.
Supreme Court properly determined that the City did not have standing to bring this proceeding. Civil Service Law § 213 (a) permits review of PERB orders “by an aggrieved party.” Petitioners concede that the City and the Board are separate legal entities (see Perez v City of New York, 41 AD3d 378, 379 [2007], lv denied 10 NY3d 708 [2008]). The City was not a party to the PERB proceeding. Respondents contend that the City could have intervened, but the regulation only permits intervention by public employees, a union acting on their behalf or a public employer (see 4 NYCRR 212.1 [a]). It is unclear whether the City could have intervened under that regulation because, despite being a public employer in general, it was not the employer of the employees who filed the grievance at issue (see Education Law § 2590-g [2]). Regardless of whether the City could have been a party in the administrative proceeding, it was not “an aggrieved party” because PERB’s order did not make any findings against the City or order it to do anything.3 Thus, the City did not have standing to commence a proceeding seeking to annul PERB’s decision and Supreme Court properly dismissed the portion of the petition brought by the City.
In reviewing a PERB determination, courts assess whether it is supported by substantial evidence, which depends *149on whether there is a rational basis in the record to support the underlying findings (see Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d 1231, 1233-1234 [2009]; Matter of Romaine v Cuevas, 305 AD2d 968, 969 [2003]). We accord PERB “deference in matters falling within its area of expertise, including the resolution of improper practice charges” and will not “disturb its determination unless irrational” (Matter of Poughkeepsie Professional Firefighters’ Assn., Local 596, IAFF, AFL-CIO-CLC v New York State Pub. Empl. Relations Bd., 6 NY3d 514, 522 [2006]). An order devised by PERB to remedy an improper practice should be upheld it if can be reasonably applied (see Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d at 1234-1235).
It is undisputed that free parking is a term and condition of employment and the proof established that DOE provided parking permits to Local 891’s members upon request for more than 30 years, creating a past practice that must be continued unless altered through the collective bargaining process. It is also undisputed that the Board stopped issuing parking permits to custodian engineers upon their request, and changed the method of distributing parking permits without negotiating with Local 891. The Board argues that this was not an improper practice, however, because the Board contends that it had no control over this change that was imposed upon it by the City, and therefore had no power to negotiate anything regarding this parking permit situation. The power to regulate traffic and parking on city streets is expressly delegated to the City (see NY Const, art IX, § 2 [a], [c] [6]; Vehicle and Traffic Law §§ 1640 [a] [6]; 1642 [a] [2]; Municipal Home Rule Law § 10 [1] [ii] [a] [6]; Matter of Council of School Supervisors & Adm’rs, Local 1, Am. Fedn. of School Adm’rs, AFL-CIO v New York City Dept, of Educ., 87 AD3d 883, 885 [2011], lv denied 19 NY3d 803 [2012]). The relevant questions for us to address are whether the Board had any control over the change in producing and distributing parking permits and whether PERB intruded on an area under the authority of the City or its DOT.
We agree with PERB that the Board did have control over some aspects of the new parking permit situation. DOT produced and provided to DOE 10,007 site-specific placards and 1,000 three-hour permits for on-street parking. According to the record, including testimony from the Board’s own witness, DOE had control over those placards once they were issued to it by *150DOT. DOT had no control over, and did not dictate any conditions for, how those placards would be distributed by DOE. DOE could have distributed, from the 10,007 on-street placards it received from DOT, a site-specific placard to any custodian engineer who worked at a building with identified on-street parking. DOT had no authority over, and DOE had complete control over, the 15,060 off-street parking spaces located on DOE’s own property. DOE could have produced more off-street parking permits than it had off-street spaces and distributed the permits to any staff members, including custodian engineers, with no guarantee of a parking space.4 This would have continued the prior practice, at least as far as off-street parking spaces are concerned. While this may not have supported the plan of the City’s Mayor and its goals of reducing pollution, congestion and permit abuse and encouraging use of public transportation, DOE is a separate legal entity from the City and is not directly obligated to further the Mayor’s initiatives (but see Matter of Council of School Supervisors & Adm’rs, Local 1, Am. Fedn. of School Adm’rs, AFL-CIO v New York City Dept, of Educ., 87 AD3d at 886). Thus, DOE could have continued to issue parking permits to custodian engineers despite the changes imposed upon it by the City. DOE could have done so without requiring the City or DOT to issue more permits for on-street parking, and would not have intruded on their constitutional and statutory authority to regulate parking on city streets.
The Board further argues that it could not choose any manner it desired to distribute placards, but was required to adhere to the method included in an agreement between the Mayor and the United Federation of Teachers (hereinafter UFT), the union representing teachers employed by the Board (compare Matter of Germantown Cent. School Dist. v Public Empl. Relations Bd. of State of N.Y., 205 AD2d 961, 963 [1994]). That agreement provided that DOE would produce the same number of off-street permits as it had off-street parking spaces. It also provided that in issuing both on-street and off-street parking permits, principals and UFT chapter leaders from each building must choose one of three distribution methods: “(1) assignment to individual staff; (2) pooling of placards for use each day; or (3) *151some combination of these two options.” If the principals and UFT representatives could not agree, the default method was for the principal to receive one placard and the remainder would be pooled and available to all building staff on a first come, first served basis each day. As part of this agreement, UFT held in abeyance its grievance over the parking permit situation.
The record is unclear as to how the Mayor’s office became involved in negotiations and reached an agreement with UFT. That union represents employees of the Board (see Education Law § 2590-g [2]), which is a separate public employer from the City (see Perez v City of New York, 41 AD3d at 379), and the City has no employment relationship with UFT’s members. Under the circumstances, the Mayor and the City do not appear to have had any authority to enter into an agreement with UFT. The Board’s witness acknowledged that DOE did not have any agreement with UFT on the parking issue. Although its failure to abide by that agreement may result in a grievance by UFT, DOE is not bound by an agreement entered into by an unauthorized third party with a union representing DOE’s employees (compare Matter of Hirsch v Hirsch, 4 AD3d 451, 453 [2004]). DOE could have negotiated with Local 891 concerning the change in parking permit distribution. By deferring to the agreement between the Mayor and UFT rather than engaging in negotiations with Local 891 or any other unions, DOE impermissibly preferred one union—presumably the one representing the largest number of its employees—over the others. PERB correctly held that this constituted an improper practice (see Civil Service Law § 209-a [1] [d]). Based on the record before us, the remedy of requiring DOE to restore the practice of granting Local 891 members a parking permit upon request—as described above—can be reasonably applied (compare Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d at 1235).
Contrary to the Board’s assertion, the recent decision in Matter of Council of School Supervisors & Adm’rs, Local 1, Am. Fedn. of School Adm’rs, AFL-CIO v New York City Dept. of Educ. (87 AD3d 883 [2011], supra) is not controlling. The facts and legal discussion indicate that the First Department addressed only permits for on-street parking, while this case deals with permits for on-street and off-street parking. This factual difference is supported by the record, because Local 891 presented proof regarding the 15,060 off-street parking spaces and DOE’s authority to issue permits for them without restriction from *152outside agencies such as DOT. Additionally, the arbitrator’s award in that case required DOE to ‘‘return[ ] all parking permits previously held by [the union’s] bargaining unit members” (id. at 884). That award at least appeared to require DOE to give some employees parking permits that did not distinguish between on-street and off-street parking, as was the situation with the previous DOE-produced permits, which would not be recognized as valid and could result in the users receiving parking tickets if they parked on city streets. In this case, PERB required DOE to restore the practice of granting Local 891’s members a parking permit upon request, but it does not state that the permits must be exactly the same as the prior permits. To the extent that the First Department found irrational the union’s argument that the underlying determination did not violate the City’s and DOT’s authority to regulate traffic and parking because DOT issued approximately 10,000 on-street permits and DOE was simply allocating them, we disagree (see id. at 886). PERB’s order directs DOE to provide Local 981 members—at most 950 employees—with parking permits from among the 10,007 site-specific and 1,000 three-hour on-street permits issued by DOT and provided to DOE and the 15,060 (or more if DOE chooses to produce more) off-street permits that DOE produced. This order does not infringe on the City’s and DOT’s authority over parking on city streets and is not irrational.
Supreme Court did not err in denying petitioners’ motion to renew. Motions for leave to renew are left to the sound discretion of the trial court (see Johnson v State of New York, 95 AD3d 1455, 1456 [2012]; Abrams v Berelson, 94 AD3d 782, 787-788 [2012], appeal dismissed 19 NY3d 949 [2012]). Renewal can be based upon, among other things, “a change in the law that would change the prior determination” (CPLR 2221 [e] [2]). The First Department’s reversal of the trial court decision in Matter of Council of School Supervisors & Adm’rs, Local 1, Am. Fedn. of School Adm’rs, AFL-CIO v New York City Dept. of Educ. (supra) did constitute a change in the law, especially considering that Supreme Court here referred to and relied upon that trial court decision. But considering our analysis of the appellate decision in that case and our determination that it is not controlling here, we cannot say that Supreme Court erred in finding that this change in the law would not change its prior determination (see 515 Ave. I Corp. v 515 Ave. I Tenants Corp., 44 AD3d 707, 708 [2007]). Thus, the court did not abuse its discretion in denying the motion to renew.
*153Rose, J.E, Lahtinen, Spain and Kavanagh, JJ., concur. Ordered that the judgment and order are affirmed, without costs.
. Although not relevant here, the New York City Police Department was also authorized to issue parking permits, mainly to law enforcement agencies.
. The Board employs approximately 950 custodian engineers.
. The City also would not qualify to intervene as of right in this Court proceeding because, due to the PERB decision not ordering the City to do anything, it would not be bound by any judgment (see CPLR 1012 [a] [2]).
. If a custodian engineer works in one of the 280 buildings that has no on-street or off-street parking, issuing a permit for off-street parking would leave him or her in the same position as under the old procedure, with a permit that provides no direct benefit at that particular building, but may be useful if he or she must travel to another building that does have off-street parking and may have an available parking space.
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Appeal by the defendant from a judgment of the Supreme Court, Westchester County (McMahon,J.), rendered July 21, 1983, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant’s contention, the sentencing court did not err in adjudicating him a second felony offender based upon his 1971 felony conviction (see, People v Pendergrass, 115 AD2d 497; People v Mangiapane, 87 AD2d 851). Moreover, the court did not abuse its discretion in denying the defendant’s motion to withdraw his guilty plea since the plea minutes demonstrate that the defendant’s claims of coercion and/or misunderstanding were baseless and conclusory (see, People v Kafka, 128 AD2d 895, lv denied 69 NY2d 951; People v Colon, 114 AD2d 967, lv denied 67 NY2d 650). Mollen, P. J., Lawrence, Fiber, Sullivan and Balletta, JJ., concur.
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Appeal by the defendant from a judgment of Supreme Court, Richmond County (Felig, J.), rendered October 15, 1986, convicting him of burglary in the third degree, criminal mischief in the fourth degree, petit larceny, criminal possession of stolen property in the third degree, and possession of burglar’s tools, upon a jury verdict, 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 his statements to law enforcement authorities and physical evidence.
Ordered that the judgment is affirmed.
The police knew that a theater had been burglarized in the early morning hours of December 6, 1985. It had been snowing lightly with an accumulation of about Vie of an inch. The theater safe had been tampered with but not opened and an empty coin box for a video machine was found inside the theater. The officers became aware that access to the theater had been gained through a trap door in the ceiling. The door was bent and ajar. On looking at the roof from the ladder to the trap door, Police Officer Frank LaSpina observed boot tracks coming from and returning to the roof of an adjacent building. The prints were described as being "ridged, had riffles in them, with two circular type designs on the sole and on the heels”. The police then left the theater.
Soon thereafter Officer LaSpina and two other officers saw the defendant on a side street walking towards Hylan Boulevard but took no action. The police then returned to the theater parking lot, and spoke to a taxicab company employee who gave them a description of a man who had passed his taxi stand coming from the direction of the theater shortly before the police first arrived. The description matched the man the police had just seen on the side street. The single track of footprints between the theater and the cab office and at the place the police first saw the defendant had the same distinctive design as those seen on the roof of the theater. The police followed the single set of footprints from the side street for 6 or 7 blocks along Hylan Boulevard until they led directly to the defendant.
The defendant stood at a bus stop on Hylan Boulevard with a shoulder bag on his arm. The police approached and asked him his name and where he had come from. At this time, the defendant would not have been free to run away. The defendant gave his correct name and explained that in returning *776from his girlfriend’s house, intending to go to the ferry, he had mistakenly gotten off the bus and had proceeded to walk the length of Hylan Boulevard to the ferry.
Police Officer LaSpina was not satisfied with the defendant’s answer since he previously had seen the defendant on the side street. During the questioning, the defendant kept moving his shoulder bag which also drew LaSpina’s attention. The defendant was asked what was in the bag to which he responded that the bag contained only clothes. LaSpina, again dissatisfied because he observed there was "weight” to the bag, asked defendant "Do you mind if we look in the bag?”. The defendant then moved the bag to his front and opened it, partially removing clothes. As the clothes came out, the bag collapsed, its contents made a jingling metallic noise, and there was a bulge on the side of the bag that LaSpina took to be the handle of a gun. LaSpina, fearing there was a weapon inside the bag, grabbed the bag and reached in it. Inside the bag was a crowbar, "a whole bunch of quarters”, a screwdriver and a wrench. The defendant was then placed under arrest.
The hearing court found the officer’s testimony credible and on this record there is no reason to question that finding (see, People v Mustafa, 126 AD2d 674, lv denied 69 NY2d 831). We determine that the initial detention and questioning of the defendant was proper since the police had a reasonable suspicion that the defendant was the burglar based on Police Officer LaSpina’s observation that the footprints on the roof of the burglarized theater were of the same type as those which led directly to the defendant at the bus stop (People v Cantor, 36 NY2d 106, 111).
The subsequent seizure of the shoulder bag and its contents was also proper. The defendant voluntarily opened the bag and displayed its contents to the officer (see, People v Meredith, 49 NY2d 1038; cf., People v Gonzalez, 39 NY2d 122). The metallic noises and the appearance of a bulge, warranted the inspection of the bag for a weapon under the circumstances (see, People v Chestnut, 51 NY2d 14, 20-21, cert denied 449 US 1018).
Since the police already knew that the metal trap door had been forced open and the coin box removed from the video machine, the discovery of the crowbar and coins in the defendant’s possession escalated their reasonable suspicion to probable cause that he was the burglar so as to justify the defendant’s arrest (see, People v Bigelow, 66 NY2d 417, 423; People v Holt, 121 AD2d 469, lv denied 68 NY2d 813).
*777The court properly denied suppression of the statements made by the defendant after a valid arrest and the administration of Miranda warnings. Thompson, J. P., Brown, Eiber and Sullivan, JJ., concur.
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Pro ceeding pursuant to Executive Law § 298 to review an order of the New York State Division of Human Rights (hereinafter the division) dated February 13, 1986, which, after a hearing, held that the petitioner had unlawfully discriminated against the complainant based upon his race, and awarded the complainant $15,000 compensatory damages.
Adjudged that the order is modified as a matter of discretion, without costs or disbursements, by deleting the provision awarding the complainant $15,000 compensatory damages, the proceeding is otherwise dismissed, and the matter is remitted to the division for imposition of a new award for compensatory damages which shall not exceed $5,000.
The record reflects that substantial evidence supports the *642determination of the division insofar as it held that the petitioner had intentionally discriminated against the complainant (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 179).
However, we find that the amount of damages awarded by the division for mental anguish was clearly excessive. Therefore, the matter is remitted to the division for the imposition of a new award not to exceed $5,000. Brown,. J. P., Rubin, Eiber and Sullivan, JJ., concur.
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https://www.courtlistener.com/api/rest/v3/opinions/5902489/
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In an action pursuant to RPAPL article 15 to determine title to real property, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Luciano, J.), entered August 29, 1986, which denied its motion for summary judgment, and, upon searching the record, granted the defendant summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The defendant County of Suffolk acquired title to the subject property, formerly owned by the plaintiff, as a result of a tax *645sale due to the nonpayment of real property taxes for the 1972-1973 tax year. Subsequent to the expiration of the three-year period for redemption provided for by Suffolk County Tax Act § 52, the County Treasurer conveyed the property to the defendant by deed dated February 10, 1977.
Approximately nine years later, in January 1986, the plaintiff commenced this action to set aside the tax deed upon the ground that the tax delinquency proceedings which resulted in the tax sale were fatally defective because the County Treasurer did not strictly comply with Real Property Tax Law § 1014 (3) and Suffolk County Tax Act § 52 (1). Specifically, the plaintiff alleged that the notice of redemption, mailed to it on or about June 28, 1976, (1) failed to specify the sum necessary to redeem the property, and (2) was not served at least 14 days prior to the commencement of publication of the notice of unredeemed real estate, which publication was commenced on June 23, 1976. Regardless of the merits of the aforesaid claim, we agree with the Supreme Court that the plaintiff’s action was untimely. Accordingly, it was properly dismissed.
Suffolk County Tax Act § 53 provides that a conveyance by the County Treasurer of real property which has not been redeemed prior to the tax sale shall be presumptive evidence of the propriety of all proceedings prior to the sale. The statute further provides that after the expiration of three years from the date of recording of the tax deed, the presumption of validity "shall be conclusive”. Real Property Tax Law § 1020 (3) creates a similar presumption of validity with respect to prior proceedings, which presumption becomes conclusive two years from the date of recording the conveyance in issue. Both Suffolk County Tax Act § 53 and Real Property Tax Law § 1020 have been interpreted as a bar to actions not brought within their prescribed time limitations (see, Matter of Kantor, 280 App Div 605, 608-609; Kiamesha Dev. Corp. v Guild Props., 4 NY2d 378, 386). Since the deed dated February 10, 1977 was recorded in February 1977 this action, commenced in January 1986 was clearly untimely under both of the aforementioned statutory provisions (see, Terramare Dev. v County of Suffolk, 123 AD2d 317, lv denied 69 NY2d 603). Unlike the two unreported cases upon which plaintiff relies, Pellicane v County of Suffolk (Sup Ct, Suffolk County, Apr. 23, 1984, Underwood, J.) and Tinsley’s Enters, v County of Suffolk (Sup Ct, Suffolk County, June 2, 1982, Gowan, J.), in the instant case, the defendant timely interposed as an affirmative defense the fact that the action was untimely commenced.
Having determined that the action is time barred, we need *646not reach the merits of the plaintiff’s other contentions. Lawrence, J. P., Kunzeman, Kooper 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/5902490/
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In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), entered March 19, 1987, which granted the defendant’s motion to vacate a default judgment.
Ordered that the order is reversed, with costs, and the motion is denied.
The Supreme Court’s granting of the motion to vacate the default judgment was an improvident exercise of discretion. The defendant sought to excuse his approximately 10-month delay in answering by asserting that he was mentally impaired and did not understand the significance of the summons and complaint which were personally served upon him on April 9, 1986. In support of his excuse, the defendant submitted a letter from a social work psychotherapist stating that when the defendant came to him for counseling on October 9, 1986, he was suffering from "clinical depression” which is characterized by a "diminished ability to think, concentrate or make decisions”. However, the psychotherapist did not state an opinion as to how long the defendant had been suffering from depression. The defendant’s claimed lack of understanding is undermined by other uncontroverted facts which indicate that his default was willful.
The plaintiff alleged that upon receipt of the summons and complaint, the defendant called the plaintiff and threatened to kill her if she did not discontinue the action. This was unrefuted by the defendant. Furthermore, upon receipt of a letter from the plaintiff’s attorney, the defendant again called the plaintiff who advised the defendant to consult his attorney. Clearly, the defendant knew that the document was significant and was capable of making inquiries concerning its ramifications. Finally, in September 1986, shortly before the default judgment was entered, an attorney who represented the defendant on other matters called the plaintiff’s attorney and asked whether he could submit an answer to the complaint. Although the plaintiff’s attorney refused the request, it is apparent that at this point the defendant had received legal advice concerning his situation; yet he did not move to vacate the default until approximately five months later. In view of these facts, the defendant failed to demonstrate that his default was not willful (see, Kirkman/3hree, Inc. v Priority *647AMC/Jeep, 94 AD2d 870). In sum, the defendant’s proffered excuse failed to explain a substantial period of the delay (see, Chochla v Oak Beach Inn Corp., 115 AD2d 584, 585).
Accordingly, the default was not excusable (CPLR 5015 [a]), and the motion to vacate should have been denied. Mangano, J. P., Bracken, 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/5902491/
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In an action for an injunction and to recover damages for an alleged breach of an oral agreement, the defendant appeals from an order of the Supreme Court, Kings County (Hurowitz, J.), dated August 28, 1987, which granted the plaintiffs’ motion for a preliminary injunction, and, in effect, denied its cross motion to dismiss the complaint.
Ordered that the order is reversed, with costs, the motion is denied, the cross motion is granted, and the complaint is dismissed.
The plaintiff Roger B. DeBerardine, an attorney, and his wife, are the owners of property located in Upper Saddle *648River, New Jersey. At the time they purchased the property in 1969, the defendant maintained a power line across the property in accordance with an easement it acquired in 1963 from the plaintiffs’ predecessor in interest. The easement was obtained for "the purpose of constructing, maintaining and operating electrical transmission lines, together with the right to trim [and] cut the trees * * * as may be necessary for the proper operation and maintenance of said system”. The trimming of the trees continued until June 1987 when the defendant notified the plaintiffs that maintenance of the easement would thereafter involve the removal of several trees from the plaintiffs’ property.
At the time this action was commenced on or about July 8, 1987, the plaintiffs had already brought an action in Federal court and in the Superior Court of New Jersey, Bergen County. In the action in the Superior Court of New Jersey the plaintiffs were directed to bring their claims before the New Jersey Board of Public Utilities (hereinafter the board) which they did on June 22, 1987. On July 17, 1987, the plaintiffs’ application for injunctive relief was denied on the ground that the Uniform Right of Way Management Program provides for the removal of trees which impinge on the defendant’s lines. The plaintiffs’ motion for reconsideration was denied by the board. The plaintiffs are appealing the board’s determination in New Jersey.
It was error for the Supreme Court to have denied the defendant’s motion to dismiss the complaint. Contrary to the plaintiffs’ assertions, we find that the other actions instituted by them were against the same defendant as that involved in the instant proceeding (see, Sunshine Coal Co. v Adkins, 310 US 381; Schultz v Boy Scouts, 65 NY2d 189). The board was acting in a judicial capacity, and thus, conclusive effect should have been given to its findings (see, Ryan v New York Tel. Co., 62 NY2d 494; Gilberg v Barbieri, 53 NY2d 285; Board of Educ. v New York State Human Rights Appeal Bd., 106 AD2d 364).
After examining the facts in this action, we conclude the board’s denial of the injunction gave rise to a res judicata and full faith and credit defense against this subsequent application for an injunction (5 Weinstein-Korn-Miller, NY Civ Prac If 5011.13). The plaintiffs had a full and fair opportunity to contest the board’s determination (see, Ryan v New York Tel. Co., supra; Gilberg v Barbieri, supra; Board of Educ. v New York State Human Rights Appeal Bd., supra).
Moreover, the complaint should have been dismissed under *649CPLR 3211 (a) (4) since other actions involving the parties seeking the same relief were pending at the time this action was commenced (see, Whitney v Whitney, 57 NY2d 731, on remand 92 AD2d 935; Thompson v Mary Immaculate Hosp., 60 AD2d 912; cf., Flintkote Co. v American Mut. Liab. Ins. Co., 67 NY2d 857).
We would also note our displeasure with the plaintiff, Roger B. DeBerardine, an attorney, for his lack of candor in complying with CPLR 2217 (b). His failure to fully apprise the Supreme Court of the other actions pending permitted him to initially succeed in his attempt to forum and Judge shop and to engage in precisely the conduct which the doctrines of-full faith and credit and res judicata are designed to prevent.
In light of our findings, we do not reach the defendant’s remaining contentions. Brown, 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/5902492/
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In an action, inter alia, to recover damages for assault, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Brown, J.), dated December 2, 1986, which (1) denied the plaintiff’s motion for leave to enter a default judgment in favor of her and against the defendants Alert Coach Lines, Inc., and Jane Weber, and (2) granted the cross motion of those defendants to vacate their default in answering the complaint, on condition, inter alia, that they pay to the plaintiff the sum of $500 as and for costs.
Ordered that the appeal is dismissed, with costs.
The motion of the defendants Alert Coach Lines, Inc. and Jane Weber, to vacate their default in answering the complaint was granted by the Supreme Court on condition that they pay to the plaintiff the sum of $500 as and for costs. It appears that (1) those defendants thereafter tendered a $500 check made payable to the plaintiff and her attorney, and (2) the check was endorsed and deposited. Under these circumstances, the acceptance and retention of the costs awarded by the court operates as a waiver of plaintiff’s right to appeal (N & J Foods v Shopwell Plaza Corp., 63 AD2d 899; Harris v Resnikoff, 118 AD2d 622). Mangano, J. P., Bracken, 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/4125525/
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Justin L. Hawbaker, :
Petitioner :
:
v. : No. 224 C.D. 2016
: Submitted: July 22, 2016
Workers’ Compensation Appeal :
Board (Kriner’s Quality Roofing :
Services and Uninsured Employer :
Guaranty Fund), :
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: February 13, 2017
Justin L. Hawbaker (Claimant) petitions for review of an adjudication
of the Workers’ Compensation Appeal Board (Board) denying his claim petitions.
In doing so, the Board affirmed the decision of the Workers’ Compensation Judge
(WCJ) that Claimant was an independent contractor and not an employee of Shawn
Kriner d/b/a Kriner’s Quality Roofing Services (Kriner), as Claimant contended.
On appeal, Claimant contends that the Board erred. He contends that in spite of his
written contract with Kriner that identified Claimant as an independent contractor
and required him to carry liability insurance in the amount of $50,000, he was
actually an employee of Kriner. Accordingly, Claimant asserts that he is entitled to
workers’ compensation for the injuries he sustained when he fell from a roof.
Discerning no merit to these arguments, we affirm the Board.
Background
On November 19, 2013, Claimant was injured when he fell off a roof.
On December 16, 2013, Claimant filed a claim petition under the Workers’
Compensation Act (Act)1 seeking compensation for fractures to his leg and
vertebrae. Thereafter, on January 7, 2014, Claimant filed another claim petition
naming Kriner and the Uninsured Employers Guaranty Fund as defendants. 2
Before the WCJ, Claimant testified about his work for Kriner, a
company that specializes in residential roofing jobs. Claimant testified that his
work took “some kind of skill.” Notes of Testimony (N.T.), 3/26/2014, at 13;
Reproduced Record at 24a (R.R. __). Claimant explained that Shawn Kriner told
him “where to start the job, what needed to be done on the job, when [he] was
allowed to take lunch, [and] when [he] was allowed to leave.” Id. at 14; R.R. 25a.
Claimant either drove himself to the job site or rode with Kriner. At these jobs
Claimant used his personal tools, such as a tear-off shovel to remove shingles,
hammer and a nail gun. He also used ladders and nails provided by Kriner.
When Claimant started working for Kriner in 2011, he was
compensated on an hourly basis. In January 2012, he signed a contract entitled
“Independent Contractor Agreement.” In December 2012, Claimant
acknowledged that he “stopped showing up, stopped calling.” Id. at 46; R.R. 57a.
Claimant attributed his absences to his substance abuse problems.
In March 2013, Claimant contacted Kriner about returning to work.
Kriner required Claimant to obtain liability insurance and provide proof of that
insurance before he could start working on any Kriner jobs. An addendum to the
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
2
Claimant filed a duplicate claim petition on January 13, 2014.
2
2012 contract provided for Claimant to be paid by assigned task. Claimant
explained that he was paid $15.00 to $25.00 a square (10’ x 10’ area) when
removing a roof and $5.00 a bundle, or $15.00 a square, to install a roof. Each
week Kriner advised Claimant where the roofing assignments would take place.
Claimant did roofing jobs only for Kriner.
On November 19, 2013, Claimant was standing on the roof of a bay
window when he reached for a caulking gun and fell. Claimant landed on his feet
with the left side of his body taking the brunt of the fall, causing injuries to his
knee and leg. Claimant was taken to Hershey Medical Center, where he was
diagnosed with a left lateral tibial plateau fracture. On November 20, 2013, he
underwent open reduction and internal fixation of his fracture. Subsequently,
Claimant has developed pain across his lower back.
On cross-examination, Claimant acknowledged that the January 2012
contract was not terminated in writing. He also acknowledged that his application
for liability insurance identified his business name as “Justin L. Hawbaker, I” and
provided a business address. Finally, Claimant acknowledged that he did not
notify Kriner when his liability insurance lapsed.
Kriner testified about the January 2012 contract for Claimant’s
roofing and general labor services. The contract had an indefinite duration, subject
to termination by either party with 30 days written notice. It provided
compensation at $17.50 per hour. In 2013, the compensation terms changed, as
Kriner explained:
Hourly rate for any repairs or simple labor was at $15.00 an
hour. If doing tear off, if chosen to do any tear off, it’s $15.00
per square, which is a ten foot by ten foot section. $5.00 per
roofing square for ground cleanup. $5.00 per roofing square to
3
water tighten that’s to lay the underlayment and the felt
moisture guard.
$5.00 per bundle of shingles if you’re laying shingles. And
$10.00 per bundle of cap shingles, which goes at the peak of the
roof.
N.T., 5/22/2014, at 35; R.R. 112a. Kriner explained that the contract does not
preclude the independent contractor from working for other contractors or on his
own; further, the contract requires the independent contractor to secure general
liability insurance. At the end of the year, Kriner issues a Form 1099 to each
subcontractor.
Kriner explained that at the job site, he and the subcontractors discuss
the work to be done and divide it up by discrete task. The subcontractors are
roofers who know how to do these tasks. The manufacturer’s package of shingles
provides the specific instructions on their installation. Kriner inspects the quality
of work of the subcontractors. If he discovers a problem with the work, the
subcontractor must correct the problem without additional compensation.
On cross-examination, Kriner explained that in December 2012, he
spoke to Claimant about his lack of reliability. Claimant stopped showing up at
job sites without explanation. When Claimant did appear, he behaved erratically.
Kriner stopped calling Claimant. After several months, Claimant contacted Kriner
and stated that he had gotten the help that he needed. Kriner did not allow
Claimant to return to roofing job sites until he provided proof of liability insurance.
Claimant provided his own tools, but he was also allowed to use Kriner’s tools and
equipment.
4
WCJ Decision
The WCJ found that Claimant did not establish an employer/employee
relationship as of the date of his injury. Rather, the “evidence demonstrate[d] the
Claimant was customarily engaged as an independent roofing contractor.” WCJ
Decision, 1/22/2015, at 5. In support, the WCJ made several critical findings of
fact:
7. [] Claimant agreed the roofing work requires skill. He
further testified a lot of it is labor intensive involving tearing off
shingles and replacing wood. []
8. [] Claimant testified he brought his own tear off shovel to
the job as well as an air hose and nail gun. He used [] Kriner’s
air compressor and ladder on [Kriner’s] jobs. [] In later
testimony [] Claimant testified he owned his own hammer, tape
measure, metal snips, shingle shears, utility knife, chalk boxes,
caulking gun, speed square, hand saw, shingle extraction
shovel, seam roller, roofing coil nail guns, and air hoses. []
9. … On his personal Facebook page [] Claimant lists his work
as independent roofing contractor. [] Claimant testified that in
2011 or 2012 he had to sign a contract to work for [Kriner].
The Independent Contractor Agreement is dated January 16,
2012. [] Claimant also was required by an Amendment to the
Independent Contractor’s Agreement to obtain general liability
insurance. []
10. [] Claimant’s insurance policy lists [] Claimant’s business
name as Justin L. Hawbaker, I. []
Id. at 3-4. The WCJ explained that Claimant was customarily engaged as an
independent roofing contractor because he possessed the tools and a vehicle
suitable for performing the work; he could be required to repair his work without
additional remuneration; and he was required to maintain an insurance policy for
5
general liability insurance in excess of $50,000. Id. at 5. Further, Claimant
testified that he did the same or similar business with C&J and Dean’s Contracting.
Id.
The WCJ credited Kriner’s testimony in its entirety. The WCJ
credited Claimant’s testimony about his work with Kriner, but he did not credit
Claimant’s stated belief that he was an employee, as such belief was against “the
weight of the evidence.” Id. The WCJ denied Claimant’s claim petitions against
Kriner and the Uninsured Employer Guaranty Fund.
Board Adjudication
Claimant appealed to the Board, arguing that the WCJ erred in finding
that he was an independent contractor. The Board affirmed the decision of the
WCJ, concluding that Claimant did not establish that he was an employee of
Kriner when he had his accident on November 19, 2013. The Board explained that
a “claimant bears the burden of establishing an employer/employee relationship in
order to receive benefits,” and “[a]n independent contractor is not entitled to
benefits….” Board Adjudication, 1/28/2016, at 3.
The Board observed that, in October 2010, the legislature passed the
Construction Workplace Misclassification Act,3 “which set forth guidelines for
classification of independent contractors in construction.” Id. Section 3 of the
Misclassification Act,4 43 P.S. §933.3, sets forth the criteria for determining
whether an individual is an independent contractor, which, the Board noted, “track
many of the traditional workers’ compensation considerations for determining
direction and control.” Id. The Board concluded, based upon its review of the
3
Act of October 13, 2010, P.L. 506, 43 P.S. §§933.1-933.17.
4
Section 3 of the Misclassification Act is quoted in full later in this opinion.
6
record, that the WCJ correctly applied the terms of the Misclassification Act in
concluding that Claimant was an independent contractor and not an employee.
The Board rejected Claimant’s argument that because Kriner’s answer
was not timely, the WCJ was required to hold that Claimant was Kriner’s
employer. The Board explained that whether an individual is an employee or
independent contractor is a purely legal question. The effect of Kriner’s untimely
answer was to admit facts, not legal positions.
On appeal,5 Claimant raises two issues. First, he contends that given
the record evidence, the Board erred and abused its discretion in holding that
Claimant was not an employee of Kriner. Second, he contends that the Board
erred and abused its discretion because Kriner’s untimely answer to the claim
petition established that Claimant was an employee of Kriner.6
Analysis
This Court has held that “[a] claimant seeking workers’ compensation
benefits must establish that he sustained an injury in the course of his employment
and that the injury resulted in a loss of earning power.” Staron v. Workers’
Compensation Appeal Board (Farrier), 121 A.3d 564, 567 (Pa. Cmwlth. 2015),
appeal denied, 132 A.3d 460 (Pa. 2016) (citing Cruz v. Workers’ Compensation
Appeal Board (Kennett Square Specialties), 99 A.3d 397, 407 (Pa. 2014)).
“Employment status is a critical threshold determination for liability.” Id. (quoting
American Road Lines v. Workers’ Compensation Appeal Board (Royal), 39 A.3d
5
We review Board decisions to determine whether errors of law were made, constitutional rights
were violated, and whether necessary findings of fact are supported by substantial evidence.
Ward v. Workers’ Compensation Appeal Board (City of Philadelphia), 966 A.2d 1159, 1162 n.4
(Pa. Cmwlth.), appeal denied, 982 A.2d 1229 (Pa. 2009).
6
The Uninsured Employer Guaranty Fund did not file a brief in this appeal.
7
603, 610 (Pa. Cmwlth. 2012)). Independent contractors are not eligible for
workers’ compensation. Guthrie v. Workers’ Compensation Appeal Board (The
Travelers’ Club, Incorporated), 854 A.2d 653, 661 (Pa. Cmwlth. 2004). The
nature of a working relationship “is a question of law based on the facts presented
in each case.” American Road Lines, 39 A.3d at 610. It is the claimant’s burden to
prove the existence of an employer-employee relationship. Universal Am-Can,
Ltd. v. Workers’ Compensation Appeal Board (Minteer), 762 A.2d 328, 330 (Pa.
2000).
Claimant argues that the record evidence did not establish that he was
an independent contractor. First, the parties did not execute a written contract
when Claimant returned to work with Kriner in March 2013. Second, Kriner had
complete control and direction over Claimant’s job performance. Third, Claimant
was not engaged in an independently established trade. Kriner disagrees with
Claimant’s characterization of the evidence and contends that their arrangement
satisfied all the criteria in the Misclassification Act for classifying an individual as
an independent contractor.
The Misclassification Act sets forth the criteria for determining
whether a construction worker is an independent contractor or an employee for
purposes of workers’ compensation and unemployment compensation. Section
3(a) states that, “[f]or purposes of workers’ compensation … an individual who
performs services in the construction industry for remuneration” will be an
independent contractor if:
(1) The individual has a written contract to perform such
services.
8
(2) The individual is free from control or direction over
performance of such services both under the contract of service
and in fact.
(3) As to such services, the individual is customarily engaged
in an independently established trade, occupation, profession or
business.
43 P.S. §933.3(a). Section 3(b) sets forth the criteria of “an independently
established trade, occupation, profession or business.” It states:
(b) Criteria.—An individual is customarily engaged in an
independently established trade, occupation, profession or
business with respect to services the individual performs in the
commercial or residential building construction industry only if:
(1) The individual possesses the essential tools,
equipment and other assets necessary to perform
the services independent of the person for whom
the services are performed.
(2) The individual’s arrangement with the person
for whom the services are performed is such that
the individual shall realize a profit or suffer a loss
as a result of performing the services.
(3) The individual performs the services through
a business in which the individual has a proprietary
interest.
(4) The individual maintains a business location
that is separate from the location of the person for
whom the services are being performed.
(5) The individual:
(i) previously performed the same or
similar services for another person in
accordance with paragraphs (1), (2),
9
(3) and (4) while free from direction
or control over performance of the
services, both under the contract of
service and in fact; or
(ii) holds himself out to other
persons as available and able, and in
fact is available and able, to perform
the same or similar services in
accordance with paragraphs (1), (2),
(3) and (4) while free from direction
or control over performance of the
services.
(6) The individual maintains liability insurance
during the term of this contract of at least $50,000.
43 P.S. §933.3(b).7
7
As the Board observed, the Misclassification Act has codified the relevant case law on
determining whether an individual is an employee or an independent contractor. These factors
include:
(1) control of manner the work is done;
(2) responsibility for result only;
(3) terms of agreement between the parties;
(4) nature of the work/occupation;
(5) skill required for performance;
(6) whether one is engaged in a distinct occupation or business;
(7) which party supplies the tools/equipment;
(8) whether payment is by time or by the job;
(9) whether work is part of the regular business of employer; and,
(10) the right to terminate employment.
American Road Lines, 39 A.3d at 611 (citing Baum v. Workers’ Compensation Appeal Board
(Hitchcock), 721 A.2d 402 (Pa. Cmwlth. 1998) (citing Hammermill Paper v. Rust Engineering
Company, 243 A.2d 389 (Pa. 1968); the relevant criteria are control of the manner of the work to
be done, responsibility for the result, terms of agreement and nature of the occupation or
business)).
10
Claimant first contends that he did not have a written contract with
Kriner because none was executed when he resumed work with Kriner in March
2013. Kriner responds that his January 2012 contract with Claimant never
terminated.
On January 16, 2012, the parties executed a written agreement, titled
“Independent Contractor Agreement” (Agreement), that stated, in relevant part, as
follows:
THIS AGREEMENT, made and entered into this 16th day of
January, 2012, by and between Shawn P. Kriner Kriner’s
Quality Roofing Services, hereinafter called the Company, …
and Justin L. Hawbaker, hereinafter called the Contractor….
WITNESSETH, the Company desires to retain the services of
the Contractor, and the Contractor desires to provide services to
the Company, under the terms and specifications provided
below:
1. Type of Services. The Company heretofore retains
the Contractor to perform the following service(s):
Technician all roofing aspects. Kriner’s Quality Roofing
Services shall not pay for mistakes made by hired
Contractors. Contractors will fix mistakes at own
expense and recover materials or property if necessary.
2. Duration of Services. The Contractor shall provide
the above documented services to the company:
***
until either party serves 30 days written notice to the
other party
3. Payment/Remuneration. The Company shall
remunerate the Contractor: See Amendment
11
***
7. Independent Contractor Status. It is herewith
acknowledged the Contractor is independent in nature,
and as such retains all rights to control and determination
of the manner in which the contractual services are
performed.
***
9. Equipment and Supplies. The Contractor shall be
fully responsible for the procurement, cost and use of all
materials, supplies, equipment and/or additional labor
that might be needed or required to complete the
requirements of this Agreement.
***
17. Termination. The Company may terminate this
agreement at any time by 10 working days’ written notice
to the Contractor. In addition, if the Contractor is
convicted of any crime or offense, fails or refuses to
comply with the written policies or reasonable directive
of the Company, is guilty of serious misconduct in
connection with performance hereunder, or materially
breaches provisions of this agreement, the Company at
any time may terminate the engagement of the Contractor
immediately and without prior written notice to the
Contractor.
Certified Record (C.R.), Exhibit UEGF – 1 (emphasis in original). The
Amendment to the Agreement states as follows:
Pay Procedures:
Pay upon completion or up to four business
days (excludes weekend and holidays) after
receiving final check from contracted home owner.
12
Payment instructions will be provided for each
contract.
C.R., Exhibit C-8 (emphasis in original).
The January 2012 contract between Claimant and Kriner did not
terminate in accordance with either Paragraph 2 or Paragraph 17 of the agreement.
The Misclassification Act does not require the subcontractor and general contractor
to execute a separate contract for each job, and we reject this assertion by
Claimant. Claimant contends that, in any case, the January 2012 contract ceased to
have effect after December 2012 because he was fired. When he returned in
March 2013, he did not sign a new contract.
The WCJ is the fact finder, and “[i]t is solely for the WCJ … to assess
credibility and to resolve conflicts in the evidence.” Waldameer Park, Inc. v.
Workers’ Compensation Appeal Board (Morrison), 819 A.2d 164, 168 (Pa.
Cmwlth. 2003). Neither the Board nor this Court may reweigh the evidence or the
WCJ’s credibility determinations. Sell v. Workers’ Compensation Appeal Board
(LNP Engineering), 771 A.2d 1246, 1251 (Pa. 2001). In addition, “it is solely for
the WCJ, as the factfinder, to determine what weight to give to any evidence … the
WCJ may reject the testimony of any witness in whole or in part, even if that
testimony is uncontradicted.” Waldameer Park, 819 A.2d at 168 (citation
omitted).
Here, the WCJ found the testimony of Kriner credible and consistent
with the terms of the January 2012 contract. Kriner did not “fire” Claimant
because he did not give him a 10-day advance written notice of termination, as set
forth in Paragraph 17. Kriner simply stopped assigning jobs to Claimant. The
WCJ resolved the conflict in the testimony of Kriner and Claimant in favor of
Kriner, and we will not reweigh the evidence.
13
In its amicus curiae brief, the Department of Labor and Industry,
Bureau of Labor Law Compliance (Bureau) argues that the Board erred because
the written contract of the parties had an indefinite duration, which it contends is
contrary to the purpose of the Misclassification Act. In support, the Bureau cites
Flaharty v. Trout, 138 A. 863 (Pa. 1927), where the Supreme Court stated that the
indefinite duration of the parties’ oral contract was “a strong circumstance against
the theory of an independent contractor.”8 Id. at 864. We are not persuaded.
First, the duration of the contract was only one of several factors
considered by the Supreme Court in Flaharty, and it was decided 90 years before
the enactment of the Misclassification Act. Second, the Misclassification Act does
not require a contract of specified duration; it requires only a written contract. This
Court will not “supply words … as a means of interpreting a statute.” Rogele, Inc.
v. Workers’ Compensation Appeal Board (Mattson), 969 A.2d 634, 637 (Pa.
Cmwlth. 2009).
Alternatively, the Bureau argues that it is “virtually impossible” for
contracts of indefinite duration to have a defined scope of work, as required by
Section 3(b)(2), 43 P.S. §933.3(b)(2), or to maintain liability insurance during the
term of the contract, as required by Section 3(b)(6), 43 P.S. §933.3(b)(6). We
disagree. There was a defined scope of work in the January 2012 contract, i.e.,
8
In Flaharty, the decedent was killed while working at the defendant’s millyard, and his widow
brought an action under the Workmen’s Compensation Act. The only question on appeal was
“whether there was any evidence in support of the referee’s finding that the relation of employer
and employee … existed between the defendant and the deceased.” Flaharty, 138 A. at 864.
The defendant made an oral contract with the decedent to draw logs from the woods to the mill,
at $3 a thousand feet, log measure. The Supreme Court considered a number of factors to reach
its conclusion that the decedent was an employee. The duration of the decedent’s oral contract
with the defendant was only one factor.
14
roofing and general labor. Claimant chose the job assignment on a particular
project. The absence of a fixed contract period is irrelevant to maintenance of
liability insurance policy, i.e., a totally separate contract. We reject this argument
of the Bureau.
Claimant argues that the WCJ erred in finding that he was free from
control or direction over his performance. He contends that Kriner directed the
time and place of the job; required his attendance; set his compensation; and
reviewed his work. Kriner responds that Claimant was permitted to choose which
job he wanted to perform; was able to decline work; and could leave in the middle
of a job. Kriner Brief at 8-9. Further, Kriner merely inspected Claimant’s work
product to ensure it met industry standards.
In concluding that Claimant was free from the direction or control of
Kriner, except for the “appropriate direction and control between a general
contractor and a subcontractor,” the WCJ relied, in part, upon the following facts:
16. [] Kriner testified [] Claimant was free to seek employment
with another contractor or undertake projects on his own….
17. [] Kriner testified that the standards for the work are on the
package of materials. The standards have to be met in order to
obtain warranties from the shingle manufacturers.
***
22. … [] Kriner freely admitted that as a working general
contractor on the job he oversaw the performance of his
subcontractors and held them accountable to his standards….
WCJ Decision, 1/22/2015, at 4-5. Nos. 16, 17, 22. Control exists where the
putative employer “possesses the right to select the employee; the right and power
to discharge the employee; the power to direct the manner of performance; and,
15
the power to control the employee.” American Road Lines, 39 A.3d at 611
(emphasis added).
Here, Kriner testified, “I’m expecting him to be there to do work. So
is the contractor; so is the homeowner.” N.T., 8/20/2014, at 10; R.R. 184a. Kriner
testified that his expectations for the subcontractors were as follows:
[W]e would discuss what is to be done or what it is that they
would like to do. And then from there, they would go out to
their own section and do their own work. And it’s pretty much
understood that they knew how work is to be done as far as the
job completion and how it’s to be done. It’s pretty standard.
It’s on the package of shingles on how the roof is to be laid in
order to obtain warranties from the companies and things of
that nature.
N.T., 5/22/2014, at 43; R.R. 120a. Kriner did not direct the manner in which
Claimant did the work. This is a critical feature of the master-servant relationship.
Minteer, 762 A.2d at 333; 43 P.S. §933.3(a)(2) (independent contractor is “free
from control or direction over performance.”). Expecting an independent
contractor to meet quality standards as a condition of being compensated is the
mark of prudence by any person who engages a contractor to do construction work.
Finally, Claimant contends that the Board erred in affirming the
WCJ’s determination that he was engaged in an independently established trade.
Claimant argues that he did not have his own roofing business and was not paid by
the homeowner.
Claimant’s arguments lack support in the record. That Kriner allowed
Claimant to use his tools does not negate the fact that Claimant brought necessary
tools to the job. Claimant also had to fix any mistakes in his work at his own
expense pursuant to the January 2012 contract, which stated that “Kriner’s Quality
16
Roofing Services shall not pay for mistakes made by hired Contractors.
Contractors will fix mistakes at own expense and recover materials or property if
necessary.” Agreement, ¶1; C.R., Exhibit UEGF-1. Claimant acknowledged that
he had to fix his mistakes. The record also showed that Claimant performed the
same or similar services for two other roofing companies; Claimant’s Facebook
page stated that he was an independent roofing contractor; and Claimant’s
insurance application identified his business as “Justin L. Hawbaker I” and
himself as “owner.” Claimant identified his business address as Meadow Drive in
Shippensburg. On this evidence, the Board did not abuse its discretion or err in
affirming the decision of the WCJ that Claimant did not establish the existence of
an employer/employee relationship.
In his second issue, Claimant contends that the Board erred in giving
limited effect to the fact that Kriner’s answer was untimely filed. It is well-settled
that “[w]here an employer files a late answer without adequate excuse, every
factual allegation asserted in the claimant’s claim petition is admitted as true, and
the employer is barred from presenting any affirmative defenses or challenges to
any of the factual allegations in the claim petition.” Rite Aid Corporation v.
Workers’ Compensation Appeal Board (Bennett), 709 A.2d 447, 449 (Pa. Cmwlth.
1998) (citations omitted); see also 77 P.S. §821.9 A claimant does not have to
9
Section 416 of the Act, 77 P.S. §821 states:
Within twenty days after a copy of any claim petition or other petition has been
served upon an adverse party, he may file with the department or its workers’
compensation judge an answer in the form prescribed by the department.
Every fact alleged in a claim petition not specifically denied by an answer so filed
by an adverse party shall be deemed to be admitted by him. But the failure of any
party or of all of them to deny a fact alleged in any other petition shall not
preclude the workers’ compensation judge before whom the petition is heard from
(Footnote continued on the next page . . .)
17
corroborate allegations in a claim petition that are admitted by reason of a late
answer. Heraeus Electro Nite Company v. Workmen’s Compensation Appeal
Board (Ulrich), 697 A.2d 603, 608 (Pa. Cmwlth. 1997). Here, Kriner’s answer
was untimely filed; therefore, Kriner admitted all factual allegations in Claimant’s
claim petition as true.
However, failure to file a timely answer is not the equivalent of a
default judgment. Heraeu, 697 A.2d at 608. A claimant still has the burden of
proving all elements to support an award of compensation. Id. Further,
conclusions of law are not deemed admitted by a late answer to the claim petition.
Neidlinger v. Workers’ Compensation Appeal Board (Quaker Alloy/CMI
International), 798 A.2d 334, 338 (Pa. Cmwlth. 2002). It is well settled that “[t]he
existence of an employer-employee relationship is a question of law based on the
facts presented in each case.” American Road Lines, 39 A.3d at 610 (citation
omitted). Although Claimant filed a claim petition identifying Kriner as his
employer, Kriner’s failure to file a timely answer to the petition does not constitute
an admission on this point. It is a question of law that is to be decided by a
tribunal. Accordingly, the Board did not err in affirming the WCJ’s determination
that Kriner’s late answer did not obviate Claimant’s burden of establishing an
employer/employee relationship.
(continued . . .)
requiring, of his own motion, proof of such fact. If a party fails to file an answer
and/or fails to appear in person or by counsel at the hearing without adequate
excuse, the workers’ compensation judge hearing the petition shall decide the
matter on the basis of the petition and evidence presented.
77 P.S. §821.
18
Conclusion
For the above-stated reasons, we affirm the order of the Board.
_____________________________________
MARY HANNAH LEAVITT, President Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Justin L. Hawbaker, :
Petitioner :
:
v. : No. 224 C.D. 2016
:
Workers’ Compensation Appeal :
Board (Kriner’s Quality Roofing :
Services and Uninsured Employer :
Guaranty Fund), :
Respondents :
ORDER
AND NOW, this 13th day of February, 2017, the order of the
Workers’ Compensation Appeal Board dated January 28, 2016, in the above-
captioned matter is hereby AFFIRMED.
_____________________________________
MARY HANNAH LEAVITT, President Judge
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— Order insofar as appealed from unanimously reversed on the law without costs and appellant’s motion granted, in accordance with the following memorandum: Special Term erred in denying that portion of defendant Niagara Mohawk Power Corporation’s motion seeking leave to amend its answer to assert a cross claim against defendant Occidental Chemical Corporation based upon contractual indemnification. Leave to amend pleadings "shall be freely given” (CPLR 3025 [b]) and Occidental will suffer no surprise or prejudice by the proposed amendment (Fahey v County of Ontario, 44 NY2d 934, 935). (Appeal from order of Supreme Court, Niagara County, Koshian, J. — amend answer.) Present — Denman, J. P., Boomer, Green, Lawton and Davis, JJ.
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In an action to recover damages for personal injuries and for various intentional torts, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Spodek, J.), dated December 11, 1986, as granted those branches of the motion of the municipal defendants which were to dismiss their causes of action sounding in libel, slander, malicious prosecution and negligent hiring, training and employment, and denied the plaintiffs’ cross motion for an amendment, nunc pro tunc, of their notices of claim.
Ordered that the order is affirmed insofar as appealed from, with costs.
This action arises from an altercation between the plaintiffs and Kings County Hospital police on February 4, 1983, which resulted in the arrest of the plaintiffs Demorcy and Auguste. On April 26, 1983, the plaintiffs served separate notices of claim to recover damages for personal injuries as a result of assault and false arrest. The plaintiffs’ complaint, served on June 22, 1983, alleged causes of action to recover damages for assault, battery, false imprisonment, slander, libel, intentional infliction of severe emotional distress, negligent hiring, training and employment, and violation of their civil rights. The plaintiffs Demorcy and Auguste also set forth causes of action to recover damages for malicious prosecution.
On September 3, 1986, the respondents moved, inter alia, to dismiss the added causes of action based upon the plaintiffs’ failure to timely file notices of claim with respect thereto. The plaintiffs cross-moved, inter alia, to amend their notices of claim nunc pro tunc.
We find that the Supreme Court, Kings County, properly granted the respondents’ motion to the extent of dismissing the causes of action sounding in malicious prosecution, libel, slander and negligent hiring, training and employment. The addition of such causes of action which were not referred to, either directly or indirectly in the original notice of claim, *651would substantially alter the nature of the plaintiffs’ claims. Such new theories of liability, not previously interposed, are time barred (see, General Municipal Law § 50-e [5]). Further, amendments of a substantive nature are not within the purview of General Municipal Law § 50-e (6) (see, Murphy v County of Nassau, 84 AD2d 577; Gordon v City of New York, 79 AD2d 981; Dale v Half Hollow Hills School, 37 AD2d 778).
In any event, as the complaint contains mere conclusory allegations with respect to these causes of action which have been dismissed, they are insufficient (see, Zelenski v Incorporated Vil. of Patchogue, 51 AD2d 1055; Loudin v Mohawk Airlines, 24 AD2d 447). Lawrence, J. P., Kunzeman, Kooper and Balletta, JJ., concur.
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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Queens County (Lonschein, J.), dated February 2, 1987, as granted that branch of the respondents’ cross motion which was for partial summary judgment dismissing the plaintiffs’ fourth cause of action for failure to state a cause of action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the respondents’ cross motion which was for partial summary judgment dismissing the plaintiffs’ fourth cause of action is denied.
Viewing the evidence and pleadings in the record in a light most favorable to the plaintiffs (see, Grand Realty Co. v City of White Plains, 125 AD2d 639), we conclude the trial court erred in dismissing the fourth cause of action of the complaint which was asserted on behalf of the infant plaintiff to recover damages for the emotional distress allegedly sustained as a result of his observation of the assault upon his father by the defendants Rossi and Williams. Contrary to the trial court’s position, we find this cause of action falls with the ambit of Bovsun v Sanperi (61 NY2d 219, 223-224) which permits recovery ”[w]here a defendant’s conduct is negligent as creating an unreasonable risk of bodily harm to a plaintiff and such conduct is a substantial factor in bringing about injuries to the plaintiff in consequence of shock or fright resulting from his * * * contemporaneous observation of serious physical injury or death inflicted by the defendant’s conduct on a member of the plaintiff’s immediate family in his * * * pres*652ence”. There is some evidence in the record, as noted by the trial court, indicating that the infant plaintiff attempted to stop the assault on his father by pushing the two men away. Thus, the infant plaintiff was within the "zone of danger” (Bovsun v Sanperi, supra, at 227) and the defendants’ conduct created an unreasonable risk of harm to the infant plaintiff. Moreover, the fact that the infant plaintiff did not sustain physical injuries himself does not preclude recovery under Bovsun v Sanperi (supra; see, Green v Leibowitz, 118 AD2d 756, 757). Lawrence, J. P., Kunzeman, Kooper and Balletta, JJ., concur.
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OPINION OF THE COURT
Per Curiam.
The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition, dated May 4, 2012, containing one charge of professional misconduct. After a hearing, the Special Referee sustained the charge. The Grievance Committee now moves for an order confirming the Special Referee’s report, and imposing *156such discipline as the Court deems appropriate. The respondent joins in the Grievance Committee’s request for an order confirming the report of the Special Referee, and asks that his prior removal from the bar be deemed a suspension nunc pro tunc to the date of his original plea of guilty, and that no further discipline be imposed. He also seeks immediate reinstatement to the bar.
The sole charge alleges that the respondent engaged in illegal conduct that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer, in violation of former Code of Professional Responsibility DR 1-102 (a) (3) (22 NYCRR 1200.3 [a] [3]) and rule 8.4 (b) of the Rules of Professional Conduct (22 NYCRR 1200.0). On December 9, 2008, the respondent entered a plea of guilty to one count of criminal possession of a controlled substance in the fifth degree, a class D felony, in violation of Penal Law § 220.06 (5). On January 6, 2012, the respondent was permitted to withdraw his previously entered plea of guilty and to enter a plea of guilty to one count of criminal possession of a controlled substance in the seventh degree, a class A misdemeanor, in violation of Penal Law § 220.03.
In view of the respondent’s admissions and the evidence adduced at the hearing, the charge was properly sustained.
In determining an appropriate measure of discipline to impose, the Court notes that the respondent has not practiced law since December 9, 2008, the date he pleaded guilty to a drug felony, more than four years ago. After completing an intensive rehabilitation program, he now stands convicted of a misdemeanor offense and remains drug free. At his disciplinary hearing, the respondent presented substantial evidence that he has successfully turned his life around and that he is fit to resume the practice of law. Given the exceptional mitigating circumstances, it is appropriate for the respondent to be suspended from the practice of law for a period of two years, effective December 9, 2008, nunc pro tunc. Moreover, given the passage of time, the nature of the hearing conducted by the Special Referee, and the evidence adduced at the hearing, it is appropriate to immediately reinstate the respondent to the bar.
Eng, P.J., Mastro, Rivera, Skelos and Dickerson, JJ., concur.
Ordered that the Grievance Committee’s motion to confirm the Special Referee’s report is granted; and it is further,
Ordered that the respondent is suspended from the practice of law for a period of two years, effective December 9, 2008, nunc pro tunc; and it is further,
*157Ordered that, effective immediately, the respondent is reinstated as an attorney and counselor-at-law and the Clerk of the Court is directed to restore the name of Robert A. Macedonio to the roll of attorneys and counselors-at-law.
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In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Town Board of the Town of Oyster Bay, dated July 29, 1986, which denied the petitioners’ application for a change of zone, the petitioners appeal from a judgment of the Supreme Court, Nassau County (Levitt, J.), entered March 10, 1987, which converted the proceeding into a declaratory judgment action and declared that the Town Board validly denied the petitioners’ application.
Ordered that the judgment is affirmed, without costs or disbursements.
The Town Board’s denial of the petitioners’ application for a change of zone was a legislative action (see, Matter of Napolitano v Town Bd., 128 AD2d 536; Kasper v Town of Brookhaven, 122 AD2d 200; Matter of Amerada Hess Corp. v Lefkowitz, 82 AD2d 882, lv dismissed 55 NY2d 603, 799) which must be upheld if it bears a substantial relationship to public health, safety, welfare or morals (see, Town of Huntington v Park Shore Country Day Camp, 47 NY2d 61, rearg denied 47 NY2d 1012; Northern Westchester Professional Park Assocs. v Town of Bedford, 92 AD2d 267, affd 60 NY2d 492; Curtiss-Wright Corp. v Town of E. Hampton, 82 AD2d 551). The record contains evidence which demonstrates that to permit the proposed use at the subject location would set a precedent since the only office use which has been permitted in the immediate area is by resident practitioners. The Town Board’s aim to keep the area residential in character is reasonably related to the public welfare (see, Town Law § 263) and its determination must therefore be upheld. We note that, contrary to the petitioners’ assertions, the Nassau County Planning Commission’s recommendation and findings in this matter were properly rendered and taken under advisement by *653the Town Board since the proposed zone change would affect property located within 500 feet of a State road (see, General Municipal Law § 239-m). Mangano, J. P., Bracken, Spatt and Harwood, JJ., concur.
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2578
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellant
v.
Mask of Ka-Nefer-Nefer
lllllllllllllllllllll Defendant - Appellee
Art Museum Subdistrict of the Metropolitan Zoological Park and Museum District
of the City of St. Louis and the County of St. Louis
lllllllllllllllllllllClaimant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: January 13, 2014
Filed: June 12, 2014
____________
Before LOKEN, MURPHY, and SMITH, Circuit Judges.
____________
LOKEN, Circuit Judge.
The issue raised on this appeal is whether the district court1 abused its
discretion in denying the government’s post-dismissal motion for leave to file an
amended civil forfeiture complaint. Underlying that issue is an attempt to expand the
government’s forfeiture powers at the likely expense of museums and other good faith
purchasers in the international marketplace for ancient artifacts. We affirm the
district court’s procedural ruling and therefore leave this important substantive issue
for another day.
I.
The district court dismissed the government’s forfeiture complaint for failure
to state a claim, so we are limited to the pleaded facts. The government’s notice of
appeal included the district court’s Order of Dismissal, but the Statement of the Issue
section of the government’s brief stated that the only issue on appeal is whether the
court abused its discretion in denying a post-dismissal motion for leave to file an
amended complaint. The Statement in the brief is controlling. See F.R.A.P. 28(a)(5);
Solomon v. Petray, 699 F.3d 1034, 1037 n.2 (8th Cir. 2012). Therefore, the appeal
of the Order of Dismissal has been waived, and we need not be concerned about the
truth of the pleaded facts.
The forfeiture complaint alleged that the Mask of Ka-Nefer-Nefer is a 3,200-
year-old Egyptian mummy cartonnage discovered in 1952 by an archeologist working
for the Egyptian government and registered as government property. The Mask was
housed in a storage facility in Saqqara, Egypt, until 1959, when it was sent to the
Egyptian Museum in Cairo for use with an exhibit in Tokyo, Japan. The Mask never
went to Japan, instead returning to Saqqara in 1962. In 1966, a box containing the
Mask and other artifacts was sent to a restoration lab in Cairo to prepare the artifacts
1
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
-2-
for display. When the Egyptian Museum in Cairo inventoried the box’s contents in
1973, the Mask was gone. The Egyptian government’s register of antiquities showed
no transfer to a private party between 1966, when the Mask was last seen, and 1973.
In 2006, the Egyptian government learned that the Art Museum Subdistrict of the
Metropolitan Zoological Park and Museum District of the City and County of St.
Louis (the “Museum”) purchased the Mask in 1998. The Museum refused the
Egyptian government’s repeated requests to return the Mask.
At a January 2011 meeting with Museum attorneys, representatives of the
United States threatened to bring a forfeiture proceeding against the Mask unless the
Museum voluntarily surrendered it. The Museum responded by filing a declaratory
judgment action in the Eastern District of Missouri. Reciting the Museum’s
conflicting version of the historical facts, and asserting that any forfeiture claim
would be time-barred by the applicable statute of limitations in 19 U.S.C. § 1621, the
Museum sought a declaration that the Mask is not subject to forfeiture. The Art
Museum Subdist. of the Metro. Zoological Park & Museum Dist. of St. Louis v.
United States, No. 4:11-cv-00291 (E.D. Mo. filed Feb. 15, 2011). The United States
rejoined on March 16, filing a motion to stay the Museum’s declaratory action and
a verified civil forfeiture complaint under 19 U.S.C. § 1595a(c). Part of the Tariff
Act of 1930, this statute now provides, in relevant part: “Merchandise which is
introduced or attempted to be introduced into the United States contrary to law shall
be . . . (1) . . . seized and forfeited if it -- (A) is stolen, smuggled, or clandestinely
imported or introduced.” The district court granted the government’s motion to stay
the Museum’s declaratory judgment action pending resolution of the forfeiture case.
The forfeiture complaint alleged that the Mask was “missing” after 1966
because it had been stolen and smuggled out of Egypt. “Because the Mask was
stolen,” the complaint concluded, “it could not have been lawfully exported from
Egypt or lawfully imported into the United States.” The Museum filed a timely claim
that it owned the Mask and moved to dismiss the complaint for failure to state a
-3-
claim, alleging that the government’s complaint lacked facts supporting the claim
with the detail required by Supplemental Rules E(2)(a) and G(2)(f) to the Federal
Rules of Civil Procedure, which govern civil forfeiture actions.2 Specifically, the
Museum argued, the complaint failed to allege detailed facts showing that “the Mask
was stolen” and that it had been introduced into the United States “contrary to law.”
In a June 2011 Memorandum in Opposition, the government responded that its
complaint need only plead “facts [that] provide probable cause3 to believe that the
Mask was stolen from Cairo, and that therefore its importation into the United States
in 1998 was in violation of 19 U.S.C. § 1595a.”
More than one year after the forfeiture complaint was filed, the district court
granted the Museum’s motion to dismiss. United States v. Mask of Ka-Nefer-Nefer,
No. 4:11CV504, 2012 WL 1094658 (E.D. Mo. Mar. 31, 2012). The memorandum
opinion explained that the complaint’s “one bold assertion that because something
went missing from one party in 1973 and turned up with another party in 1998, it was
therefore stolen and/or imported or exported illegally” did not plead sufficiently
detailed facts showing (1) that the Mask was “stolen, smuggled, or clandestinely
imported or introduced” into the United States, and (2) “facts related to some
predicate unlawful offense, presumably a law with some ‘nexus’ to international
2
Supp. Rule E(2)(a) provides that a civil forfeiture complaint “shall state the
circumstances from which the claim arises with such particularity that the . . .
claimant will be able, without moving for a more definite statement, to commence an
investigation of the facts and to frame a responsive pleading.” Rule G(2)(f) provides
that the complaint must “state sufficiently detailed facts to support a reasonable belief
that the government will be able to meet its burden of proof at trial.”
3
In civil forfeiture actions under the customs laws in Title 19, if the government
shows probable cause that the property is subject to forfeiture, the claimant has the
burden to prove it is not. See 19 U.S.C. § 1615; United States v. Davis, 648 F.3d 84,
95-96 (2d Cir. 2011). Congress gave claimants a more favorable burden of proof in
the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), but excluded Title 19
forfeiture provisions from that reform. See 18 U.S.C. § 983(i)(2)(A).
-4-
commerce from which the Title 19 customs regulation arises.” The court cited Davis,
a decision in which the Second Circuit discussed “The Meaning of ‘Contrary to
Law’” in 19 U.S.C. § 1595a(c). 648 F.3d at 89-90.
On April 6, the government filed a Motion for Enlargement of Time To File
Motion for Reconsideration and/or To Seek Leave To File Amended Complaint Prior
to Entry of Judgment. The government asserted that it would move to reconsider
because the court’s Order dismissed only the complaint and not the underlying action
but would also seek relief under Rules 59(e) and 60(b)(6) if the court “construes its
Order as . . . a dismissal of the ‘action.’” In a docket text order entered April 10, the
court granted the government “until 5-7-12 to file what it suggests is a motion to
reconsider.” The text notice stated: “WARNING: CASE CLOSED on 3/31/2012.”4
On May 7, the government filed its motion to reconsider, arguing that the court
had misunderstood the pleading standard governing civil forfeiture actions under 19
U.S.C. § 1595a(c)(1)(A). The Memorandum in Support more fully disclosed the
litigation strategy underlying the bare-bones forfeiture complaint. Citing the statute’s
“plain text” but no supporting case law, the government asserted: “Section 1595a
itself prohibits the importation of stolen property into the United States, regardless
4
On appeal, the government repeatedly complains that the district court’s
failure to clarify whether its March 31 dismissal was a final order justified the
government’s delay in moving for leave to amend. We disagree. The court’s April
10 docket order expressly stated, “CASE CLOSED on 3/31/2012.” Government
counsel simply was not paying attention. Moreover, we ruled many years ago that,
unless leave to amend is explicitly granted in a dismissal order, “the dismissal is a
final, appealable order.” Quartana v. Utterback, 789 F.2d 1297, 1299 (8th Cir. 1986).
This rule was reinforced by the 2009 amendment to Rule 15(a)(1)(B), which limited
a party’s time to amend its pleading as of right to “21 days after service of a motion
under rule 12(b).” The Advisory Committee Notes explained, “This provision will
force the pleader to consider carefully and promptly the wisdom of amending to meet
the arguments in the motion.” Again, government counsel was not paying attention.
-5-
of whether any other law has been violated in the process of importation.” The
Memorandum explained away Davis and other earlier contrary decisions as reflecting
assumptions made by those courts based on burdens of proof “the government may
have assumed” in those cases. That explanation may fit some of the opinions, but it
does not fit all the § 1595a precedents we have found. See United States v. 57,261
Items of Drug Paraphernalia, 869 F.2d 955, 956 (6th Cir.) (Customs agents “made the
seizure under the remedial provisions for civil forfeiture found in . . . 19 U.S.C.
§ 1595a(c) . . . in combination with . . . the 1986 statute making it ‘unlawful for any
person . . . to import or export drug paraphernalia”), cert. denied, 493 U.S. 933
(1989);5 United States v. One 1970 Ford Pick-Up Truck, 537 F. Supp. 368, 370 (N.D.
Ohio 1981) (“The government . . . had the burden of showing . . . probable cause to
believe the goods were introduced into the United States contrary to law. This the
government did, with evidence . . . the [bonded] containers were broken into.”).
The significance of this issue seems quite clear. The “stolen merchandise”
subsection, § 1595a(c)(1)(A), was added by a 1993 amendment. In the reported cases
we have found where the government sought forfeiture under this subsection, the
claim has been that importation of the stolen merchandise violated the National
Stolen Property Act (“NSPA”), 18 U.S.C. §§ 2314, 2315, see, e.g., United States v.
A 10th Cent. Cambodian Sandstone Sculpture, No. 12 Civ. 2600, 2013 WL 1290515
at *6 (S.D.N.Y. Mar. 28, 2013), or Customs statutes that criminalize the smuggling
of merchandise into this country, see 18 U.S.C. §§ 542, 545; United States v.
Broadening-Info Ents., 462 F. App’x 93, 96 (2d Cir. 2012). In Davis, the Second
Circuit held that the NSPA had the requisite nexus to international commerce to
suffice “as a basis for [the government’s] invocation of Section 1595a.” 648 F.3d at
90. A violation of the NSPA requires proof that valuable merchandise was
transported in foreign commerce “knowing the same to have been stolen, converted
5
Overruled in part on other grounds, Posters ‘N’ Things, Ltd. v. United States,
511 U.S. 513, 518-19 (1994).
-6-
or taken by fraud.” § 2314. In United States v. Portrait of Wally, 663 F. Supp. 2d
232, 269 (S.D.N.Y 2009), the government was denied summary judgment on its
§ 1595a claim, despite sufficient evidence that the painting was stolen, because the
court found that whether “the Museum imported Wally into the United States knowing
it was either stolen or converted” was a genuine issue of disputed fact. Although the
government has been granted summary judgment on this issue in other cases,6 the
stand-alone interpretation of the “contrary to law” element urged in this case, if
adopted, would greatly enhance the government’s forfeiture power under § 1595a,
without any clear basis in the statute’s text for this enhancement. The issue may be
unresolved, but precedent and past practice do not favor the government’s position.7
The government’s motion to reconsider did not cite an applicable Federal Rule
-- a dangerous omission -- and again requested that the Court grant “an opportunity
before entry of judgment to move for leave to file an amended complaint.” On May
23, the government filed a now-frivolous motion to clarify whether the March 31
Order was a final order, requesting an extension of time to appeal if it was. The
district court denied the motion to reconsider on June 1. Reciting the standards
governing Rule 59(e) motions, the court concluded the government offered “nothing
new” and identified no “severe mistake” in the original decision. The court denied
the motion to clarify and granted an extension of time to appeal to July 1, 2012.
6
See United States v. An Antique Platter of Gold, 991 F. Supp. 222, 231-32
(S.D.N.Y. 1997), aff’d on other grounds, 184 F.3d 131, 134 (2d Cir. 1999), cert.
denied, 528 U.S. 1136 (2000).
7
Particularly in light of the congressional attitude reflected in CAFRA, the
Executive Branch should anticipate judicial resistance to expansion of the “punitive
and remedial jurisprudence” that has long permitted forfeiture of property acquired
by non-culpable parties. See Union Pac. R.R. v. U.S. Dep’t of Homeland Sec., 738
F.3d 885, 894 (8th Cir. 2013), noting the views on this question expressed in the four
separate opinions in Bennis v. Michigan, 516 U.S. 442 (1996).
-7-
On June 8, the government for the first time filed a motion for leave to amend
its complaint and a proposed amended complaint, citing Rules 15(a)(2), 59(e), and
60(b)(1). The amended complaint contained a number of new factual allegations
purporting to cure the defects in its prior complaint relating to the “is stolen” and
“contrary to law” elements of a forfeiture claim under 19 U.S.C. § 1595a. On June
28, the court denied the motion for the reasons stated in its March 31 and June 1
Orders. The government timely filed its notice of appeal on June 29.
II.
A. The government asserts in the Argument section of its brief that the district
court departed from “typical practice” when it dismissed the complaint without
inviting the government to amend. This is an attack on the March 31 Order of
Dismissal that was not included in the Statement of the Issue on appeal. In any event,
whatever may be “typical” in other jurisdictions, Eighth Circuit law has long been to
the contrary. In Wolgin v. Simon, for example, where plaintiff requested leave to
amend if the court granted defendants’ motion to dismiss, we held “that to preserve
the right to amend a complaint a party must submit a proposed amendment along with
its motion.” 722 F.2d 389, 395 (8th Cir. 1983). Later decisions have stated,
logically, that a district court in granting a motion to dismiss is not obliged to invite
a motion for leave to amend if plaintiff did not file one. See Drobnak v. Andersen
Corp., 561 F.3d 778, 787 (8th Cir. 2009); Carlson v. Hyundai Motor Co., 164 F.3d
1160, 1162 (8th Cir. 1999). Here, the government failed to request leave to amend
in the eleven months between the Museum’s motion to dismiss and the court’s Order
of Dismissal, choosing instead to stand on and defend its original complaint. The
district court had no reason to question that litigation strategy.
B. Turning to the post-judgment motion for leave to file an amended
complaint, it is well-settled that plaintiffs “remain free where dismissal orders do not
grant leave to amend to seek vacation of the judgment under Rules 59 and 60[b] and
-8-
offer an amended complaint in place of the dismissed complaint.” Quartana, 789 F.2d
at 1300. But it is also well-settled that “district courts in this circuit have
considerable discretion to deny a [timely] post-judgment motion for leave to amend
because such motions are disfavored, but may not ignore the Rule 15(a)(2)
considerations that favor affording parties an opportunity to test their claims on the
merits.” United States ex rel. Roop v. Hypoguard USA, Inc., 559 F.3d 818, 823-24
(8th Cir. 2009). Leave to amend will be granted if it is consistent with the stringent
standards governing the grant of Rule 59(e) and Rule 60(b) relief . See Dorn v. State
Bank of Stella, 767 F.2d 442, 443-44 (8th Cir. 1985); Acevedo-Villalobos v.
Hernandez, 22 F.3d 384, 389 (1st Cir.), cert. denied, 513 U.S. 1015 (1994).
Although the government’s motion for leave to amend cited both Rule 59(e)
and Rule 60(b), the Rule 59(e) motion was untimely. Rule 59(e) provides that the
motion must be filed within twenty-eight days of “the entry of the judgment” it
challenges. Here, the government asserted that its June 8 motion for leave to amend
was timely under Rule 59(e) because its prior Rule 59(e) motion to reconsider
extended the 28-day time period. We need not consider that question of “tolling”
because the government filed its motion to reconsider on May 7, thirty-five days after
entry of the Order of Dismissal. Rule 59(e)’s 28-day time limit may not be extended.
See Rule 6(b)(2). Therefore, the district court’s grant of an extension to May 7 was
a nullity, and no timely Rule 59(e) motion was ever filed. As a district court lacks
jurisdiction over an untimely Rule 59(e) motion, that rule could not support the
government’s motion for leave to amend. See Reyher v. Champion Int’l Corp., 975
F.2d 483, 489 (8th Cir. 1992).
A district court has discretion under Rule 60(b) to grant post-judgment leave
to file an amended complaint if the motion is “made within a reasonable time,” Rule
60(c)(1), and the moving party shows “exceptional circumstances” warranting
“extraordinary relief.” United States v. Young, 806 F.2d 805, 806 (8th Cir. 1986),
cert. denied, 484 U.S. 836 (1987). We review the district court’s denial of leave to
-9-
amend under Rule 60(b) for abuse of discretion. See Horras v. Am. Capital
Strategies, Ltd., 729 F.3d 798, 804 (8th Cir. 2013), cert. denied, 134 S. Ct. 1346
(2014); Young, 806 F.2d at 806. “Rule 60(b) was not intended as a substitute for a
direct appeal from an erroneous judgment.” Spinar v. S.D. Bd. of Regents, 796 F.2d
1060, 1062 (8th Cir. 1986) (quotation omitted). Thus, the proper recourse when the
government disagreed with the district court’s interpretation of the “is stolen” and
“contrary to law” terms of the statute was a direct appeal, not a Rule 60(b) motion.8
We have recognized that the normal standards for granting Rule 60(b)(1) relief
“seem ill-suited” to determining when a plaintiff whose complaint has been dismissed
“should be permitted, post-judgment, to try again.” Roop, 559 F.3d at 823. The
tension is reflected in seemingly inconsistent opinions regarding the relevance of a
plaintiff’s delay in seeking leave to amend. Numerous cases have ruled that
“[u]nexcused delay is sufficient to justify the court’s denial if the party is seeking to
amend the pleadings after the district court has dismissed the claims it seeks to
amend, particularly when the plaintiff was put on notice of the need to change the
pleadings before the complaint was dismissed, but failed to do so.” Horras, 729 F.3d
at 804, quoting Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d
1052, 1065 (8th Cir. 2005); see Hammer v. City of Osage Beach, 318 F.3d 832, 844
(8th Cir. 2003); In re NationsMart Corp. Sec. Litig., 130 F.3d 309, 322-23 (8th Cir.
1997), cert. denied, 524 U.S. 927 (1998). That rule applies here. The government
knew many months prior to the Order of Dismissal of the possible need to amend its
pleading and elected to “stand or fall” on its untested legal theory. The government
then spent another three months after the Order of Dismissal was entered urging the
court to reconsider its interpretation of the statute before finally deciding it would
attempt to plead around the interpretive problem, rather than appeal this legal issue.
8
Even if the government preserved an appeal of the Order of Dismissal in
arguing that the district court erred in not inviting leave to amend, the government did
not argue these important statutory issues, so they are forfeited in this case.
-10-
In these circumstances, denial of leave to amend was hardly an abuse of the district
court’s substantial post-judgment discretion. See, e.g., NationsMart, 130 F.3d at 322-
23.
On the other hand, other cases have stated that a plaintiff’s non-prejudicial
delay in seeking post-dismissal leave to amend is not sufficient reason to deny leave
to add a legal theory or an additional defendant, or to cure a jurisdictional defect. See
Roberson v. Hayti Police Dep’t, 241 F.3d 992, 993-94, 995-96 (8th Cir. 2001);
Sanders v. Clemco Indus., 823 F.2d 214, 216-17 (8th Cir. 1987); Buder v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 644 F.2d 690, 691-92, 694 (8th Cir. 1981).
Although the opinions were broadly worded, these cases all presented situations
where the amendment was needed to afford plaintiff “an opportunity to test his claim
on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962). Here, by contrast, the
Museum’s declaratory judgment action is still pending. While the government’s
procedural intransigence caused the dismissal of the procedure it preferred, the
district court could reasonably assume that the Museum’s claim in that parallel action
will provide an opportunity to “test the merits” of whether the Mask is subject to
forfeiture under 19 U.S.C. § 1595a.
Finally, the government argues that the district court’s “denial of the motion
for leave to amend without explanation constituted a clear abuse of discretion,” citing
Foman, 371 U.S. at 182 (“outright refusal to grant the leave without any justifying
reason appearing for the denial is not an exercise of discretion”). Here, of course, the
district court did give a reason, denying leave to amend for the reasons stated in its
prior orders. Our review of the proposed amended complaint confirms the basis for
this ruling. Paragraph 99 of that proposed pleading alleged that importation of the
Mask violated eight different federal, state, and foreign laws, including § 1595a and
the NSPA, “[t]o the extent that it is necessary to independently establish the existence
of a predicate offense.” By no stretch of the imagination would some of the cited
laws have the “nexus to international commerce” that the Order of Dismissal required
-11-
as a matter of law. In other words, the government in the proposed amended
complaint continued to plead a claim that did not require proof the Mask was
“introduced into the United States contrary to law,” only proof that, at some time in
the distant past, it was “stolen.” Thus, as in Roop, the district court did not abuse its
discretion in denying leave to amend because the proposed amended complaint “did
not cure the . . . deficiencies in the initial Complaint.” 559 F.3d at 824.
We affirm the orders of the district court and grant the Museum’s motion to
supplement the record on appeal.
MURPHY, Circuit Judge, concurring.
I concur in the court's opinion but write separately to express my concern about
what the record in this case reveals about the illicit trade in antiquities. The
government's motion was untimely under Rule 59(e), and I agree that the district
court did not abuse its discretion by denying post judgment relief under Rule 60(b).
The government was dilatory and failed to demonstrate "exceptional circumstances"
at this point of the case, United States v. Young, 806 F.2d 805, 806 (8th Cir. 1986),
while the museum's declaratory judgment action is pending.
The substantive issues underlying this litigation are of great significance, and
not only to museums which responsibly seek to build their collections. The theft of
cultural patrimony and its trade on the black market for stolen antiquities present
concerns of international import. These issues affect governments and the
international art and antiquities markets, as well as those who seek to safeguard
global cultural heritage. Because of such concerns the United States has elsewhere
brought multiple civil forfeiture actions against what have been identified as stolen
antiquities and works of art. See, e.g.,United States v. An Antique Platter of Gold,
184 F.3d 131, 134 (2d Cir. 1999) (in rem civil forfeiture action brought in 1995).
-12-
In this matter the United States attempted to bring its claim under 19 U.S.C.
§ 1595a without pleading a violation of any other statute such as the National Stolen
Property Act (NSPA), 18 U.S.C. § 2314, and thus avoiding the NSPA's knowledge
requirement. The government has successfully used civil forfeiture in the past to
recover an object of cultural relevance without pleading a violation of a "predicate"
statute. See United States v. One Lucite Ball Containing Lunar Material, 252 F.
Supp. 2d 1367, 1379 (S.D. Fla. 2003) (government met probable cause burden that
moon rock was "stolen" under § 1595a(c) by demonstrating that Honduras had title
and had not authorized transfer, even though the rock had been brought into the
United States). Here, the government pled in its proposed amended complaint that
the dealers and the Saint Louis Art Museum "knew or were willfully blind" to facts
including the Mask's ownership by Egypt, ineligibility for private ownership, and lack
of a proper license.9
Even good faith purchasers of art and ancient artifacts are required to be
conscientious regarding provenance. As the Second Circuit noted in United States
v. Davis, the "innocent owner" defense of the Civil Asset Forfeiture Reform Act
(CAFRA) is not available to claimants under § 1595a. 648 F.3d 84, 93–95 (2d Cir.
2011). The drafters of CAFRA made the deliberate decision to exclude such
claimants from such a defense. The nature of civil forfeiture under § 1595a is that
even innocent owners may have to forfeit their property. Id. at 93. CAFRA's drafters
similarly exempted customs actions from that law's more claimant friendly burden of
proof. Id. at 95–96.
In Davis, the Second Circuit assumed without deciding that a nexus to
international commerce is required in a civil forfeiture action under § 1595a. Noting
9
The mask was sold to the museum in 1998 by Phoenix Ancient Art, S.A. The
proposed amended complaint alleges that the owners, Ali and Hicham Aboutaam,
were each convicted in 2004 of smuggling ancient artifacts.
-13-
the strength of a literal interpretation of the statute, the court also recognized a
"strong argument" that § 1595a(c)'s contrary to law language "means exactly what it
says: the government may seize and forfeit merchandise that is introduced into the
United States illegally, unlawfully, or in a manner conflicting with established law,
regardless of whether the law violated relates to customs enforcement." Davis, 648
F.3d at 90. As the court acknowledges in this case, the NSPA provides a sufficient
nexus to international commerce. See Davis, 648 F.3d at 90. I therefore do not agree
that the government failed to cure its prior complaint's deficiencies by listing other
statutes as well as the NSPA in its amended complaint.
While this case turns on a procedural issue, courts are bound to recognize that
the illicit sale of antiquities poses a continuing threat to the preservation of the
world's international cultural heritage. Museums and other participants in the
international market for art and antiquities need to exercise caution and care in their
dealings in order to protect this heritage and to understand that the United States
might ultimately be able to recover such purchases.
______________________________
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919 F.2d 1317
32 Soc.Sec.Rep.Ser. 11, Unempl.Ins.Rep. CCH 15778AJames C. COOPER, Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Louis W. Sullivan,M.D., Appellee.
No. 90-1052EA.
United States Court of Appeals,Eighth Circuit.
Submitted Oct. 12, 1990.Decided Nov. 27, 1990.
1
Anthony Bartels, Jonesboro, Ark., for appellant.
2
Joseph B. Liken, Dallas, Tex., for appellee.
3
Before LAY, Chief Judge, BRIGHT, Senior Circuit Judge, and VAN SICKLE,* Senior District Judge.
4
VAN SICKLE, Senior District Judge.
5
James C. Cooper appeals from an order of the district court1 affirming the decision of the Secretary of Health and Human Services to deny Cooper's applications for disability insurance and Supplemental Security Income (SSI) benefits under Titles II and XVI of the Social Security Act (Act). The sole issue for review is whether substantial evidence in the record supports the decision of the Secretary to deny these benefits to Cooper based on his engagement in substantial gainful activity. Because we conclude substantial evidence supports the decision of the Secretary, we affirm the district court.
I. BACKGROUND
6
Cooper filed applications for disability and SSI benefits on February 6, 1984, alleging he had been disabled since April 8, 1983 because of dislocated discs, and prostate and kidney trouble. The record indicates that Cooper has limited use of his right hand, the result of an injury sustained after a failed attempt to save his three children in a fire. Cooper also apparently suffers from depression, weight-loss, fatigue, and frequent pain. Now forty-six years old, Cooper has an eighth grade education and has poor reading and writing skills.
7
Cooper suffered from numerous back ailments and has had a history of multiple surgeries in the prostate area. More recently, an examination on June 1, 1988 by George B. Higley, Jr., M.D. revealed a lumbar musculologamentous strain, the result of Cooper's lifting a tool box on May 29, 1988. At the end of treatment, six days later, Cooper was diagnosed as 90 percent of normal. Ralph Rehm, M.D. examined Cooper on July 6, 1988 and found that Cooper had a 70 percent loss of dexterity in his right upper extremity and had suffered a ruptured disc in the lumbosacral area. Dr. Rehm was of the opinion that Cooper was totally and permanently disabled. At the supplemental administrative hearing on May 26, 1988 Cooper had the ability to raise his arm to a 90 degree angle and his forearm 90 degrees from the angle of his arm.
8
During the administrative hearings, Cooper testified that he had been employed since October, 1985 at the First United Methodist Church of Blytheville. Cooper stated he had worked part-time for nearly two years, earning approximately four dollars an hour, and then went full-time (37 hours per week) earning about $4.25 an hour. Cooper's W-2 statements showed earned income from employment at the church of $6,975.00 in 1987, $5,459.71 in 1986, and $1,239.68 in 1985.
9
Cooper was the only janitor on staff at the church. His duties there were essentially inside custodial and included cleaning, buffing floors, moving boxes up and down stairs, and opening and closing the church for meetings. These tasks left him frequently fatigued and caused him to rest when he felt it necessary. Cooper's employer, the Reverend Aaron Barling, in an affidavit stated that Cooper had good work attendance, was punctual, but on certain days was not productive. Evie Hayner, Secretary of First United Methodist Church made similar observations and noted that Cooper was paid even if he was not productive. Cooper stated that he would take breaks and lie down when becoming fatigued, but asserted that any time spent resting was made up later in the day or at another time. Reverend Barling recognized that Cooper suffered from a number of health problems and stated the church tried to accommodate them.
10
The district court on March 1, 1988 determined that Cooper was disabled within the meaning of the Act from April 8, 1983 to November of 1985 and remanded the case to an Administrative Law Judge (ALJ) for further development of the record. After a supplemental hearing, the ALJ found that Cooper's employment was not charitable or sheltered in nature, and testimony of Cooper to the contrary was not fully credible. The ALJ determined that, based on Cooper's average earnings, which exceeded $300.00 per month, his work activity constituted substantial gainful employment. Thus, the ALJ reasoned that Cooper was not "disabled" within the meaning of the regulations at any time subsequent to November 1, 1985 and should be denied benefits under the Act.
11
On February 28, 1989, the Appeals Council adopted the ALJ's recommendation and its decision became the final decision of the Secretary. The District Court affirmed the Secretary's decision on December 5, 1989 and this appeal by Cooper followed.
II. DISCUSSION
12
The Social Security Act gave authority to the Secretary of Health and Human Services to promulgate regulations for determining whether an individual had engaged in substantial gainful activity. See 42 U.S.C. Sec. 423(d)(4). Pursuant to this express Congressional order, regulations (20 C.F.R. Secs. 404.1571-75, 416.971-75) were drawn which provided specific guidelines for a substantial gainful activity determination. We have previously held that the regulatory criteria created by the Secretary are consistent with the Act and are therefore valid. See Burkhalter v. Schweiker, 711 F.2d 841 (8th Cir.1983).
13
The regulations provide that if a claimant is engaged in substantial gainful activity, then there can be no finding of disability, regardless of the claimant's age, education, prior work activity and even if the claimant is in fact physically or mentally impaired. Thompson v. Sullivan, 878 F.2d 1108, 1110 (8th Cir.1989); Burkhalter, 711 F.2d at 843; 20 C.F.R. Sec. 404.1520(b). Substantial gainful activity must be work activity that is both substantial and gainful. 20 C.F.R. Sec. 416.972. Substantial work involves activity, even on a part-time basis, which is significantly physical or mental. 20 C.F.R. Sec. 416.972(a). Gainful work is merely activity done for pay or profit. 20 C.F.R. Sec. 416.972(b).
14
If the claimant is an employee, the Secretary will use a variety of guides to determine if the claimant is substantially gainfully active. Important criteria include the claimant's level of earnings derived directly from the work activity, and whether the claimant is working in a sheltered or special environment. See 20 C.F.R. Sec. 404.1574(a). From earnings, the Secretary will deduct the costs of items or services which allow the claimant to work. 20 C.F.R. Sec. 404.1576. Finally, the regulations create a rebuttable presumption that a claimant is substantially gainfully active if, for years after 1979 and before 1990, the average earnings of the claimant exceeded $300 per month. 20 C.F.R. Sec. 404.1574(b)(2)(vi); Thompson, 878 F.2d at 1110.
15
Our task on review then is to determine whether there exists substantial evidence in the record as a whole to support the Secretary's denial of benefits. Zenker v. Bowen, 872 F.2d 268, 270 (8th Cir.1989). The standard requires a scrutinizing analysis, not merely a "rubber stamp" of the Secretary's action, in which we consider evidence which both supports and detracts from the decision. Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.1989); Clarke v. Bowen, 843 F.2d 271, 272 (8th Cir.1988); Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir.1987). We must "take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Gavin, 811 F.2d at 1199 (citing Steadman v. Securities and Exchange Commission, 450 U.S. 91, 99, 101 S.Ct. 999, 1006, 67 L.Ed.2d 69 (1981)). Based on these standards, we nonetheless find that there is substantial evidence in the record as a whole to support the decision to deny Mr. Cooper's disability benefits.
16
The record in this case clearly establishes that Cooper was employed at the church from October of 1985 and worked part-time at first and then full-time for about six months prior to the administrative hearing in May, 1988. Cooper's tax records reveal income for the years 1985, 1986, and 1987 which exceeds on average $300 per month for each calendar year. Under the regulations, there is thus a rebuttable presumption that Cooper was substantially gainfully active, a presumption which Cooper apparently concedes.
17
To rebut the evidence of substantial gainful activity, Cooper relies on what he describes as the charitable nature of the employment relationship. The church pastor knew of Cooper's ailments and stated that the church would try to accommodate them. Nonetheless, the record reveals that Cooper was the only janitor employed by the church, that he had specific duties which had to be completed, and that he was subject to reprimand for failure to fulfill his job requirements. The church was helping Cooper but also was seeking his janitorial services.
18
Evidence also showed that Cooper had to rest often on the job because of pain and fatigue and was not productive on certain days. He was paid whether he accomplished much work on that particular day or not. This fact supports the charitable nature of Cooper's relationship with the church. As Cooper stated at the administrative hearing, however, any time which he spent resting was made up at a later time. This fact supports the ALJ's conclusion that Cooper was engaged in substantial gainful activity.
19
Evidence of Cooper's medical condition was submitted by both Cooper and the Secretary. Cooper attempts to argue that because of his impairment, the value of his services could not be equivalent to the work performed and thus the work relationship was charitable in nature. Medical examinations were performed by Dr. Rehm, who apparently examined Cooper on only one occasion and Dr. Higley, the treating physician after Cooper strained his back from lifting the tool box. "[T]he report of a consulting physician who examined the claimant once does not constitute 'substantial evidence' upon the record as a whole, especially when contradicted by the evaluation of the claimant's treating physician." Millbrook v. Heckler, 780 F.2d 1371, 1374 (8th Cir.1985) (citing Hancock v. Secretary, 603 F.2d 739, 740 (8th Cir.1979)); see also Rautio v. Bowen, 862 F.2d 176 (8th Cir.1988) (opinion of treating physician given greater weight). As to Cooper's back injuries, Dr. Higley's report must be considered more authoritative. Other evidence exists in the record which contradicts Dr. Rehm's conclusion that Cooper is completely disabled. The ALJ could properly find from these facts that Cooper, although suffering from a number of severe ailments, had not shown that his productivity had been so devalued as to make his employment of a charitable nature.
20
Therefore, based on the evidence on the record as a whole, the ALJ properly found that Cooper was not disabled within the meaning of the Act. Cooper had a strong presumption to overcome by earning an average monthly income of over $300 per month. The relationship with his employer, the church, was not such to rise to the level of charitable employment. Cooper did not overcome his burden of proving that he was not substantially gainfully active. The decision of the district court must be affirmed.
*
The Honorable Bruce M. Van Sickle, Senior United States District Judge for the District of North Dakota, sitting by designation
1
The Honorable H. David Young, Magistrate, United States District Court for the Eastern District of Arkansas
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416 S.W.2d 482 (1967)
FIDELITY SAVINGS & LOAN ASSOCIATION OF PORT ARTHUR, Appellant,
v.
Howard Lyle BALDWIN et ux, Appellee.
No. 6889.
Court of Civil Appeals of Texas, Beaumont.
June 1, 1967.
Rehearing Denied June 21, 1967.
*483 Tom Featherston, Port Arthur, for appellant.
Herbert A. Plummer, Port Arthur, for appellee.
STEPHENSON, Justice.
This is an action to enjoin foreclosure of a mechanics' and materialmen's lien. Trial was before the court and judgment was rendered for plaintiffs granting such injunction. The parties will be referred to here as they were in the trial court.
The facts in this case are not disputed. Howard Lyle Baldwin and wife, plaintiffs, entered into a mechanics' and materialmen's lien contract with Diamond Enterprises, Inc., hereinafter called "Diamond", for the construction of a home. Such contract recited the payment of $1,000.00 down and the balance of $15,000.00 payable upon completion of the home. This contract was assigned to Fidelity Savings & Loan Association of Port Arthur, Texas, defendant. Diamond began construction, but abandoned the contract before substantial completion. Plaintiffs then entered into a second mechanics' and materialmen's lien contract in the amount of $10,000.00 with John May, and in the home was completed. Defendant notified plaintiffs that it intended to foreclose its mechanics' and materialmen's lien and this suit was brought. The trial court filed findings of fact and conclusions of law. It found that there had not been substantial compliance by Diamond of its contract with plaintiffs, and that plaintiffs had incurred $2,005.49 expense in connection with this litigation, including their attorney's fees. The court also found that because there was no substantial performance by Diamond that defendant acquired no lien on plaintiffs' homestead. The judgment created an equitable lien in favor of defendant to secure the payment by plaintiffs to defendant of the sum of $2,994.51. This amount was arrived at by deducting from $16,000.00 the $1,000.00 cash payment made by plaintiffs to Diamond, the $10,000.00 representing the contract by plaintiffs with John May and $2,005.49 representing plaintiffs' expenses.
Defendant's first point of error is that the trial court erred in allowing plaintiffs to recover the $2,005.49 for attorney's fee and other expenses. First, we think it is clear that defendant does not have a valid lien upon plaintiffs' homestead. Murphy v. Williams, 103 Tex. 155, 124 S.W. 900. The law of this state requires substantial performance of a mechanics' and materialmen's lien contract before such lien attaches to a homestead. This is true whether the person claiming the lien is the original contractor, or the contractor's assignee, as in this case. As stated by the Supreme Court in the Murphy v. Williams Case, supra, the assignee bought the note before the contract was performed, and the assignee's lien depended upon the performance either by the original contractor or the assignee of that which such contractor had undertaken to do to create or perfect the lien. In this case, upon abandonment by Diamond, defendant could have protected itself and established its lien by seeing that the contract was substantially completed. Plaintiffs entered into a contract with John May for $10,000.00 to complete their home, and this amount was approved by the trial court with no attack being made upon it. The statement is made in appellant's brief that it was stipulated that defendant advanced $10,400.00 in progress construction advances before abandonment by Diamond. However, after deducting the $1,000.00 paid by plaintiffs to Diamond and the $10,000.00 representing the contract price with John May, which has not been attacked, only $5,000.00 remains as a part of the original contract price. There is no provision under the law of this state for plaintiffs to be permitted *484 to recover the $2,005.49 for their expenses. Plaintiffs agree with defendant in the briefs that this is not the type of case in which recovery for attorney's fees is permitted under Art. 2226, Vernon's Ann. Civ.St. Defendant is entitled to a judgment against plaintiffs in the amount of $5,000.00 with no lien, equitable or otherwise, to secure it. A lien can exist upon a homestead only when created in accordance with the Constitution of this State. Art. 16, Sec. 50, Vernon's Ann.St. The Supreme Court made it clear in Murphy v. Williams, supra, that the contract for the building of a house at a stipulated price cannot be a split up so as to provide a lien for the contractor or his assignee, to secure a part of the price, when such contractor or assignee failed to substantially complete the house. Except as herein provided, all points of error are overruled.
Reformed and affirmed.
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56 B.R. 55 (1985)
In re AT OF MAINE, INC., Debtor.
Bankruptcy No. 185-00221.
United States Bankruptcy Court, D. Maine.
December 3, 1985.
George Marcus, Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, Me., for debtor.
Robert Checkoway, Preti, Flaherty & Beliveau, Portland, Me., Daniel J. Callaghan, Devine, Millimet, Stahl & Branch, PA, Manchester, N.H., for Maine Nat. Bank.
Christopher Holleman, Concord, N.H., for SBA.
MEMORANDUM OF DECISION
JAMES A. GOODMAN, Bankruptcy Judge.
The debtor, AT of Maine, Inc., filed a voluntary petition under Chapter 11 of the *56 United States Bankruptcy Code in the United States Bankruptcy Court for the District of Maine on July 26, 1985. On August 14, 1985, two alleged creditors of the debtor's estate, the Maine National Bank, ("MNB"), and the United States of America, acting through the Small Business Administration, ("SBA"), filed a motion to dismiss the proceeding, which was later amended. The parties filed memoranda of law and the Court held a hearing on the amended motion to dismiss on October 16, 1985. This memorandum of decision constitutes findings of fact and conclusions of law in accordance with Bankruptcy Rule 7052 and Rule 52(a) of the Federal Rules of Civil Procedure.
The facts in this case are not in serious dispute. The debtor in this case had previously filed a Chapter 11 proceeding on August 14, 1981, together with its affiliate, American Trawler Corporation. At the time of the original filing by AT of Maine, Inc., AT of Maine, Inc. had no assets except for $1,000.00 in cash and had only one creditor, Richard Bruno, ("Bruno"), the President and sole stockholder of the debtor. The current creditors of AT of Maine, Inc., the MNB and the SBA, were not creditors of AT of Maine, Inc. in the original Chapter 11 proceeding, but were creditors of American Trawler Corporation. This Court, on September 20, 1982, confirmed a consolidated, amended plan of reorganization filed by AT of Maine, Inc. and American Trawler Corporation. The consolidated plan provided, inter alia, that Bruno, also President and sole stockholder of American Trawler Corporation, would transfer to AT of Maine, Inc. certain assets and real property owned by him personally that partially secured the claims of the MNB and the SBA, subject to the existing, valid liens of the secured creditors. Under the consolidated plan, monthly payments would be made to the MNB and the SBA. In addition, an initial dividend would be paid to the unsecured creditors equal to 10% of their allowed claims, plus $9,297.13 to be paid pro rata, and additionally notes would be given to the unsecured creditors equal to 10% of their allowed claims to the extent that American Trawler Corporation had pre-tax operating profits in excess of $200,000.00 as reported on its tax returns, provided that such notes would provide for an annual interest rate of 10% of the amount remaining unpaid after October 1, 1983. It is undisputed that at or about the time of confirmation, Bruno transferred the assets and real property to AT of Maine, Inc., as trustee of the Richard A. Bruno Nominee Trust dated September 1, 1982. Subsequent to the confirmation, the MNB received payments through March, 1985, and the SBA received payments through May, 1984. The unsecured creditors have been disbursed their initial 10% dividend but have not received the pro rata sum of $9,297.13 or the contingent ten-percent dividend.
The debtor, AT of Maine, Inc., has now filed a second Chapter 11 proceeding proposing to sell the assets and real property to satisfy the obligations of the MNB and the SBA. The MNB and the SBA object to the filing of a second Chapter 11 proceeding on the grounds that AT of Maine, Inc. seeks to modify its previously confirmed plan after substantial consummation of the original Chapter 11 proceeding in violation of 11 U.S.C. § 1127(b).
Under section 1141(a) of the Code, the provisions of a confirmed plan are binding upon the debtor. See 11 U.S.C. § 1141(a). Section 1127(b) of the Code provides that
(b) (t)he proponent of a plan or the reorganized debtor may modify such plan at any time after confirmation of such plan and before substantial consummation of such plan[.]
11 U.S.C. § 1127(b).
The term "substantial consummation" is defined in § 1101(2) of the Code as the
(A) transfer of all or substantially all of the property proposed by the plan to be transferred;
(B) assumption by the debtor or by the successor to the debtor under the plan of the business or of the management of all or substantially *57 all of the property dealt with by the plan; and
(C) commencement of distribution under the plan.
11 U.S.C. § 1101(2).
Section 1127(b) infers that the proponent of a plan or the reorganized debtor may not modify a plan after substantial consummation and prohibits an interference with the vested rights of those creditors provided for under a substantially consummated plan. See 3 Norton on Bankruptcy Law and Practice, ¶ 64.02 at 2 (1981), cited in In re Northampton, Inc., 37 B.R. 110, 113 (Bankr.E.D.Pa.1984).
The Court finds that under the facts of this case and as a matter of law the consolidated plan of reorganization filed by AT of Maine, Inc. and American Trawler Corporation, as confirmed by the Court on September 20, 1982, has been substantially consummated. The assets and the real property owned by Bruno were transferred to AT of Maine, Inc. as trustee of the Richard A. Bruno Nominee Trust. Payments to both secured and unsecured creditors were commenced. AT of Maine, Inc. is therefore precluded from modifying the consolidated plan under 11 U.S.C. § 1127(b).
The issue presented to the Court in this case is whether AT of Maine, Inc., despite 11 U.S.C. § 1127(b), should be allowed to file a new Chapter 11 petition that, in essence, would affect or modify the consolidated plan, as confirmed.
This Court is persuaded by the reasoning in In re Northampton Corporation, 39 B.R. 955 (Bankr.E.D.Pa.1984) where in a case substantially similar to the one at bar a creditor's motion to convert a Chapter 11 case was granted on the grounds that the case attempted to modify the debtor's previously confirmed Chapter 11 plan after substantial consummation. The debtor in that case had defaulted under the provisions of the original plan and prior to foreclosure by one of the debtor's creditors, the debtor filed a second Chapter 11 petition. The court found that the filing of the second petition was tantamount to modifying the previous plan after substantial consummation in violation of 11 U.S.C. § 1127(b), and in a related case reasoned that to hold otherwise would be to "allow [the] debtor to continuously circumvent the provisions of a confirmed plan by filing Chapter 11 petitions ad infinitum." In re Northampton Corporation, 37 B.R. 110, 112-13 (Bankr.E.D.Pa.1984). The Court agrees with the holding in Northampton and finds that the debtor's filing of the present Chapter 11 petition is a veiled attempt to modify the previous consolidated plan, as confirmed by the Court, in contravention of 11 U.S.C. § 1127(b).
This Court is further convinced that the reasoning in the Northampton case should prevail in this instance where AT of Maine, Inc. seeks to modify a substantially consummated plan when a principal in the original proceeding, namely American Trawler Corporation, is not a party to this proceeding. At the time of the original filing by American Trawler Corporation and AT of Maine, Inc., the MNB and the SBA were creditors of American Trawler Corporation. AT of Maine had virtually no assets and had only one creditor. Only as a result of the confirmation of the consolidated plan and the transfer of property by Bruno to AT of Maine, Inc. as trustee of the Richard A. Bruno Nominee Trust did AT of Maine, Inc. become obligated to the MNB and the SBA. Although AT of Maine, Inc. now seeks to modify the obligations by the filing of a second Chapter 11 petition, American Trawler Corporation is not before this Court.
The MNB and the SBA further suggest that the present Chapter 11 proceeding should be dismissed under 11 U.S.C. § 1112(b) on the grounds that the petition has been filed in bad faith. Section 1112(b) of the Code provides that
(b) Except as provided in subsection (c) of this section, on request of a party in interest, and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title or may dismiss a case *58 under this chapter, whichever is in the best interest of creditors and the estate, for cause, including
(1) continuing loss to or diminution of the estate and absence of a reasonable likelihood of rehabilitation;
(2) inability to effectuate a plan;
(3) unreasonable delay by the debtor that is prejudicial to creditors;
(4) failure to propose a plan under section 1121 of this title within any time fixed by the court;
(5) denial of confirmation of every proposed plan and denial of a request made for additional time for filing another plan or a modification of a plan;
(6) revocation of an order of confirmation under section 1144 of this title, and denial of confirmation of another plan or a modified plan under section 1129 of this title;
(7) inability to effectuate substantial consummation of a confirmed plan;
(8) material default by the debtor with respect to a confirmed plan; or
(9) termination of a plan by reason of the occurrence of a condition specified in the plan.
11 U.S.C. § 1112(b).
Although not specifically delineated in 11 U.S.C. § 1112(b) as grounds for conversion or dismissal of a Chapter 11 petition, a "good faith" requirement to the filing or continuation of a proceeding under Chapter 11 of the Code has been imposed by the courts. See, e.g., In re G-2 Realty Trust, 6 B.R. 549, 2 C.B.C.2d 1344 (Bankr.D.Mass. 1980). AT of Maine, Inc. holds property only as trustee of the Richard A. Bruno Nominee Trust for the benefit of its sole beneficiary. The debtor has no assets of its own, operates no business, has no bank accounts, has no employer tax identification number, has filed no tax returns or financial statements, and has no means by which to insure or protect the assets which are the subject matter of the trust. In addition, it appears that the debtor will receive no substantial benefit from the property in question. The Court can see no justification for the filing of the second Chapter 11 petition other than to protect the trust's sole beneficiary, Richard Bruno, by preventing the MNB and the SBA from taking whatever action those creditors are entitled to initiate against the property held by the trust as a result of nonpayment under the previous consolidated plan, as confirmed. The Court therefore concludes that under the facts of this case, the second Chapter 11 petition filed by AT of Maine, Inc. was not filed in good faith.
In accordance with the above findings of fact and conclusions of law, the Chapter 11 petition filed by AT of Maine, Inc. on July 26, 1985 shall be dismissed.
Enter Order.
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9 Cal. 2d 409 (1937)
IRENE HERBERT, Respondent,
v.
DORIA C. LANKERSHIM et al., Executors, etc., Appellants.
L. A. No. 15762.
Supreme Court of California. In Bank.
August 23, 1937.
J. Wiseman Macdonald, in pro. per., Edward M. Auslender, Loeb, Walker & Loeb, Irving M. Walker, Milton H. Schwartz, Herman F. Selvin and John W. Preston for Appellants.
Swaffield & Swaffield, Kenneth Sperry and Joseph E. Madden for Respondent.
SEAWELL, J.
J. B. Lankershim, commonly known as Colonel Lankershim, a resident of the city and county of Los Angeles, state of California, died testate on October 16, 1931, at the city of Brooklyn, state of New York. He left a large and valuable estate. J. Wiseman Macdonald and Bank of America National Trust and Savings Association *417 were appointed special administrators, with general powers as to the management of his estate.
By paragraph IV, count one, of the complaint, denominated "Complaint--Money on Contract", plaintiff alleges:
"That during the lifetime of said decedent and on the 10th day of October, 1927, said deceased J. B. Lankershim at and in the city of Los Angeles ... in consideration of and on account of services rendered by plaintiff to and for J. B. Lankershim at his special instance and request, at divers times and occasions between January 4, 1924, and January 1, 1928, as a companion to him and in reading to him, administering to his wants; caring for his welfare; preparing food, meals and delicacies for him; attending to and caring for his wearing apparel and linen; aiding and assisting him in dressing and undressing and other activities of life; protecting him from artful and designing persons; consoling and sympathizing with him in times of worry, anxiety, displeasure and disappointment; nursing and administering to him in times of sickness and ill health; preparing and administering medicines and other treatment as directed by physicians or desired by him and otherwise caring for and administering to his comfort, contentment, welfare, happiness and pleasure, made executed and delivered a certain instrument in writing," which is marked "Exhibit 1", of which the accompanying photoprint is a facsimile. (See reproduction on page 418.) *418
Graphic Material Omitted
*419
Said instrument was presented to said special administrators for payment in the form of a creditor's claim on August 1, 1932, and it was rejected on August 25, 1932. It was made a part of count one by reference.
For a separate and second cause of action plaintiff alleges that the decedent for a valuable consideration made, executed and delivered to plaintiff said written instrument and prays for judgment in the sum of $500,000, together with interest thereon as provided by law, and that the same be paid from the estate of J. B Lankershim in due course of administration, and for appropriate relief in the premises.
In both counts of the complaint the kind of services and the period of time in which they were performed are definitely alleged.
Doria C. Lankershim and John I. Lankershim, children of the decedent, and J. Wiseman Macdonald, the executors named by the decedent in his will, were, in due course, substituted as parties defendant in the place and stead of said special administrators. J. Wiseman Macdonald was a trusted and close personal friend of the deceased and had been his legal and business advisor for many years prior to his death.
On October 10, 1927, the day the disputed instrument bears date, the decedent was seventy-seven years of age and the members of his family then living were his wife, Caroline A. Lankershim, and the son and daughter, answering defendants herein. The plaintiff was at said time the wife of Edres Herbert and was approximately thirty-eight years of age.
Decedent executed his will on March 29, 1929, some seventeen months subsequent to the date which said questioned instrument bears. He died October 16, 1931, and his will was admitted to probate on December 14, 1932. He made no provision for nor mention of plaintiff in said will.
Decedent's wife predeceased him by three years and a few months. The son, daughter and J. Wiseman Macdonald, executors, deny at length and in detail the genuineness of said instrument bearing date October 10, 1927, and allege by way of separate and affirmative defense matters which are absolutely opposed to and directly tend to refute the bona fides of plaintiff's claim. It is admitted by plaintiff that she wrote all the written matter constituting the questioned instrument except the name "J. B. Lankershim". It is also admitted that the ink lines drawn through certain printed *420 words and figures and such interlineations and changes as appear upon the face of said instrument were made by her. Appellants insist that the instrument itself presents physical features which unmistakably bear witness that a number of changes and alterations were made after the name of "J. B. Lankershim" was appended to it, and that the several physical changes which stand unexplained invalidate the instrument. (Sec. 1982, Code Civ. Proc.)
It is argued that the face of the instrument is self-accusatory and the doubts and uncertainties which it creates, and the incongruous situation which has been produced by the alleged transaction, are not consonant with the gravity or enormity of the transaction, nor agreeable with any sensible business method which a person of Colonel Lankershim's business experience and training would adopt for the accomplishment of a much less important transaction. In other words, it is contended by the executors that under no rule of rational conduct can it be concluded that a man who possessed the business sagacity which respondent attributes to Colonel Lankershim would have adopted a plan or scheme of transfer involving a large fortune which held within its basic construction elements which would obviously and inevitably furnish potential grounds of attack, such as are here made upon it.
The executors stress the fact that the signature "J. B. Lankershim" is divided into three parts, none of which are in alignment, and contend that it was written by a hand tremulous with age and inadequately directed by seriously impaired vision; that at a time when waning faculties had rendered him unable to resist the wiles and importunities of designing persons, a state of superannuation in which respondent herself had placed him, she obtained his signature by deceit and misrepresentations as to the true nature of the instrument, if, indeed, anything at all was written on the paper at the time his name was subscribed to it. That he relied upon others to read to him is firmly established by witnesses on both sides of the case. Plaintiff herself in her creditor's claim incorporates "reading to him" as constituting one of the assignments of employment upon which she predicates her claim for compensation.
Appellants' answers are pleaded in both categorical and conditional forms. They direct attention to the fact that all of the printed portions of the instrument were in the form of *421 a check or draft, and the portions that were marked out of the instrument by plaintiff were marked out without the knowledge, consent, approval or ratification of decedent, and none of the printed portions left remaining were read to him, and contend that said printed words were left therein without the decedent's knowledge, and without instructions from him to leave said printed matter in said instrument, and it is, therefore, no part of said instrument.
The genuineness of the signature is denied on information and belief, but it is alternately alleged that if the signature is genuine, all of the written matter contained in said instrument was written after the signature of the decedent had been affixed to a check or draft and signed by him in blank as a matter of business convenience, made accessible to respondent by reason of the existing close personal and confidential relations which respondent fully describes in her verified claim filed herein. The other alternative suggested is that his signature was procured by misrepresentations as to the character of the instrument made to him when his signature was obtained.
The claim that the body of the instrument was either written in toto after signature, or was originally in form a draft or check in the sum of $500 and was thereafter altered and added to, is based chiefly on the close crowding of the words on the line on which the signature is written, and particularly on the fact that the word "me", next preceding the signature, is forced upward and out of line to prevent it from overlapping the signature. Other physical characteristics are pointed out as being wholly contradictory of and inconsistent with the claim that the matter which respondent wrote on the blank check truly recorded his dictation or expressed his wish.
By separate answer it is alleged that if said decedent executed and delivered said instrument, no consideration or benefit of any kind whatsoever passed to said decedent for its execution and delivery; that if any consideration passed from plaintiff to decedent on account of the making and delivery of said instrument, such consideration was grossly inadequate and it did not amount to more than a trifle in a transaction involving a half million dollars; that the procurement of that vast sum for such grossly inadequate consideration constituted a fraud practiced upon him. *422
It is affirmatively alleged by the answering executors that plaintiff became acquainted with the decedent about the month of January, 1924; that he was then past the age of seventy-three years and plaintiff was of the age of about thirty-five years; that she was then a married woman, the wife of Edres Herbert, and was then presumably residing with her husband in the city of Long Beach, county of Los Angeles, and said plaintiff herein and said Edres Herbert were at all times husband and wife; that on January 4, 1924, and for many years prior thereto, decedent resided alone at the Hotel Biltmore, in the city of Los Angeles; that during the period covered by the transaction herein set forth, plaintiff and decedent were on very friendly terms.
Said executors further allege that during all of the period from January 4, 1924, to October 10, 1927, decedent was in a weakened and debilitated condition and was being massaged and was receiving physical treatment from a professional masseur who was in daily attendance upon him at the Biltmore Hotel; that on October 10, 1927, decedent was past seventy-seven years of age, and he then was and for several years immediately prior thereto had been suffering from debilitating illnesses which had progressively increased with advancing years, thereby impairing his mental force and vigor to the degree that he was easily influenced by those who had gained his confidence; that decedent's eyesight had failed to the extent that on October 10, 1927, if able to read at all, it was only with the aid of powerful lenses, and that at all times herein plaintiff was familiar with decedent's physical and mental infirmities. A condition of atrophied impairment of the optic nerve of decedent's eyes will later receive attention.
It is further alleged that plaintiff, having formed the intent and purpose of obtaining from decedent a large sum of money, and being a woman thirty- eight years of age, and possessing an attractive personality and ingratiating manners, wove herself into his kindly favor; that she visited him socially on frequent occasions at his rooms at the Hotel Biltmore, and at decedent's expense she accompanied him to theaters and took many meals with him; that she performed petty acts of service, many of which were unnecessary, and all of them were done for the purpose of winning his trust and confidence and to assist her in gaining a dominating influence over him to the end that she might carry out her purpose of obtaining *423 from him a large sum of money; that by the indulgence of blandishments and by doing the foregoing acts she succeeded in making him believe that she was fond of him, and was anxious to help him, and that he needed her assistance, all of which was untrue, and she thereby gained his trust and confidence; that plaintiff was a woman possessing considerable mental force, and decedent, having entered a state of progressive mental and physical disintegration, became dependent upon others in domestic and business matters, and plaintiff, taking advantage of his increasing weakness, exercised her power over him to the degree that she was able to dominate him to a marked degree and substitute her will for his will.
In furtherance of her said plan, on or about the middle of August, 1927, she left her Long Beach home and rented living quarters in the Engstrum Apartments in the city of Los Angeles, situated near the Hotel Biltmore, where decedent resided. It is further alleged that by her persuasion he gave up his apartments at the Biltmore Hotel, where he had made his home for a number of years, and on September 1, 1927, moved to an apartment at the Engstrum, selected by plaintiff, on the same floor and directly across the hall from the apartment occupied by plaintiff; that plaintiff visited decedent's apartment several times each day; that on the day the said instrument is alleged to have been executed she falsely and designedly, with the purpose of unduly influencing him, represented to decedent that she was his only real friend, and that she had done more for him than his children had done, and he ought to make her comfortable because of all her acts of kindness, all of which representations were false, but believed by decedent to be true; that while he was at said Engstrum Apartments plaintiff influenced him to deny himself to his friends, other than such visitors as she elected that he might see.
The answer alleges that before signing, or at the time of signing said instrument, if in fact and truth he actually signed it, in its present form or otherwise, the decedent consulted no attorney or friend, and did not advise with anyone as to its terms or effect, and that it was not the voluntary act of decedent, nor did it express his wish or will, but said instrument is the product of false representations and of undue influence which she brought to bear upon his will.
Defendants further allege that if decedent did in fact place his signature on said instrument, he was induced so to do *424 by the representations of plaintiff that said instrument was a check or promise to pay to plaintiff $500 and no more, and that the fifth cipher was thereafter added by respondent in an attempt to convert the figures $500 into $500,000.
In physical appearance, the fifth cipher indisputably differs quite pronouncedly from the other ciphers in size, pen pressure, formation and color intensity. Evidently a blotter was applied immediately after it was made. The spacing between it and the cipher next to it is much greater than the spacing between any of the other ciphers. It is raised above the ruled line, and corresponds in alignment with the two ciphers which constitute the figures "500", after which there is a period and two other ciphers, which, defendants claim, was the true and original amount before it was changed by plaintiff from $500.00 to $500,000. The lower loops of the last two ciphers, denoting cents, drop below the ruled line, thereby differentiating them in alignment from the ciphers admittedly standing for dollars, while the alleged added cipher and the two ciphers expressing the amount in dollars, two spaces removed to the left, are in alignment; that is, all three are equidistant above the line. In other words, the two ciphers underscored, representing "00" cents (provided the amount is to be read $500.00), drop below the ruled line, whereas the two ciphers immediately to the left of said ciphers are in alignment with the figure "5" as in $500. The physical fact cannot be disputed that if a blinder is placed over the disputed cipher, which appears some distance to the right of the fourth cipher, the amount is $500.00. The point after the second cipher is undoubtedly a period.
The contentions of the executors made on appeal, briefly stated, as to the instrument itself are: (1) that the signature of the deceased was obtained by trick or device, or his signature was affixed to the instrument in blank and the plaintiff thereafter surreptitiously obtained the same and wrote all that appears thereon; (2) that the instrument as originally written provided for the payment of $500, and some time thereafter plaintiff fraudulently changed it to its present form; (3) that the large sum is accounted for on the theory that it was not possible, without creating telltale evidence of the erasure of the period, to raise it to any other or intermediate sum below $500,000; (4) that the words "thousand dollars", and the insertion "one month" after the fifth cipher, and the changing of the year 1927 to 1924, and the whole of *425 the closing lines beginning with "kindness", constitute proof that the changes were made long after the signature of the decedent was written on the instrument.
It is a further allegation of the executors that whatever attention or courtesies were shown the colonel by her were done for the purpose of cajoling him by delusive flattery into the belief that his welfare was a matter of deep concern to her; and that she made no suggestion to him that she intended to make a charge against him or his estate for any of the services to which she now lays claim. Section 337, subdivisions 1 and 2, and section 339, subdivision 1 of the Code of Civil Procedure, are pleaded as bars to plaintiff's action. The foregoing sets forth in substance the issues as framed by the pleadings.
The jury returned a verdict in favor of plaintiff for the sum of $500,000, the full amount demanded, with interest at the rate of 7 per cent per annum from November 16, 1931. Judgment was ordered entered in plaintiff's favor in accordance with the jury's verdict, including the costs of trial. The amount of the judgment, including interest, now approximates $700,000. The defendants have appealed to this court from an order denying their motion for judgment notwithstanding the verdict of the jury, and from the judgment in favor of plaintiff and against the defendants. The appeal is presented on an engrossed bill of exceptions.
Many assignments of error are set forth by appellants as to certain instructions given on behalf of respondent, and the refusal to give a number of instructions requested by appellants on matters of law necessary for the guidance of the jury, also undue limitation of cross-examination of plaintiff's chief witnesses, and as to numerous errors made in admitting evidence over the appellants' objections, and excluding material evidence offered by appellants, greatly to their prejudice. Other rulings are complained of, but only such rulings as are of major importance will receive consideration.
[1] The transaction in its inception, development and final consummation, as told by the witnesses for the respondent, presents an extraordinary proceeding. It is earnestly insisted by appellants that no reasonable deduction can be made from the testimony of respondent's witnesses other than that respondent planned to acquire, with the cooperation of her associates, a large part of the decedent's estate, the plan to *426 be executed in secrecy and known only to a coterie of her intimate friends and associates who were unquestionably active in assisting her cause. The age, physical incapacity and failing mental powers of the decedent, which are made apparent by the transaction itself (conceding that he performed the alleged acts in the manner claimed by respondent), and other circumstances shown at the trial, including the confidential relations which are clearly shown to have existed between said parties by the case made out by the respondent herself, and the inadequacy of any consideration that the decedent may have possibly received from respondent, make it the duty of a reviewing court to scrutinize the transaction searchingly.
This rule has been announced in various forms by this and other courts. A concise statement of the rule where the relations between the parties were intimate and highly confidential, as here, and where the donor had no independent advice, and where the conveyance was without valuable consideration, or, it may be parenthetically added, in cases where the consideration is grossly inadequate, is announced as follows in Mead v. Mead, 41 Cal. App. 280, 285 [182 P. 761, 763]:
"Under such circumstances, the decisions hold uniformly that the transaction resulting in benefit to the trustee should be viewed with 'the most scrutinizing jealousy' and that the presumption of fraud attaches, and must be overcome by evidence that the deed is what it purports to be." (Citing a long list of authorities.)
[2] Paraphrasing the language used in Cox v. Schnerr, 172 Cal. 371, 378 [156 P. 509, 512], it may be said that "plaintiff herself furnished proof of the utmost trust and confidence reposed in her by Colonel Lankershim". It is there further said: "The burden of proof usually rests upon the person asserting fraud, but when one bases a claim upon a contract obtained from a person to whom he stands in a relation of trust and confidence, it becomes his task to prove that he exhibited that uberrima fides which removes all doubt respecting the fairness of the contract. ... It applies in every case 'where there has been a confidence reposed which invests the person trusted with an advantage in treating with the person so confiding'. (2 Jones on Evidence, edition of 1913, sec. 190.)"
"In every transaction of this kind, one who holds such confidential relation will be presumed to have taken undue advantage of the trusting friend, unless it shall appear that *427 such person had independent advice and acted not only of his own volition but with full comprehension of the results of his action. (Ross v. Conway, 92 Cal. 632, 635 [28 P. 785]; Darlington's Estate, 147 Pa. St. 624-631 [30 Am. St. Rep. 776, 23 A. 1046]; Firebaugh v. Burbank, 121 Cal. 186-191 [53 P. 560]; Piercy v. Piercy, 18 Cal. App. 751-756 [124 P. 561]; Odell v. Moss, 130 Cal. 352, 357 [62 P. 555].)"
The rules of law as announced in the above cited cases and in many others of this state furnish the criteria or tests which must be applied to the issues of fiduciary and confidential relations which have been indisputably shown to have existed between respondent and decedent, Colonel Lankershim. Whether undue influence will be presumed or inferred from the relationship as described by the evidence is a matter which necessarily involved the proposition as to whether the instructions given by the court sufficiently covered the issue of undue influence, or were as full, direct and explicit on that issue as the appellants were entitled to have given in the circumstances of the case. We will later consider that question in our discussion of the sufficiency of the instructions.
We will next give consideration to the testimony of the four experts who were called to testify in the case. Two were called as experts in handwriting and photographic art in its highest form of development, as a means of distinguishing the genuine from the counterfeit, and two were experts in the restoration of deleted and changed texts, one of whom made chemical analyses and other tests as to the kind and color of inks used in the production of the questioned document. All of them apparently brought to their aid all that science and chemical knowledge of the subject afforded. Albert S. Osborn, lecturer at the United States Bureau of Investigation at Washington, D. C., and a nationally recognized authority on handwriting and disputed documents, and James Clark Sellers, a lecturer at the University of Southern California, and an expert examiner and photographer of questioned documents, also a widely known authority in his special lines which embrace the subjects of inks, dyes, ink absorptions, and the determination of whether writings which cross creases made by the folding of papers were done after the instruments had been folded (as was contended by all the experts in the instant case) or were done before the creases were made by folding, and also offered as an expert as to alterations made in documents since originally written, were the two witnesses *428 called by the appellants. Dr. Lodewyk Hendrikson, head of the photechnical department at the Huntington Library and Art Gallery at San Marino, whose special work is the reproduction and the examination of documents, and the restoration of texts which have been deleted, changed or altered, and Professor Brinton, head of the department of analytical chemistry at the University of Southern California, and who formerly occupied chairs as teacher and lecturer at the University of Paris, the University of London and the University of Minnesota, were specially selected by the court (Code Civ. Proc., sec. 1871), and gave testimony as to the integrity of the questioned document. All four were definitely of the opinion that the signature, J. B. Lankershim, was not written at the same time, with the same kind of ink, or under the same writing conditions or circumstances as other parts of the instrument were written. The experts in handwriting were of the opinion that the last cipher in "$500,000", and other specified parts of the instrument, were not written at the same time that the body of the document was written, and that the ink coloring was different and stated particulars.
The highlights of the opinion evidence given by the experts called by the appellants and selected by the court (none were called by respondent) may be briefly summarized as follows: The signature, J. B. Lankershim, was written before the body of the instrument was written; the shade of color of the ink is different in certain designated words from the shade of others; discs, or small particles of cakes caused by the drying of ink upon the pen are discernible in the lines of the first letter, initial "J", in the signature, which do not appear elsewhere in the writing of respondent; the shade of color in the signature is different from the other writing; the instrument had been folded before the body of the document was written, as shown by the spreading of ink as it crosses the creases made by folding; in some instances the ink, where the writing crosses the fold, penetrates to the back of the instrument; a splash of ink is discernible on the right side of the letter "H" where it crosses the fold line as the pen was caught in broken fibre made by the fold; the date line at the bottom, "Jan. 4, 1924", was originally written 1927, and two figure fours were afterwards superimposed upon the numeral "7" in an effort to convert it into "4"; the word "me", next in position to the letter "J", was given an upward slant to avoid writing into the letter "J", which constitutes the *429 first letter of the signature; "one month", the word "me", and the fifth cipher of "$500,000" were blotted, and no blotter was used on any writing near by or elsewhere; if all parts of the instrument had been written at the same time, other words in close proximity to the blotted words and cipher would also show ink absorptions; the letters forming "Five hundred" are either generally vertical in position or slant to the left of a vertical line, whereas the words "thousand dollars" immediately following said words and which are claimed by the experts on penmanship to have been written at a subsequent time, slant to the right; the words comprising the sentence "kindness and protection to me", which are written below the printed words "value received and charge to account of", are closely crowded together.
Other questions as to word and letter spacing, pen pressure, slanting of letters, arrested and cramped arm motion, differences as to the lightness and heaviness of ink fluids, and ink blurs, which may be readily observed by an inspection of the instrument, are discussed at great length. It is appellants' contention, supported by expert testimony, that if decedent knowingly signed his name to the draft or check, it was written as a straight check for $500.00, and all that appears upon its face tending to transform it into a $500,000 obligation was written without the consent or knowledge of the decedent. The photographic copy of said instrument is herein reproduced. It shows generally the physical things which form the basis of the experts' opinions, except as to a faint crease made by folding the paper a second time at a point midway between the crease running through the center from top to bottom and the left edge of the document.
[3] Appellants stress the point that the testimony of the experts is uncontradicted in the main, and in this particular their contention in some respects is borne out by physical facts appearing upon the face of the instrument which are brought directly to the attention of this court for scrutiny. Such evidence cannot be arbitrarily ignored or nullified by the jury's verdict based upon the testimony of a single witness as to the execution of said instrument, if the testimony of said witness contains within itself such evidentiary weaknesses and abnormalities as to render it too unreasonable and inherently improbable to support the judgment, particularly in the light of the facts of this case, which, under all authority, must be jealously scrutinized. *430
Plaintiff's case rests in no small degree upon alleged oral admissions made by decedent against interest. The only evidence which can be regarded as corroborative of Miss McKee's testimony as to the execution of the disputed document is the instrument itself, admittedly in the handwriting of the plaintiff to which the decedent's name is attached. Appellants insist that her testimony as to the production of the instrument is impeached by the inherent improbabilities which confront it and by the instrument itself in the circumstances of the case. [4] On the subject of oral admissions, unless corroborated by satisfactory evidence, this court, in the Estate of Emerson, 175 Cal. 724, 728, 729 [167 P. 149], rates it as the weakest of testimony that can be produced. Lord Romilly, master of the rolls, in Crouch v. Hooper, 16 Beav. 182, made the following observations as to this kind of testimony: " 'It is always necessary to remember that in these cases, from the nature of the evidence given, it is not subject to any worldly sanction, it being obviously impossible that any witness should be convicted of perjury for speaking of what he remembers to have been said in a conversation with a deceased person.' Therefore, proceeds the learned judge, he has never experienced any difficulty in rejecting and disregarding such evidence." The decision points out that the position or interest of such witnesses may be so patent as to make it " 'the duty of the court to examine their testimony with a jealous care and to scan it with a watchful scrutiny. They are masters of the situation and swear without fear of contradiction. The safe administration of justice demands that in such a case there should be either satisfactory corroborative evidence, or that the evidence of the living party should be so full and convincing as to persuade the court of its entire truth.' And, finally, the text-writers show that the courts are all in accord in thus weighing such evidence, and here suffice it to cite 2 Moore on Facts, secs. 877, 1150 and 1166; 1 Taylor on Evidence, sec. 648; Wigmore on Evidence, secs. 578, 2065." (Italics ours.) (Estate of Emerson, supra.) In support of the above text, section 2061, subdivision 4 of the Code of Civil Procedure; Mattingly v. Pennie, 105 Cal. 514 [39 P. 200, 45 Am. St. Rep. 87]; Austin v. Wilcoxson, 149 Cal. 24 [84 P. 417], are also cited. It is also urged that plaintiff's case is founded on coincidence, fortuitous circumstance and unusual incidents or events which have neither a natural or logical beginning nor sequence, and are at variance with the rational *431 conduct of a person who had in contemplation a transaction of the kind, importance and magnitude of the one under examination.
It is pointed out that it is the duty of courts, in the examination of cases of the nature of the one before us, not only to inquire into the confidential relations existing between the parties involved, but also to carefully scrutinize the purposes and intent which likely motivated the party who would become excessively enriched by the accomplishment of a grossly uneven bargain. It is insisted with much force that in view of the relations which existed between the principals to the controversy and the nature and magnitude of the transaction, in the light of the evidence disclosed by the record, due respect to and regard of the laws which direct human conduct, particularly as applied to persons highly trained in business affairs, render the case made by respondent too weak and insubstantial to support a judgment grossly in excess of the value of any services respondent had the ability to perform or of which the decedent was in need.
The evidence upon which respondent relies to sustain her judgment, and which appellants most vigorously assail, was given by Miss Stella McKee, a close friend and companion of respondent for a number of years. Like Mrs. Herbert, she resided at Long Beach, where their relations had been very intimate for several years. She accompanied Mrs. Herbert to the lawyer's office during pre-trial days and at the trial of the case, and, no doubt, counseled with her. Mrs. Herbert had lived in her apartments at Long Beach, and she was acquainted with Mrs. Herbert's husband. The witness of equal importance to Miss McKee, and who was most active in promoting a relation of companionship and personal friendship between Mrs. Irene Herbert and Colonel Lankershim, was Mrs. Adele Blood Hope. After leaving Long Beach Mrs. Herbert occupied, at various times, apartments rented by Mrs. Hope. Mrs. Hope originally introduced and brought together Mrs. Herbert and Colonel Lankershim. Her activity in Mrs. Herbert's interest appears from her own admissions. She afterwards met her on several occasions and under various circumstances at the Biltmore Hotel in the apartment of Colonel Lankershim.
Miss McKee, at the time of trial, testified that she was then employed as a cashier in the public utilities department at Long Beach, had formerly been employed by a Long Beach *432 bank as teller or cashier, but was without employment after July, 1927; that she was a visitor on five or six occasions at the apartments of the colonel upon invitation of her friend, Mrs. Herbert. She partook of meals and attended a picture show or theater frequently as the guest of the colonel, and partook of his hospitality very freely. Because of his failing eyesight, theater seats were never further from the stage than the second or third row. He said he "had to sit close to the stage". Frequently he would leave the theater before the picture or program was more than half completed. The numerous dinners which the witness and other mutual acquaintances and friends of Mrs. Herbert enjoyed at the Biltmore Hotel were served in the colonel's apartments. He paid all bills. He seemed generous in hiring taxicabs and placing his automobile at the disposal of his female guests, both for use within the city and for beach and long distance trips. Miss McKee, who testified that she was in the colonel's room at the time the disputed instrument is claimed to have been written, said, in explaining her presence, that a few days before October 7, 1927, she received a letter at Long Beach from Mrs. Herbert, who reminded her that her (Miss McKee's) birthday fell on October 7th, and invited her to attend a birthday party which she wished to give in celebration of the occasion at her apartments at the Engstrum Apartments, where she was stopping. The witness answered, accepting the invitation.
In her deposition, taken some five months before she testified in the case, she stated that she did not attend on the day set, as her duties at the bank would not admit of her attendance. Her attention being called to the fact that she had not been employed at the bank since the month of July preceding, she admitted error, but was unable to recall the circumstances which prevented her attendance on the seventh. She did arrive from Long Beach on the evening of the ninth of October. She took dinner in Mrs. Herbert's room, Colonel Lankershim being present, and remained overnight with Mrs. Herbert. Upon arising in the morning Mrs. Herbert prepared breakfast for the three. Between 9:30 and 10 o'clock she and Mrs. Herbert entered Colonel Lankershim's apartments, which were across the hall from Mrs. Herbert's room. Mrs. Herbert carried a tray containing muffins, some fruit, coffee, tea, sugar and cream. Evidently their entry into the colonel's apartment was an unexpected visit. The colonel was lying on his bed and was attired in his dressing robe and had on slippers. *433 He took his breakfast reclining on the bed while Miss McKee and Mrs. Herbert ate from a small table which they had set.
After breakfast the colonel complained that the masseur employed to attend him had not arrived. He was disappointed and annoyed that the masseur was not there to perform a duty he was hired to perform. He said that Irene had never failed him. Mrs. Herbert then suggested that she do something for him and she began to rub his arms, the back of his head and neck, and to put cold compresses over his eyes. In her deposition Miss McKee had averred that the colonel complained of feeling tired and said his eyes were bothering him. She contradicted this statement at the trial and testified that he said nothing about his eyes bothering him or feeling tired, but when they entered he said he was feeling fine.
According to the witness he was lavishly profuse in his praise of Mrs. Herbert. He complimented her for the perfect manner in which she had cooked the prunes, and the muffins and the coffee were just to his liking. He said, "Irene, you know how to cook meals to suit me." He further said she was always thinking of the things he liked and preparing them as he liked them; that she did more for him than anybody in the world, even his own children; all the little things she did meant very much to him; that he was never disappointed in Irene; she had an understanding mind and knew what he liked and when he wanted a thing done she did it. He spoke of her kindness and thoughtfulness of him, and how necessary she was to him. When she had finished rubbing his arm and head, he said: "Now, I am going to make good the promise I made you. I am going to pay you well for your services." He arose from his bed and went to a dresser, took out a piece of paper, and said: "I want you to write what I am going to dictate."
The witness then recalled that he dictated "something like this". She then repeated verbatim, even as to the order and arrangement of each word and sentence, the verbage appearing in the body of the written instrument which she had heard dictated but once and had not seen or heard discussed by anyone during a period of nearly six years. She and Mrs. Herbert had lived within that period in the same apartments for some time and at one time were interested in a common business enterprise. They had resided within a half block of *434 each other at Long Beach for quite a period and had been close friends and companions for a number of years, but at no time did she or Mrs. Herbert even hint at or mention the existence of the instrument, notwithstanding the fact that Mrs. Herbert, according to her testimony, usually carried it in her passport book or purse on her person, and at no time was it out of her immediate control prior to the colonel's death.
The witness testified that it was an unusual instrument in form, such as she had never seen before in her experience as a bank employee, and she was unable to classify it. She testified that the colonel requested of her and Mrs. Herbert that they should not mention the transaction to anyone. This commitment of secrecy was not observed by the colonel himself, if the testimony of Miss Ruth Belle Allen, daughter of Mrs. Isabel Clark and an intimate friend of Mrs. Herbert, is to be accepted, as she testified that she met the colonel in Mrs. Herbert's apartment on the afternoon of October 10, 1927, and he was smiling and said to the witness, Mrs. or Miss Ruth Belle Allen, "I told you I was going to pay Mrs. Herbert. I have given her a note for half a million dollars, payable a month after my death." She had known the colonel not longer than seven weeks. He further cautioned: "I don't want you to mention this to anyone, Miss Allen." He called her Ruth. She said she would not mention the note. He said, "I wouldn't tell you, but I can depend on you not to tell this where people will discuss it." He did not say why he did not want her to tell. Mrs. Herbert did not say anything, but "just smiled". The witness claimed that she did tell her mother and discussed the matter with Mrs. Herbert.
Returning to the story of the production of said instrument as related by Miss McKee, appellants seriously contend with good reasons that the reproduction, word perfect, of an instrument which is peculiar in its phraseology, and which the witness heard read but once and which she read herself but once, and which had not been seen or discussed by her or by anyone else in her hearing, after the lapse of a period of more than five years is such a wide departure from the usual and common experience as to the operations of the mental faculties as to partake of the miraculous in mnemonic feats and has a strong tendency to bring distrust upon the testimony of the person claiming the power to perform such a feat, tested by the rule of reasonable probabilities, taking due note of all the *435 other facts and circumstances which bear upon the testimony under scrutiny.
The witness, further describing the transaction, said that the colonel was lying on the bed while he was dictating, and respondent was sitting in a rocking chair, holding the paper on her lap as she wrote the dictation. The witness from her position said she could not see what Mrs. Herbert was writing. When the dictation was finished Mrs. Herbert read it over and said: "I forgot to put in the 'one month'." He said, "Insert it after the $500,000." She read it to him, and handed the note to him. He looked at it and got up out of bed and went over to the dresser and signed the note. He was in bed when she handed it to him after she had written it. The witness said he appeared to have read it. When he reached the dresser he pushed the cover back and began to use his arm as if writing. He had a pen in his hand which he got from Irene Herbert. The witness said she could not say it was a different pen or the same one used by Mrs. Herbert. She did not notice what was done with the pen. He handed the note to Irene. She took it, looked at it and said: "Colonel Lankershim, I thank you." The colonel went back to bed. Mrs. Herbert passed the note to her, she took it in her hand, read it, and returned it to Mrs. Herbert. She said she recognized the instrument dated October 10, 1927, as the same paper handed to her by Mrs. Herbert five years previously.
She further testified that the colonel told Mrs. Herbert "to take it [the paper] to the bank and keep it there until after his death, and then to take it up to his attorney, Mr. Macdonald, and he would see that she received the money." The witness did not know what Mrs. Herbert did with the note after the colonel gave the above instructions. It is certain that she did not follow his instructions in a very important particular. After Mrs. Herbert handed the note to the witness she left the apartment alone.
She first met the colonel in 1924, when she visited his apartment at the Biltmore Hotel upon the invitation of Mrs. Herbert. The witness recited the months from memory on which she had met the colonel since 1924. Most all of the five or six meetings were had upon invitation of Mrs. Herbert at the Biltmore Hotel. She took meals with Mrs. Herbert in the colonel's apartments and attended places of amusement as his guest. Upon the occasions when she was at his rooms Mrs. Herbert took to his rooms custard, vegetable soup or lamb *436 stew. On one occasion she prepared his bed for him; once she mended his hose and sewed buttons on his clothing and rubbed spots off his clothes after eating dinner; once she heard her call a valet and instruct him to take his clothes to the cleaner. She had also seen her rub his hands, the back of his neck and head, and heard him say, "she had a very soothing touch to her fingers". The witness stated in her deposition that the colonel said he was going to pay respondent well for her services. She quoted the colonel as saying, "I am going to fulfill my promise and pay you for services rendered." Nothing was said by either as to what would constitute a reasonable charge.
During the early stages of Miss McKee's testimony she described with meticulous detail the dictation as given by the colonel. She made conflicting statements both as to the year and month that the services were to be reckoned from, but finally said she remembered that the true date named as the commencement of service was January, 1924. The body of the instrument as written was reproduced word perfect, even to the order of its language. She said that in writing the instrument Mrs. Herbert omitted from the dictation the words "one month" next after $500,000, and her memory was that she discovered the omission while in the midst of writing the instrument. At other times she stated that Mrs. Herbert discovered the omission after she had finished writing the instrument. The time of discovery was left by the witness in a state of confusion.
She gave conflicting testimony as to whether Mrs. Herbert selected the place where the omission should be inserted without instructions from the colonel, or whether the place of insertion was made as dictated by him. In a part of her testimony she said that the colonel with much exactness instructed Mrs. Herbert to insert the omitted words immediately after "$500,000" as expressed in figures, and in other parts she said that he gave her no instructions as to the place where the insertion should be made, and that Mrs. Herbert inserted the omitted words without any instructions from anyone, as "she knew where to put it".
Miss McKee also testified as to paper, pen and ink being in the room, but did not see a blotter in the hands of Mrs. Herbert, on the table or elsewhere in the room. A caret indicates the place where the omitted words were inserted, which clearly *437 shows that they were supplied after the instrument had been written, or at least after the line in which they were inserted was completed. The witness also testified that Mrs. Herbert was seated in a rocking chair and wrote from her lap. A table and stationary chair were accessible and were used by the colonel when he is said to have written his name. In relating the circumstances in which the said instrument was written, she testified that the colonel arose from his bed, went to the dresser, took out a piece of paper and carried it, together with pen and ink, to a table and instructed Mrs. Herbert to write what he was about to dictate. Why Mrs. Herbert should have selected a rocking chair and written from her lap a document which she must have known was of tremendous importance to her, was not explained. It is not claimed the colonel sat in a rocking chair when he signed his name at the dresser. The note was read to the colonel as he was lying upon the bed, and handed to him. He took it in his hand and appeared to read it. He arose from the bed and took the paper and pen to the dresser and appeared to be writing. He returned, handed her the note, and went back to his bed. Mrs. Herbert said nothing to the witness that she could recall with respect to the instrument after it was signed and delivered to her. She left the apartment a few minutes later. During all of their close relations and friendship the matter was never again referred to until Miss McKee's deposition was taken almost six years later.
Whether or not the instrument had been folded before Mrs. Herbert had written the alleged dictation became a matter of inquiry. The witness testified that she held the instrument in her hand and read it. She was then asked: "Q. Had it been folded at that time? A. It had not. Q. Perfectly flat? A. It was." The witness then returned it to Mrs. Herbert and said she didn't know what respondent did with it. Under examination by appellants, she said that she saw "some printed matter" on it but she did not "pay any attention to the printed matter". The following question was then put to her: "Q. You did not read the printed matter on it then, did you? A. 'For value received,' I remember seeing that. Q. The Colonel did not dictate 'for value received', did he? A. It was printed on it. The Colonel did not dictate 'for value received'. I don't recall that Mrs. Herbert read 'for value received' when she read the contents of the note. *438 Q. Don't you know that she did not? A. I don't recall her reading it."
The instrument shows a crease through the center. The experts point out that the spreading of ink is discernible in the trough made by folding in several places. The writing in crossing the trough loosened the fibre or sizing of the paper and left it much in the condition of blotting paper. It is pointed out that the capital letter "H" near the top of the paper, being the first letter of respondent's surname, and the letter "m" in "me", appearing near the signature "J. B. Lankershim", prove that Mrs. Herbert's writing was done across a distinct crease made by folding the instrument. It is also claimed that the ink penetrated through the paper in places and is discernible in the photograph taken of the back of the instrument. Several printed words not mentioned by Miss McKee and which were not stricken out by Mrs. Herbert appear upon the face of the instrument. "Los Angeles, Cal.," the first words of the instrument, and the word "dollars", well down in the instrument, and the last five words of the "value received" clause, to wit, "and charge to account of", are printed words not referred to by the witness. The words "value received", which she had a distinct recollection of observing, were of great importance to the respondent's case. The witness testified that she had not been aided by anything she had heard or seen since October 10, 1927, and her testimony was based solely on her memory as of that date. The witness had no such accuracy of memory as to any other matter printed on said note. She was unable to recall anything that Mrs. Herbert wrote to her when she invited her to the birthday dinner, or anything she said in her reply or in explanation as to why she was three days delayed. The other unusual trait of memory exhibited was her ability to name the several months in which she had heard the colonel speak in complimentary terms of Mrs. Herbert. In a number of other matters her memory was faulty.
The witness next in importance to Miss McKee was Mrs. Adele Blood Hope, also known as Miss Blood, who identified herself as "formerly known as Adele Blood, the actress", and as having played many engagements in Los Angeles and particularly the character of "Everywoman" in the play known as "Everywoman". She was forty-seven years of age, a native and resident of California, but had been residing *439 in New York city for some three years past and came specially to Los Angeles to testify in the case. She was engaged in the advertising business in New York. She said that she first met Colonel Lankershim in 1908 at the Lankershim Hotel, in Los Angeles. She was intimately friendly with him and the acquaintanceship continued until 1928 or 1929, which was the last time she saw him. She had known Mrs. Herbert eighteen or nineteen years. She first met her at her home at Great Neck, Long Island. She introduced the colonel to Mrs. Herbert either before Christmas day in 1923 or soon after New Year's day, 1924, at the Biltmore Hotel, Los Angeles. She left soon afterwards but returned about Christmas time in 1924. During a time when Mrs. Herbert and the colonel were visiting at her home in Hollywood, Miss Blood said that the colonel asked her if she knew that he had made Mrs. Herbert his companion. She replied that she had not known this, and the colonel said the very fine cooking that she had done in her apartment had made him realize that he had been living in hotels and not getting the right kind of food. He had been interested in getting his health in better condition. The witness said she then asked Mrs. Herbert how it seemed to be drawing a salary. She said she was not drawing a salary. Miss Blood then said: "Well, if I were a companion to anyone I would certainly want to draw a salary for my work." The colonel said "likely that I would, meaning me, but that he would pay Mrs. Herbert in his own time and in his own way. I told him I thought it was rather an unbusinesslike procedure." There is no evidence that Mrs. Herbert was a cook or ever was so engaged or that she was ever engaged as a nurse. Miss Blood, her close intimate friend, never knew her to be so engaged. The evidence points in an opposite direction. The colonel at all times stayed at hotels well supplied with bellboys, housemaids, valets, chefs and such other attaches as first- class hotels afford, and with the best there was of culinary art for the comfort and convenience of their guests. The fact that the colonel preferred first-class hostelries to the private home cooking of which it is said he was so fond is proved by the fact that, except for the few weeks he was at the Engstrum, where all relations with Mrs. Herbert ended, he made his home at the Biltmore Hotel, where every modern convenience of living and service was at his beck and call. There is no evidence to justify an *440 assumption that Mrs. Herbert at any time rendered regularly continuous or necessary service in the capacity of a cook, nurse or attendant, with the understanding or in the sense that persons are employed to perform such services. It affirmatively appears by the testimony of plaintiff's chief witness, Miss McKee, that he stated that he had a regularly employed masseur at the time the instrument in question was executed, and from statements of other of her witnesses it is clear that said masseur or attendant had been in his continuous service for a number of years, and it was his duty and habit to visit him every morning and administer to his physical needs and personal welfare. There can be no doubt but that he was surrounded by a coterie of attendants employed by the leading hotel where he lived in comfort and luxury.
The witness stated that in 1924 she rented a flat for occupancy by her mother at West Eighth and Garland Streets. Mrs. Herbert stayed at the apartments much of the time when Miss Blood was away, and also when she was there. Mrs. Herbert and Miss Blood's mother lived in the same flat both at Eighth Street, Los Angeles, and at Long Beach. Mrs. Herbert occupied the witness' room many times when the witness was not in Los Angeles. The colonel was then living at the Biltmore Hotel. Miss Blood was at the Biltmore Hotel from October, 1925, to the spring of 1926. She testified that Mrs. Herbert was always at the Biltmore apartments when she called on the colonel during her stay from October 1925, to the spring of 1926. She saw Mrs. Herbert brush his hair and bring him a wet towel so he could wash his face. She would order his breakfast, and nearly always supplement it with something she brought with her. She saw her bring him his glasses and wipe them, and give him medicine, massage his neck and head. She sometimes put a light on his face for a nervous trouble he had on the side of his face. She had seen her dry clean his ties, mend his underwear and socks; help him put on his slippers and dressing gown; clean spots from the front of his clothing; order his meals; arrange for theater tickets and accompany him to the theaters and see that he was comfortable; assist him in the taxi and see that the windows were closed, which often made it uncomfortably close in going to theaters; saw her manicure his nails. *441
She said she and the colonel often walked from the Biltmore to Mrs. Herbert's apartments at the Engstrum and had dinner at Mrs. Herbert's apartments. She met him in Paris in 1926 and had lunch with him several times, and he expressed a regret that he had not taken Mrs. Herbert to Paris with him. (This was while he was on one of the regular annual trips he made to Paris to visit his wife, who was in ill health, and his daughter. He annually spent from four to seven months in Paris with them.) She testified that he expressed regret that he had not taken Mrs. Herbert with him to Europe as he was extremely lonely and had no one to go with him to the different restaurants and theaters. She noticed an unclean condition of his vest and tie and called his attention to his untidiness and he said: "If Irene was here this would not have happened. I have been so dependent on her care. Sometimes I am careless." She took him to her sitting room and removed the spots. She met him in New York in 1927. Mrs. Herbert came with him and she met them upon their arrival. He was then on his way to Paris to visit his wife and daughter. Mrs. Herbert stopped at New York, where Miss Blood was then living. Miss Blood next saw the colonel in August or the first of September at the Engstrum where Mrs. Herbert was living. The witness left shortly for New York and did not see him again until her return to Los Angeles in the latter part of February or first week in March, 1928. She met him in the galeria of the Biltmore and had luncheon with him. He told her that Mrs. Herbert was no longer with him. The witness expressed surprise and the colonel asked her if she had not known it and she replied in the negative and asked him why it was. He told her that his attorneys had felt that "it was best that he have a man companion or attendant". The witness said it was too bad, as she had been with him during all these years. "I asked him what he had done, how much he paid her, Mrs. Herbert, for all the years of service, whether he had paid her and he said he had. I asked him how much he had paid her, how much he had given her. He said he had not given her money. I said, 'Well, that is rather amazing. What did you do?' He said, 'I have given her a note for services rendered', when he could easily give her money. He said he liked to do things in his own way. He always was not in a position from the curiosity of people surrounding him to do things as he wanted *442 to do even though he was a man of wealth." The witness asked the amount of the note and he said it was enough to take care of her for the rest of her life and that she would have "plenty for some of her pet charities". In reply to a further question as to when the note was due, he answered that it was due "one month" after his death. The witness then said: "I told him I thought it was a very silly thing, it would be very much better if he gave her money while he was alive instead of giving a note payable after his death. He told me that one of the real regrets of his life would be that he would not be here to see Mr. Macdonald's face when he saw the note." This was rather a grim quip of humor for a man who, as the witness said, was not then well and who certainly was infirm with age. The above colloquy illustrates very forcibly that she appeared to be more concerned as to the amount of money that her friend, Mrs. Herbert, was to receive from the colonel than she was in his comfort or his personal welfare. It also gives weight to the claim that someone exerted influence over him which outweighed any counter advice that his attorney might give him on the subject, and that such assurance of providing for Mrs. Herbert would tend to quiet the fears of his interrogator. Mrs. Herbert's name was again interjected into the conversation by Miss Blood, who said the colonel spoke of missing her care and that he was lonely and the man caring for him was not very companionable and did not add to his comfort.
The colonel left the Engstrum Apartments some three weeks after the transaction of October 10th, not later than the first of the following month, as related by Miss McKee, leaving Mrs. Herbert occupying a room on another floor, and returned to the Biltmore Hotel.
On cross-examination the witness testified that her first meeting with Mrs. Herbert was at Great Neck, Long Island, but she did not give the year. She never knew that she had any occupation. She said on three or four occasions, or possibly a half dozen, she had prepared meals for the colonel at his Biltmore apartments in 1924. The evidence by all other witnesses was to the effect that meals were served at his rooms by the hotel at his expense for his visitors, and that Mrs. Herbert brought with her on occasions soups or mutton stew or some delicacy which he specially fancied as supplementary to the meals ordered sent to his rooms. In *443 addition to what has already been related, she said that in 1924 she had seen Mrs. Herbert help the colonel up the walk, in and out of taxis, and saw that he had selected food. Mrs. Herbert usually had him by the arm, as he seemed a little feeble. The witness said she had visited his apartment upon his invitation many times and had breakfast, and had been there occasionally until midnight. Mrs. Herbert was also there, and she said she never saw Dr. Fred Foster, his masseur, attending him. Sometimes Mrs. Herbert signed the charge checks for meals, and sometimes the colonel signed them. On a few occasions Mrs. Herbert stayed at the Biltmore as her guest and occupied a bed in her room.
Four members of the Clark family, mother, father, daughter and son were witnesses in the case. The mother and daughter and son were called by plaintiff, and the father was called by the defendants. All were personal friends of Mrs. Herbert. Mrs. Isabel H. Clark, mother of Miss Ruth Belle Allen and Frank D. Allen, and wife of Ivy C. Clark, was the first of the family called to the stand. She had known Mrs. Herbert seven years. She first met the colonel when he was on his bed, sick, at the Biltmore. She was with her husband. Mrs. Herbert met them in the hotel lobby and all went to his room and she introduced them to the colonel. They stayed only a few minutes. Mrs. Clark and her husband went back after a short time, perhaps a month thereafter. He was then up. He had told Mrs. Clark on her first visit to come back and take lunch with him. Mr. and Mrs. Clark on their second visit stayed about two hours. Mrs. Blood and Mrs. Herbert were there. They took lunch in the colonel's suite. The witness said that the colonel spoke to her about Mrs. Herbert's kindness and faithfulness to him. She helped him to put on his shoes or slippers. She poured his tea. He was a great lover of tea. Before they left, Mrs. Herbert had to take him to his bedroom. Three or four months after she first met him, Mrs. Sidney Chaplin invited her to lunch. Four sons and Mr. and Mrs. Clark were all guests. The witness said whenever she met him he always spoke of Mrs. Herbert's loyalty to him. She said they visited him on other occasions at the Biltmore, and took lunch in the dining room at the Engstrum. The colonel and Mrs. Herbert visited the Clark's home in 1926 or 1927 and had meals. Mrs. Herbert made the tea and cooked at their home the spinach and chicken. She prepared *444 his plate and carried it to him. She took him to the bath and helped him; saw her massage his neck, head, arms, hands, feet and knees. She saw Mrs. Herbert do cooking many times at the witness' home or at the Engstrum Apartments at times when they did not take their meals at hotels or restaurants. The colonel, so the witness testified, said Mrs. Herbert was a "wonderful little girl"; that he intended to see that she was well paid for she was wonderful to him; he said she did his buying, such as socks; she always fixed his eggs and spinach to suit him. She had seen him being undressed on three or four occasions. She had seen Mrs. Herbert assist him in putting on and removing his trousers and clothing, and taking him to the toilet. His breakfast was often served to him while he was in bed. Mrs. Clark said the colonel particularly liked the way she [Mrs. Clark] cooked corn and beans, southern style. She said she took him flowers when she visited him at the Biltmore, and on one or two occasions she took him some of her home cooking.
Miss Ruth Belle Allen, a married woman who retained her maiden name, is a daughter of Mrs. Isabel H. Clark. She met the colonel for the first time the latter part of August, 1927, less than two months before the instrument in question is alleged to have been executed. He came with Mrs. Herbert to the hospital two or three times where she was interned for a short time on account of illness. The colonel told her that he had recently returned from Paris. On September 8, Mrs. Herbert and the colonel came to tell her goodbye, as they were leaving for Vancouver on a trip. The colonel said, "When we get back, come and stay with Mrs. Herbert and we will go somewhere." When they came back Mrs. Herbert called her and she went to Mrs. Herbert's apartment opposite the colonel's at the Engstrum. On October 2d, the three went by train to Palm Springs. She said she remembered once or twice having heard him say he was going to his attorney's office. They went to shows every night. He suggested going and he bought the tickets. They never stayed through a single picture. He always got tired and wanted to go home. He didn't like the show and said he didn't want to stay any longer. Mrs. Herbert usually prepared his meals in her apartment. She would assist him in dressing and help put on his coat and hand him his hat and cane. After he got in bed she would go in and say good night to him. She prepared *445 his laundry and his linen. She massaged his neck and feet. He complained of cold feet. When he ate his breakfast in his room he would sit on the edge of the bed, dressed in his robe. He took a nap nearly every afternoon. Before they left for Palm Springs the witness was alone with him while Mrs. Herbert was shopping. They discussed Mrs. Herbert. Her testimony was that Mrs. Herbert was "so considerate of him, that he never had to ask her to do anything, that she thought of it before he even asked her". He did not know how he could do without her; that his recent trip to Europe was a failure, and that he did not enjoy it because he didn't have anyone to take care of him. He said he was not paying her but he was going to pay her for what she had done. The witness said that during the few days they were there--from the second to the sixth of October--Mrs. Herbert washed his linen and brushed his clothes and did the cooking and housework. They did not take many things. The colonel took a bag. She said "he always wore two or three pairs of stockings; she used to put those on for him and his shoes; and every time he would get up she would run to help him for fear he might need something--which I don't think he did--but she was just considerate of him". He complained of his legs hurting him when he walked, and he took baths at the Indian spring. Dr. Foster (who had been his masseur during many years) took him to the spring. Dr. Foster arrived at Palm Springs by automobile two days before the colonel and the witness left. Dr. Foster took Mrs. Herbert into town and he and Mrs. Herbert left the same night by automobile. The witness then described a walk which she took with the colonel, during which he unveiled his secret thoughts and purposes to her, an acquaintance of less than two months duration. While taking this walk, she said the colonel confided to her that he was lonesome without Mrs. Herbert. He told her that she had been so good to protect him from people who had designs on him. Her exact words were: "He said 'so many girls and their mothers were trying to get money from him with different schemes for movies, and Mrs. Herbert would not let any of them talk to him.' He said 'she had been so thoughtful and considerate and had protected him from everything of that nature, you know, designing persons is what I mean.' He said 'she had given him more care than his own people and she was more considerate than his own *446 children were and he was going to pay her for it.' " The witness replied that "would be fine". He did not say how much she was to receive nor when he was going to pay her. The witness said she helped him with his shoes, fixed his tie, helped to put on his coat and brushed his clothing that evening, as she had seen Mrs. Herbert do; that she and the colonel took the train the next day and arrived at Los Angeles in the afternoon and went to the Engstrum in a taxi. The witness remained overnight, and the next day, October 8, 1927, she went to Compton, her home, and went back to Mrs. Herbert's apartment at the Engstrum in the afternoon of October 10th, the day the instrument is claimed to have been executed. She had a conversation with the colonel upon entering, in the presence of Mrs. Herbert. The colonel was smiling when she came in and he said: " 'I told you I was going to pay Mrs. Herbert,' and I said, 'You did, colonel.' He said, 'I have given her a note for a half-million dollars, payable a month after my death.' He said, 'I don't want you to mention this to anyone, Miss Allen'--he called me Ruth. I said, 'I won't.' He said, 'I wouldn't tell you, but I can depend on you not to tell this where people will discuss it.' " He did not say why he did not want it discussed. Mrs. Herbert did not say anything; just smiled. The witness said that she was at Mrs. Herbert's apartment on another occasion when the colonel came in for tea. He was a great tea drinker. Miss Allen stayed a number of nights with Mrs. Herbert. The colonel went back to the Biltmore in October after he returned from Palm Springs. She believed the colonel said that he moved back to the Biltmore because the doctor and his attorney wanted him to move. That once, after he moved away, she, Mrs. Herbert and the colonel went to the Orpheum. She could not fix the date but placed it subsequent to 1927. The colonel always used taxis when she rode with him. At meals he frequently dropped food on his clothing.
On cross-examination she stated that she was thirty years of age and that she had been married, but did not give her married name. She had known Mrs. Herbert intimately since 1925 and she was still very friendly with her. She was visiting Mrs. Herbert and had been for several days before she went with her and the colonel to Palm Springs. She saw Dr. Foster at the Engstrum. He usually came to the *447 colonel's room before the witness was up. She had heard the colonel speak of Dr. Foster coming to his room. The witness said she recollected the colonel said he was going to pay Mrs. Herbert for the things she had done. He also used the word "repay". He never said he was going to leave her anything. The witness finally said that in addition to the services rendered he said he was going to pay her for her loving kindness, for her protection of him. She denied on cross-examination that she testified in her direct examination that Mrs. Herbert did any washing for him at Palm Springs during the three or four days that Mrs. Herbert was there. She remained with Mrs. Herbert three or four days after October 10th. Mrs. Herbert moved downstairs to the second floor four or five days after October 10th. The colonel was left on the fourth floor. The colonel moved to the Biltmore. Mrs. Herbert did not tell her why the colonel moved out. The witness said that once after 1927 she saw the colonel in Mrs. Herbert's room on the second floor. She never saw the colonel after 1927. He died October 16, 1931.
When the colonel requested the witness not to repeat to anyone that he had given Mrs. Herbert a note for a half-million dollars she promised him she would not. She did tell her mother, Mrs. Isabel H. Clark, and Mrs. Herbert three years later, to wit, 1930. Then for the first time she discussed the matter with Mrs. Herbert. The fact that she discussed it was brought out on cross-examination, and the result was that it seriously impaired her credibility as a witness. Her statement made in justification for disclosing the information which she accepted in confidence, as told by her from the witness chair in November, 1933, and was made a matter of record by her sworn statement dated August 7, 1930, which was prepared to meet a future contingency, cannot easily be harmonized with a disinterested state of mind prompted solely by a desire that impartial justice be done.
According to the witness, Mrs. Herbert was present on the afternoon of October 10, 1927, at the time the colonel told the witness that he had given her [Mrs. Herbert] "a note for a half-million dollars payable a month after death", a subject which had never been mentioned by either until August 7, 1930. Her testimony in explanation of her action was that she was going East and did not think she would ever come back to California to live again. She asked Mrs. Herbert *448 if she had heard from the colonel and she said, "No, not lately." She then asked Mrs. Herbert if she wanted her to leave a statement of any kind to the effect that she had heard the colonel say that "he had given her that note." Mrs. Herbert replied, "if you want to. I don't think it is necessary." The witness then said: "Maybe I had better because I don't think I will come back to California to live any more." Mrs. Herbert then said, "All right. You write whatever you think you want to." Then I wrote the statement. The witness said after she had signed it she told Mrs. Herbert that a paper like that should be witnessed. Mrs. Herbert said she didn't think it was necessary. The witness then said, "Let's go to a notary public." The two went to a notary and the instrument was put in the form of a verified statement as follows: "On October 10, 1927, while I was visiting Irene Herbert or Mrs. Edres Herbert at her apartment at the Engstrum Bldg. at 5th and Grand St., Los Angeles, Calif., Col. J. B. Lankershim, who was a daily visitor of Mrs. Herbert, signed a promissory note for Five Hundred Thousand dollars in Irene Herbert's favor, payable one month after his death. He, in my presence, many times said he would leave Irene well fixed for her loving kindness and protection to him. The Col. willingly, agreeably, signed the note at this time."
"8-7-30"
Ruth B. Allen.
"Subscribed and sworn to before me, a Notary Public in and for Los Angeles County, California."
"J. W. Ray,"
"Notary Public."
"My Commission Expires August 2nd, 1932."
The witness had never seen the disputed document, but on cross-examination she testified that the colonel said he was going to pay her [Mrs. Herbert] for her loving kindness and protection. She also remembered he told her that the note was "payable one month after death." This was after the lapse of three years. This language is embodied in the instrument. The inference to be drawn from the above sworn statement is that she, Miss Allen, knew that he signed a "promissory note", not that she was told so by him. Indeed, taken by itself, it is subject to the inference that she saw him sign it. She then avers that he "willingly, agreeably *449 signed the note" at the time. As a witness three years later she admitted she was not present when the alleged transaction took place. Her averments of August, 1930, also flatly contradict the persistent denials which she made at the trial that the colonel ever said that he was going to leave Mrs. Herbert anything, but he always said he was going to pay her for her services and he did not once use the word "leave" with respect to such services. She said that Mrs. Herbert did not make any suggestion as to what she should incorporate in her statement. The witness changed her testimony to the effect that Mrs. Herbert washed the colonel's linen at Palm Springs to a negation of that statement. At the Engstrum she saw her wash his clothing, but she would not say more than once.
Louis A. Duni, a private investigator and a former deputy United States marshal, and afterward an investigator in the district attorney's office at Los Angeles, called by appellants, testified that he visited Miss Ruth B. Allen at her home in June, 1933, and she, in the presence of her stepfather, Ivy C. Clark, and W. W. Wallace, who accompanied him, admitted that she wrote said statement at the dictation of Mrs. Herbert. Mr. Wallace, an attorney at law and connected with the law offices of J. Wiseman Macdonald, corroborated this testimony.
Frank D. Allen, a son of Mrs. Isabel H. Clark and brother of Ruth Belle Allen, testified that he had known Mrs. Herbert about nine years, and Colonel Lankershim since 1925. He first met him at Mrs. Frances Blood's house, corner of Garland and Eighth Streets. The colonel went to Europe every year in the late spring. He called on him at the Engstrum and at the Biltmore. On his first visit to the colonel's rooms, Mrs. Chaplin was with him. Sally Pepper and Mrs. Herbert were there. The next visit was made two weeks later. Mrs. Chaplin was with him again on this visit. Mrs. Herbert and three or four other women were in his apartment. He would, when downtown, often run in to see the colonel and say "hello". He visited him ten or twelve times when he was at the Biltmore. In August, 1927, he was in his room about two hours, trying to sell him a piece of property. He was not successful. No one else was present. Mrs. Herbert had gone to the Engstrum to make a little soup. The colonel said he did not know what he would do without her; that *450 she had been a lot of help to him; that she was always very kind about fixing the kind of food he liked and he said she would be well paid for her services; he didn't know what he would do if he didn't have somebody like her to fix food for him; that she suited him right; he said he liked very weak tea and a lot of it, that it made his kidneys function. He spoke quite often of what Mrs. Herbert had done for him. The witness said he saw the colonel at Mrs. Chaplin's and at Sally's. Mrs. Herbert was usually with him. She would always help him to the toilet. He wore some kind of a belt or supporter around his abdomen. He wore wool socks. He saw Mrs. Herbert give him medicine three or four times; saw her help him put on his trousers. "He was kind of feeble". Very heavy. Mrs. Herbert generally massaged the back of his head. He saw him in 1929 every two or three days at the Athletic Club, when he came to lunch with his son and daughter or Dr. Foster. He would generally ask "how Mrs. Herbert was or if I had seen her". He said Dr. Foster was taking care of him. In his visits to the Biltmore the witness saw Dr. Foster not more than once. He knew Dr. Foster was his attendant and had probably been his attendant for six years prior to 1929. When the witness saw the colonel at the Athletic Club where he was stopping it was only for a few minutes in passing. He had no extended conversation with him after October, 1927.
Mrs. Sarah L. Barrett, a witness for plaintiff, had known Mrs. Herbert since 1924, at which time she came to her flat on Garland and Eighth Streets and lived with Adele Blood and her mother. They occupied the flat three or four years, dating from the fall of 1924. She saw Mrs. Herbert at Mrs. Blood's flat every day in 1924, 1925 and 1926, except when she went to the beach; saw Colonel Lankershim at Mrs. Blood's flat at least three times a week. Sometimes a chauffeur brought him, and sometimes Mrs. Herbert brought him. Visited him three or four times at the Biltmore during 1924-1927. Went with Mrs. Herbert to the Biltmore in 1925 to help Mrs. Herbert carry some soup and vegetables and prunes. The witness saw Mrs. Hope prepare the articles in her kitchen. After arriving at the Biltmore Mrs. Herbert gave the colonel some sort of medicine. He was sitting in a chair with a blanket wrapped around him. At Mrs. Blood's flat on one occasion, before departing for the beach, she heard *451 the colonel say Mrs. Herbert had taken wonderful care of him and he was contented and happy since she had been taking care of him and he was going to see that she was well repaid for all she had done for him. At one time she saw Mrs. Herbert mending stockings which she understood were the colonel's silk stockings. Never saw her do anything else in that respect. The colonel once took Mrs. Herbert and the witness and a group of her friends in his limousine to Beverly Hills and to the beach for dinner. The colonel spoke of Mrs. Herbert's kindness and care. The witness instanced another day when she went to the hotel with Mrs. Herbert, who had bought some chicken and soup and took it to the colonel. She related a third and fourth occasion when soup and chicken were cooked by one or the other and taken to the colonel's rooms. Mrs. Herbert stayed at the Garland Street flat in Mrs. Blood's apartment until the spring of 1927. Adele Blood was there part of the time. Mrs. Herbert always went to the beach in the summertime. The colonel went to Paris every year and stayed several months. Mrs. Blood and the colonel were great friends and it was not easy for the witness to say whether he came to see Mrs. Herbert or Mrs. Blood. She finally said he came to see Mrs. Herbert as she was caring for him. She said that the colonel seemed to have perfect confidence in Mrs. Herbert. When the colonel returned from Europe Mrs. Herbert would return from the beach to the Blood flat. Except during the summer months, Mrs. Herbert was at the Garland Street flats all day, except when she went to the Biltmore. The colonel said he was going to leave her something but he did not state the amount. Her testimony as to her kindness and care of him and that he would see that she was repaid for the same was along the same tenor as the testimony given by Adele Blood Hope, Mrs. Isabel H. Clark, and others who testified in plaintiff's case.
The plaintiff called as a witness H. Gordon Bayliss, a Los Angeles physician. He had previously known Colonel Lankershim, but met Mrs. Herbert for the first time in 1927 on a steamer with Colonel Lankershim going from Seattle to Vancouver. The doctor was taking Senator Clark's sister to Victoria. Her nurse was accompanying her. The colonel and the doctor were thrown in conversation and Mrs. Herbert came up and had in her hand a pocketbook or purse containing *452 money, and she said to the colonel that he had left his purse in the washroom and she brought it to him. When she stepped away the doctor said he was very fortunate to have a woman like that to take care of him, look after him. The colonel said yes, he didn't know what he would do without her. Mrs. Clark had also stepped away and the colonel said, " 'You seem to have a very wealthy woman in your charge. Is it very expensive, is she paying you well?' And I said, 'No, I am only charging my regular price.' Then I said, 'Is your nurse very expensive, cost you much?' And he remarked, 'No, I am not paying her scarcely anything now, but I expect to make it up to her all right later on.' " The colonel told the doctor that Mrs. Herbert looked after him in every way and had been with him three or four years. At dinner Mrs. Herbert had hold of his arm; he seemed a little uncertain on his feet. She got him his overcoat and readjusted a steamer robe which covered his feet. From the above, it would seem that the colonel had a keen interest as to the value of services.
Dr. George L. Cole was called by someone to visit the colonel at his apartments at the Biltmore on February 23, 1927. Mrs. Herbert was in the apartment when he called. The doctor prescribed some kind of a tablet for the colonel to take and suggested that he have a nurse. The colonel replied that Mrs. Herbert would take care of him.
Ethel Anspaker, a resident of Long Beach, had known Mrs. Herbert some eighteen years. The colonel and Mrs. Herbert came to her home in an automobile several times in 1926. She had a family of six children living with her. At one time he bought a set of dishes and Hallowe'en candy for the children. Mrs. Herbert helped him up to the doorsteps. He had tea. The witness made it and Mrs. Herbert served it. The latter saw that he was made comfortable. The colonel said the witness was very fortunate to have the children, as when she reached old age and needed help and assistance it would be given through love; that he was "old and ill and had to employ people to take care of him, but I would be compensated through raising a family".
[5] Mrs. Irene Herbert, being a party to an action upon a claim against an estate, was barred by virtue of the provisions of section 1880, subdivision 3 of the Code of Civil *453 Procedure, from testifying to any fact occurring before the death of decedent Lankershim.
She was sworn, however, as a witness in her own behalf and testified that she was then forty-three years of age and knew Colonel Lankershim in his lifetime. At this point an objection to her testifying on statutory grounds was made and overruled. She was shown the disputed document and identified it as the one set forth in the pleadings. She also testified that she presented a claim on the instrument for the sum of $500,000 and that it had not been paid. The witness said she read the prepared claim before she presented it but she did not know whether she verified the complaint or not. Her counsel offered to stipulate that she did, but opposing counsel refused to accept the stipulation, stating that he preferred to have the witness testify on the subject. The above was the extent of her testimony in chief. She was recalled at the close of defendants' case on rebuttal. The experts had testified that the paper upon which the note was written had been folded before Mrs. Herbert wrote any part of the body of the instrument. This, it was contended, was made physically manifest by ink penetrations and spreading of ink as the pen crossed the crease made by the fold. No expert who testified on the subject had any doubt as to the physical fact. Miss McKee had early testified that the note was perfectly flat and had not been folded when she handled it. Clark Sellers testified that shortly before the trial day and at a time when the experts were making scientific tests of the genuineness of the document in the offices of plaintiff's counsel, Lieutenant of Police H. C. Nutt, Mrs. Herbert and Miss McKee being present, plaintiff was asked by Clark Sellers if the fold which extended from the top to the bottom of the document was on the document when she wrote it and she said the document was flat, unfolded, and she folded it and put the crease in it after she had written the body of the document. Lieutenant H. C. Nutt, supervisor of the crime investigation laboratory and a specialist in the investigation of questioned documents, who was at the time examining the document, corroborated Clark Sellers. He further added that Mrs. Herbert, after stating that the note was flat and smooth when the colonel handed it to her, declared that he admonished her to "take good care of this note because it was valuable". She further said: "I placed *454 this note in a passport folder and carried it in this folder flat for some five or six months. At that time I noticed the end had become torn somewhat, and that the ends were becoming frayed, and at that time I folded the note in the center or middle and carried it that way in the passport folder until such time as I delivered it, or showed it, rather, to Mr. Macdonald."
On rebuttal Mrs. Herbert was asked if she ever carried the note in her purse and she answered that she had for several days at a time and that it was not in any kind of a covering folder or envelope at any time. She was then asked if Mr. Sellers asked her if it had been folded before she wrote on it and she answered "No." She said the subject of folding the note was not discussed. Miss McKee, also a rebuttal witness, testified that the fold in the center of the paper was not mentioned by anyone during the two periods at which she was present during the investigation made testing the genuineness of the document. Mrs. Herbert did not deny or affirm the controverted question as to whether the paper had been folded before she wrote the alleged dictation. She explained other matters in connection with the physical appearance of the note, but she did not deny the claim that the paper had been folded before it was written upon by her. If carried in a purse without covering or protection of any kind through a period of four years it must have become at least badly crumpled and wrinkled at the end of that period.
The foregoing summary of the testimony states the full strength of plaintiff's case as made out by the parol evidence of the witnesses offered by her. The documentary evidence, particularly photographic copies of the questioned document, is now before the court for inspection in form and size of the original and also in enlarged sizes, together with exemplars of decedent's handwriting for purposes of illustration in other matters pertinent to the bona fides of said instrument. The witnesses used as handwriting experts and also to make chemical analyses of the ink used in producing the instrument (two of whom were called by the defense and two others were named by the court) gave adverse testimony as to the integrity of the instrument.
Appellants contend that a conspiracy was conceived by Adele Blood Hope and Mrs. Herbert, actively aided and abetted by Stella McKee, Mrs. Isabel H. Clark, Miss Ruth *455 Belle Allen and Frank Allen, all but one being companions of Mrs. Herbert, to establish as genuine a spurious claim against said J. B. Lankershim's estate and set about to devise a plan of sharing in his estate; that in consummating said plan it was necessary that it be done secretly and in such fashion that the evidentiary facts upon which said parties were to rely should be confined to the knowledge only of the parties themselves, thereby rendering it impossible to impeach the testimony of any one of them by direct evidence, Colonel Lankershim being dead. It is argued that the only way by which plaintiff and those who acted in concert with her could succeed in their design was to adopt a plan whereby payment of the claim would be deferred until after death. It is further argued with great force that the normal, usual and businesslike way in which men dispose of large fortunes is by will, by trust arrangement, or at least by adopting some method which would place the stamp of verity upon their acts, and if not so conforming to testamentary rules and prescribed forms of law, they at least would safeguard their ante-mortem wishes with suitable barriers to withstand anticipated attack. Colonel Lankershim took the precaution to make a will in which he made no provision that plaintiff should share in his estate. Neither did he establish a trust fund or make any provision for the immediate payment of any sum by check or order. Any of said methods would have furnished some substantial evidence in support of the authenticity of his act. Neither Colonel Lankershim's legal and business adviser and business associate, who was one of the executors of his estate, nor his daughter, son or confidential secretaries have any knowledge of the note transaction. Miss McKee testified that the colonel told Mrs. Herbert to deposit the note in a bank; that it was very valuable. Instead, she testified she carried it loosely placed in her purse and passport folder for more than four years. Miss McKee said that the colonel instructed Mrs. Herbert to take the note to J. Wiseman Macdonald after his death and he would see that it was paid. Miss Blood also testified that the colonel, in recounting to her what he had done for Mrs. Herbert, said it would be "one of the real regrets of his life that he would not be here to see Mr. Macdonald's face when he saw the note". This occurred in February, 1928, at the time the colonel had been sharply taken to task by Miss Blood for not *456 having provided for Mrs. Herbert in accordance with her desires. Miss Blood testified that when the colonel told her he had not given her money but a note "payable one month after death", she said to him that she was "amazed", and she further said to him that she thought "it was a very silly thing, it would be very much better if he had given her money while he was alive instead of giving a note payable after his death". This was a very natural and pertinent observation.
Mr. Macdonald, his attorney, adviser, and the manager of the Lankershim Estate Corporation, when called upon to prepare decedent's last will and testament, had not the faintest hint that an outstanding claim in the sum of $500,000 evidenced in the manner shown by the evidence was to be uncovered for the first time in the settlement of the estate. It is scarcely conceivable that a successful business man of wide and varied experience, in the circumstances of the case presented, would leave his executor and business manager in total ignorance as to the bona fides of a claim of such proportions without realizing that it would beyond doubt, from the nature of the transaction, meet with rejection by the person whom he had appointed by his testamentary act to pass upon it. It certainly would seem that the decedent would have adopted similar safeguards against the miscarriage of his desires with respect to Mrs. Herbert which he adopted with respect to his own children if he intended she should participate in his estate, particularly if the imputation of Stella McKee, Miss Blood, Mrs. Clark and Miss Allen to the effect that he placed Mrs. Herbert as having gained favor over his wife, son and daughter, is to be credited.
By the words of the colonel himself as related by the witness called to establish the execution of the questioned document--Miss McKee--corroborated by witness Frank D. Allen, the colonel had in his employ at the very time of the execution of said instrument and had had for several years prior thereto, Dr. Foster, a trained masseur and attendant, who personally served him to the end of his days. Miss McKee said that on the morning that she and Mrs. Herbert entered the colonel's room he appeared disappointed that Dr. Foster was tardy and he was highly displeased that the person whom he paid to give him treatments had not yet made his appearance. Frank D. Allen, another of plaintiff's witnesses, gave *457 testimony that he had information to the effect that Dr. Foster had been rendering personal services for the colonel for several years.
It cannot be successfully contended that Mrs. Herbert rendered requested services under any express agreement of employment. She had no fixed hours of employment or definite duties, and the evidence does not satisfactorily support a finding or an inference that she conducted herself or regarded herself as a hired employee or acted in the capacity of a nurse, masseur, or paid companion. During the period for which compensation is claimed, 1924- 1927, both inclusive, Colonel Lankershim spent practically one-half the time in company with his wife and daughter in Europe, and Mrs. Herbert's witnesses do not claim that she was in his company except upon the occasions stated by the witnesses testifying in her behalf while he was living at the Biltmore Hotel. Bills for theater tickets, dinners, taxi charges and for other amusements and entertainment during a period of some three months prior to October 10, 1927, show beyond question that the colonel was the host for the pleasure of his guests, who were friends and companions of the plaintiff, on numerous occasions. Besides, he paid all of Mrs. Herbert's expenses while she was living at the Engstrum, and also her expenses for a trip to New York where she visited with her friend, Miss Blood, and to Vancouver, B. C., which latter trip was completed but a few days before October 10, 1927. Colonel Lankershim was a generous host, and no doubt paid many hundreds of dollars, which do not appear in evidence, for the pleasure and amusement of his women guests during the period embraced within the inquiry. According to the uncontradicted testimony of H. O. Moulton, bookkeeper for the Lankershim Estate, he carried to him during his short stay at the Engstrum, occupying apartments opposite Mrs. Herbert's room, pocket money, the occasions and amounts he did not recall, but his usual amount for such purposes was from $200 to $500. The foregoing is a full resume of all the oral evidence presented by plaintiff and states the full strength of her case.
It is the contention of appellants that the evidence offered to prove respondent's case is patently insubstantial and is too inherently improbable to entitle it to be used as the basis of a judgment in an important cause. It is further urged that *458 respondent relies upon the weakest kind of evidence known in the law, to wit, alleged declarations of Colonel Lankershim, since deceased, to support her judgment. Appellants also contend that the declarations testified to by Mrs. Adele Blood Hope and Miss Ruth Belle Allen are entirely nullified by the recorded words of decedent which appear in his correspondence with his wife and daughter and which will later be set forth at considerable length. In addition to the specifications as to the insufficiency of the evidence, questions of law will be given consideration; but before doing so we will complete the review of the evidence with a summarization of that adduced on behalf of the appellants.
There can be no doubt that Colonel Lankershim was afflicted during the closing years of his life with atrophy or degeneration of the optic nerve, a progressive disease which often comes with old age. Dr. George H. Kress, an eye specialist, began treating him November 1, 1927. His testimony was that when he examined his right eye on that day he was not able to distinguish a raised finger removed more than one foot from his face. The visual capacity of his left eye was reduced from one hundred per cent, the standard, to between thirty-five and forty per cent. That was the extent to which he could see into distance. With his right eye he could see nothing in distance. The specialist said he always came with an attendant, and his gait was that of a man who did not see well, and he was guided by an assistant. He told the doctor that when he was in Paris in 1927, a few months prior to October 10, 1927, he was informed that he had cataracts and his vision was poor. He said he could not see. Examinations of his eyes showed a disintegrating condition that foretold approaching blindness. In the opinion of the specialist, Colonel Lankershim was not able to read the disputed document on October 10, 1927, with the naked eye. With fitted glasses he would not have been able to read the entire document at one reading operation. Notwithstanding the opinion of Miss McKee, Miss Blood, and one or two others who testified that his eyesight was good, the fact is that practically every witness for the plaintiff, including Mrs. Herbert herself, in enumerating the compensatory services which she performed, included as an item of service "reading" to the colonel. His bookkeeper, Mr. Moulton, testified that the colonel's eyesight began to signally fail in the latter part of 1926. He used a *459 large magnifying glass about six inches in diameter to assist him in reading. His business and his private letters from his wife and daughter were read to him by his confidential secretaries. He signed some checks, but Mr. Moulton usually signed them. It was necessary in signing his name for someone to guide or direct his hand to the proper place for his signature. Often he would run off the line. After 1926 he did not attempt to write letters. Miss Alice E. Tufts, secretary of the Lankershim Estate Company for thirty-five years, saw the colonel practically every working day when he was in the city. He went to Europe every year in the spring and returned in the fall. In 1926 his eyesight failed him greatly. She purchased the magnifying glass mentioned by Mr. Moulton. Prior to 1925 he wrote weekly to his wife and daughter personally, after that period the witness took dictation and transcribed his letters. She identified approximately 100 carbon copies of letters dictated by the colonel to his wife and daughter during the years 1926 and 1927, one of which was dated the day after October 10, 1927. Others were written several days apart, both before and after October 10, 1927. The letters written to them by him express affection and concern for the members of his family. A few of these letters will be noted later.
Miss Tuft's office adjoined the private office occupied by the colonel, with a connecting door. She had observed the condition of the colonel's eyesight since 1920. In 1926 it failed very much. He had difficulty in reading and had the witness purchase the magnifying glass above mentioned. The witness frequently mailed letters written by him to his wife and daughter. Beginning with 1925, all of the colonel's letters from his wife and daughter were read to him by his secretaries. The witness was shown an unsigned letter written from Vichy and addressed to Mrs. Herbert, in care of Mrs. Adele Blood, the greater portion of which was typed but to which a few lines were added in longhand which she said may have been written by the colonel, but if it was written by him he probably had some kind of assistance such as a highpower glass. The letter briefly referred to his return trip and to other matters which sufficiently identify it as being a communication from the colonel to Mrs. Herbert. The written portion of the letter makes inquiry of the address of a lady living on Riverside Drive, and also the address of a lady *460 who had downtown flats. The letters forming his words are frequently unconnected and stand alone. The alignment is fairly good. The other two letters, one mailed at Vichy July 19, 1927, and the other mailed from Paris July 28, 1927, are in typewriting and bear the colonel's signature, the surname being divided into three sections. Said letters have to do principally with his return to Los Angeles, and make references to the weather, his health, with directions as to his address, and greetings to friends generally, with special mention of Miss Blood. A number of checks collected by plaintiff were introduced bearing the colonel's signature before and after October 10, 1927. Some of the signatures are on the ruled lines and are well written, while others indicate a hand not sufficiently guided by good eyesight. One instance of poor vision is evidenced by a check dated October 20, 1927, ten days after the transaction in question. The only letters at all legible in his signature are "J. B." The upper part of the loop in the letter "L" is discernible, but one not familiar with the circumstances would be wholly unable to reconstruct his or any signature. Evidently the ink had ceased to flow from his pen and his eyes were unable to tell him that his pen was not registering. A few broken and incomplete ink lines which follow immediately indicate that the eyesight had failed and by force of habit of many years he had gone through the arm motion of writing his name. Three checks bearing his name and dated October 10, 1927, are in evidence. One for $33.50 payable to American Radium Products Co. is so greatly superior in execution as to distinguish it from his other signatures. The second shows a failure of the ink to register in places and the third which is made payable to the Engstrum Apartments in the sum of $214.88 is typical of other signatures already discussed. His secretaries say that wherever his name appears signed in the proper place on any note, check, bill or instrument subsequent to 1925, either his hand was directed by another or it so happened by accident. The testimony of his theater and moving picture guests to the effect that he said he "had to be seated" in the second or third row leaves no doubt as to seriously impaired vision. The testimony of Miss McKee, Dr. Foster and others is that Mrs. Herbert or whoever was with him, took his arm to guide his steps when he was on the street. *461
Ivy C. Clark, husband of Mrs. Isabel H. Clark and stepfather of Ruth Belle Allen and Frank D. Allen, first met Mrs. Herbert at the Biltmore in 1926. He testified that he first met Colonel Lankershim in 1926, also at the Biltmore, when he was ill. His stepson, Frank Allen, was insistent that he and his mother go up and meet the colonel, so they decided to go up, and took some flowers. He met Mrs. Herbert at that time, and on a number of occasions thereafter. During the latter part of August or the first part of September he received a telephone call from Mrs. Herbert and in response to it he and Mrs. Clark called at the Biltmore. Mrs. Blood was there but the colonel was not present. When the colonel came in he ordered lunch brought to the room. After lunch another lady came in who said she was an old friend of the colonel and she was interested in something the colonel had brought from Europe. This lady and the colonel went into another room to view some exhibits, and while they were out something was said about the colonel making a nuncupative will. He (Clark) stated that Mrs. Herbert said she and Mrs. Blood had been to New York and made a contact with an attorney who said that if three persons would testify to the fact that the colonel said he was going to leave Mrs. Herbert a certain amount, it would be legal. The witness said he questioned the proposition but Mrs. Herbert said it was so. The witness then said to her if he was going to make her the recipient of this estate, why not have him go down to his attorney and have him make a will and sign it, properly drawn up. She said, "That is the idea, but I cannot get the old devil to do it." Then the witness said, "That is all right. If that is the will of the colonel there is no reason why he (Clark) should not say it." The colonel then came in and Mrs. Blood said, "Colonel, it looks as if it were getting about time you were going to fix up what you were going to leave Irene." He said, "There is plenty of time. I will take it up with my attorney." Prior to this time Mrs. Herbert had often said when visiting the witness's home that the colonel had promised to leave her something; there was no stipulated amount. When she went to the Biltmore he (Clark) was invited to lunch. The colonel had returned from Europe and Mrs. Herbert said he wanted to see him and his wife. Someone had said they talked to a lawyer about the colonel making a will. The witness said he had been a preacher in his *462 younger days and he and Mrs. Clark had spent a good many years among the American Indians. He did the harvesting of crops and his wife did the preaching. He liked the colonel and he thought he was a very intelligent man to talk with. They discussed the condition of Europe, the international bankers and the war debt all afternoon. He thought the colonel had a positive mind and was not easily talked out of his position. The witness tried to sell him some property once, as did others; but he said he would have to consult his attorney first. He reported that he consulted him and after talking it over they decided not to purchase. When he left Mr. Macdonald's law office Mr. Macdonald shook hands with him and said: "We won't question but what Mrs. Herbert was very good to the old gentleman and is due some consideration." The witness said Mrs. Herbert had told him that the colonel was going to take care of her. The colonel did not say "anything about doing anything for Mrs. Herbert. He just answered that when Mrs. Blood asked him." The question of a holographic or nuncupative will was discussed in the colonel's absence by Mrs. Herbert, Mrs. Blood and the witness, but he was of the view that Mrs. Herbert did not state that he was to make such a will.
Fred M. Foster, the masseur and attendant, often referred to in the case as Dr. Foster, testified that he had been in the colonel's employ since 1920 to the time of his last illness; he gave him a treatment every morning between 6 and 7 o'clock, which consisted of massage and bath; gave him bodily treatments for the bowels and bladder not necessary to relate, and he applied treatment to his eyes and otherwise administered to his needs. He often took breakfast and stayed until noon or later; looked after his clothes, sent his suits to the cleaners and his linen to the laundry, and kept his wardrobe in order; ran errands, made purchases of wearing apparel, read the newspapers to him and drove his automobile quite frequently for him; in 1927 read to him practically every morning and evening and often accompanied him to his office; from 1924 to 1927 the colonel was quite often ill and sometimes remained in bed for a few days. His eyes went bad in the fall of 1927. The witness moved the colonel from the Biltmore to the Engstrum in September, 1927, and moved him out in November, 1927. He did not remember ever seeing Mrs. Herbert in the colonel's apartment at the Biltmore. He saw *463 her on the mezzanine floor and galeria. He saw her frequently in the colonel's room at the Engstrum. He was familiar with the dresser and all the furniture in the colonel's room. He had reason to open the drawers where he kept his personal effects but he never saw checks, paper, pen, blotter or ink in his room. The witness said he performed the same personal services for the colonel that he always had performed during the time he was at the Engstrum. The witness was at Palm Springs while the colonel, Mrs. Herbert and Miss Allen were there, and accompanied Mrs. Herbert back to Los Angeles. The witness accompanied the colonel on his visits to Paris in 1928, 1929, 1930 and 1931.
[6] The appellants offered to prove, after an adverse ruling by the court, that on the forenoon of November 4, 1927, at the time that Dr. Foster was moving the colonel's effects from the Engstrum back to the Biltmore Hotel, Mrs. Herbert said to Foster: "I have got free of the doddering old fool; I have kicked him out." An objection was sustained as to the offer on the ground that the evidence was immaterial.
The record is replete with declarations favorable to plaintiff, admitted over appellants' objections that said declarations were hearsay and self- serving. The excluded declaration was made three weeks after the date of the disputed document. According to her own claim, her services were to continue to January 1, 1928. It was a declaration which, if believed, was inconsistent with and contradictory of plaintiff's case, which was largely founded upon the "loving kindness and protection" clause of said document. It was also admissible as tending to impeach the testimony of certain witnesses as to the tender care and vigilant service Mrs. Herbert rendered in the colonel's behalf. It was also material matter for consideration in the determination of whether a person who had received a princely gift but a short time before would thus angrily turn against her benefactor. There is no doubt as to its materiality and its exclusion constituted prejudicial error.
[7] There is no question but that a very wide latitude should be given as to the introduction of evidence in cases involving issues of the kind presented in this proceeding. Obviously, the nature of the transaction justifies the indulgence of considerable liberality in the admission of any evidence which would shed light on the relation existing between *464 the parties, especially where one of them has since become deceased.
[8] Mrs. Mary C. Hawkins was the switch-board operator and clerk at the Engstrum Apartments in 1927. Her duties were bookkeeping, attending to the wants of the guests, seeing them as they came in and went out, and taking care of their business. Everyone who came in or went out passed by her. Mrs. Herbert came to the Engstrum Apartments in the middle of August, 1927. She occupied a room on the first floor. Colonel Lankershim came about September 1, 1927, and occupied a double apartment on the fourth floor. The day after he came, Mrs. Herbert moved to a room directly opposite the colonel's. She stayed there until the middle of October and said she wanted to be moved away from that apartment. She was changed to the second floor and stayed there until the colonel moved out, which was about the first of November. All items of Mrs. Herbert's rent were charged to and paid by Colonel Lankershim. When she testified that Mrs. Herbert asked that she be transferred from her room opposite Colonel Lankershim's, she was asked by counsel for appellant this question: "Did she say why?" An objection was made to the question on the ground that it was irrelevant, incompetent, immaterial and hearsay. Counsel for appellants then made an offer of proof that, if the witness had been permitted to answer, her answer would have been as follows: "Mrs. Herbert, on October 15, 1927 came to me at the desk and said she would have to make a change, that the colonel was coming into her room in his bathrobe and embarrassing her before her guests and annoying her at all times and she could not stand it any longer and that she wanted to be removed away and wanted a room in another part of the building." The court sustained the objection, both as to the question and offer of proof. This ruling was prejudicial error. In the first place, it was a declaration against the whole theory of plaintiff's case and it was admissible as impeachment of the testimony as to the kind and sympathetic feelings which plaintiff had for the colonel. This was but five days after the tenth of October transaction is claimed to have taken place. It was entirely proper for the jury to take into consideration, if they believed the witness, whether it was at all probable that Mrs. Herbert would have made such a statement had she in fact been made the recent recipient of a $500,000 *465 note; or, if she made said statement, was it because of resentment stirred by disappointment in not being able to accomplish her purpose? At that exact time, if the story told by plaintiff's witnesses is to be believed, she had in her possession an unpaid note, the payment of which depended largely on the favor of the colonel. This presents an issue of fact which was a question for the jury's consideration. A holding that the evidence was hearsay could, for like reason, exclude a large portion of plaintiff's case. In addition to its rebuttal nature, it was admissible as bearing on the question of a statement made against interest. The testimony of Louis A. Duni, offered in impeachment of Miss Allen, and H. C. Nutt, who testified that Mrs. Herbert told him in the presence of Clark Sellers that at the time the note was written the paper was flat and smooth, was considered earlier in our review of the evidence.
[9] Appellants offered evidence which was sustained on the objection of plaintiff for the purpose of fixing the reasonable value of the alleged services performed by plaintiff, in the event the jury should find that she was entitled to compensation, but the court, after receiving some evidence on the question finally struck out all the evidence bearing on the subject, holding that it was not an issue in the case, and so instructed the jury. We are of the view that such testimony was properly received in the first instance and that it was error to strike it from the record. We are of the view, as between section 1605 and section 1606 of the Civil Code, that the latter section is more applicable to the facts of the case (eliminating, of course, the issues of fraud and confidential relations and undue influence) than is the former.
We now come to review the evidence of Miss Doria C. Lankershim, daughter of the decedent, Colonel Lankershim. From 1920 to 1931, she lived in Paris with her mother and Doria's adopted daughter. Her mother died in Paris in 1928. Her father visited her and her mother every year since 1924. He remained with them from three to four months. She was with him every day, making visits outside of Paris and especially at Vichy, which is a health resort where bathing in medicinal waters is the main treatment for the ailing. They often attended theaters and other places of entertainment and amusement in and near the city. The mother, who was practically an invalid, would go when she was able. They rode *466 a good deal in automobiles, as the colonel enjoyed riding through the streets of Paris and the public parks and to neighboring cities. She went with her father to the bank on many occasions in 1926-1927 and she had to direct his hand to the place where he was to sign his name. From 1920 until his death he wrote to her and her mother every week. She identified carbon copies of letters addressed either to her or to her mother bearing dates very near the day the disputed document bears date. One of said letters was written October 11, 1927, the next day after said document is claimed to have been signed by decedent. In this letter he makes mention of his recent visit to Palm Springs and states that he had moved to the Engstrum Apartments, which afforded him more room, and it was near the Biltmore, where he took his meals. He spoke of Jackie, the adopted daughter, and said he was glad she was well and that pa sent her regards. He described a grand opera performance which he had attended in Los Angeles and expressed the opinion that it surpassed the grand operas he had attended in Paris. We quote the paragraph which makes reference to his son "Jack" and the ranch in San Fernando Valley on which he resided:
"Jack comes in to lunch with me once every week at least and we talk over business matters in which he is very well posted. I wrote in one of my other letters about the dinner that he gave out at the Ranch House that was very nice; and some of our old friends were there that we used to know at The Lankershim."
He mentioned the fact that when at Palm Springs he visited the town of Indio where he met an old friend and described the town and spoke of the orange and grapefruit industry, and its possibilities. On September 30, 1927, he referred to a birthday party given to Jack at the ranch and described the meal served and the decorations in flowers from the pergola on the ranch and said they were beautiful. He spoke of the ranch house having been remodeled and refurnished. He said Jack was looking well, was attending strictly to business and he found everything in very good business condition when he came back and he was well satisfied. He made mention that Jack was coming to have lunch with him at the Biltmore and he was looking forward to a very pleasant meeting with him. He said Jack had promised to write to her and her mother. He stated that he received a letter from *467 "mother" yesterday and she stated it was getting cooler in Paris, more like winter. He wished to be remembered to Jacqueline and to tell her that he thought of her as often as she thought of him. On November 10, 1927, he acknowledged the daughter's letter of October 27th, and was pleased to know that they were so well and happy; that their letters came very regularly and that he was always glad to see them. He said he went to the theaters to pass the time, as he could not see very well; his eyes were not very good and all the pain he formerly had in his face had gone to his eyes and he was not feeling so well at times. He wrote that Jack was in every week to take lunch with him and talk over business. The balance of the letter spoke optimistically of the present and prospective condition of the city and surrounding community, and he predicted that the San Fernando Valley where his son lived was to become a great picture center. On November 5, 1927, he wrote that he had just received a letter which had been delayed some days; he said that Jack took lunch with him the day before and was looking well and was taking an active part in all business with him and they were getting quite "chummy". He said it was certainly very pleasant to have one of his own family working in harmony with him, and he spoke of his interest in "Jackie" and her education. He also said that he received a letter from "mother", in which she stated that she did not receive a letter from him during the week prior, and he replied that it must have been delayed on the road.
In a letter dated September 7, 1927, he wrote of current matters generally and particularly of his affairs and contemplated realty improvements on a large scale. Recently he had visited the ranch with Mr. Macdonald, and Jack showed them everything about the large properties. In fact he said: "Jack takes a great deal of interest in everything and all the matters he undertakes are very well taken care of. It is certainly a great pleasure to me to see how well he attended to business when I was away. He wants to be remembered to you."
A letter dated March 12, 1927, evidently written in answer to one he had received from his daughter, mailed at Monte Carlo, acknowledged the receipt of photographs of the baby and spoke of her pleasing appearance and said he was glad they were so happy. He spoke of having mailed a postal at *468 Palm Springs and said their letters came every week and he was always glad to hear from them, especially from "your little one"; that he was having the baby's picture framed and that Jack had the one framed in which the baby was holding the dog in her arms. He informed his daughter that her mother had written to him that the daughter was going to Monte Carlo soon and he hoped she would have a very pleasant time there. He said Jack gave a New Year's Eve party at the Los Angeles Athletic Club for a few of his friends, and it certainly was very enjoyable; that Jack "always speaks of the Little One and seems to take as much interest in her as any of us". He closed with love to all.
Inasmuch as the evidence is vigorously attacked as being self- contradictory and too inherently weak and improbable to sustain the verdict and judgment, we will give first consideration to that issue. In doing so we will make such deductions from the evidence as are warranted by the facts of the case or which are in accord with the common experience and propensities of mankind, the course of business and the laws which ordinarily direct human action. It cannot be disputed that the attacks made upon the evidence are based on substantial grounds, and a very serious question is presented as to whether, upon analysis, the evidence may be said, as a matter of law, to be sufficient to support the judgment. The appellants are entitled to have their reasons supporting their objections stated. We will, therefore, refer to a few of the grounds set forth and also the reasoning of appellants from established premises which seriously challenge the correctness of the jury's implied findings as to the sufficiency of the evidence to support its verdict.
The letters above reviewed, some addressed to the daughter and others to his wife, indulge in comment as to current matters, but only such parts as bear upon his love and concern for the members of his family are set forth. His recorded words, as shown in letters written near October 10, 1927, compared with his brief notes to Mrs. Herbert, completely refute the insinuation thrown out by Mrs. Adele Blood Hope, Miss Ruth Allen, Mrs. Isabel Clark and Miss McKee that he was inconsolably "unhappy" when not in the company of Mrs. Herbert and that he "didn't know what he would do without her"; that he was "lonesome" when she was absent; and that his visit to Europe was a "failure" *469 because she was not with him; that she had done more for him during their four years of acquaintance than anybody in the world, including the members of his own family, thereby forcing the inference that Mrs. Herbert had risen to a higher place in his esteem through the kind of association and attention described by the evidence than any other person whom he had ever known, and that he had been influenced by some strange conceit to acknowledge her over wife, daughter and son. This is hardly the part that one would be expected to take who, by her own averments, had been employed to "console and sympathize" with her employer "in times of worry and anxiety", and "to protect from artful and designing persons" at all times. The written words which came directly from the decedent at the precise period when Miss Blood and others say he expressed to them a higher esteem for Mrs. Herbert than he did for his wife and children offer a protest to the unnatural imputations of said witnesses testifying on behalf of the employed sympathizer and protector, whose duty it was to promote contentment and happiness in the colonel's life and to permit nothing to disturb or mar the high regard and serene confidence that was essential for the peace of mind and happiness of the head of a family. Her office was, according to her averments, that of promoter of happiness and contentment, as well as a protector against intrigue and designing persons. The fact that he spent by choice practically one-half of each year on pilgrimages in visiting his wife and daughter and that the portions of the other half could have afforded but little opportunity for association with Mrs. Herbert, in accordance with much uncontradicted evidence, tends to refute the claim that the company of Mrs. Herbert was the first consideration of his life, or that she could have devoted as much time to his comfort and happiness as the testimony of said persons sought to establish. [10] Testimony coming from one's own written declarations is entitled to more serious consideration than is evidence of a secondary or hearsay character as to what a person, since dead, said in life. No written line is to be found, except in the questioned instrument itself, in which the decedent gave any expression to the state of mind which the several witnesses say he revealed orally to them. The few letters he wrote to the plaintiff do not support the claim. They are brief and formal and have to do with commonplace *470 matters, and refer principally to his preparation for his return journey to Los Angeles. The fact that he did go to Europe without the company of the plaintiff, and continued to do so in 1928, 1929, 1930, and 1931 with Dr. Foster as his companion, and the further fact that the plaintiff moved from her room directly opposite to his to a different floor, and the significant fact that the colonel left the Engstrum Apartments a few days after October 10, 1927, and the close personal relations claimed to have theretofore existed became severed from that time forward, which is also true as to every one of the coterie who testified in her behalf, are wholly incompatible with the relation of benefactor and benefactress. After October 10, 1927, those who claimed to have been deeply concerned in his welfare seemed, for some reason, to have lost interest in him. Some never again saw him, although he lived four years thereafter. There is no doubt that Mrs. Herbert was, as were her lady companions, a frequent theater and dinner guest of his and that she partook of his hospitality in large measure and in turn made herself agreeable to him. By her creditor's claim, however, and the testimony of Miss Blood and other companions, it is contended she was in his employ in some capacity, her exact duties not being clearly defined. No serious claim is made that she was his nurse, and, conceding that she did all that is claimed, the service does not by any means assume the character of hourly, daily, weekly or monthly employment, and at the most it was spread over a period of two years. No person connected with the Biltmore Hotel, where he lived when in the state during the full period covered by this inquiry, and who should have been able to support plaintiff's claim of service, the burden being upon her, was called upon to testify in her behalf, and such evidence as was given on the subject would exclude her from the role of an employee of a servile or domestic type. Her bills at the Engstrum, at the Biltmore, for theater tickets, dinners, automobile and taxi transportation; expenses to Vancouver, New York, Palm Springs, and every place where she or her friends accompanied the colonel, and every known charge, were paid by him. Certain portions of her diary were admitted in evidence and the entries made by her with respect to the Vancouver trip showed beyond question that she traveled as a first-class passenger and performed no services that would reduce her to the rank *471 of a servant. She indulged in all the luxuries enjoyed by persons traveling on first-class trains or steamers and spent much of her leisure in playing the ukulele and engaging in social functions. No item recorded by her in her diary would indicate that she was rendering services for pay, but it amply appears that she was having an exceedingly enjoyable time, attending theaters, enjoying good dinners and staying at first-class hotels. When she accompanied the colonel to New York, her former home, she remained there a number of days, visiting with her close friend, Adele Blood Hope, and this trip and visit was one of pleasure.
Mrs. Herbert was or had been a married woman, but whether she was a widow or divorced from her husband does not appear. There is some evidence in the case that they were seen together in 1924 or 1925, but all attempts to describe their marital relations were met with objections sustained. Likewise, objection was sustained to an attempt to show that she had been previously married. No background of her past is given, except as shown by the fragmentary references herein recorded.
[11] We have stated the evidence as strongly in plaintiff's favor as the record will warrant and we have made an extended review of the evidence because of the often applied rule that an appellate court will not interfere with the judgment entered by a fact-finding body when there exists a substantial conflict in evidence. This rule, however, does not relieve an appellate court of its duty of analyzing the evidence in the light of reason and human experience and giving consideration to the motives and propensities which tend to influence or prompt human action, in an effort to solve the question as to whether the judgment is reasonably and substantially sustained by the evidence.
[12] In a consideration of the question as to whether or not there exists a substantial conflict, the fact that the consideration passing from the decedent to the plaintiff was so grossly disproportionate, as the books put it, as to shock the conscience of all men, cannot be laid out of the case; nor can the confidential relations that existed between the parties, in the absence of evidence of independent advice, be disregarded. [13] There must be more than a conflict of mere words to constitute a conflict of evidence. The contrary evidence must be of a substantial character, such as reasonably *472 supports the judgment as applied to the peculiar facts of the case. The rule announced in Morton v. Mooney et al., 97 Mont. 1 [33 PaCal.2d 262], correctly states the rule which has been approved by this court in a number of our decisions. It is thus stated:
"While the jurors are the sole judges of the facts, the question as to whether or not there is substantial evidence in support of the plaintiff's case is always a question of law for the court (Grant v. Chicago etc. Ry. Co., 78 Mont. 97 [252 P. 382], and in determining this question 'the credulity of courts is not to be deemed commensurate with the facility and vehemence with which a witness swears. "It is a wild conceit that any court of justice is bound by mere swearing. It is swearing creditably that is to conclude the judgment." ' "
[14] The rule in cases such as the one before us is that the court must view the transaction with the "most scrutinizing jealousy". This means, of course, any court in which the issue may be raised. [15] Oral evidence, of which there is no satisfactory independent corroboration, is the weakest kind of evidence known to the law. In Smellie v. Southern Pac. Co., 212 Cal. 540 [299 P. 529], this court, in considering the same kind of evidence upon which plaintiff must rely in the instant case, said:
" 'Evidence of the declarations or oral admissions of a party are always received with caution. (Code Civ. Proc., sec. 2061, subd. 4.) ..."
" 'A third inherent weakness to be found in the testimony of Ireland is that it purports to give the statements or declarations of a deceased person. Regarding testimony of this character, this court said: "The evidence is of oral admissions against interest by a man whose lips are sealed in death. What, then, does the law say of such evidence (assuming now its admissibility)? The Code of Civil Procedure declares (sec. 2061, subd. 4) that 'the evidence of oral admissions of a party ought to be received with caution by a jury'. In Mattingly v. Pennie, 105 Cal. 514 [45 Am. St. Rep. 87, 39 P. 200], this court in bank said, 'No weaker kind of testimony could be produced.' Again in bank (Austin v. Wilcoxson, 149 Cal. 24 [84 P. 417], this court has said: 'It is not stating it too strongly to say that evidence so given under such circumstances must appear to any court to be *473 in its nature the weakest and most unsatisfactory.' " Estate of Emerson, 175 Cal. 724, 727 [167 P. 149, 151].) We might go on and cite many other authorities, but the above are sufficient for our present purpose.' "
The only evidence introduced by plaintiff is that given by persons who unquestionably were active participants in an effort, through a long period of time, to induce the decedent by means shown by the record to make the plaintiff a beneficiary of his estate. That such was the purpose is too plain to require argument. He was actually taken to task by Adele Blood Hope on at least one occasion for having failed to comply with her suggestion made to him as to what she thought was a suitable provision for him to make for plaintiff. Every means that was thought likely to accomplish that end was brought to bear upon decedent. That there was concert of action on the part of plaintiff and her companions is all but admitted by them. The pressure was intensely applied beginning with the New York trip and was increased by the subsequent Vancouver and Palm Springs trips and finally spent its force at the Engstrum Apartments on October 10, 1927, or shortly thereafter, when the parting of the ways followed whatever transaction took place on that day. The story of a transaction involving the transfer by said instrument to the enrichment of the plaintiff in the sum of $500,000, in the circumstances related by plaintiff and her witnesses, not only strains the credulity of those expected to accept it, but it would seem to bring into serious question the normal mental condition of a former successful business man who engaged in such a transaction. The contention that the decedent had no independent advice in the matter, especially during the few weeks immediately prior to the transaction, when he was under the surveillance of Mrs. Herbert and her companions at the Engstrum, is rendered probable by plaintiff's witnesses, Miss McKee and Miss Blood. The colonel advised Mrs. Herbert, as he delivered the note to her, to deposit it in the bank, and, after his death, to take it to Mr. Macdonald and he would see that it was paid. Mr. Macdonald had no knowledge of the note until after the colonel's death. Miss Blood testified that the colonel said to her that his only regret was that he would not be able to see Mr. Macdonald's face when the note would come to his attention. *474
From what has been heretofore said in the review and analysis of the case, the transaction related by plaintiff's witnesses from its genesis to its close cannot be easily explained on any theory consistent with ordinary human action.
The testimony of the only person who claimed to have witnessed the transaction is to the effect that the instrument was the product of one continuous writing operation. This testimony is weakened by the physical facts which appear on the face of the note. It does not require the assistance of an expert to discern them. In addition to the physical facts already pointed out, and which tend to nullify Miss McKee's testimony in material respects, the fifth cipher in "$500,000" is out of line with the third and fourth ciphers, and it is relatively smaller and was evidently blotted. The inserted words "One month" were also evidently blotted. The letter "h" intersects the letter "e" in the word "hundred" just above it. No blotter was used to absorb the ink after writing the word "hundred". The only words or figures which show the use of a blotter at all are "one month" and the fifth cipher. The "after death" clause rendered the note nonnegotiable and therefore postponed an investigation as to its genuineness until after the death of Colonel Lankershim. If a blotter had been used at the time the body of the instrument was written, absorption would have shown in the words adjoining and immediately above and in close proximity to the blotted words. On the contrary, all other writing shows quite black and heavy. If the writing was a continuous process, the ink must have been wet in "hundred" when the blotted words were written and, if so, the extension of the letter "h" into the letter "e" would have produced the usual effect of blurring or running together of the ink. Instead, the letter "e" has the appearance of having been completely dried at the time the letter "h", from underneath, intersected said letter "e". The written words "thousand dollars" have a decided variance in slant of letters from the letters in the preceding words, showing a different writing position. Features upon the face of the instrument give the appearance of alterations made after its execution, noticeably the forcing out of line of the word "me" to avoid writing into the letter "J".
[16] Plaintiff meets this criticism by saying that it was done to avoid writing into the bracket at the end of a ruled line. Appellants respond by pointing out that printed matter, *475 including border lines, did not stay the hand of the writer. The note speaks for itself. The burden of establishing its integrity was upon plaintiff. No evidence was given as to any changes or alterations made in the instrument after it was written except the testimony of Miss McKee. She saw no blotter used in the production of the instrument, or at all, and the note was flat and had not been folded when she examined it. Its physical appearance indicates that it had been folded before written upon. Her testimony in other respects has been analyzed. Three experts on penmanship and one on analytical chemistry, two of whom were selected by the court, made critical examinations of the document and all are of the opinion that the signature of the decedent and the body of the instrument were written with different inks and at different times. It is insisted that the testimony of said experts is corroborated in several respects by physical facts. [17] The rule is that expert evidence, like other kinds, cannot be arbitrarily disregarded.
[18] The rule as to the adequacy of consideration is well stated in 13 Corpus Juris, sections 237, 238, as follows: "So long as it is something of real value in the eye of the law, whether or not the consideration is adequate to the promise is generally immaterial in the absence of fraud ... the inadequacy, as has been well said, is for the parties to consider at the time of making the agreement, and not for the court when it is sought to be enforced. It is competent for the parties to make whatever contracts they may please, so long as there is no fraud or deception or infringement of law. Hence the fact that the bargain is a hard one will not deprive it of validity." However, this is by no means an inflexible rule, but has exceptions well recognized in the decisions of many of the leading states of the Union, including decisions of the United States Supreme Court. The exceptions exist "where the inadequacy is so gross as to shock the conscience and common sense of all men, it may amount both at law and in equity to proof of fraud, oppression and undue influence. So, while it is ordinarily stated to be the rule at law that the adequacy of consideration is not material, a court of law, where the contract is unreasonable and unconscionable, may give a party who sues for the breach, not what the other party promised to pay, but only what plaintiff is honestly and equitably entitled to." This rule of equity strongly appeals to the common sense of justice. [19] Section 239 *476 of the above text, citing authority sustaining the principle announced, states the rule to be that "inadequacy of consideration is often treated as corroborative evidence of fraud or undue influence which will enable a promisor to resist a suit for specific performance or have his agreement set aside. Where mental weakness occurs in connection with inadequacy of consideration, the presumption of undue influence becomes very strong. Again, where the parties stand in a confidential relation, inadequacy of price will raise a presumption of fraud." (Italics ours.) Inadequacy of consideration may be so excessively gross and unconscionable as to amount to conclusive evidence of fraud. Gross inadequacy of consideration is, therefore, to be considered together with the evidence bearing upon the bona fides of the transaction. This rule better conforms to the more modern and common sense concept of fair and honest dealing. Any other rule would be abhorrent to that sense of justice which finds approval in our best judicial pronouncements.
[20] In the state of the evidence in this case it is a very serious question whether, as a matter of law, the evidence adduced by the plaintiff is sufficiently substantial to support the judgment. In cases in which a serious doubt is created in the mind of the reviewing court as to the sufficiency of the evidence to support the judgment, it becomes the duty of the court to consider carefully the errors complained of, and if it should appear upon such consideration that the errors committed probably prejudiced the case of the party against whom they were committed, it is the duty of the court to order a retrial of the cause. In such cases the provisions of article VI, section 4 1/2 of the Constitution cannot be invoked in aid of the affirmance of the judgment, unless it can be said that the justice of the cause preponderated so heavily on the side of the prevailing party that none of such errors did or could have contributed to or resulted in a miscarriage of justice. Construing article VI, section 4 1/2 of the Constitution, this court, in People v. Davis, 210 Cal. 540, 556 [293 P. 32], said: "The phrase 'miscarriage of justice' used as descriptive of that condition of a cause which justifies the reversal of a judgment, has no hard and fast definition. It seems assured, however, that where errors have been committed, and where the appellate court finds that upon the record it is seriously doubtful that without such errors the defendant would have been convicted, *477 then it may well be that errors which otherwise would not be considered to be seriously prejudicial, will require a reversal." The rule applies to civil as well as to criminal cases. (Tower v. Humboldt Transit Co., 176 Cal. 602, 605 [169 P. 227]; Langford v. San Diego El. Ry. Co., 174 Cal. 729 [164 P. 398]; Citti v. Bava, 204 Cal. 136, 138 [266 P. 954]; Squires v. Riffe, 211 Cal. 370, 374 [295 P. 517]; People v. Washburn, 104 Cal. App. 662 [286 P. 711, 714].)
[21] Under the doubtful state of the evidence, we are of the view that the case should be reversed for reasons already pointed out and hereafter to be considered.
[22] If the note was intended as a gift payable after death, then, of course, it did not create an enforceable legal obligation. (Coon v. Shry, 209 Cal. 612 [289 P. 815]; Tracy v. Alvord, 118 Cal. 654 [50 P. 757]; Wisler v. Tomb, 169 Cal. 382 [146 P. 876].) The note can be upheld, if at all, only as a contract. This is conceded. As a contract, to be enforceable, it must, of course, be supported by a valid consideration. This consideration must be either past or present.
[23] As part of her case respondent offered evidence tending to prove various services intermittently rendered by her, and the length of time over which the services were rendered. According to the evidence produced by her, all of the services were rendered and completed prior to the date of the execution of the note. There is not one word of evidence that services of any kind were rendered after that date. If the note was intended as compensation for the services already rendered, then the provisions of section 1606 of the Civil Code are applicable, and this is so whether the obligation to pay for these past services was either a moral or a legal obligation. That section provides: "An existing legal obligation resting upon the promisor, or a moral obligation originating in some benefit conferred upon the promisor, or prejudice suffered by the promisee, is also a good consideration for a promise, to an extent corresponding with the extent of the obligation, but no further or otherwise." (Italics supplied.)
It must be admitted that, under this theory, at the time the note was executed the "extent of the obligation" existing against Colonel Lankershim, legally or morally, was to pay for the reasonable value of the services rendered. If this analysis is correct, then the only consideration that can support *478 the document sued upon was this prior obligation, and it can support the document only to the "extent of the obligation, but no further or otherwise." [24] The appellants sought to introduce evidence as to the reasonable value of the services, but this evidence was excluded. The jury was specifically instructed that the respondent, if entitled to recover at all, was entitled to recover the full $500,000. The defendants offered several instructions to the effect that if the jury should find the consideration for the note was past consideration, then the plaintiff was limited in her recovery to the reasonable value of her services. These instructions were refused. This was error of a prejudicial nature. Certainly from the evidence introduced, the jury, if it found services were in fact rendered could have found that the services already rendered when the note was executed were the sole consideration for the note. The jury should have been instructed that, in the event it so found, recovery was limited to the extent of the existing obligation as defined in section 1606 of the Civil Code. (Lagomarsino v. Giannini, 146 Cal. 545 [80 P. 698]; Estate of McConnell, 6 Cal. 2d 493 [58 PaCal.2d 639]; Benjamin Moore & Co. v. O'Grady, 9 Cal. App. 2d 695 [50 PaCal.2d 847].)
[25] Appellants make complaint that the value of the testimony of the expert witnesses was greatly weakened, if not destroyed, by the many objections made by respondent and, as they contend, improperly sustained. It is also insisted with some force that the examination of these witnesses was unduly curtailed and frequently interrupted by objections which should not have been allowed to the extent that it seriously prejudiced appellants' cause with the jury. That many of the objections were placed on highly technical, if not insubstantial, grounds is not entirely without support. The specific grounds of the objections were that the questions called for the conclusions or inferences of the witnesses or carried them into the realms of speculation or permitted them to make deductions and resort to the inductive method of arriving at conclusions. An examination of the record convinces us that the examination of the opinion witnesses was too narrowly limited. A number of the objections sustained on the grounds stated were not well taken, as the questions called for the opinions of the witnesses on matters within the field of this class of evidence. It may be properly said that ruling upon the admission of such testimony in the *479 course of trial often presents perplexing problems to a trial court.
[26] H. O. Moulton, who had been the bookkeeper in the Lankershim Estate Corporation for a number of years, testified on behalf of defendants as to the failing eyesight of decedent, his manner of signing his name, and as to his traits and his general physical condition. During his examination he said that he had to do, in his employment, with keeping records of all of decedent's properties and that he was familiar with said properties. This designation of duties, plaintiff claimed, opened the door for cross- examination as to his wealth and entitled plaintiff to a listing of all the properties of whatsoever kind owned by decedent in 1927. Accordingly, over the objection of appellants, the witness was directed to furnish lists setting out all real and personal property, including stocks, bonds, and all evidences of debt owned by him. The witness, under the ruling, testified that decedent owned all but two shares of the Lankershim Estate Corporation, the authorized capital of which was $1,000,000. A list of real estate, stocks and bonds covering approximately six printed pages was read into the record. The par value aggregated $1,012,923.31. The market value was not given. This evidence near the close of the case was stricken out as being inadmissible. Upon several occasions during the trial the plaintiff brought to the attention of the jury that Colonel Lankershim was a very wealthy man. This matter was made to appear, by inference, on the cross-examination of witness Sellers, by questions as to the compensation he was to receive. The cross-examination of Dr. Kress, the eye specialist who treated the colonel, did not relate to any matter about which he testified in chief, but had to do with the fees which the oculist had charged him. Without any apparent ground to prompt the question, Miss Tufts, secretary of the Lankershim Corporation, was asked if she had ever read to the colonel a letter written by Mrs. Lankershim to her husband in which she signed herself "millionairess". No offer was made to prove that she had written such a letter. Taking into consideration the nature of the action, it is not likely that the jury was able to entirely shut out of mind the long list of real properties, certificates of stocks, bonds, and evidences of wealth which had been read to them. Both counts of the complaint specifically alleged the performance of service as the foundation of the action. *480
[27] The proffered testimony of defendants as to certain declarations made by plaintiff which tended to rebut the testimony of plaintiff's witnesses given to the effect that she was kind to, sympathetic with, and considerate of the colonel, and was committed to his financial and personal welfare should not have been excluded from the jury's consideration, especially in the face of the fact that plaintiff greatly stressed this particular issue. It was proper evidence both as rebuttal and as going to the plaintiff's state of mind.
A number of other assignments of error are argued by appellants, but we do not deem it necessary to go further than to consider certain instructions requested by appellants and refused by the court.
[28] The important issues tendered by the answer were fraud, undue influence, the weakened condition of decedent by age, and the gross inadequacy of the consideration. Appellants prepared and offered a number of instructions setting forth their several defenses which were calculated to give the jury a full understanding of the issues involved in the case and the rules of law applicable to the issues as framed by appellants. These requested instructions which had to do strictly with undue influence and inadequacy of consideration were all refused and no equivalent instructions were elsewhere given. Unless the pleadings were read to the jury--and it does not appear that they were--the jury would not have definite or sufficient information as to all the vital matters of defense pleaded by appellants.
[29] The consequent duties and obligations which the law imposes, in a case where a confidential relation is shown to exist, upon a person who greatly advantages in treating with a confiding person, is nowhere fully or adequately stated. The only instructions given at the request of appellants in which the subject "confidence" reposed in another is mentioned are instructions No. 70 and No. 75. All others were refused. The ones given in no way informed the jury as to the effect of such relations or the rules of law to be applied in such cases, but merely enumerated some of the things that may properly be considered in determining whether such relations exist. The only references made to the subject in the instructions given at the request of plaintiff are to be found in instructions No. 3, No. 11, No. 11 (a), No. 11 (c), No. 11 (b), and No. 13. Instruction No. 3 threw the burden unqualifiedly on appellants. No. 11 did likewise. *481 By No. 11 (a) the jury was told that a confidential relation does not in and of itself raise any presumption of fraud or undue influence unless it is also established by a preponderance of the evidence that such confidential relation was actually used to obtain an unfair advantage. By instruction No. 11 (b) the jury was told that the proof of undue influence must be substantial to the effect that pressure was used which overpowered the volition of the party upon whom it operated, and that it must amount to more than a suspicion. No. 13 merely mentioned "undue influence" in a negative way and did not purport to throw any light on the law applicable to confidential relations. This covers every reference made to the subject of confidential relations, and no sufficient instruction was given on the subject of gross inadequacy of consideration. These two major defenses, therefore, were not adequately called to the consideration of the jury. The defendants stressed both issues by a number of instructions which were rejected. [30] By instructions No. 3 and No. 11, given at plaintiff's request, the jury was told that the burden of proving undue influence by a preponderance was upon the defendants. The general rule is that the burden is on the party who introduces affirmative matter. The instructions, however, made no exception as to the burden shifting to the trustee to show that the transaction was fair, free from fraud or undue influence, if a confidential relation is shown to exist and the transaction as to the confiding party was inequitable and the consideration was grossly inadequate. It is conceded that plaintiff wrote the entire instrument, except the signature, which she seeks by her action to enforce. [31] The line of authorities is unbroken to the effect that where a confidential relation exists and one of the parties to the relationship has shown great activity in procuring the execution of the instrument by which he or she greatly benefits by the transaction, the activity of such person becomes an important factor for the court or jury to consider in determining whether the transaction was free from undue influence. If such relations are found to exist the burden of showing that no undue advantage was taken shifts to the other side (Estate of Lances, 216 Cal. 397 [14 PaCal.2d 768]; Estate of Yale, 214 Cal. 115 [4 PaCal.2d 153]; Estate of Nutt, 181 Cal. 522 [185 P. 393].) Several instructions *482 containing these propositions of law were asked but all were rejected.
[32] Appellants set out in their briefs some fifty requested instructions, a number of which they vigorously urge should have been given and it constituted reversible error to refuse them. Among this number, which bore upon the fundamental issues of law presented by the defense, and which appellants specially urge, are Nos. 40, 69, 71, 72, 73, and 74. Space will not permit a reproduction of all of the rejected instructions and we will set forth but two as typical, in a general way, of the others. Instruction No. 40 reads: "The plaintiff's action in this case is based upon the documents herein sued upon. The defendants have pleaded, among other defenses, that the consideration for this document, if any, was grossly inadequate. Defendants also claim, as one of their defenses, that the said document was fraudulently obtained by the plaintiff from Colonel J. B. Lankershim. I instruct you that it is the law that a presumption of fraud arises where there is a great disparity between the value of services rendered and the recompense, and a confidential relation exists between the parties, and the party promising to pay has had no independent advice and has relied upon the beneficiary named in the preparing of the document signed by him, and the beneficiary under the document writes the entire body of the document in her own hand. It is for you to determine from the evidence if the different factors set out existed at the time it is alleged the document herein sued upon was made (if you find it to have been made)."
None of the instructions gave consideration to independent advice as an issue in cases in which confidential relations are alleged, nor on the important matters mentioned herein. The instruction would have been freer of criticism had it read: "A presumption of undue influence" rather than a "presumption of fraud". In the interest of a full and complete understanding of the law applicable to the case it was necessary that the jury be instructed on the major subjects raised by the pleadings even if a modification in this or other respects was required to make a more acceptable presentation of the law. [33] We think this is the rule approved by statute and judicial decision where fundamentals are involved, there being no attempt on the part of the author to *483 mislead the court or jury by resorting to equivocally or ingeniously phrased requests, especially in cases where the jury otherwise would be left uninstructed on vital issues of the case.
Instruction No. 72 is more comprehensive and reads: "The law defines a confidential relation as any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter's knowledge or consent. A fiduciary relation in law is ordinarily synonymous with a confidential relation. It is also founded upon the trust or confidence reposed by one person in the integrity and fidelity of another, and likewise precludes the idea of profit or advantage resulting from the dealings of the parties and the person in whom the confidence is reposed. If, therefore, from all the evidence in this case, you find that the relations between Colonel J. B. Lankershim and the plaintiff were such that Colonel Lankershim reposed confidence in the integrity or fidelity of plaintiff, and relied upon plaintiff in the transaction involved, and that plaintiff voluntarily accepted or assumed to accept such confidence, then you must find that a confidential relation existed between Colonel J. B. Lankershim and plaintiff. Where such a confidential relation exists, the law views with strictness the business dealings of the one in whom the confidence is reposed to show that the other party to the relation acted voluntarily with a full knowledge of all the facts and that the transaction was fair and just. If, therefore, you find from all the facts of this case that a confidential relation did in fact exist between Colonel J. B. Lankershim and the plaintiff at the time of the execution and delivery of the document here sued upon (if it was executed and delivered) the burden is upon plaintiff of showing that the transaction was fair and just and fully understood and consented to by Colonel J. B. Lankershim, and unless you find that plaintiff has shown the transaction to have been of this character, your verdict must be for the defendants." *484
The above proffered instruction, as well as several others, seems to be a sound exposition of the law on the subjects of which they treat and such instructions were essential for the jury's guidance as to the effect and sufficiency of the evidence. The jury should have been given full instructions as to the principle which several of them enumerated. Further, they should have been given in view of certain instructions given at the request of plaintiff, which have already received attention. The importance of the jury being fully instructed as to the inadequacy of consideration in a case of this nature is made pertinent by the following excerpt from Odell v. Moss, 130 Cal. 352, 358 [62 P. 555], supported by ample authority.
"There was no consideration, or at least no adequate consideration, for the deeds, and, from this alone, the presumption of undue influence arises. The case is one of that class of bargains that are said to be 'of such an unconscionable nature and of such gross inequality as naturally leads to the presumption of fraud, imposition, or undue influence; ... such bargains as no man in his senses, and not under delusion would make on the one hand, and as no honest and fair man would accept on the other, being inequitable and unconscionable bargains'. (1 Story's Equity Jurisprudence, sec. 244, et seq.) ..." (Allore v. Jewell, 94 U.S. 506 [24 L. Ed. 260]; Hume v. United States, 132 U.S. 406 [10 S. Ct. 134, 33 L. Ed. 393]; Bassick v. Aetna Explosives Co., 246 Fed. 974.)
[34] Respondent takes the position that the judgment may be sustained on the theory of novation or account stated. Neither theory was presented by pleading, or raised during the trial by evidence directed to the issues, or by any request for instructions framed to elucidate said theories. This precludes respondent from arguing these new theories on appeal.
The judgment is reversed.
Langdon, J., Curtis, J., Shenk, J., and Waste, C.J., concurred.
Edmonds, J., being disqualified, did not participate in the consideration or decision of this case.
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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/5902680/
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Judgment, Supreme *424Court, New York County (Carol E. Huff, J.), entered August 19, 2011, upon a jury verdict awarding plaintiff, inter alia, the principal amount of $400,000 for future pain and suffering over 20 years, unanimously affirmed, without costs.
Plaintiff was injured when, while attempting to board defendant’s bus, the doors closed on her and the bus started to drive away before coming to an abrupt stop. As a result, plaintiff suffered a herniation to her lumbar spine and two bulging discs to her cervical spine, resulting in radiculopathy, for which surgery was recommenced. Compensation for plaintiffs injuries did not deviate materially from what is reasonable compensation. Concur—Tom, J.P, Sweeny, Moskowitz, Manzanet-Daniels and Gische, 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/5902681/
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In an action for, inter alia, specific performance of restrictive covenants and an injunction, the defendants appeal from (1) an order of the Supreme Court, Suffolk County (Gerard, J.), entered March 25, 1987, which (a) granted the plaintiff’s application for a preliminary injunction enjoining the defendants from utilizing the second floor of their premises as a discotheque or dance club and (b) denied their application for the court to recuse itself and (2) a judgment of the same court, entered October 30, 1987, which (a) granted the plaintiff’s application for a permanent injunction enjoining the use or occupancy of the premises in violation of certain restricive covenants, (b) ordered the defendants to cease the use of and/or to remove certain structures from the premises and, (c) awarded legal fees to the plaintiff.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is modified by deleting the provision thereof which awarded legal fees to the plaintiff; as so modified, the judgment is affirmed; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of the direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
*793On July 2, 1985, the plaintiff conveyed certain premises to John Anthony’s Water Cafe, Inc. (hereinafter Anthony’s) which in turn conveyed the premises to the defendant AJ and S Enterprises (hereinafter AJ and S). On May 19, 1986, Anthony’s entered into an agreement leasing the premises from AJ and S. The deed from the plaintiff contained numerous covenants and restrictions concerning the construction, operation and use of the premises. Of particular importance to this action are the first and twelfth covenants which provide:
"First—Said vacant land shall be used solely for the operation of a restaurant and bar, which shall specialize in sit-down dining facility [sic] * * *
"Twelfth—Premises may not be used for any topless bar which permits Go-Go Dancers, Exotic Dancers, California Dancers or any similar use which permits nude or semi-nude performers.
"Premises may not be used as Discotheque or Dance Club. Nothing herein shall be construed so as to prohibit dancing, as an incidental use, in conjunction with the conduct of the restaurant/bar business provided for in Article 'First’ herein. Live music, when utilized, may be used subject to permission of the Board of Trustees of the incorporated VILLAGE OF BABYLON”.
The plaintiff seeks to enforce these covenants and to restrain the defendants from utilizing the second floor of their establishment as a discotheque or dance club. The defendants, which operate a restaurant on the first floor, contend that the second floor is utilized as a lounge with incidental dancing in conformity with the restrictive covenants.
We agree with the Supreme Court that the defendants operated a discotheque or dance club on the second floor of its premises in violation of the first and twelfth covenants and find that the Supreme Court properly granted a permanent injunction enjoining them from continuing such operation. The evidence adduced at the extensive hearing held on the matter established that the defendants employed a disc jockey who played recorded top-40 music from a disc jockey’s booth; charged a separate admission for access to the club, which was open only three evenings a week and remained open after the restaurant had closed; maintained a light show with neon, flashing and whirling lights; created special effects with artificial smoke; constructed a sunken dance floor; utilized an extensive sound system and video screen; and advertised the premises as a "night spot” and "night life.”
*794A "discotheque” is defined as "a nightclub featuring dancing to amplified recorded music” (American Heritage Dictionary 376). Black’s Law Dictionary defines "incidental use” as, "[i]n zoning, use of premises which is dependent on or affiliated with the principal use of such premises” (Black’s Law Dictionary 686 [5th ed 1979]).
Permit applications filed by the defendants with the State Liquor Authority and Buildings Department indicate that the intended primary use of the premises was as a fine, sit-down restaurant. The defendants were fully aware of the restrictive covenants prior to purchasing the property and, in fact, entered into extensive negotiations with their attorney and the attorney for the plaintiff which concluded with the reference to dancing as an "incidental use” being inserted into the final contract. The dancing, which occurred on the second floor of the premises, was not attendant or concomitant to the primary use of the premises and therefore, was not an "incidental use” (see, Matter of 7-11 Tours v Board of Zoning Appeals, 90 AD2d 486).
Nor does the record support the defendants’ contention that the plaintiff should be equitably estopped from enjoining the use of their premises as a discotheque or dance club. The application of the doctrine of equitable estoppel should be applied with great caution in dealing with realty (Huggins v Castle Estates, 36 NY2d 427) and should not be invoked against governmental entities in the absence of exceptional circumstances (Matter of Parkview Assocs. v City of New York, 71 NY2d 274; Landmark Colony v Board of Supervisors, 113 AD2d 741). The defendants have failed to demonstrate that such circumstances exist. The defendants purchased the property with knowledge of the restrictive covenants and with knowledge that the plaintiff intended to enforce such covenants (Ginsberg v Yeshiva of Far Rockaway, 45 AD2d 334, affd 36 NY2d 706). The language contained in the covenants is clear and unequivocal and was discussed at length by the defendants, their attorney and representatives of the plaintiff. Contrary to the defendants’ contentions, the language of the twelfth covenant is not susceptible to two equally plausible constructions (see, Liebowitz v Mandel, 114 AD2d 491) and representations were not made by the plaintiff upon which the defendants could have reasonably relied to their detriment.
The defendants’ operation also violated the third and thirteenth covenants. The record amply supports the Supreme Court’s determination that the defendants’ premises created an increase in noise and traffic congestion which created a *795hazard to the safety of the area residents and to the patrons of the premises. Moreover, its patrons and employees utilized the municipal parking area in violation of said covenants. It is clear that a court may restrain acts which are dangerous to human life, detrimental to the public health and occasion great public inconvenience and damage (People ex rel. Bennett v Laman, 277 NY 368).
Nor was it an abuse of discretion for the Trial Judge to refuse to recuse himself because of an alleged 1977 political affiliation with the Mayor of the plaintiff, one of many witnesses who testified on behalf of the plaintiff (see, Code of Judicial Conduct Canon 3; People v Smith, 63 NY2d 41, cert denied 469 US 1227, reh denied 471 US 1049). The record fails to substantiate the defendants’ allegation that the Trial Judge was biased or predisposed to the outcome of this matter.
Finally, the judgment must be modified to the extent that legal fees were awarded to the plaintiff. " 'The law is well settled that in the absence of a statute expressly authorizing him to do so, or unless the parties have otherwise agreed or stipulated, a civil litigant may neither sue his adversary to recover fees paid to his attorney for legal services, nor, unless the court has directed taxation of such a payment in extraordinary circumstances, tax them as a disbursement’ ” (Donn v Sowers, 103 AD2d 734, 735). Since the award of counsel fees in this matter does not fall within any of the stated exceptions, the judgment must be modified by deleting therefrom the award of counsel fees. Kunzeman, J. P., Eiber, Kooper and Harwood, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902501/
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In an action to recover damages for personal injuries, etc., the defendant appeals from a judgment of the Supreme Court, Rockland County (Weiner, J.), entered May 12, 1986, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $175,000.
Ordered that the judgment is affirmed, with costs.
On November 24, 1981, the plaintiff Candace Erlon—then seven years old—sustained a spiral fracture of her right tibia and fibula while roller skating on property owned by the defendant J.H.W. Construction Corporation. Subsequent to the defendant’s default in respect to the liability portion of the plaintiff’s lawsuit, a trial limited to the issue of damages was held, after which the jury awarded the plaintiff the sum of $175,000. The defendant now appeals, contending that the foregoing award was excessive. We disagree and affirm.
The trial testimony concerning the nature and extent of the *654injury sustained by the plaintiff establishes that the $175,000 award cannot be characterized as excessive. The medical testimony adduced at trial established that the plaintiff sustained a spiral fracture of the tibia and fibula resulting in an overgrowth to the right tibia and a permanent one-half-inch lengthening of the right leg. Moreover, the plaintiff’s treating orthopedist testified that as a consequence of the lengthening of the right leg, there resulted a slanting of the pelvis or pelvic tilt and a spinal curvature or scoliosis, both of which conditions were permanent in nature. There was additional testimony that the plaintiff’s continued symptomology, as manifest in her persistent complaints of pain and discomfort, was attributable to the failure of the soft tissue surrounding the bone to heal normally and that the resulting pain was permanent. The record further reveals that the treatment prescribed by the plaintiff’s orthopedist included the use of corrective footwear into which lifts had been inserted so as to minimize the difference in length between her legs.
Although the testimony adduced by the defendant’s expert differed materially in certain respects from that offered by the plaintiff’s experts, the weight to be accorded the respective medical opinions was an issue for the jury’s determination. With regard to the issue of damages, it is well settled that "[t]he amount of damages to be awarded for personal injuries is primarily a question of fact for the jury” (Jandt v Abele, 116 AD2d 699, 700). We conclude that, under the circumstances, there exists no reason to disturb the jury’s assessment of damages in this particular case (see, Jandt v Abele, supra). Lawrence, J. P., Kunzeman, Kooper 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/5902502/
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an action to foreclose a mort*655gage, the defendant mortgagors appeal from an order of the Supreme Court, Suffolk County (Saladino, J.), dated August 11, 1987, which denied their motion to set aside a foreclosure sale and to order a resale.
Ordered that the order is affirmed, with costs.
The Referee acted in a reasonable manner in attempting to accommodate the high bidders and did not violate the terms of the judgment of foreclosure (see, Mullins v Franz, 162 App Div 316). By accepting an uncertified deposit check, after a short adjournment, with assurances of the buyer’s financial wherewithal, the Referee exercised his discretion to consummate the foreclosure sale so as to best protect the rights of the mortgagees while simultaneously ensuring a successful completion of the sale (see, E. Q. C. Co. v Plainview Country Club, 23 AD2d 769). A Referee must retain limited flexibility, while still acting within the authority of the court as conferred in the judgment of foreclosure, to meet those unforeseen circumstances that might otherwise jeopardize the success of a foreclosure sale (see, E. Q. C. Co. v Plainview Country Club, supra; cf., Farmers’ Loan & Trust Co. v Bankers & Merchants’ Tel. Co., 119 NY 15). Notwithstanding the discretion possessed by the Referee to best consummate the sale, the court continues to retain the power to set aside a sale where collusion, fraud, mistake or misconduct casts suspicion on its fairness (see, Polish Natl. Alliance v White Eagle Hall Co., 98 AD2d 400). In the instant case, no such acts occurred justifying interference with this sale. Moreover, the $810,000 bid accepted is a reasonable price exceeding 50% of the appellants’ estimated value of the property and such sales have been consistently sustained. In any event, absent fraud, collusion, mistake or misconduct, the mere inadequacy of the price alone will not prompt the court to set aside an apparently fair judicial sale. In such cases, only where the price is so low as to shock the conscience of the court will the sale be vacated (see, Polish Natl. Alliance v White Eagle Hall Co., supra, at 407-408; see also, Alben Affiliates v Astoria Term., 34 MisC 2d 246). The price paid was fair and the sale was properly conducted. The appellants’ remaining contentions have been examined and are without merit. Mollen, P. J., Bracken, 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/5902503/
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OPINION OF THE COURT
Austin, J.
On this appeal, we address whether intentional tort and fraud claims to recover damages allegedly resulting from the confinement of commercial airline passengers in an airplane remaining on a tarmac outside of a terminal for several hours without affording passengers food, water, clean air, and toilet facilities is preempted by federal law. We also determine whether, in an electronically filed (hereinafter e-filed) action, the failure to annex a complete set of the originally submitted papers in support of a motion for leave to renew or reargue a motion for class certification warrants denial of the motion.
For the reasons that follow, we find that the plaintiff’s intentional tort and fraud claims relate to the provision of airline services and are, therefore, preempted by federal law. We further find that compliance with CPLR 2214 (c) requires that a party seeking leave to renew or reargue cannot rely upon reference to e-filed documents in lieu of annexing a complete set of the originally submitted motion papers.
The plaintiff commenced this putative class action by filing a summons with notice in the Supreme Court, Queens County, on February 13, 2008, against, among others, the defendant Jet-Blue Airways Corporation (hereinafter JetBlue). According to the plaintiffs summons with notice, the nature of the putative class action was one to recover damages for, among other things, false imprisonment, negligence, intentional infliction of emotional distress, fraud and deceit, and breach of contract arising out of an 11-hour confinement of the plaintiff and other passengers in a JetBlue aircraft on the tarmac at John F. *161Kennedy International Airport (hereinafter JFK) on February 14, 2007.
After it was served with a copy of the complaint on July 15, 2009, JetBlue filed a notice of removal pursuant to 28 USC § 1441 in the United States District Court for the Eastern District of New York (hereinafter the federal court) to remove this case on the basis that the federal court had original jurisdiction over the claims of certain putative class members arising out of the Montreal Convention (Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, reprinted in S Treaty Doc No. 106-45, 1999 WL 33292734, 1999 UST LEXIS 175), as asserted in the complaint. The plaintiff moved in the federal court pursuant to 28 USC § 1447 (c) to remand this action to the Supreme Court, Queens County. In an order dated February 4, 2010, the federal court granted the motion, concluding that it did not have jurisdiction to hear this case since the plaintiff lacked standing to raise Montreal Convention claims.
After this action was remanded to the Supreme Court, Queens County, JetBlue moved, by notice of motion dated April 19, 2010, pursuant to CPLR 3211 (a) (1) and (7), to dismiss the complaint. JetBlue asserted that the plaintiffs tort claims were preempted by the Airline Deregulation Act of 1978 (49 USC § 41713 [hereinafter the ADA]) and the Federal Aviation Act of 1958 (49 USC § 40101 et seq. [hereinafter the FAA]), and that the plaintiff failed to state a cause of action with respect to all five of her claims.
In opposition, the plaintiff submitted, inter alia, a first amended complaint dated April 30, 2010, which differed from the original complaint in that the plaintiff added some factual allegations with respect to the events that occurred on the subject day of travel and concerning the cause of action alleging breach of contract, included an allegation of negligence per se, and deleted any reference to the Montreal Convention.
As directed by the Supreme Court, JetBlue filed a subsequent motion to dismiss the first amended complaint on May 21, 2010, reiterating the same grounds for dismissal as were asserted in its original motion: federal preemption of the tort claims under the ADA and the FAA, and failure to state a cause of action with respect to all claims. At about the same time, by notice of motion dated May 20, 2010, the plaintiff moved for class action certification pursuant to CPLR article 9.
In her first amended complaint, the plaintiff made the following allegations. At 6:15 a.m. on February 14, 2007, she boarded *162a JetBlue aircraft at JFK that was scheduled to depart for Burbank, California, at 6:45 a.m. The aircraft left the terminal at approximately 6:50 a.m., but remained on the ground for the ensuing 11-hour period until the plaintiff was allowed to exit the aircraft at 5:30 p.m. During the first five hours, the plaintiff remained in her seat with her seat belt fastened, as instructed by JetBlue personnel, who stated that the weather was “holding us up” and that it was necessary to remain seated so that the aircraft could take off on five minutes’ notice. After five hours, JetBlue personnel told passengers that if they wanted to exit the plane and take another flight, they should inform a crew member.
The plaintiff claimed that a nearby passenger requested to exit, but “the flight attendant bullied and intimidated him to stay on the plane,” stating that JetBlue would not assist him with getting another flight and that, in any event, no other flights were available for several days. According to the plaintiff, other passengers demanded to be released from the plane, but JetBlue personnel refused and stated “that if anyone tried to force their way off the aircraft, they would go to prison for 20 years” pursuant to the Federal Patriot Act. The plaintiff asserted that she was “intimidated” and “deceived” by JetBlue personnel’s “false and deceptive statements regarding alternative transportation,” and that JetBlue was aware, or should have been aware, that other flights on other airlines were available within 80 miles of JFK.
During the confinement, the JetBlue flight crew only served “very small amounts of water” and a few snacks after three hours had passed, and then again after a period of eight hours. In addition, after eight hours, the heating, cooling, and ventilation system “shut down,” causing the air to become “sweltering” and making it difficult for passengers to breathe. After 10 hours, the captain informed passengers that the toilet tanks were full and they could not “do a No. 2” because the tanks would overflow.
The plaintiff also alleged that numerous times during the confinement, JetBlue personnel falsely asserted that the plane was “next in line” to return to the terminal and would do so soon, while the plaintiff observed numerous other planes return to the terminal throughout the 11-hour period. Finally, after 11 hours, buses arrived and took the passengers to the terminal, where they waited another two hours to obtain their baggage. Approximately 1,300 other passengers on JetBlue aircraft were similarly affected by JetBlue’s actions at JFK that day.
*163As a result of the incident, the plaintiff, a comedy writer working in television and film, allegedly missed her friend’s film premiere and “important” business meetings, sustaining “lost business opportunities.” Moreover, she asserted that she had undergone “major shoulder surgery” six months before the incident, and that “her shoulder and hip flexors started to ache,” “her legs began cramping,” and she “suffered from mental distress, anxiety and near panic” after four to five hours of confinement. The plaintiff also averred that she “suffered physical pain for six months afterwards as well as panic and anxiety attacks,” which required treatment and therapy.
In her amended complaint, the plaintiff asserted five causes of action, which alleged false imprisonment, negligence and negligence per se, intentional infliction of emotional distress, fraud and deceit, and breach of contract, respectively.
In an order entered October 12, 2010, the Supreme Court granted certain branches of JetBlue’s motion to dismiss the amended complaint, while denying others. First, the court addressed the express preemption provision of the ADA, which, the court stated, “does not apply to tort claims for personal injury, . . . but . . . does apply to other types of tort claims merely pertaining to the service provided by an airline,” such as fraud, intentional infliction of emotional distress, and false imprisonment (citations omitted). The court concluded that “all of the plaintiffs tort claims, with the exception of negligence causing physical injury, are closely related to the provision of services” by an airline:
“The supply of ‘food, water, electricity, and restrooms to passengers during lengthy ground delays does relate to the service of an air carrier’ (Air Transp. Assn, of Am., Inc. v Cuomo, 520 F3d 218, 223 [2d Cir 2008]), and, thus, tort claims which rest on allegations of insufficient supply have been preempted. Boarding and dehoarding from flights also pertain to the provision of services, and the plaintiffs tort claims based on [JetBlue’s] actions in that regard have been preempted (see Hirsch v American Airlines, 160 Misc 2d 272 [Civ Ct, NY County 1993]; Williams v Express Airlines I, Inc., 825 F Supp 831 [WD Tenn 1993]).”
Accordingly, the court granted those branches of JetBlue’s motion which were to dismiss, as preempted, the causes of action alleging false imprisonment, intentional infliction of emotional *164distress, and fraud and deceit, and so much of the cause of action alleging negligence as was not predicated on personal injury, and denied those branches of the motion which were to dismiss, on preemption grounds, so much of the cause of action alleging negligence as was predicated on physical injury, and the cause of action alleging breach of contract.
The Supreme Court then determined that the amended complaint adequately stated causes of action alleging negligence predicated on physical injury and breach of contract. Although the court concluded that JetBlue failed to demonstrate by documentary evidence that the cause of action alleging breach of contract was subject to dismissal pursuant to CPLR 3211 (a) (1) since JetBlue did not provide a copy of the relevant contract of carriage, it denied that branch of the motion without prejudice to renewal. The court did not address JetBlue’s argument that the FAA impliedly preempted these two claims, other than by stating that “[t]he remaining branches of the motion are denied as moot.”
In a separate order dated October 7, 2010, the Supreme Court denied, without prejudice to renewal, the plaintiffs motion pursuant to CPLR 902 for class certification as premature, since issue had not yet been joined. Thereafter, JetBlue filed an answer dated October 25, 2010.
By notice of motion dated December 19, 2010, the plaintiff moved for leave to renew or reargue her motion for class certification. In support, the plaintiffs counsel did not attach exhibits to his affirmation, but simply referred to documents by electronic docket entry numbers.1
In an order entered February 8, 2011, the Supreme Court denied the plaintiffs motion for leave to renew or reargue her motion for class certification on the procedural ground that the plaintiffs moving papers were “insufficient in as much as the plaintiff failed to furnish a complete copy of the papers relied upon in making the November 18, 2009 [sic] decision.” In a footnote, the court stated, without citing authority, that “[i]t is not sufficient for the plaintiff to merely reference certain docket entries in the affirmation submitted in support of the motion herein.”
The plaintiff appeals from both the order entered October 12, 2010, determining JetBlue’s motion to dismiss the amended *165complaint, and the order dated January 27, 2011, denying her motion for leave to renew or reargue.
I. Preemption under the ADA
With respect to the Supreme Court’s order granting certain branches of JetBlue’s motion to dismiss the amended complaint on the basis of preemption, the plaintiff contends that the court erred in determining that some of her common-law claims were preempted by the ADA. She argues that the confinement of passengers in a grounded aircraft for an 11-hour period against their will is not related to the provision of services, as interpreted by the ADA’s preemption clause, since passengers do not bargain for or anticipate such lengthy confinement against their will. Moreover, she asserts that the conduct underlying her tort claims are too attenuated from the ADA’s objective of ensuring economic deregulation of the airline industry.
JetBlue contends that the Supreme Court properly determined that the plaintiffs common-law claims were preempted, based on the broad scope of the ADA preemption clause and Air Transp. Assn, of Am., Inc. v Cuomo (520 F3d at 222), a decision by the United States Court of Appeals for the Second Circuit striking down, as preempted, New York legislation directly addressing the provision of services during lengthy tarmac delays. It argues that the claims subject to dismissal are “an impermissible attempt to regulate through state law an airline’s operations and practices during ground delays” and “relate, at their core, to an airline’s services.”
A. Preemption Principles
“A fundamental principle of the Constitution” is that the Supremacy Clause grants Congress the power to preempt state law (Crosby v National Foreign Trade Council, 530 US 363, 372 [2000]; see US Const, art VI, cl 2; State of N.Y. ex rel. Grupp v DHL Express [USA], Inc., 19 NY3d 278, 283 [2012]; People v First Am. Corp., 18 NY3d 173, 179 [2011], cert denied sub nom. CoreLogic, Inc. v Schneiderman, 566 US —, 132 S Ct 1929 [2012]). “[W]ithin Constitutional limits Congress may preempt state authority by so stating in express terms” (Pacific Gas & Elec. Co. v State Energy Resources Conservation & Development Comm’n, 461 US 190, 203 [1983]). In the absence of explicit statutory language, preemption can be implied under field preemption where a review of federal legislation indicates that Congress intended federal law to fully occupy that field, or pursuant to conflict preemption where a state law is in conflict *166with federal law so that it would be impossible for a party to comply with both (see English v General Elec. Co., 496 US 72, 79 [1990]; Rice v Santa Fe Elevator Corp., 331 US 218, 230 [1947]; Doomes v Best Tr. Corp., 17 NY3d 594, 601 [2011]).
Whatever the form, “the purpose of Congress is the ultimate touchstone in every pre-emption case” (Medtronic, Inc. v Lohr, 518 US 470, 485 [1996] [internal quotation marks and brackets omitted]; see California Fed. Sav. & Loan Assn, v Guerra, 479 US 272, 280 [1987]; People v First Am. Corp., 18 NY3d at 179 [in undertaking a federal preemption analysis, “a court’s sole task is to ascertain the intent of Congress” (internal quotation marks omitted)]). As such, a court must begin, as “in any exercise of statutory construction with the text of the provision in question, and move on, as need be, to the structure and purpose of the Act in which it occurs” (New York State Conference of Blue Cross & Blue Shield Plans v Travelers Ins. Co., 514 US 645, 655 [1995]), “as revealed . . . through the reviewing court’s reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law” (Medtronic, Inc. v Lohr, 518 US at 486).
In recognition of the independent sovereignty of the States, the United States Supreme Court has “long presumed that Congress does not cavalierly pre-empt state-law causes of action” (id. at 485). Accordingly, in “all pre-emption cases, and particularly in those in which Congress has legislated ... in a field which the States have traditionally occupied,” it is presumed “that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress” (id. [internal quotation marks and citations omitted]).
These appeals require us to focus our analysis solely on implied preemption or field preemption, which occurs when
“[t]he scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it . . .
[o]r the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject” (Rice v Santa Fe Elevator Corp., 331 US at 230 [citations omitted]).
*167B. The ADA Preemption Provision
Prior to 1978, the FAA authorized the Civil Aeronautics Board to regulate interstate airline fares and to take administrative action against deceptive trade practices (see Morales v Trans World Airlines, Inc., 504 US 374, 378 [1992]). The FAA did not expressly preempt state regulation and contained a “ ‘saving clause’ ” providing that “ ‘[n]othing ... in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies’ ” (id., quoting 49 USC former Appendix § 1506).
In 1978, Congress amended the FAA by enacting the ADA, reflecting its determination that “maximum reliance on competitive market forces would best further efficiency, innovation, and low prices as well as variety [and] quality ... of air transportation” (Morales at 378 [internal quotation marks omitted]; see 49 USC § 40101 [a] [6], [12]). “To ensure that the States would not undo federal deregulation with regulation of their own, the ADA included a pre-emption provision” (id.). In its current form, the preemption provision states, with certain exceptions inapplicable here, that
“a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart” (49 USC § 41713 [b] [l]).2
The ADA did not repeal or alter the saving clause in the FAA (see Morales at 379), which has since been revised to recite that “[a] remedy under this part is in addition to any other remedies provided by law” and recodified at 49 USC § 40120 (c) (see Pub L 103-272, § 1 [e], 108 US Stat 745, 1117-1118).
The ADA’s express preemption provision and its language “related to a price, route, or service” have garnered considerable attention in the federal courts. The United States Supreme Court has addressed the provision on three occasions, each time focusing on the phrase “related to.” In Morales, the United States Supreme Court interpreted the phrase “related to” as *168expressing “a broad pre-emptive purpose” and held that state laws “having a connection with or reference to airline ‘[prices], routes, or services’ ” are preempted under the ADA (Morales at 383-384). Under this standard, the Court held that the ADA preempted application of states’ general consumer protection statutes to enforce a set of guidelines composed by the National Association of Attorneys General purporting to regulate deceptive airline advertising, because those guidelines bore express “reference to” airline fares or prices and, “as an economic matter,” they had a “forbidden significant effect upon fares” (id. at 388). The Court noted, however, that the ADA’s preemptive scope was not limitless, stating that state actions affecting airline prices, routes, and services “in too tenuous, remote, or peripheral a manner” may not be preempted, such as state laws regulating gambling and prostitution as applied to airlines (id. at 390 [internal quotation marks omitted]).
Similarly, in American Airlines, Inc. v Wolens (513 US 219, 226-228 [1995]), the United States Supreme Court held that the ADA preempted claims challenging an airline’s changes to its frequent flyer program as violative of the Illinois Consumer Fraud Act because the claims related to rates and services. However, the Court also held that the ADA’s preemption clause did not “shelter airlines from suits . . . seeking recovery solely for the airline’s alleged breach of its own, self-imposed undertaking[ ]” (American Airlines, Inc. v Wolens, 513 US at 228), although breach of contract claims are limited to the terms of the contract, and any “enlargement or enhancement based on state laws or policies external to the agreement” would be preempted (id. at 233).
In Rowe v New Hampshire Motor Transp. Assn. (552 US 364 [2008]), the United States Supreme Court addressed a similarly worded provision in the Federal Aviation Administration Authorization Act of 1994 (hereinafter the FAAAA) that sought to preempt state regulation of trucking (see 49 USC § 14501 [c] [1]) and its effect on two sections of a Maine statute regulating the delivery of tobacco. The Court reiterated its determinations from Morales in construing the ADA that, inter alia, “[s]tate enforcement actions having a connection with, or reference to carrier rates, routes, or services are pre-empted,” “such preemption may occur even if a state law’s effect on rates, routes or services is only indirect,” and “pre-emption occurs at least where state laws have a significant impact related to Congress’ deregulatory and pre-emption-related objectives” (Rowe at 370-*169371 [citations and internal quotation marks omitted]). The Court also noted that “Morales said that federal law might not pre-empt state laws that affect fares in only a ‘tenuous, remote or peripheral . . . manner,’ such as state laws forbidding gambling,” but explained that the Morales Court “did not say where, or how, ‘it would be appropriate to draw the line,’ for the state law before it did not ‘present a borderline question’ ” (id. at 371, quoting Morales at 390).
In evaluating Maine’s efforts to regulate the delivery of tobacco in order to prevent minors from obtaining cigarettes, the United States Supreme Court held that federal law preempted the two statutory provisions at issue. The first provision required tobacco retailers to use a “delivery service” that provided a recipient-verification service (Rowe at 368). The Court concluded that this provision’s focus on “delivery service” created “a direct connection with motor carrier services” (id. at 371 [internal quotation marks omitted]). Moreover, the Court found that the provision had “a significant and adverse impact” on the FAAAA’s preemption objective because it would “require carriers to offer a system of services that the market does not now provide” and “would freeze into place services that carriers might prefer to discontinue in the future,” thereby impermissibly allowing Maine to “direct substitution of its own governmental commands for competitive market forces in determining (to a significant degree) the services that motor carriers will provide” (id. at 371-372 [internal quotation marks omitted]).
The second provision of the Maine statute forbade any person from “knowingly” transporting a tobacco product to anyone unless the sender or receiver had a Maine tobacco license (id. at 369 [internal quotation marks omitted]). It further provided that a person is “deemed to know” that a package contains tobacco when it is marked as originating from a Maine-licensed retailer or is sent by anyone identified as an unlicensed tobacco retailer on a list distributed by Maine’s Attorney General (id. [internal quotation marks omitted]). The Court determined that this provision applied even more directly to motor carrier services because, by imposing civil liability on carriers for the failure to sufficiently examine every package, carriers were required “to check each shipment for certain markings and to compare it against the Maine attorney general’s list of proscribed shippers, . . . thereby directly regulat[ing] a significant aspect of the motor carrier’s package pickup and delivery service” (id. at 372-*170373). Furthermore, according to the Court, “[a]s with the recipient-verification provision, the ‘deemed to know’ provision would freeze in place and immunize from competition a service-related system that carriers do not (or in the future might not) wish to provide,” which “could easily lead to a patchwork of state service-determining laws, rules, and regulations” that “is inconsistent with Congress’ major legislative effort to leave such decisions, where federally unregulated, to the competitive marketplace” (id. at 373).
The Court rejected Maine’s argument that an implied exception from preemption should be recognized for state laws protecting the public health (see id. at 373-375). Although the Court noted that the FAAAA’s preemption provision did not apply generally to state public health regulation, the state law at issue “[was] not general, it [did] not affect truckers solely in their capacity as members of the general public, the impact [was] significant, and the connection with trucking [was] not tenuous, remote, or peripheral” (id. at 375). In the end, the Court concluded that, “from the perspective of pre-emption, this case is no more ‘borderline’ than was Morales” (id. at 376 [internal quotation marks omitted], quoting Morales at 390).
While the United States Supreme Court has expounded on the meaning of the phrase “related to” in Morales, Wolens, and Rowe, it has never explicitly interpreted the meaning of “service” as used in the ADA’s preemption provision. In this interpretive vacuum, the Federal Courts of Appeal have divided on the meaning of the term “service.” The Ninth and Third Circuits have adopted a narrow interpretation of that term. In Charas v Trans World Airlines, Inc. (160 F3d 1259, 1261 [1998]), the Ninth Circuit held that the term “service” refers to “the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail,” and did not include “an airline’s provision of in-flight beverages, personal assistance to passengers, the handling of luggage, and similar amenities” (accord Taj Mahal Travel, Inc. v Delta Airlines, Inc., 164 F3d 186, 193-195 [3d Cir 1998]).
In contrast, the courts of several other Circuits have defined the term “service” more broadly. In Hodges v Delta Airlines, Inc. (44 F3d 334, 336 [1995]), the Fifth Circuit concluded that the term “ ‘[services’ generally represents] a bargained-for or anticipated provision of labor from one party to another” and, in the airline context, “include[s] items such as ticketing, boarding procedures, provision of food and drink, and baggage *171handling, in addition to the transportation itself.” The Seventh and Eleventh Circuits have adopted this definition (see Branche v Airtran Airways, Inc., 342 F3d 1248, 1256-1257 [2003], cert denied 540 US 1182 [2004]; Travel All Over the World, Inc. v Kingdom of Saudi Arabia, 73 F3d 1423, 1433 [1996]). In Smith v Comair, Inc. (134 F3d 254, 259 [1998]), the Fourth Circuit, citing Hodges, determined that “boarding procedures are a service rendered by an airline.”
In Air Transp. Assn, of Am., Inc. v Cuomo (520 F3d at 220), the Second Circuit considered a challenge, on ADA preemption grounds, to New York’s enforcement of its Passenger Bill of Rights (Executive Law § 553 [2] [b]-[d]; General Business Law §§ 251-f, 251-j [hereinafter the PBR]), enacted in the wake of “a series of well-publicized incidents during the winter of 2006-2007 in which airline passengers endured lengthy delays grounded on New York runways.” Among other things, the PBR required airlines to provide passengers boarded on aircraft and delayed more than three hours with “electric generation service to provide temporary power for fresh air and lights,” “waste removal service,” and “adequate food and drinking water and other refreshments” (id.). The Second Circuit expressly rejected the narrow interpretation of “service” adopted by the Ninth Circuit in Charas, finding that it was inconsistent with the Supreme Court’s decision in Rowe, where “the Court necessarily defined ‘service’ to extend beyond prices, schedules, origins, and destinations” (id. at 223). Without specifically endorsing a definition of “service,” the court had “little difficulty concluding that requiring airlines to provide food, water, electricity, and restrooms to passengers during lengthy ground delays relates to the service of an air carrier” (id. at 222). As such, the Second Circuit held that the PBR was preempted by the ADA, noting that it was “indistinguishable” from the Maine law the Supreme Court held preempted in Rowe in that “[i]t substitute^] New York’s commands for competitive market forces, requiring airlines to provide the services that New York specifies during lengthy ground delays and threatening the same ‘patchwork of state service-determining laws, rules, and regulations’ that concerned the court in Rowe” (id. at 223-224, quoting Rowe at 373). The Second Circuit also noted that Rowe foreclosed the argument that the PBR was shielded from preemption because it protected the public health and safety or involved “a matter of basic human necessities,” since “[o]nboard amenities, regardless of whether they are luxuries or necessities, still relate to *172airline service and fall within the express terms of the preemption provision” (Air Transp. Assn, of Am., Inc. v Cuomo, 520 F3d at 224).
Despite the lack of consensus among federal courts as to the specific meaning of “service,” there is a general understanding that the ADA’s preemption provision does not preempt all state-law tort claims. The United States Supreme Court suggested as much in a footnote in Wolens. The Court cited the former FAA provision, currently codified at 49 USC § 41112 (a), that requires airlines to obtain insurance policies “for bodily injury to, or death of, an individual or for loss of, or damage to, property of others, resulting from the operation or maintenance of the aircraft,” and noted that the airline did not claim that “the ADA preempts personal injury claims relating to airline operations” (Wolens at 231 n 7).
Some courts have narrowly defined the term “service,” finding that state-law tort claims are not preempted (see Taj Mahal Travel, Inc. v Delta Airlines, Inc., 164 F3d at 194-195 [Third Circuit held that travel agency’s defamation claim against Delta based on letters advising passengers that tickets bought through the agency are considered stolen is “ ‘too tenuous, remote, or peripheral’ to be subject to preemption, even though Delta’s statements refer to ticketing, arguably a ‘service,’ ” because “(a)pplication of state law in these circumstances does not frustrate Congressional intent, nor does it impose a state utility-like regulation on the airlines”]; Charas v Trans World Airlines, Inc., 160 F3d at 1266 [Ninth Circuit stated that Congress “did not intend to immunize the airlines from liability for personal injuries caused by their tortious conduct,” and held that negligence claims based on such activities as “pushing of beverage carts, keeping the aisles clear of stumbling blocks, the safe handling and storage of luggage, assistance to passengers in need, or like functions” were not preempted]).
Even when federal courts apply a broader definition of “service,” some state-law tort claims have been allowed to proceed against airlines. In Hodges, the Fifth Circuit identified a distinction between common-law actions that related to services of an airline, which were therefore preempted, and “state tort actions for personal physical injuries or property damage caused by the operation and maintenance of aircraft,” which it held were not preempted, including a passenger’s negligence claim that she was injured by a case of rum that fell from an overhead bin (Hodges v Delta Airlines, Inc., 44 F3d at 336). The Fifth Circuit *173relied, inter alia, on the statutory requirement that airlines obtain insurance coverage for personal injuries and property damage “resulting from the operation or maintenance of aircraft” and the fact that “neither the ADA nor its legislative history indicates that Congress intended to displace the application of state tort law to personal physical injury inflicted by aircraft operations, or that Congress even considered such preemption” (id. at 338).
In Travel All Over the World, Inc. v Kingdom of Saudi Arabia (73 F3d at 1433), the Seventh Circuit held that a travel agency’s claims alleging slander and defamation arising from an airline’s allegedly false statements were not preempted because the statements were not services within the meaning of the ADA, and the claims did not expressly refer to or have a significant effect on airline rates, routes, or services. The court also held that claims to recover damages for tortious interference with business opportunities, intentional infliction of emotional distress, and fraud were not preempted to the extent that they were based on the slanderous and defamatory statements, but were preempted to the extent that they were based on the airline’s cancellation of confirmed tickets (see id. at 1434-1435).
In Smith v Comair, Inc. (134 F3d 254 [1998]), the plaintiff boarded a flight to Cincinnati in Roanoke, Virginia, without being asked for proof of identification. Upon trying to make a connecting flight in Cincinnati, the airline refused to let the plaintiff board, providing a false reason for doing so, and causing the plaintiff to have to remain at the airport for several hours before the airline informed him that he was actually refused permission to board because airline representatives in Roanoke did not ask for identification (see id. at 256). Since the plaintiff had left his driver’s license in his car at the airport in Roanoke, the airline gave him a ticket back to Roanoke. While waiting to board, he directed an angry comment at an airline representative, who asked a security guard and a police officer to remove him. Upon being restrained, the plaintiff explained the situation to the police officer, who convinced the airline representative to let the plaintiff board the flight back to Roanoke. The plaintiff then commenced an action against the airline to recover damages for, inter alia, false imprisonment and intentional infliction of emotional distress (see id. at 256-257).
The Fourth Circuit held that the plaintiffs intentional tort claims were preempted to the extent that they were premised on the airline’s refusal to permit him to board the connecting *174flight, because the claims involved an airline service relating to boarding procedures (see id. at 259). However, the claims alleging false imprisonment and intentional infliction of emotional distress were not preempted to the extent that they were based on conduct distinct from the airline’s conduct in refusing permission to board the flight.
“Suits stemming from outrageous conduct on the part of an airline toward a passenger will not be preempted under the ADA if the conduct too tenuously relates or is unnecessary to an airline’s services. If, for example, an airline held a passenger without a safety or security justification, a claim based on such actions would not relate to any legitimate service and would not be preempted” (id., citing Rombom v United Air Lines, Inc., 867 F Supp 214, 222, 224 [1994]).
The Fourth Circuit dismissed the plaintiff’s intentional tort claims for failure to state a claim to the extent that those claims were not preempted (see Smith v Comair, Inc., 134 F3d at 259-260).
The case of Rombom v United Air Lines, Inc. (867 F Supp 214 [1994]), cited by the Fourth Circuit in Smith, is the source of a three-part test articulated by then-District Judge (now Justice) Sotomayor that has been generally applied by district courts in the Second Circuit to determine whether a state-law claim relates to a “service” within the meaning of the ADA (see Farash v Continental Airlines, Inc., 574 F Supp 2d 356, 363 [2008], affd 337 Fed Appx 7 [2d Cir 2009]; In re Jetblue Airways Corp. Privacy Litig., 379 F Supp 2d 299, 315-316 [2005]). Under the Rombom test, a court must first determine “whether the activity at issue in the claim is an airline service” (Rombom v United Air Lines, Inc., 867 F Supp at 221). If it is not a service, “the preemption inquiry ceases, and the state law claims are actionable” (id. at 222). Second, “if the activity in question implicates a service, the court must then determine whether the claim affects the airline service directly or tenuously, remotely, or peripherally” (id.). If the “specific state tort claim has only an incidental effect on a service, there is no preemption” (id.). Third, if “the activity in question directly implicates a service,” the court must determine “whether the underlying tortious conduct was reasonably necessary to the provision of the service” (id.). Where the activity represents “outrageous conduct that goes beyond the scope of normal aircraft operations,” the *175claims should not be preempted (id.). For example, if a flight attendant deals with a boisterous passenger by shooting the passenger, the state-law tort claim would not be preempted; if, however, the flight attendant acted in a rude or unprofessional manner in telling the passenger to be quiet, the state-law tort claim would be preempted (see id. at 222-223).
C. The Plaintiffs Claims
Applying the Rombom test to the facts of this case, we first find that the provision of food, water, clean air, and toilet facilities, as well as the ability to deplane after a prolonged period on the tarmac, all relate to and implicate an airline service. Second, the claims under review in this action directly address the provision of those services. Finally, the alleged “underlying tortious conduct was reasonably necessary to the provision of the service” (id. at 222).
As the cases demonstrate, analysis of the preemptive effect of the ADA on state-law tort claims requires a case-by-case examination of the underlying actions giving rise to the claims to determine whether they relate to airline prices, routes, or services (see Travel All Over the World, Inc. v Kingdom of Saudi Arabia, 73 F3d at 1433). This is no less true in the evaluation of false imprisonment claims asserted against airlines (see Smith v Comair, Inc., 134 F3d 254 [1998]). In Chrissafis v Continental Airlines, Inc. (940 F Supp 1292, 1298 [1996]), the District Court noted that there were “divergent conclusions” amongst courts addressing whether the ADA preempted false imprisonment and false arrest claims. The District Court reconciled those cases based on two general, distinguishable fact patterns:
“Those cases concluding that the ADA preempts false arrest and false imprisonment claims involve incidents in which the airline refused or failed to provide a service to a passenger . . .
“In contrast, where the gist of the false arrest and false imprisonment claim is that the airline caused the passenger to be arrested by authorities without a proper factual basis, courts have held that the claims are not related to services and, therefore, are not preempted” (id. at 1298; see Al-Watan v American Airlines, Inc., 570 F Supp 2d 925, 936-939 [2008] [concluding that false imprisonment and false arrest claims fell into the latter category and were not preempted where the plaintiffs alleged that they *176were impermissibly discriminated against when they were improperly detained as a security risk and questioned in front of other passengers]; Williams v Express Airlines I, Inc., 825 F Supp 831, 833 [1993] [holding that a false imprisonment claim based on an airline’s conduct in stopping the plaintiff, who was in a wheelchair, from boarding a flight and then confining him in an aisle chair was preempted because the plaintiffs objectives, to fly on the plane and receive mobility assistance in the gate area, were related to an airline service]).
Here, the plaintiffs false imprisonment cause of action, based on JetBlue’s confinement of her on a plane for several hours against her will, falls into the first category identified in Chrissafis (see Joseph v JetBlue Airways Corp., 2012 WL 1204070, *7, 2012 US Dist LEXIS 50974, *21 [ND NY, Apr. 11, 2012, No. 5:11-CV-1387 (TJM/ATB)] [“The alleged (false imprisonment) directly affected, and was reasonably necessary to, the service of maintaining safety by controlling passengers’ movement while the airplanes were grounded on the tarmac due to adverse weather conditions”]). To the extent that other courts, as cited by the plaintiff, have addressed false imprisonment claims based on similar airline conduct in confining passengers for lengthy delays on grounded airplanes and have determined that the claims were not preempted by the ADA, we decline to follow these cases, inasmuch as they rely upon a definition of the word “service” which is too narrow, and contrary to the Second Circuit’s holding in Air Transp. Assn, of Am., Inc. v Cuomo (520 F3d at 219), which applied the principles enunciated by the United States Supreme Court in Rowe (552 US 364 [2008]). The conduct complained of here is not distinct from any anticipated provision of labor and is not “too tenuously relate [d] or . . . unnecessary to an airline’s services” (Smith v Comair, Inc., 134 F3d at 259).
Accordingly, we conclude that the false imprisonment cause of action is preempted by the ADA (see Joseph v JetBlue Airways Corp., 2012 WL 1204070, *7, 2012 US Dist LEXIS 50974, *21 [2012]).
With respect to the plaintiffs negligence cause of action, the Supreme Court determined that it was preempted “insofar as it seeks damages other than for physical injury.” To the extent the Supreme Court determined that the ADA preemption provision did not apply to negligence claims alleging *177personal injury, it was correct (see Hodges v Delta Airlines, Inc., 44 F3d at 336). We note that, on this appeal, there was no distinction drawn between physical and emotional injuries the plaintiff claimed to have sustained. Accordingly, we decline to address such a distinction here.
The intentional infliction of emotional distress cause of action is likewise preempted since it is based on JetBlue’s conduct related to supplying “adequate water, food, restroom facilities and breathable air at proper temperatures,” and “basic survival necessaries,” as alleged by the plaintiff. This conduct expressly relates to airline “services,” as that term is construed by a majority of the federal circuits (see Air Transp. Assn, of Am., Inc. v Cuomo, 520 F3d at 223; Travel All Over the World, Inc. v Kingdom of Saudi Arabia, 73 F3d at 1434; Hodges v Delta Airlines, Inc., 44 F3d at 336).
The plaintiffs fraud and deceit cause of action is preempted by the ADA as well. That cause of action is based on alleged misrepresentations made by JetBlue personnel “that the aircraft would take off or return to the terminal gate shortly.” The subject statements by airline personnel were directly related to the provision of an airline service. Since the plaintiffs fraud and deceit cause of action does not allege behavior that is outrageous and beyond the scope of normal airline operations, it is preempted.
II. Renewal or Reargument of the Plaintiffs Motion for Class Certification
Initially, the appeal from so much of the order dated January 27, 2011, as denied that branch of the plaintiffs motion which was for leave to reargue her motion for class certification must be dismissed, as no appeal lies from an order denying reargument.
There is no dispute that the plaintiff did not submit complete copies of her initial supporting papers when she moved, inter alia, for leave to renew her motion for class certification after issue was joined. Instead, in her moving papers, the plaintiff made reference to electronic docket entry numbers referencing the previously e-filed documents on which she relied.
The plaintiff argues that she was not required by any court rule to submit supporting documents in paper form or electronically, and, as the practice in federal court permits, she should simply be able to refer to the electronic docket entry number *178and deem the documents “furnished to the court” pursuant to CPLR 2214. Further, she asserts that the cases relied upon by the Supreme Court involve pre-electronic-filing cases and are inapplicable to cases using the e-filing system. She urges this Court to review her motion for class certification de novo and grant the motion.
In opposition, JetBlue contends that the Supreme Court properly denied that branch of the motion which was for leave to renew because the plaintiff was required by CPLR 2214 to submit a copy of the supporting papers regardless of the fact that the documents had previously been submitted electronically in connection with the initial motion.
CPLR 2214 (c) provides, in pertinent part:
“Each party shall furnish to the court all papers served by him. The moving party shall furnish at the hearing all other papers not already in the possession of the court necessary to the consideration of the questions involved . . . Only papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the court for good cause shall otherwise direct.”
Where parties in civil actions commenced in the Supreme Court and the County Court consent to e-file, “all documents required to be filed with the court by a party . . . shall be filed and served electronically” (22 NYCRR 202.5-b [d] [1] [i]). When a document has been filed electronically, “the official record shall be the electronic recording of the document stored by the clerk” (22 NYCRR 202.5-b [d] [4]). “The court may require the parties to provide working copies of documents filed electronically” (id.; see 22 NYCRR 202.5-b [a] [2] [vi], [vii]).
“There is no authority for compelling [a court] to consider papers which were not submitted in connection with the motion on which it is ruling; indeed, under CPLR 2214 (c), the court may refuse to consider improperly submitted papers” (Loeb v Tanenbaum, 124 AD2d 941, 942 [1986]; see Wells Fargo Home Mtge., Inc. v Mercer, 35 AD3d 728 [2006]; Sheedy v Pataki, 236 AD2d 92, 97-98 [1997]).
Some trial courts, in deciding motions for leave to renew and/or reargue, have concluded that the moving party’s failure to submit the papers relied upon in connection with the initial motion renders the motion for leave to renew and/or reargue defective (see e.g. Stardial Communications Corp. v City of New *179York, 2011 NY Slip Op 32520[U],*4 [Sup Ct, NY County 2011]; All Am. Moving & Stor., Inc. v Andrews, 31 Misc 3d 1214[A], 2011 NY Slip Op 50668[U], *3 [Sup Ct, Bronx County 2011]; Cohen v Romanoff, 27 Misc 3d 1208[A], 2010 NY Slip Op 50627[U], *6 [Sup Ct, Kings County 2010]; J.D.M. Import Co., Inc. v Hartstein, 2008 NY Slip Op 30668[U] [Sup Ct, NY County 2008]; Lower Main St., LLC v Thomas Re & Partners, NYLJ, Apr. 5, 2005 at 19, col 3, [Sup Ct, Nassau County 2005]; see also Brzozowy v ELRAC, Inc., 11 Misc 3d 1055[A], 2006 NY Slip Op 50220[U], *2 [Sup Ct, Kings County 2006], mod 39 AD3d 451 [2007]).
Contrary to the plaintiffs contention, in moving for renewal, both CPLR 2214 and the court rules governing e-filing required her to submit electronically the papers originally submitted with her motion for class certification. Unlike the practice in certain federal district courts, relied upon by the plaintiff, no provision in 22 NYCRR 202.5-b permits a party to refer to supporting documents by the e-filed docket entry number rather than filing the documents themselves. Indeed, 22 NYCRR 202.5-b (d) (1) (i) provides that “all documents required to be filed with the court by a party . . . shall be filed and served electronically” (emphasis added). Thus, the plaintiffs initial motion for class certification and its accompanying exhibits and the responding papers should have been electronically filed with the court as an exhibit to the plaintiffs motion, inter alia, for leave to renew.
While the above-cited decisions, holding that motions for leave to renew and/or reargue were defective because the movant failed to submit a proper record, did not involve e-filed cases, the rationale for those decisions nevertheless applies to the case at bar notwithstanding the greater efficacy of the e-filing system. If a party simply refers to docket entry numbers, the motion court would still be forced to expend time locating those documents in the system, a task that could easily be complicated by a voluminous record or incorrect citations to docket entry numbers. Consequently, just as a court “should not be compelled to retrieve the clerk’s file in connection with its consideration of subsequent motions” (Sheedy v Pataki, 236 AD2d at 97; see Loeb v Tanenbaum, 124 AD2d at 942), a court should likewise not be compelled, absent a rule providing otherwise, to locate previously submitted documents in the electronic record in considering subsequent motions.
Here, the plaintiff only submitted an attorney’s affirmation referring to the docket entry numbers of previously submitted *180documents and a memorandum of law in support of her motion for leave to renew or reargue, and failed to submit any of the documents necessary for the determination of the subject motion (see Wells Fargo Home Mtge., Inc. v Mercer, 35 AD3d 728 [2006]). Whether to grant leave to renew or reargue is within the sound discretion of the motion court (see HSBC Bank USA, N.A. v Halls, 98 AD3d 718, 720 [2012]; Matheus v Weiss, 20 AD3d 454, 454-455 [2005]). The Supreme Court providently exercised its discretion in denying that branch of the plaintiffs motion which was for leave to renew on the basis that the plaintiffs supporting papers were insufficient.
Accordingly, the order entered October 12, 2010, is affirmed insofar as appealed from, the appeal from so much of the order dated January 27, 2011, as denied that branch of the plaintiffs motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument, and the order dated January 27, 2011, is affirmed insofar as reviewed.
Dillon, J.P., Florio and Roman, JJ., concur.
Ordered that the order entered October 12, 2010, is affirmed insofar as appealed from; and it is further,
Ordered that the appeal from so much of the order dated January 27, 2011, as denied that branch of the plaintiffs motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated January 27, 2011, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendant Jet-Blue Airways Corporation.
. On April 29, 2010, the parties entered into a stipulation consenting to use the New York State Courts Electronic Filing System in this case.
. In reenacting title 49 of the US Code in 1994 (Pub L 103-272, 108 US Stat 745), Congress made stylistic, nonsubstantive revisions to the provision, previously codified at 49 USC Appendix § 1305 (a) (1) (see American Airlines, Inc. v Wolens, 513 US 219, 223 n 1 [1995]).
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902504/
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Appeal by the plaintiffs from an order of the Supreme Court, Queens County, dated September 8, 1986, which granted the motion of the defendant Peninsula Hospital Center to dismiss the third cause of action as against it.
Ordered that the order is affirmed, with costs, for reasons stated by Justice Santucci in his memorandum decision at the Supreme Court, Queens County. Lawrence, J. P., Kunzeman, Kooper 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/5902505/
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In an action, inter alia, to recover damages for breach of a covenant to repair, (1) the third-party defendant sublessee Mann Theatres Corporation of California (hereinafter Mann) appeals, as limited by its brief, from so much of a resettled judgment of the Supreme Court, Nassau County (Kelly, J.), dated July 16, 1986, as is in favor of the plaintiff and against it in the principal sum of $200,000, (2) the plaintiff cross-appeals from so much of that resettled judgment as precluded it from amending its bill of particulars to allege additional damages, and (3) the plaintiff appeals from so much of a judgment of the same court (McGinity, J.), entered June 25, 1987, as limited its award of attorneys’ fees and disbursements to $85,763.72. The parties’ notices of appeal from three judgments of the Supreme Court, Nassau County (Kelly, J.), all dated July 16, 1986, are deemed notices of appeal from the resettled judgment (CPLR 5520 [c]).
Ordered that the resettled judgment dated July 16, 1986 is affirmed insofar as appealed and cross-appealed from, and the judgment entered June 25, 1987 is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff lessor commenced this action in or about July 1980, inter alia, to recover repair costs resulting from the abandonment of the demised premises, two theatres, and Mann’s violation of covenants to keep the leased premises in good and sufficient repair throughout the term of the lease and to preserve the fixtures and equipment in good working order and condition. In the spring of 1985, the action was tried jointly with two other actions, resulting in termination of the subject leases and subleases.
We find that the court’s award of repair damages in addition to liquidated damages was proper. In interpreting a lease, the court must examine the purposes of the parties and the rights and obligations created thereby (Farrell Lines v City of New York, 30 NY2d 76, 82). A reading of the lease indicates that the parties intended to create separate rights and obligations under the covenant to repair and the clause for liquidated damages.
Contrary to Mann’s contention, we are convinced that the proper measure of damages is the costs of repair instead of the damage to the reversion, which is generally applied "to avoid windfall recoveries” particularly in cases where the costs of repair or improvements may be unrelated to the landlord’s actual damages (Matter of Overmyer Co. [Texas], 12 Bankr 777, affd 30 Bankr 823). Here, the trial court determined that the *657theatres suffered deterioration and vandalism as a result of the closing and abandonment by Mann. Therefore, Mann should pay for the repair to the properties (see, Gregory v Manhattan Briar Pipe Co., 174 App Div 106, affd 226 NY 561). We, however, agree with the trial court’s decision to deny the plaintiff’s motion to amend its bill of particulars to conform to the evidence introduced at trial which showed repair costs of $891,291.50 and $419,711.50, respectively, for both theatres. The plaintiff’s bill of particulars set forth the cost of repairing and maintaining the theatres as $200,000. By affidavit dated October 24, 1980, an architect detailed the damages to both theatres and calculated the repair costs as $200,000. The statement of readiness was filed on or about September 24, 1982. "Motions to amend or supplement a bill of particulars are governed by the same standards as those applying to motions to amend pleadings” (Scarangello v State of New York, 111 AD2d 798). "Where no prejudice is shown, the amendment [to a bill of particulars] may be allowed ’during or even after trial’ ” (Murray v City of New York, 43 NY2d 400, 405 [rearg dismissed 45 NY2d 966], quoting Dittmar Explosives v A. E. Ottaviano, Inc., 20 NY2d 498, 502). "The matter of allowing an amendment is committed ’almost entirely to the court’s discretion to be determined on a sui generis basis’ ” (Murray v City of New York, supra, at 404-405, quoting Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3025:4, at 476). Leave to amend ’’ ’shall be freely given’ absent prejudice or surprise resulting directly from the delay” (McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755, 757; CPLR 3025 [b]).
Under the circumstances of this case, permission to amend the bill of particulars during the trial, to substantially increase the repair damages from $200,000 to approximately $1,311,000, would have been extremely prejudicial to Mann, having prepared its case for trial in response to the bill of particulars (see, O'Hara v Tidewater Oil Co., 23 AD2d 870). The plaintiff could have applied to amend the bill of particulars earlier to provide Mann with an opportunity to conduct discovery in connection with the increased claim for repair damages. The explanation proffered—that the tenants and subtenants never requested further proof of damages—is no excuse for the inordinate delay in seeking leave to amend.
Finally, we find that Mann agreed to "save harmless Lessor” from reasonable attorneys’ fees incurred by ”[a]ny failure on the part of Lessee to perform or comply , with any of the covenants, agreements, terms or conditions contained in this *658lease on its part to be performed or complied”. The agreements of the parties must be enforced in accordance with their terms (see, Fifty States Mgt. Corp. v Pioneer Auto Partis, 46 NY2d 573, 575, rearg denied 47 NY2d 801). It is ultimately the fact finder’s responsibility to decide what constitutes reasonable compensation (Matter of Ury, 108 AD2d 816, 817, lv denied 64 NY2d 611) and we see no reason to disturb the court’s determination in this case. 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/1362483/
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499 F.3d 910 (2007)
UNITED STATES of America, Plaintiff-Appellee,
v.
Steven BRADFORD, Defendant-Appellant.
No. 06-3872.
United States Court of Appeals, Eighth Circuit.
Submitted: June 12, 2007.
Filed: August 24, 2007.
*911 Webb L. Wassmer, argued, Cedar Rapids, IA, for appellant.
Charles J. Williams, Assistant U.S. Attorney, argued, Cedar Rapids, IA, for appellee.
Before MELLOY, SMITH, and GRUENDER, Circuit Judges.
MELLOY, Circuit Judge.
Steven Bradford pleaded guilty to conspiring to distribute at least 100 grams of heroin, in violation of 21 U.S.C. § 846. The district court[1] found by a preponderance of the evidence that Bradford sold heroin to an individual identified as J.H. during the course of the conspiracy, and *912 that the sale of heroin to J.H. resulted in J.H.'s death. The district court then sentenced Bradford to 210 months' imprisonment. Bradford appeals his sentence, arguing the following: (1) the district court's finding that Bradford distributed heroin to J.H. is clearly erroneous; (2) the district court erred in departing upward pursuant to U.S.S.G. §§ 5K2.21 and 5K2.1; (3) the district court violated Bradford's Sixth-Amendment and due-process rights when the court increased Bradford's sentence based on a factual finding supported only by a preponderance of the evidence; (4) the district court erred in finding the government had not breached the plea agreement; and (5) the district court erred by denying Bradford a reduction for acceptance of responsibility.[2] For the following reasons, we affirm.
I. Background
A. Offense Conduct
Bradford stipulated to the following facts as the factual basis for his guilty plea. On or about September 19, 2005, a confidential informant ("CI") informed law enforcement officers that he had purchased $100 worth of heroin from a person named "Wimp" at an apartment in Cedar Rapids, Iowa, on several occasions in the previous year. That same day, the CI made a recorded phone call to Wimp and arranged to purchase $100 worth of heroin from Wimp at the same apartment.
Later that afternoon, the CI met with Wimp at the apartment. While the CI and Wimp were inside, Bradford and a woman arrived in a Chevrolet Monte Carlo, and Bradford entered the apartment. The CI gave $100 in pre-serialized currency to Wimp, who then purchased three baggies of heroin from Bradford. The total amount of heroin in the baggies was less than one gram.
On September 22, 2005, the CI placed a call to Wimp to set up another purchase of $100 worth of heroin. The CI met Wimp and a female known as "Ran" at the same apartment. The CI gave Ran $100 in pre-serialized currency. Shortly thereafter, Bradford arrived in the Monte Carlo. Ran entered the Monte Carlo and gave Bradford the pre-serialized currency in exchanged for less than one gram of heroin. Ran left the Monte Carlo and gave the heroin to the CI.
After the controlled buy, Bradford left the apartment in the Monte Carlo. Law enforcement officers stopped the vehicle and arrested Bradford on an outstanding warrant. During a search incident to arrest, officers recovered the pre-serialized currency from the just-completed controlled buy. The same day, law enforcement officers executed a search warrant at Bradford's residence in Cedar Rapids. During the search, officers seized a digital scale, baggies, documents, and $1,445 in cash, including the $100 pre-serialized currency from the September 19, 2005 controlled buy.
Bradford pleaded guilty to one count of a three-count superseding indictment. That count charged that, between about 2004 and September of 2005, Bradford conspired to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 846. In exchange for his plea of guilty, the government agreed to dismiss the other two counts of the indictment, and it promised not to file "additional Title 21 drug-related criminal charges based upon or arising from information now in [the government's] possession." (Italicized words *913 handwritten in the plea agreement). On December 28, 2005, the court accepted Bradford's guilty plea.
B. Relevant Conduct Background
The following facts are taken largely from testimony at an October 11, 2006 sentencing hearing and the district court's sentencing memorandum. In 2004, the Iowa Division of Narcotics Enforcement ("DNE") participated in an ad hoc Drug Task Force ("Task Force") along with other local and federal law enforcement agencies. The Task Force was formed after a number of individuals died from heroin overdoses in the Cedar Rapids area. The Task Force's investigation led to Bradford's conviction in this case.
DNE Special Agent Joshua Lupkes and DEA Special Agent Jarad Harper participated in the Task Force's investigation. During the investigation, Agent Harper learned that Bradford was a heroin dealer and that his nickname was "B." In June of 2004, there were at least four heroin dealers in the Cedar Rapids area who were using the nickname "B." Agent Harper also found out that Bradford preferred to sell heroin to his customers indirectly. Bradford sold heroin through Winfred Lovelady and Leona Ferguson.
Rachel Hoskins, her boyfriend, James Callanan, and one of her best friends, J.H., were heroin users. Hoskins and Callanan used heroin daily. On June 10, 2004, Hoskins and Callanan were in Cedar Rapids, and J.H. was in Independence, Iowa. At some time during the afternoon or early evening, J.H. called Hoskins and asked her if she could give him a ride to Cedar Rapids. J.H. wanted to go to Cedar Rapids to buy some heroin and a quarter-pound bag of marijuana.
Hoskins and Callanan drove to Independence and picked up J.H. During the drive back to Cedar Rapids, Hoskins used a cell phone to call Bradford. Hoskins knew Bradford as a heroin dealer named "B." She had purchased heroin from him numerous times over the years. Bradford refused to talk to Hoskins, however, and he hung up on her. Bradford had "cut off" Hoskins and Callanan because Hoskins had previously and duplicitously used a Wal-Mart gift card with a zero balance to purchase heroin from Bradford.
Hoskins testified that J.H. then called Bradford using J.H.'s phone, and Bradford called J.H. back. During the conversation, J.H. introduced himself as a friend of Hoskins and Callanan. Upon arrival in Cedar Rapids, J.H. called Bradford again. After driving around for ten minutes, J.H. received a call back from Bradford, who directed J.H. to the corner of 16th Street SE and 7th Avenue SE.
Around 9:30 to 10:00 p.m., Hoskins parked her car on 16th Street SE between 6th and 7th Avenues SE in Cedar Rapids. Hoskins parked the car behind a van about one-quarter to one-half block from 7th Avenue SE. She parked her car there so that Bradford could not see her or Callanan. After Hoskins parked the car, Bradford called J.H. again. J.H. got out of the car and walked down 16th Street SE towards 7th Avenue SE. At the corner of 16th Street SE and 7th Avenue SE, J.H. met Bradford. Hoskins testified that, sitting in her car, she was able to recognize Bradford. Although the sun had set, she said a streetlight on the opposite side of the street lit the corner.
Less than one minute after meeting, J.H. and Bradford walked down 7th Avenue SE towards 15th Street SE. Bradford had come to the corner from the direction of 7th Avenue SE. The two men walked out of Hoskins's sight. J.H. later approached Hoskins's car from behind and got in. He had a $50 rock of heroin. In Cedar Rapids, heroin users were usually *914 able to purchase a quarter of a gram of heroin for $40 to $50.
After J.H. bought the rock of heroin, Hoskins, J.H., and Callanan went to Callanan's apartment. J.H. and Callanan got high on heroin, and J.H. went into a bedroom to use more. After doing so, his lips turned blue. In a crude attempt to provide medical care, Hoskins gave J.H. mouth-to-mouth resuscitation and sat him up. According to Hoskins, J.H.'s breathing and pulse were then "fine." Throughout the night, Hoskins checked on J.H.
The next morning, J.H. started making a gurgling sound. Hoskins called 911 and attempted to provide CPR. Police officers and paramedics arrived and tried to resuscitate J.H., but he died in the apartment.
Shortly after J.H. died, law enforcement officers took Hoskins to the police station. They asked her where J.H. obtained the heroin. Hoskins told officers she did not know. She told officers she had picked up J.H. near a restaurant in Cedar Rapids, and at that time, he had already used heroin. After further questioning, Hoskins changed her story. She told officers that she and Callanan had driven J.H. to the southeast side of Cedar Rapids and had parked on 17th Street SE near 6th or 7th Avenues SE. She told them that J.H. went into an unknown house and bought heroin from an unknown person. Hoskins told this same story to J.H.'s mother.
In December 2005, approximately a year-and-a-half after J.H.'s death, Special Agent Wade Kisner, another member of the Task Force, interviewed Hoskins. Hoskins changed her story again. This time, Hoskins told Agent Kisner that she had dropped off J.H. on 15th Street SE between 5th and 6th Avenues SE, and that J.H. had purchased the heroin from a dealer she knew as "B" and provided two possible phone numbers for "B." Hoskins testified that she had previously lied to officers because she and Callanan were heroin addicts who did not want to lose their source. They also did not want to get into trouble for helping J.H. buy the heroin that killed him.
On January 5, 2006, Agent Kisner and another Task Force agent again interviewed Hoskins about the circumstances surrounding J.H.'s death. They showed her a photo lineup array of six men and asked if "B" was in the array. Hoskins positively identified Bradford as the "B" who had sold heroin to J.H.
C. Bradford II
Based on this information, a grand jury charged Bradford in a one-count indictment in a separate case, United States v. Bradford, (Bradford II), 433 F. Supp. 2d 1001 (N.D.Iowa 2006). The indictment alleged that, on or about June 10, 2004, Bradford distributed heroin to J.H., resulting in the death of J.H. from use of the heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c). On April 4, 2006, Bradford filed a motion for specific performance of the prior plea agreement and a motion to dismiss the indictment in Bradford II, arguing that the new charge arose from information the government had in its possession on the date Bradford signed the plea agreement in his earlier proceedings.
On June 2, 2006, the district court granted Bradford's motion for specific performance of the plea agreement and dismissed the indictment in Bradford II, ruling that the indictment was a Title 21 drug-related criminal charge "arising from" information in the government's possession on December 12, 2005. Bradford II, 433 F.Supp.2d at 1006-07. The government did not appeal this ruling.
D. Sentencing Proceedings
Meanwhile, on April 26, 2006, the probation office had prepared a presentence investigation report ("PSIR") for the indictment *915 to which Bradford had pleaded guilty. The government initially informed the probation office that it did not have any objections to the PSIR. On June 5, 2006, however, after the court dismissed the indictment in Bradford II, the government informed Bradford and the probation office that it intended to seek an upward departure in Bradford's original case. The government sought a departure based on U.S.S.G. § 5K2.1, asserting that the death of J.H. resulted from Bradford's distribution of heroin during the conspiracy. The amended PSIR indicated that an upward departure might be warranted based on § 5K2.21, rather than § 5K2.1, because of the court's dismissal of the indictment in Bradford II.
Bradford objected to an upward departure, denied that he sold heroin to J.H., and denied that J.H. died from heroin use. Bradford also argued that an upward departure would be inequitable, contrary to the advisory Sentencing Guidelines, and unconstitutional. On October 11, 2006, the court held a sentencing hearing to determine: (1) whether Bradford distributed heroin to J.H., resulting in J.H.'s death and, if so, (2) whether the court should depart upward.
The government presented evidence from Agents Lupkes and Kisner and Dr. Henry Jackson Carson, an expert pathologist who performed the autopsy on J.H.'s body. Dr. Carson testified that, in his opinion, the use of the heroin initiated an asthma attack or an allergic reaction and was the proximate cause of J.H.'s death. Hoskins also testified on the government's behalf. Bradford's mother, Linda Bradford, testified at the sentencing hearing on Bradford's behalf with a purported alibi defense.
On November 8, 2006, the district court filed a sentencing memorandum, finding by a preponderance of the evidence that Bradford "sold J.H. heroin and that such heroin resulted in his death." The court found the testimony of Hoskins to be credible, despite the court's "recogni[tion] that Hoskins has made inconsistent statements in the past." In contrast, the court did not find the testimony of Bradford's mother to be credible.
The court then calculated the advisory Guidelines range. The court accepted the parties' stipulated base offense level of 26. See U.S.S.G. § 2D1.1(a)(3) and (c)(7). The court then denied the three-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The court stated that Bradford had "repeatedly denied that he sold heroin to J.H." and had thus had not met his burden to show that he accepted responsibility. The court added that even if the denial of relevant conduct was insufficient to keep Bradford from receiving a reduction for acceptance of responsibility, the court believed that he suborned perjury and knowingly presented a false alibi by having his mother testify falsely. The court found that "[t]his also indicates a lack of acceptance of responsibility."
Thus, before any departures, the court found an offense level of 26, which, when combined with Bradford's criminal history category III, resulted in an advisory Guidelines range of 78 to 97 months' imprisonment. The court also noted that the offense of conviction carries a statutory minimum sentence of five years' imprisonment and a statutory maximum of forty years' imprisonment.
The court then discussed the application of an upward departure. The court first ruled that the government's motion for an upward departure in this case was not "an impermissible `end run' around" the court's order to dismiss the indictment in Bradford II. The plea agreement stated that "[t]here are no other applicable upward or downward adjustments to [D]efendant's *916 offense level under Chapters 2 and 3," and is silent regarding Chapter 5 departures. Accordingly, the court found "that the parties are free to litigate all [Chapter 5] departure issues at sentencing." The court concluded that Bradford "knowingly, voluntarily and intelligently waived his right to a jury trial on Count 1 and remains liable for an upward departure to the statutory maximum of 40 years' imprisonment for such offense."
Next, the court ruled on Bradford's due-process and Sixth-Amendment claims. The court found that because the government did not seek to increase his sentence beyond the statutory maximum, there was no constitutional violation. The court also rejected Bradford's argument that the facts that would lead to a departure in this case whether Bradford sold heroin to J.H., which resulted in J.H.'s death must be proven beyond a reasonable doubt.
The court then found that this case fell outside the "heartland" of U.S.S.G. § 2D1.1, and that a departure was proper under such circumstances. The court determined that application of U.S.S.G. § 5K2.21, "Dismissed and Uncharged Conduct," was appropriate here because Bradford's "distribution of heroin resulting in the death of J.H. is conduct underlying Count 1 of the Indictment in Bradford II, a potential charge dismissed as part of a plea agreement in this case," and because J.H.'s death was not taken into account in the court's determination of the applicable Guidelines range. The court also found that U.S.S.G. § 5K2.1, "Death," "would clearly be appropriate" had the court not departed pursuant to § 5K2.21.
The court then stated that, hypothetically, if Bradford would have been convicted of distribution of heroin resulting in death, he would have had a base offense level of 38. U.S.S.G. § 2D1.1(a)(2). When combined with Bradford's criminal history category III, his advisory Guidelines range would have been 292 to 365 months' imprisonment. The court varied downward from this hypothetical range based on the sentencing factors of 18 U.S.C. § 3553(a), and sentenced Bradford to 210 months' imprisonment.
The court also stated that "[i]n the event that the court is mistaken about the propriety or extent of an upward departure pursuant to § 5K2.21 . . . the court would nonetheless exercise its discretion under Booker, vary upward, if necessary, and impose a sentence of 210 months' imprisonment" based on § 3553(a) factors.
Bradford now appeals his sentence, arguing that: (1) the district court's finding that Bradford distributed heroin to J.H. is clearly erroneous; (2) the upward departure under U.S.S.G. § 5K2.21 was improper; (3) Bradford's Sixth-Amendment and due-process rights were violated; (4) Bradford's plea agreement with the United States was violated; and (5) Bradford is entitled to acceptance of responsibility. We address each argument in turn.
II. Analysis
A. District Court's Finding of Fact
Bradford first challenges the district court's finding that Bradford sold heroin to J.H. We will affirm the district court's findings of fact on sentencing matters unless they are clearly erroneous. See Rita v. United States, ___ U.S. ___, 127 S. Ct. 2456, 2471, 168 L. Ed. 2d 203 (2007) (Stevens, J., concurring) (stating that appellate courts are to "`give due regard to the opportunity of the district court to judge the credibility of the witnesses'" and to "`accept the findings of fact of the district court unless they are clearly erroneous'") (quoting 18 U.S.C. § 3742(e)). Bradford argues that the district court's factual finding is clearly erroneous because the government's sole witness *917 linking him to J.H., Hoskins, was not credible.
While a district court's credibility findings are "virtually unassailable on appeal," United States v. Watson, 479 F.3d 607, 611 (8th Cir.2007) (quotation omitted), there are "three specific ways in which a finding based on credibility could be erroneous." United States v. Tucker, 243 F.3d 499, 506 (8th Cir.2001). "First, the accepted testimony could be incoherent or facially implausible. Second, the testimony could be contradicted by extrinsic evidence. Third, the finding itself could be internally inconsistent." Id. (internal citation omitted).
In support of his argument, Bradford contends that Hoskins's testimony was "contradicted by extrinsic evidence" and was "incoherent [and] facially implausible." Id. Bradford first points to the extrinsic evidence of cell phone records that he claims are "at odds with" Hoskins's testimony at the sentencing hearing. Although Hoskins testified that she did not exactly remember the sequence and duration of the telephone calls between J.H. and "B," she remembered there being several calls to and from "B." She also testified that she and J.H. used both her phone and J.H.'s phone when making calls to "B."
The government introduced cell phone records for Hoskins, J.H., and the number alleged to belong to Bradford.[3] The records show three calls from Hoskins's phone to Bradford's phone on the night of June 10, 2004: a four-second call that went to voice-mail, a twenty-seven-second call that was answered, and a four-second call that was answered. According to Hoskins's testimony, the first two calls were made by Hoskins herself, and the third call was made by J.H. The records show no calls from Bradford's phone to either Hoskins's or J.H.'s phone. Bradford argues that this fact contradicts Hoskins's testimony and makes the district court's finding that Hoskins was credible clearly erroneous.
Bradford also argues that Hoskins's "version of events strains credulity" for the following reasons: (1) "a heroin dealer [would not] sell to an unknown buyer, J.H., based on a referral by a scam artist and a deadbeat[;]" (2) the alleged deal was not consistent with Bradford's modus operandi; (3) Hoskins gave "at least three different versions of the events of the night of June 10, 2004, to authorities[;]" (4) Hoskins's identification of Bradford was made approximately a year-and-a-half after the alleged distribution of heroin to J.H; (5) Hoskins had limited ability to observe the transaction; (6) Hoskins's testimony was inconsistent with other evidence, including her own prior statements; and (7) Hoskins never saw anyone hand heroin to J.H. Therefore, Bradford contends that we must reverse the district court's factual finding.
We disagree. "We may reject the fact finder's choice between conflicting evidence only where there is something wrong with the choice." Id. at 506. We recognize, and are troubled by, the paucity of the evidence offered to prove that Bradford sold heroin to J.H. The only evidence offered was the testimony of Hoskins, who had previously told law enforcement officers two different stories. Hoskins's testimony, however, is not "too implausible" to support a finding that Bradford sold heroin to J.H. Id. at 506. *918 Hoskins testified with certainty that Bradford was the dealer who sold J.H. heroin on the night preceding his death. She explained her previous stories as falsehoods intended to ensure a continued supply of heroin and to keep her and Callanan out of trouble. As for the inconsistencies between Hoskins's testimony and the phone records, the sentencing hearing took place two-and-a-half years after J.H.'s death, and it is reasonable for the court to conclude that Hoskins was honestly mistaken in her recollection about details of the phone calls made the night before J.H.'s death.
Further, the district court's finding that Bradford's mother's story was not credible also lends support to the court's decision to believe Hoskins's story and not Bradford's. If the court believed that Bradford had lied by putting on a false alibi defense, "it could have inferred that he was dissembling" to cover up wrongdoing or guilt. United States v. Barraza Cazares, 465 F.3d 327, 333 (8th Cir.2006). While we cannot say that we would have come to the same conclusion as the district court, there is nothing "wrong with" the district court choosing to believe Hoskins's story instead of Bradford's. Tucker, 243 F.3d at 506; see Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985) ("Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous."). Therefore, we must affirm the district court's finding of fact on this issue.
B. Upward Departure Pursuant to U.S.S.G. § 5K2.21[4]
Bradford next argues that the district court erred by granting an upward departure pursuant to U.S.S.G. § 5K2.21. "We review the district court's decision to grant an upward departure for abuse of discretion." United States v. D'Andrea, 473 F.3d 859, 863 (8th Cir.2007).
A sentencing court may depart from the Guidelines range if the court finds "that there exists an aggravating or mitigating circumstance . . . of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines[.]" U.S.S.G. § 5K2.0(a)(1). A departure "may be warranted" based on circumstances of a kind not adequately taken into consideration "in determining the applicable guideline range." § 5K2.0(a)(2)(A) (emphasis added). The court based its departure on U.S.S.G. § 5K2.21, "Dismissed and Uncharged Conduct." Section 5K2.21 provides that:
The court may depart upward to reflect the actual seriousness of the offense based on conduct (1) underlying a charge dismissed as part of a plea agreement in the case, or underlying a potential charge not pursued in the case as part of a plea agreement or for any other reason; and (2) that did not enter into the determination of the applicable guideline range.
U.S.S.G. § 5K2.21 (emphasis added).
Bradford argues that the Sentencing Commission took the uncharged conduct (distribution of heroin resulting in death) into consideration when it crafted § 2D1.1(a)(2). Bradford is correct; § 2D1.1(a)(2) does specifically provide for this conduct. However, as stated above in both the general statement regarding departures and the specific departure provision applied here, a departure may be applicable even if not established by the offense of conviction if the circumstances were not taken into consideration "in determining *919 the applicable guideline range." Section § 2D1.1(a)(2) did not figure into the determination of Bradford's base offense level. Based on the district court's ruling in Bradford II, the government was not allowed to charge Bradford with distribution resulting in death, and § 2D1.1(a)(2) applies only if "the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance." U.S.S.G. § 2D1.1(a)(2) (emphasis added). Thus, the court's determination that Bradford's base offense level did not take death into account was not erroneous, and the uncharged, relevant conduct (distribution resulting in death) was a proper ground for departure.
C. Constitutional Right to a Jury Trial
Bradford next argues that the district court's upward departure violated his Sixth-Amendment right to a jury pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), because any fact that increased his sentence should have been found beyond a reasonable doubt by a jury. Bradford also contends that, under the Due Process Clause, the court was required to find beyond a reasonable doubt that he had sold heroin to J.H. and that the heroin resulted in J.H.'s death because these findings resulted in a considerable increase in his sentence. We review constitutional challenges to a sentence de novo. United States v. Gallimore, 491 F.3d 871, 874-75 (8th Cir.2007).
Our cases are clear that, post-Booker, courts can find sentence-enhancing facts based on a preponderance of the evidence, see, e.g., United States v. Okai, 454 F.3d 848, 851-52 (8th Cir.2006); United States v. Garcia-Gonon, 433 F.3d 587, 593 (8th Cir.2006), without violating the defendant's Sixth-Amendment rights. One exception exists, however, for situations in which the defendant's due-process rights are implicated because "the magnitude of a proposed departure dwarfs the guideline range applicable to the substantive offense[] of conviction." United States v. Kikumura, 918 F.2d 1084, 1089 (3d Cir. 1990). In such a case, "the sentencing enhancement becomes the `tail which wags the dog of the substantive offense.'" Okai, 454 F.3d at 852 (quoting United States v. Townley, 929 F.2d 365, 369 (8th Cir.1991)); see also McMillan v. Pennsylvania, 477 U.S. 79, 88, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986) ("The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense."). However, while a number of circuits have acknowledged that this exception exists,[5] very few have actually applied it.[6] The Third Circuit found the *920 preponderance standard inadequate in Kikumura, and held that due process required clear and convincing evidentiary support for the facts relied upon to enhance the sentence. Kikumura, 918 F.2d at 1102. In Kikumura, the Guidelines dictated a range of 27 to 33 months' imprisonment (level 18, category I) for passport offenses and possession of explosives. Id. at 1094. However, after finding that the defendant acquired the explosives as an international terrorist and planned to kill large numbers of people, the district court departed upward and imposed a sentence of thirty years (equivalent to level 40, category I). Id. at 1098.
The Ninth Circuit[7] has also applied the exception and has required a district court to find certain sentence-enhancing facts by clear and convincing evidence when a judicial finding of fact has a disproportionate impact on the defendant's sentence. See, e.g., United States v. Jordan, 256 F.3d 922, 929 (9th Cir.2001) (holding that the failure to apply the clear and convincing evidence standard of proof to sentence-enhancing facts was erroneous); United States v. Mezas de Jesus, 217 F.3d 638, 643 (9th Cir. 2000) (same); United States v. Hopper, 177 F.3d 824, 833 (9th Cir.1999) (same).
Our court has often alluded to this exception, but has never found a case with facts sufficient to fall within the exception. See, e.g., Okai, 454 F.3d at 852; United States v. Archuleta, 412 F.3d 1003, 1007-08 (8th Cir.2005); United States v. Anderson, 243 F.3d 478, 485-86 (8th Cir. 2001). All we can glean from these cases regarding how high a sentencing enhancement would need to be for the "tail to wag the dog" is dicta in Townley stating that an eighteen-level increase in the defendant's base offense level and a seven-fold increase in the permissible sentencing range is an "extreme" case where due process requires clear and convincing evidentiary support. Townley, 929 F.2d at 369-70. Bradford was subject to the equivalent of a twelve-level enhancement based on the court's finding by a preponderance that Bradford distributed heroin to J.H. resulting in J.H.'s death, and the new range/actual sentence constituted nearly a four-fold increase in his sentencing range. His actual sentence (after a downward variance outside the new, hypothetical Guidelines range) was 210 months 113 months above the high-end of his original Guidelines range (before the upward departure). Our court has upheld a sentence based on facts found by a preponderance that have raised a sentencing range four-fold. See United States v. Alvarez, 168 F.3d 1084, 1088 (8th Cir.1999). Thus, based on our precedents, we cannot say that the district court's finding of fact in this case raised Bradford's sentence high enough to require a finding based on clear and convincing evidence.
D. Plea Agreement
Bradford also argues that the government's motion for an upward departure pursuant to §§ 5K2.1 and 5K2.21 violated the plea agreement. We review the interpretation and enforcement of a plea agreement de novo. United States v. Van Thournout, 100 F.3d 590, 594 (8th Cir. 1996). The agreement states that the government would not file "additional Title 21 drug-related criminal charges based upon or arising from information now in [the government's] possession," and that there were no applicable adjustments (other than those mentioned in the agreement) under Chapters 2 or 3 of the Guidelines. *921 The agreement was silent as to Chapter 5 departures.
Bradford argues that "allowing an upward departure under Chapter 5 for the death of J.H. completely eviscerates the agreement that the United States would bring no additional Title 21 charges and the District Court's finding that the second [i]ndictment violated the Plea Agreement." If he had not successfully moved to enforce the plea agreement, the government "would have been required to convince a jury . . . beyond a reasonable doubt that . . . Bradford distributed heroin to J.H. resulting in his death."
While Bradford may have ended up in a worse position by pleading guilty and successfully enforcing his plea agreement, the district court is correct; the plea agreement was silent regarding Chapter 5 departures, and Bradford was aware that the offense to which he was pleading guilty carried a statutory maximum punishment of forty years' imprisonment. Because the plea agreement is silent on the issue of Chapter 5 departures, we agree with the district court that the government did not violate the agreement when it sought the upward departure.
E. Acceptance of Responsibility
Bradford next argues that the district court erred by finding that he had not accepted responsibility and was thus ineligible for a downward adjustment pursuant to U.S.S.G. § 3E1.1. The defendant bears the burden of proving he is entitled to a § 3E1.1 adjustment. United States v. Tjaden, 473 F.3d 877, 879 (8th Cir.2007). "We review the District Court's decision to deny an acceptance-of-responsibility reduction for clear error." United States v. Bell, 411 F.3d 960, 963 (8th Cir.2005). This determination by the court is "entitled to great deference on review." Id. (quoting U.S.S.G. § 3E1.1, comment. n. 5).
The application notes to § 3E1.1 state, in part, that:
[A] defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction under [this section]. A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection. However, a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.
U.S.S.G. § 3E1.1, comment. n. 1(a) (emphasis added). The notes also state that the "adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse." U.S.S.G. § 3E1.1, comment. n. 2.
The issue is thus whether Bradford "falsely denie[d] or frivolously contest[ed]" the fact that he distributed heroin to J.H. and that J.H. died as a result. Based on the district court's finding of those facts, and the fact that Bradford "repeatedly denied that he sold heroin to J.H.," the court determined that Bradford falsely denied relevant conduct and thus had not met his burden to show that he accepted responsibility. See United States v. Annis, 446 F.3d 852, 858 (8th Cir.2006) (affirming the district court's finding that the defendant "falsely denied or frivolously contested his relevant conduct" where the defendant "refused to admit to any quantity of [methamphetamine]" and challenged the reliability of his previous statement regarding drug quantity); United States v. Greger, 339 F.3d 666, 673 (8th Cir.2003) (holding that the defendant acted "in a *922 manner inconsistent with acceptance of responsibility" when he contested relevant conduct that the court found to have taken place) (internal quotation omitted). Alternatively, the court found that Bradford suborned perjury when he knowingly presented the court with a false alibi witness, his mother. The court found Bradford's mother's testimony "patently false." A defendant who suborns perjury has not demonstrated acceptance of responsibility. See U.S.S.G. § 3E1.1, comment. n. 4 (stating that conduct resulting in an enhancement under § 3C1.1, which includes suborning perjury, "ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct").
Bradford's argument for an acceptance-of-responsibility adjustment would have been stronger had he simply contested the issue of fact at the sentencing hearing, but otherwise remained silent. We agree with the district court, however, that the act of putting forth what the court determined to be a false alibi does not demonstrate acceptance of responsibility. The district court did not commit clear error by denying Bradford a reduction for acceptance of responsibility.
III. Conclusion
The Supreme Court's statement in Blakely v. Washington, encapsulates the difficult principle at issue in this case:
Those who would reject Apprendi are resigned to one of two alternatives. The first is that the jury need only find whatever facts the legislature chooses to label elements of the crime, and that those it labels sentencing factors no matter how much they may increase the punishment may be found by the judge. This would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing a firearm used to commit it or of making an illegal lane change while fleeing the death scene. Not even Apprendi's critics would advocate this absurd result. The jury could not function as circuit-breaker in the State's machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.
Blakely v. Washington, 542 U.S. 296, 306-07, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (internal citation omitted). Because of the remedial provision in Booker, however, this is the state of the law today. See Cunningham v. California, ___ U.S. ___, 127 S. Ct. 856, 866, 166 L. Ed. 2d 856 (2007) (stating that a majority of the Court in Booker agreed that "the Federal Guidelines would not implicate the Sixth Amendment were they advisory"); Okai, 454 F.3d at 851. As long as a fact-finding encompasses "relevant conduct" as defined by the Guidelines, the district court is free to find facts that increase a defendant's sentence, with the only outer limits being the statutory maximum for the crime of conviction, the (perhaps unlikely) possibility that a court would find a departure extreme enough to apply the Kikumura rule, and the bounds of reasonableness. None of these principles were violated in this case; therefore, we affirm the judgment of the district court.
NOTES
[1] The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.
[2] Bradford initially challenged the reasonableness of his sentence. However, in light of our holding, this issue is abandoned due to the statement in Bradford's reply brief that "[i]f Mr. Bradford can be factually, legally and constitutionally punished for J.H.'s death, the 210 month sentence is reasonable."
[3] Bradford states that the fact that "the phone number at issue for `B' belonged to Bradford is also in dispute," as Hoskins originally gave Agent Kisner a different phone number for the dealer "B." Bradford does not specifically appeal the district court's finding of fact on this issue; therefore, we will assume that the number the government introduced as belonging to Bradford did, in fact, belong to Bradford.
[4] Bradford also challenges the district court's alternative upward departure based on U.S.S.G. § 5K2.1, "Death." Because we find the district court's upward departure pursuant to § 5K2.21 proper, we do not reach the court's alternative finding that § 5K2.1 would also apply in this case.
[5] The Supreme Court has recognized that several circuits have held that "in extreme circumstances, relevant conduct that would dramatically increase the sentence must be based on clear and convincing evidence." United States v. Watts, 519 U.S. 148, 156, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997). The Court has not, however, expounded on this issue. See id. ("The cases before us today do not present such exceptional circumstances, and we therefore do not address that issue.").
[6] Our court has not expressly disavowed this exception post-Booker. A number of circuits, however, have expressed doubt about the continued application of Kikumura post-Booker, and the Seventh Circuit has done away with the exception all together. See United States v. Grier, 475 F.3d 556, 568 n. 8 (3d Cir.2007) (en banc) ("While we acknowledge that the statutory and constitutional underpinnings of [Kikumura] may be questioned by the Supreme Court's reasoning in Booker, this case does not present a factually similar case . . . [t]herefore, it is not necessary for us to reach the current status of Kikumura."); United States v. Reuter, 463 F.3d 792, 793 (7th Cir. 2006) (stating that the debate over the existence of this exception "has, we believe, been rendered academic by United States v. Booker").
[7] The Ninth Circuit has continued to recognize this exception post-Booker. See United States v. Pike, 473 F.3d 1053, 1057 (9th Cir. 2007) (discussion circumstances under which the district court is required to find sentencing-enhancing fights under a clear and convincing evidence standard of proof).
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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/5902506/
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OPINION OF THE COURT
Leventhal, J.
The novel issue we address on this appeal is whether a Criminal Court order of protection which bars contact between a *183parent and a child, but includes a provision stating that it is subject to subsequent Family Court orders of custody and visitation, permits the Family Court to release the child to the custody of that parent. For the reasons discussed below, we hold that a Criminal Court order of protection which includes such a provision permits the Family Court to release the child to the custody of that parent where, as here, it determines that such release would be in the best interests of the child.
In December 2011, the mother was arrested and later charged with, inter alia, assault in the second degree for allegedly beating her son Elijah L., who was then six years old. Thereafter, the Administration for Children’s Services (hereinafter ACS) commenced these neglect proceedings against the mother, alleging that she had neglected Elijah by inflicting excessive corporal punishment on him and, as a result, had derivatively neglected her daughter, Brianna L., who was then eight years old.
On February 14, 2012, in Criminal Court, Queens County, the mother entered a plea of guilty to endangering the welfare of a child, and was sentenced to a conditional discharge, with the requirement that she complete ACS’s service plan, which included completion of a parenting skills course and an anger management program. A final order of protection (hereinafter the order of protection) was issued by the Criminal Court, barring the mother from any contact with Elijah until February 13, 2017.
On March 12, 2012, in these neglect proceedings, the mother consented to the jurisdiction of the Family Court pursuant to Family Court Act § 1051 (a), and a finding of neglect was entered with respect to the subject children. At a dispositional hearing which commenced on April 23, 2012, ACS provided the Family Court with an investigation and report (hereinafter the I&R). The I&R stated that the mother had cooperated with all services, completed a parenting skills course and an anger management program, and “was capable of caring for the children.” The matter was adjourned to allow the parties to seek an amendment of the order of protection.
On May 8, 2012, during the continued dispositional hearing, the parties presented the Family Court with an amended order of protection (hereinafter the amended order of protection) dated May 7, 2012. Although the amended order of protection continued to bar the mother from having any contact with Elijah, it included the words “Subject to Family Court.”
In response, the Family Court stated that, since the Criminal Court had issued a “full stay away order of protection,” it was *184“the Criminal Court’s intention” that the mother could not have unsupervised contact with Elijah until 2017. ACS recommended releasing Elijah to his father, and releasing Brianna to the mother. However, the attorney for the children objected to limiting the mother’s contact with Elijah to supervised visitation and advocated against separating the children. In addition, the attorney for the children stated “perhaps we do need the clarification ... of what exactly . . . the language in the Criminal Court order of protection is saying, [what] ‘subject to Family Court’ actually means.”
In a decision dated May 21, 2012, the Family Court stated that the phrase, “ ‘Subject to Family Court’ as handwritten onto the [amended order of protection] is shorthand for ‘subject to subsequent Family Court orders of custody and visitation’ ” (Matter of B.L. [M.A.], 36 Misc 3d 578, 582 [2012]). However, the Family Court concluded that the language “ ‘subject to subsequent Family Court orders of custody and visitation’ ” did not give the court “jurisdiction to, in essence, overrule the Criminal Court, and return custody of the protected party to the [mother]” (id. at 582). Relying upon Little v Massari (526 F Supp 2d 371 [ED NY 2007]), the Family Court held that it could only impose additional prohibitions against the mother, not less. The Family Court suggested that the parties return to Criminal Court to ask for another amended order of protection, deleting the “stay-away” provisions barring the mother from having any contact with Elijah.
Although the Family Court found that it served the best interests of the children to return them to their mother, it determined that such a disposition was precluded by the amended order of protection and, therefore, Elijah had to be released to the father. The court further found that, since it was not in the best interests of the children to separate them, both children should be released to the father. The decision indicated that the court would grant the mother visitation with Brianna, supervised or unsupervised, in ACS’s discretion, and that the mother’s contact with Elijah was to be limited to supervised visitation (Matter of B.L. [M.A.], 36 Misc 3d at 582).
In an order of disposition dated May 22, 2012, the Family Court, inter alia, released the subject children to the custody of their father, limited the mother’s contact with Elijah to supervised visitation, and prohibited any unsupervised or overnight visitation between the mother and Elijah. The children and the mother (hereinafter together the appellants) *185separately appeal and argue that, by making the amended order of protection “Subject to Family Court,” the Criminal Court expressly permitted the Family Court to issue orders it deemed appropriate, including releasing Elijah to the custody of the mother. The appellants contend that the children should be released to the custody of the mother or, in the alternative, the matter should be remitted to the Family Court for a new determination based upon the best interests of the children.
In August 2012, after the parties filed their respective notices of appeal, the mother moved to modify the order of disposition in order to transfer custody of the subject children from the father to her. In support of her motion, she submitted a second amended order of protection from the Criminal Court. The second amended order of protection, dated August 9, 2012, deleted all of the problematic stay-away provisions. In addition, in lieu of the handwritten notation “Subject to Family Court,” the second amended order of protection contained the following provision: “Subject to all subsequent Family Court orders of visitation and custody defendant must observe for the purposes of protection.” By letters dated September 6, 2012, and September 14, 2012, the appellants informed this Court that, on September 5, 2012, the Family Court, in effect, modified the order of disposition so as to release the children to the custody of the mother. The appellants acknowledge that the release of the children to their mother has rendered their appeals academic. However, they request this Court to decide the issue of whether the words “Subject to Family Court” in a Criminal Court order of protection barring all contact between a parent and a child authorizes the Family Court to release the child to the custody of that parent, pursuant to the exception to the mootness doctrine, on the ground that it is a recurring issue of public importance typically evading review.
As an initial matter, it is necessary to address whether this appeal became moot after the Criminal Court issued the second amended order of protection dated August 9, 2012. Generally, courts are precluded “from considering questions which, although once live, have become moot by passage of time or change in circumstances” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]). Typically, “an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” (id. at 714).
The appellants correctly acknowledge that the issuance of the second amended order of protection in the Criminal Court *186proceeding, which eliminated the stay-away provisions barring contact between the mother and Elijah, renders this appeal academic. Nevertheless, we agree that under the circumstances of this case, the exception to the mootness doctrine applies because the effect of a provision in a Criminal Court order of protection indicating that the order is subject to subsequent Family Court orders of custody and visitation is an important issue that is likely to recur and which may typically evade our review (see e.g. People ex rel. McManus v Horn, 18 NY3d 660, 663-664 [2012]; City of New York v Maul, 14 NY3d 499, 507 [2010]; Matter of Hearst Corp. v Clyne, 50 NY2d at 714-715; Matter of Lucinda R. [Tabitha L.], 85 AD3d 78, 83-84 [2011]; Matter of William C., 64 AD3d 277, 282 [2009]). Therefore, the appeal will not be dismissed.
The Criminal Procedure Law provides the Criminal Court with the power to issue orders of protection in family offense matters and to include various conditions in such orders of protection (see CPL 530.12 [5]). Included within this power is the authority to permit a parent to visit with a child (see CPL 530.12 [5] [b]). The issuance of an order of protection “incident to a criminal proceeding is an ameliorative measure intended to safeguard the rights of victims . . . both prior to and after conviction” (People v Nieves, 2 NY3d 310, 316 [2004]).
Generally, if a Criminal Court order of protection bars all contact between a parent and a child, the parent may not obtain custody or visitation unless the order of protection is vacated or modified in the Criminal Court (see Matter of Secrist v Brown, 83 AD3d 1399, 1400 [2011]). The Criminal Court also has the authority to modify its orders of protection (see People v Nieves, 2 NY3d at 317; People v Zacher, 31 Misc 3d 1218[A], 2011 NY Slip Op 50721[U] [2011]). The Criminal Court has authority to determine whether its order of protection will be subject to Family Court orders, and can decline to amend an order of protection to so provide (see Matter of Marqekah B., 16 Misc 3d 1109[A], 2007 NY Slip Op 51361[U] [2007], affd 63 AD3d 1057 [2009]).
The instant appeal involves two related neglect proceedings pursuant to Family Court Act article 10. Article 10, entitled “Child Protective Proceedings,” is designed to “help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being” and provides “due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on *187behalf of a child so that his [or her] needs are properly met” (Family Ct Act § 1011). “The orientation of Family Court is rehabilitative, directed at protecting the vulnerable child, as distinct from the penal nature of a criminal action which aims to assess blame for a wrongful act and punish the offender” (People v Roselle, 84 NY2d 350, 355 [1994]). Following a determination that a parent has neglected or abused a child, “[t]he Family Court Act directs that a dispositional hearing be held as a condition precedent to the entry of a dispositional order such as [an] order of protection” (Matter of Suffolk County Dept, of Social Servs. v James M., 83 NY2d 178, 183 [1994]). A dispositional hearing is required so as to permit the Family Court to make an informed determination, from amongst the dispositional alternatives, which is consistent with the best interests of the subject child or children {see id.). The dispositional alternatives available to the Family Court include, but are not limited to, suspending judgment, releasing a child to the custody of his or her parent or parents, placing a child with a relative or the local commissioner of social services, placing a respondent under supervision, or issuing an order of protection (see Family Ct Act §§ 1052, 1053, 1054, 1055, 1055-b, 1056, 1057). As pertinent here, a Family Court order of protection issued against a child’s parent shall expire no later than the expiration date of any other orders of the court (see Family Ct Act § 1056 [1], [4]).*
Against this backdrop, the appellants ask this Court to resolve the question of whether the words “Subject to Family Court” in a Criminal Court order of protection barring contact between a parent and a child permit the Family Court to vary from the terms of that order by releasing the child to the custody of that parent. For the following reasons, we are convinced that this question should be answered in the affirmative.
The Family Court is uniquely situated to issue orders that are consistent with the best interests of the children before it. For example, pursuant to Family Court Act § 1038, the Family Court can, upon a motion by a respondent or a child’s attorney, direct that a child who is the subject of a proceeding under this article be made available for examination by a physician, psychologist, or social worker. Where the Family Court releases a child to the *188custody of a person following disposition, the court is authorized to place that person under the supervision of, among others, a child protective agency, with various conditions (see Family Ct Act § 1054). Such supervision can last for an initial period of no more than one year and, after a hearing, can be extended (see Family Ct Act § 1054 [b]). The Family Court is further authorized to review allegations that a person who has been placed under supervision has violated the conditions of supervision (see Family Ct Act § 1072). In this manner, the Family Court utilizes ACS’s mandate, which is to prevent abused and maltreated children from suffering further injury and impairment, investigate such reports of suspected child abuse and maltreatment swiftly and competently, and provide protection for the child or children from further abuse or maltreatment (see Social Services Law § 411).
Notably, in these proceedings, counsel was appointed for the children (see generally Family Ct Act §§ 1016, 1033-b [1] [a]) and, as a result, the Family Court was apprised of the children’s positions on the issues of, inter alia, custody and visitation. In contrast, Elijah was unrepresented in the criminal proceeding. Furthermore, the record demonstrates that the mother was referred to services which included a parenting skills course and an anger management program. In the I&R, the court was provided with such relevant information as the outcome of ACS’s interviews with the mother and the children, a report of ACS’s visit to the mother’s home to determine whether it was an appropriate environment for the children, and the interactions between the mother and the children during court-ordered visitation.
For these reasons, it is clear that it is the Family Court, not the Criminal Court, which is both empowered and best suited, following a dispositional hearing in a child protective proceeding, to select the dispositional alternative which is most consistent with the best interests of the children before it. The Family Court has the unique resources to effectuate and determine the best interests of the children, and its authority to do so should not be circumscribed by a Criminal Court order of protection which expressly contemplates future amendment of its terms by a subsequent Family Court order pertaining to custody and visitation. Accordingly, we hold that where, as here, a Criminal Court order of protection barring contact between a parent and a child includes a provision indicating that the order is subject to subsequent Family Court orders of custody and visitation, *189the Family Court is permitted to release the child to the custody of that parent.
We note that, in reaching its contrary determination, the Family Court relied on Little v Massari (526 F Supp 2d 371 [ED NY 2007]), an action to recover damages for false arrest. In Little, the defendant police officer was awarded summary judgment on the ground that his conduct in arresting the plaintiff for violation of a Criminal Court order of protection was reasonable, based upon its provisions and the complainant’s sworn statement. The United States District Court for the Eastern District of New York determined that the provision of the Criminal Court order of protection which stated that there were “ ‘[s]pecific conditions that defendant must observe,’ ” and which were “ ‘subject to’ ” Family Court orders, did not vitiate the officer’s probable cause, since the word “subject to” implied that there “might be more prohibitions imposed on plaintiff by the Family Court—conditions that plaintiff ‘must observe’—not less” (id. at 375-376). The federal court further noted that the officer had no knowledge of the terms of the relevant Family Court orders, and was not obligated to investigate whether there were Family Court orders which contradicted the terms of the Criminal Court order of protection.
The Family Court’s reliance upon Little was misplaced. Little expressed no opinion as to the authority of the Family Court, which was not an issue before the federal court. In any event, the federal court was without authority to rule on the question presented in this case. Thus, we are not persuaded that Little requires a different result.
Accordingly, the order of disposition is reversed, on the law.
Skelos, J.P., Florio and Hall, JJ., concur.
Ordered that the order of disposition is reversed, on the law, without costs or disbursements.
Court-ordered supervision conducted by ACS may be imposed for a maximum of 12 months (see Family Ct Act §§ 1052 [a] [v]; 1057), effectively limiting the duration of a Family Court order of protection against a parent to no more than 12 months (see Matter of Sheena D., 8 NY3d 136 [2007]).
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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/5902507/
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In an action to recover damages for personal injuries, etc., resulting from medical malpractice, the defendant Robert Oakes appeals from an order of the Supreme Court, Kings County (Monteleone, J.), dated March 20, 1987, which denied his motion for summary judgment dismissing the complaint and all cross claims against him.
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint and all cross claims are dismissed as against the defendant Oakes.
Dr. Oakes, whose practice consists solely of house calls, undertook to treat the plaintiffs’ decedent on April 30, 1980. According to the allegations of Dr. Oakes and the recollection of the decedent’s widow, the decedent’s sole complaint was of pain in his left elbow. The decedent’s medical history revealed the following: "adult onset diabetes mellitus and occasional attacks of the gout”. On the basis of his physical examination, which produced normal results with the exception of the left elbow which indicated mild erythema, warmth and tenderness, Dr. Oakes made a diagnosis of gouty arthritis and prescribed colchicine. He advised the decedent to contact him in the event any problems arose and to seek follow-up care from his personal physician. Neither the decedent nor his family contacted Dr. Oakes subsequent to the April 30, 1980 house call. The decedent was admitted to Kings County Hospital on May 1, 1980 where an exploratory laparotomy was performed followed by gastrointestinal surgery. The decedent died at Kings County Hospital on May 9, 1980. The death certificate attributed the immediate cause of death to occlusive coronary heart disease. The plaintiffs thereafter commenced the underlying medical malpractice action against Dr. Oakes and the other named defendants. Dr. Oakes moved for summary judgment dismissing the complaint and all cross *659claims against him. The Supreme Court denied the motion, holding that there existed questions of fact necessitating a plenary trial. We reverse.
As the Court of Appeals has observed, "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324; see, Winegrad v New York Univ. Med. Center, 64 NY2d 851). Moreover, "[i]n a medical malpractice action, a plaintiff, in opposition to a defendant physician’s summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact” (Alvarez v Prospect Hosp., supra, at 324). Further, "[gjeneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician’s summary judgment motion” (Alvarez v Prospect Hosp., supra, at 325).
Our review of the record reveals that Dr. Oakes has established his prima facie entitlement to judgment as a matter of law, thereby shifting to the plaintiffs the burden of demonstrating the existence of triable issues of fact. The plaintiffs have failed to sustain this burden. Dr. Oakes’s affidavit, as amplified by certain additional documents submitted in support of the motion, establishes that he was summoned to the residence of the plaintiffs’ decedent on April 30, 1980, with regard to the plaintiffs’ decedent’s complaint of pain in the left elbow; that no other ailment was complained of or revealed by Dr. Oakes’s physical examination of the plaintiffs’ decedent; the medical history of the plaintiffs’ decedent was unremarkable with the exception of adult onset diabetes mellitus and occasional attacks of gout; and that Dr. Oakes ultimately diagnosed the affliction as gouty arthritis, prescribing colchicine, in conformity with prior treatments administered for the same ailment, as established by hospital records submitted in further support of his motion.
In opposition to the motion, the plaintiffs submitted an attorney’s affirmation, where—for the first time—there appeared the unsupported contention that the malpractice of Dr. Oakes consisted of the alleged failure to diagnose and treat a diabetic condition known as "hyperosmolar nonketotic diabetic coma”. We note that no such allegation was set forth in *660the plaintiffs’ bill of particulars. Moreover, in order to buttress this contention, the plaintiffs’ counsel offered his own diagnosis of the illness of the plaintiffs’ decedent by positing the contention that the alleged symptoms accompanying his elbow affliction—of which counsel had no personal knowledge—were telltale signs of infection and that "[i]t is boilerplate medicine that an infection invariably causes a diabetic’s blood sugar to become seriously elevated, and in fact often leads to the life-threatening condition hyperosmolar nonketotic diabetic coma”. Significantly, there is nothing in the record which indicates that the plaintiffs’ decedent was suffering from, or was admitted to the hospital for, a diabetic condition known as "hyperosmolar nonketotic diabetic coma”. To the contrary, the record reveals that upon his admission to the hospital, the decedent underwent an exploratory laparotomy followed by gastrointestinal surgery with the immediate cause of death attributed to occlusive coronary heart disease.
The affidavit submitted by Dr. Schell in further opposition to the motion merely recounts, in two conclusory sentences without reference to the pertinent underlying facts relied upon, that Dr. Oakes failed to diagnose the alleged existence of the plaintiffs’ decedent’s "hyperglycemic condition and infection” and that such failure represented a competent and producing cause of the death of the plaintiffs’ decedent. The bare, conclusory allegation that Dr. Oakes departed from accepted medical standards by failing to diagnose an affliction, the existence of which is not even reflected in the record, is without evidentiary value in terms of sustaining the plaintiffs’ burden of showing that there exist triable issues of fact in respect to Dr. Oakes’s alleged malpractice (see, Witt v Agin, 112 AD2d 64, affd 67 NY2d 919). Lawrence, J. P., Kunzeman, Kooper 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/5902508/
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OPINION OF THE COURT
Leventhal, J.
The novel issue we address on this appeal is whether a Criminal Court order of protection which bars contact between a *183parent and a child, but includes a provision stating that it is subject to subsequent Family Court orders of custody and visitation, permits the Family Court to release the child to the custody of that parent. For the reasons discussed below, we hold that a Criminal Court order of protection which includes such a provision permits the Family Court to release the child to the custody of that parent where, as here, it determines that such release would be in the best interests of the child.
In December 2011, the mother was arrested and later charged with, inter alia, assault in the second degree for allegedly beating her son Elijah L., who was then six years old. Thereafter, the Administration for Children’s Services (hereinafter ACS) commenced these neglect proceedings against the mother, alleging that she had neglected Elijah by inflicting excessive corporal punishment on him and, as a result, had derivatively neglected her daughter, Brianna L., who was then eight years old.
On February 14, 2012, in Criminal Court, Queens County, the mother entered a plea of guilty to endangering the welfare of a child, and was sentenced to a conditional discharge, with the requirement that she complete ACS’s service plan, which included completion of a parenting skills course and an anger management program. A final order of protection (hereinafter the order of protection) was issued by the Criminal Court, barring the mother from any contact with Elijah until February 13, 2017.
On March 12, 2012, in these neglect proceedings, the mother consented to the jurisdiction of the Family Court pursuant to Family Court Act § 1051 (a), and a finding of neglect was entered with respect to the subject children. At a dispositional hearing which commenced on April 23, 2012, ACS provided the Family Court with an investigation and report (hereinafter the I&R). The I&R stated that the mother had cooperated with all services, completed a parenting skills course and an anger management program, and “was capable of caring for the children.” The matter was adjourned to allow the parties to seek an amendment of the order of protection.
On May 8, 2012, during the continued dispositional hearing, the parties presented the Family Court with an amended order of protection (hereinafter the amended order of protection) dated May 7, 2012. Although the amended order of protection continued to bar the mother from having any contact with Elijah, it included the words “Subject to Family Court.”
In response, the Family Court stated that, since the Criminal Court had issued a “full stay away order of protection,” it was *184“the Criminal Court’s intention” that the mother could not have unsupervised contact with Elijah until 2017. ACS recommended releasing Elijah to his father, and releasing Brianna to the mother. However, the attorney for the children objected to limiting the mother’s contact with Elijah to supervised visitation and advocated against separating the children. In addition, the attorney for the children stated “perhaps we do need the clarification ... of what exactly . . . the language in the Criminal Court order of protection is saying, [what] ‘subject to Family Court’ actually means.”
In a decision dated May 21, 2012, the Family Court stated that the phrase, “ ‘Subject to Family Court’ as handwritten onto the [amended order of protection] is shorthand for ‘subject to subsequent Family Court orders of custody and visitation’ ” (Matter of B.L. [M.A.], 36 Misc 3d 578, 582 [2012]). However, the Family Court concluded that the language “ ‘subject to subsequent Family Court orders of custody and visitation’ ” did not give the court “jurisdiction to, in essence, overrule the Criminal Court, and return custody of the protected party to the [mother]” (id. at 582). Relying upon Little v Massari (526 F Supp 2d 371 [ED NY 2007]), the Family Court held that it could only impose additional prohibitions against the mother, not less. The Family Court suggested that the parties return to Criminal Court to ask for another amended order of protection, deleting the “stay-away” provisions barring the mother from having any contact with Elijah.
Although the Family Court found that it served the best interests of the children to return them to their mother, it determined that such a disposition was precluded by the amended order of protection and, therefore, Elijah had to be released to the father. The court further found that, since it was not in the best interests of the children to separate them, both children should be released to the father. The decision indicated that the court would grant the mother visitation with Brianna, supervised or unsupervised, in ACS’s discretion, and that the mother’s contact with Elijah was to be limited to supervised visitation (Matter of B.L. [M.A.], 36 Misc 3d at 582).
In an order of disposition dated May 22, 2012, the Family Court, inter alia, released the subject children to the custody of their father, limited the mother’s contact with Elijah to supervised visitation, and prohibited any unsupervised or overnight visitation between the mother and Elijah. The children and the mother (hereinafter together the appellants) *185separately appeal and argue that, by making the amended order of protection “Subject to Family Court,” the Criminal Court expressly permitted the Family Court to issue orders it deemed appropriate, including releasing Elijah to the custody of the mother. The appellants contend that the children should be released to the custody of the mother or, in the alternative, the matter should be remitted to the Family Court for a new determination based upon the best interests of the children.
In August 2012, after the parties filed their respective notices of appeal, the mother moved to modify the order of disposition in order to transfer custody of the subject children from the father to her. In support of her motion, she submitted a second amended order of protection from the Criminal Court. The second amended order of protection, dated August 9, 2012, deleted all of the problematic stay-away provisions. In addition, in lieu of the handwritten notation “Subject to Family Court,” the second amended order of protection contained the following provision: “Subject to all subsequent Family Court orders of visitation and custody defendant must observe for the purposes of protection.” By letters dated September 6, 2012, and September 14, 2012, the appellants informed this Court that, on September 5, 2012, the Family Court, in effect, modified the order of disposition so as to release the children to the custody of the mother. The appellants acknowledge that the release of the children to their mother has rendered their appeals academic. However, they request this Court to decide the issue of whether the words “Subject to Family Court” in a Criminal Court order of protection barring all contact between a parent and a child authorizes the Family Court to release the child to the custody of that parent, pursuant to the exception to the mootness doctrine, on the ground that it is a recurring issue of public importance typically evading review.
As an initial matter, it is necessary to address whether this appeal became moot after the Criminal Court issued the second amended order of protection dated August 9, 2012. Generally, courts are precluded “from considering questions which, although once live, have become moot by passage of time or change in circumstances” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]). Typically, “an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” (id. at 714).
The appellants correctly acknowledge that the issuance of the second amended order of protection in the Criminal Court *186proceeding, which eliminated the stay-away provisions barring contact between the mother and Elijah, renders this appeal academic. Nevertheless, we agree that under the circumstances of this case, the exception to the mootness doctrine applies because the effect of a provision in a Criminal Court order of protection indicating that the order is subject to subsequent Family Court orders of custody and visitation is an important issue that is likely to recur and which may typically evade our review (see e.g. People ex rel. McManus v Horn, 18 NY3d 660, 663-664 [2012]; City of New York v Maul, 14 NY3d 499, 507 [2010]; Matter of Hearst Corp. v Clyne, 50 NY2d at 714-715; Matter of Lucinda R. [Tabitha L.], 85 AD3d 78, 83-84 [2011]; Matter of William C., 64 AD3d 277, 282 [2009]). Therefore, the appeal will not be dismissed.
The Criminal Procedure Law provides the Criminal Court with the power to issue orders of protection in family offense matters and to include various conditions in such orders of protection (see CPL 530.12 [5]). Included within this power is the authority to permit a parent to visit with a child (see CPL 530.12 [5] [b]). The issuance of an order of protection “incident to a criminal proceeding is an ameliorative measure intended to safeguard the rights of victims . . . both prior to and after conviction” (People v Nieves, 2 NY3d 310, 316 [2004]).
Generally, if a Criminal Court order of protection bars all contact between a parent and a child, the parent may not obtain custody or visitation unless the order of protection is vacated or modified in the Criminal Court (see Matter of Secrist v Brown, 83 AD3d 1399, 1400 [2011]). The Criminal Court also has the authority to modify its orders of protection (see People v Nieves, 2 NY3d at 317; People v Zacher, 31 Misc 3d 1218[A], 2011 NY Slip Op 50721[U] [2011]). The Criminal Court has authority to determine whether its order of protection will be subject to Family Court orders, and can decline to amend an order of protection to so provide (see Matter of Marqekah B., 16 Misc 3d 1109[A], 2007 NY Slip Op 51361[U] [2007], affd 63 AD3d 1057 [2009]).
The instant appeal involves two related neglect proceedings pursuant to Family Court Act article 10. Article 10, entitled “Child Protective Proceedings,” is designed to “help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being” and provides “due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on *187behalf of a child so that his [or her] needs are properly met” (Family Ct Act § 1011). “The orientation of Family Court is rehabilitative, directed at protecting the vulnerable child, as distinct from the penal nature of a criminal action which aims to assess blame for a wrongful act and punish the offender” (People v Roselle, 84 NY2d 350, 355 [1994]). Following a determination that a parent has neglected or abused a child, “[t]he Family Court Act directs that a dispositional hearing be held as a condition precedent to the entry of a dispositional order such as [an] order of protection” (Matter of Suffolk County Dept, of Social Servs. v James M., 83 NY2d 178, 183 [1994]). A dispositional hearing is required so as to permit the Family Court to make an informed determination, from amongst the dispositional alternatives, which is consistent with the best interests of the subject child or children {see id.). The dispositional alternatives available to the Family Court include, but are not limited to, suspending judgment, releasing a child to the custody of his or her parent or parents, placing a child with a relative or the local commissioner of social services, placing a respondent under supervision, or issuing an order of protection (see Family Ct Act §§ 1052, 1053, 1054, 1055, 1055-b, 1056, 1057). As pertinent here, a Family Court order of protection issued against a child’s parent shall expire no later than the expiration date of any other orders of the court (see Family Ct Act § 1056 [1], [4]).*
Against this backdrop, the appellants ask this Court to resolve the question of whether the words “Subject to Family Court” in a Criminal Court order of protection barring contact between a parent and a child permit the Family Court to vary from the terms of that order by releasing the child to the custody of that parent. For the following reasons, we are convinced that this question should be answered in the affirmative.
The Family Court is uniquely situated to issue orders that are consistent with the best interests of the children before it. For example, pursuant to Family Court Act § 1038, the Family Court can, upon a motion by a respondent or a child’s attorney, direct that a child who is the subject of a proceeding under this article be made available for examination by a physician, psychologist, or social worker. Where the Family Court releases a child to the *188custody of a person following disposition, the court is authorized to place that person under the supervision of, among others, a child protective agency, with various conditions (see Family Ct Act § 1054). Such supervision can last for an initial period of no more than one year and, after a hearing, can be extended (see Family Ct Act § 1054 [b]). The Family Court is further authorized to review allegations that a person who has been placed under supervision has violated the conditions of supervision (see Family Ct Act § 1072). In this manner, the Family Court utilizes ACS’s mandate, which is to prevent abused and maltreated children from suffering further injury and impairment, investigate such reports of suspected child abuse and maltreatment swiftly and competently, and provide protection for the child or children from further abuse or maltreatment (see Social Services Law § 411).
Notably, in these proceedings, counsel was appointed for the children (see generally Family Ct Act §§ 1016, 1033-b [1] [a]) and, as a result, the Family Court was apprised of the children’s positions on the issues of, inter alia, custody and visitation. In contrast, Elijah was unrepresented in the criminal proceeding. Furthermore, the record demonstrates that the mother was referred to services which included a parenting skills course and an anger management program. In the I&R, the court was provided with such relevant information as the outcome of ACS’s interviews with the mother and the children, a report of ACS’s visit to the mother’s home to determine whether it was an appropriate environment for the children, and the interactions between the mother and the children during court-ordered visitation.
For these reasons, it is clear that it is the Family Court, not the Criminal Court, which is both empowered and best suited, following a dispositional hearing in a child protective proceeding, to select the dispositional alternative which is most consistent with the best interests of the children before it. The Family Court has the unique resources to effectuate and determine the best interests of the children, and its authority to do so should not be circumscribed by a Criminal Court order of protection which expressly contemplates future amendment of its terms by a subsequent Family Court order pertaining to custody and visitation. Accordingly, we hold that where, as here, a Criminal Court order of protection barring contact between a parent and a child includes a provision indicating that the order is subject to subsequent Family Court orders of custody and visitation, *189the Family Court is permitted to release the child to the custody of that parent.
We note that, in reaching its contrary determination, the Family Court relied on Little v Massari (526 F Supp 2d 371 [ED NY 2007]), an action to recover damages for false arrest. In Little, the defendant police officer was awarded summary judgment on the ground that his conduct in arresting the plaintiff for violation of a Criminal Court order of protection was reasonable, based upon its provisions and the complainant’s sworn statement. The United States District Court for the Eastern District of New York determined that the provision of the Criminal Court order of protection which stated that there were “ ‘[s]pecific conditions that defendant must observe,’ ” and which were “ ‘subject to’ ” Family Court orders, did not vitiate the officer’s probable cause, since the word “subject to” implied that there “might be more prohibitions imposed on plaintiff by the Family Court—conditions that plaintiff ‘must observe’—not less” (id. at 375-376). The federal court further noted that the officer had no knowledge of the terms of the relevant Family Court orders, and was not obligated to investigate whether there were Family Court orders which contradicted the terms of the Criminal Court order of protection.
The Family Court’s reliance upon Little was misplaced. Little expressed no opinion as to the authority of the Family Court, which was not an issue before the federal court. In any event, the federal court was without authority to rule on the question presented in this case. Thus, we are not persuaded that Little requires a different result.
Accordingly, the order of disposition is reversed, on the law.
Skelos, J.P., Florio and Hall, JJ., concur.
Ordered that the order of disposition is reversed, on the law, without costs or disbursements.
Court-ordered supervision conducted by ACS may be imposed for a maximum of 12 months (see Family Ct Act §§ 1052 [a] [v]; 1057), effectively limiting the duration of a Family Court order of protection against a parent to no more than 12 months (see Matter of Sheena D., 8 NY3d 136 [2007]).
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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/5902510/
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a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) so much of a judgment of the Supreme Court, Richmond County (Sangiorgio, J.), entered May 12, 1986, as, upon granting a motion by the City of New York at the close of the plaintiffs’ case to dismiss the plaintiffs’ complaint insofar as it is asserted against it, is in favor of the City of New York and against them, and (2) an order of the same court, dated September 9, 1986, which denied the plaintiffs’ motion for a new trial.
*662Ordered that the judgment is affirmed insofar as appealed from, and the order is affirmed, without costs or disbursements.
The instant action arises out of an accident which occurred on the evening of July 30, 1979, on Hylan Boulevard near its intersection with Stobe Avenue in Staten Island. The infant plaintiffs, Denise Longo and Donna Amato, had been in the process of crossing Hylan Boulevard when they were run down by the defendant Vincent Tafaro as they paused in the painted median that separated the east and westbound traffic. The median was 10 feet wide and consisted of an outer perimeter of double yellow lines, which surrounded an interior of diagonal solid white lines. The defendant Tafaro was observed driving erratically, speeding and straddling the painted median just prior to the incident. Tafaro did not stop at the scene and was pursued by a witness to the accident to the Verrazano Narrows Bridge, where he was arrested.
The plaintiffs’ primary allegation against the defendant City of New York was that the city negligently failed to install a raised concrete median at the section of Hylan Boulevard where the accident occurred. The plaintiffs claimed that had the median been in place, the accident could have been avoided.
At the close of the plaintiffs’ case, the city’s motion to dismiss all claims against it for failure to prove a prima facie case was granted. Thereafter, the plaintiffs’ motion for a new trial of their claims against the defendant City of New York was denied and this appeal ensued.
As this court stated in Santiago v Steinway Trucking (97 AD2d 753, 754): "In reviewing the dismissal of plaintiffs’ complaint at the close of their case, this court is required (as was the trial court) to view the evidence adduced in the light most favorable to plaintiffs, and all questions as to a particular witness’ credibility must be resolved in plaintiffs’ favor (Calvaruso v Our Lady of Peace R.C. Church, 36 AD2d 755; see Lipsius v White, 91 AD2d 271, 276). Plaintiffs are entitled to the benefit of all inferences which can reasonably be drawn from the evidence (Becker v Pryschlak, 94 AD2d 753; Carter v Castle Elec. Contr. Co., 26 AD2d 83). The applicable criterion is not the weighing of the proof, but rather, the trial court must determine whether, upon any rational basis, the triers of fact could find in plaintiffs’ favor (Calvaruso v Our Lady of Peace R.C. Church, supra; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4401.05; Siegel, NY Prac, § 402, p 529)”. In the *663instant case, the triers of fact could not have found in the plaintiffs’ favor against the city upon any rational basis.
As the Court of Appeals stated in Friedman v State of New York (67 NY2d 271, 283-284):
"It has long been held that a municipality ' "owe[s] to the public the absolute duty of keeping its streets in a reasonably safe condition” ’ (Weiss v Fote, 7 NY2d 579, 584, supra, quoting Annino v City of Utica, 276 NY 192, 196; see also, Lopes v Rostad, 45 NY2d 617, 623). While this duty is nondelegable, it is measured by the courts with consideration given to the proper limits on intrusion into the municipality’s planning and decision-making functions. Thus, in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision (Alexander v Eldred, 63 NY2d 460, 465-466; Weiss v Fote, 7 NY2d 579, 585-586, supra). In the seminal Weiss case, we recognized that '[t]o accept a jury’s verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts’ (7 NY2d, at pp 585-586, supra). The Weiss court examined a municipality’s decision to design a traffic light with a four-second interval between changing signals, and concluded that there was no indication that 'due care was not exercised in the preparation of the design or that no reasonable official could have adopted it’ (id., at p 586). We went on to note that 'something more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public’ (id., at p 588).
"Under this doctrine of qualified immunity, a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan (Alexander v Eldred, 63 NY2d 460, 466, supra [municipality’s traffic engineer’s mistaken belief that the city had no authority to place a stop sign on a private road]). Once the State is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger (Heffler v State of New York, 96 AD2d 926, 927; Sanford v State of New York, 94 AD2d 857, 859; Atkinson v City of Oneida, 77 AD2d 257). Moreover, after the State implements a traffic plan it is 'under a continuing duty *664to review its plan in the light of its actual operation’ (Weiss v Fote, 7 NY2d 579, 587, supra; Atkinson v City of Oneida, 77 AD2d 257, 261, supra)”
In the instant case the record reveals that from the 1960’s to the early 1970’s the city installed raised median barriers on Hylan Boulevard between Arden Avenue and Stueben Street except for a 10-block stretch which included the area of the accident. It was established, however, that the median was not installed in that area because the roadway was below legal grade and it was anticipated that the grade might have to be changed. Thus, it cannot be said that the city’s traffic plan lacked a reasonable basis.
Moreover, only a few years after this initial installation was completed, the city hired the firm of Browne & Associates to study the major roads of Staten Island (including Hylan Boulevard) and to develop traffic engineering solutions to eliminate any problems that might exist. Browne & Associates began their surveys of the area in 1975 and subsequently identified 23 areas of concern in their problem identification report which was completed in April 1976. Of the 23 areas of concern, Hylan Boulevard East (the area in question) was ranked fourteenth overall and a report was thereafter completed in September 1977 noting the specific safety deficiencies associated with that location.
The September 1977 report noted safety deficiencies along Hylan Boulevard in the form of "discontinuity and inadequate design of its median, poor pavement condition, and non-coordination of the signal system”. That report recommended, inter alia, that a raised median be installed all along the roadway to improve its continuity because a driver unfamiliar with an area is often unprepared for a sudden change in the roadway section. The report noted, however, that certain immediate steps could be taken to improve the section of Hylan Boulevard in question, notably, the configuration of the painted median could be changed.
In accordance with the recommendations in the September 1977 report, the roadway was repaired, the configuration of the painted median was changed and a traffic light was installed. While it is true that the city did not take steps to install the raised median as recommended, it should be noted that the problem identification report indicated that the area in question was not a particularly dangerous one (in fact, it was not listed anywhere on its list of 165 dangerous locations) and consequently it was not given a high priority for improve*665ment. Moreover, the record reveals that the installation of the median would have involved a widening of the roadway and major reconstruction, and that, therefore, budget limitations prevented the immediate implementation of such a plan.
Additionally, while the plaintiffs correctly note that the city did not paint arrows in the left turn bays of the repainted median, as recommended by the September 1977 report, the plaintiffs’ own expert testified that such arrows were not required. In any event, even assuming that the arrows would have been preferable, funding limitations justifiably deferred this low-priority item.
In view of the foregoing, it is clear that even when the evidence is viewed in the light most favorable to the plaintiffs, the trier of fact could not have found in the plaintiffs’ favor against the city on any rational basis. The city’s initial plan had a reasonable basis and the city met its obligation to review its plan in light of its actual operation. Accordingly, the plaintiffs’ complaint was properly dismissed as against the defendant city. Lawrence, J. P., Kunzeman, Kooper 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/5902511/
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OPINION OF THE COURT
Smith, J.
Plaintiffs commenced this action seeking a declaration of the rights of the parties to an insurance policy. In November 1991, defendant issued the policy to Tony Clyde Wilson, the owner of an apartment building in the City of Rochester. The policy, which had a per-occurrence limit of $500,000, was for one year, and it was renewed for two additional one-year periods. In 1993, two children were exposed to lead paint while living in an apartment in that building, and one suffered injuries as a result of that exposure. According to Wilson’s deposition testimony, he attempted to remediate the lead paint condition after learning that the children had been exposed to lead, although the record is unclear with respect to the exact actions that he undertook. That family moved out of the apartment shortly thereafter, and the mother of those children later commenced an action against, inter alia, Wilson, seeking damages for injuries that the child sustained as a result of her exposure to lead (first tort action). In 1994, two children of a subsequent tenant were also exposed to lead in the same apartment. Plaintiffs herein commenced a separate action to recover damages for the personal injuries sustained by those two children (second tort action). While the second tort action was pending, the first tort action settled for $350,000, which defendant paid pursuant to its policy. Defendant took the position that the noncumulation clause in the policy limited its liability for all lead exposures in the apartment to a single policy limit of $500,000, and offered plaintiffs the remain*192ing $150,000 of coverage to settle the second action. The parties entered into a stipulation whereby Wilson was released from liability. They further agreed that plaintiffs would recover $150,000 if the noncumulation clause limited recovery to a single policy limit as claimed by defendant, but plaintiffs would recover $500,000 if the policy also required defendant to pay the full policy limit for the injuries sustained by the second set of children. Plaintiffs then commenced this declaratory judgment action to resolve that issue. Defendant appeals from a judgment denying its motion for summary judgment dismissing the complaint and granting plaintiffs’ cross motion insofar as it sought a declaration that the amount of insurance coverage to which plaintiffs are entitled is the full $500,000 policy limit.
At issue on this appeal is whether the policy requires defendant to pay a second full policy limit under these circumstances or whether plaintiffs’ losses are encompassed by the $500,000 per occurrence limit in the insurance policy. We agree with defendant that, pursuant to the unequivocal language of the policy, defendant is responsible only up to its limit for a single policy, and we thus conclude that Supreme Court should have granted a declaration in favor of defendant.
Our analysis begins with the well-settled proposition that “unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court” (White v Continental Cas. Co., 9 NY3d 264, 267 [2007] [citations omitted]; see State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]). The policy provision at issue states:
“Regardless of the number of insured persons, injured persons, claims, claimants or policies involved, our total liability under the Family Liability Protection coverage for damages resulting from one accidental loss will not exceed the limit shown on the declarations page. All bodily injury and property damage resulting from one accidental loss or from continuous or repeated exposure to the same general conditions is considered the result of one accidental loss” (emphasis omitted).
The Court of Appeals interpreted this insurer’s nearly identical policy provision in Hiraldo v Allstate Ins. Co. (5 NY3d 508, 512 [2005]). There, a child was injured by exposure to lead in an apartment covered by a policy that the property owners renewed for two additional policy periods while the injured party stayed *193in the apartment and was further exposed to the lead. The Court of Appeals, relying in part upon three federal district court decisions applying New York law to this policy language (see Bahar v Allstate Ins. Co., 2004 WL 1782552, 2004 US Dist LEXIS 15612 [SD NY, Aug. 9, 2004, No. 01 Civ. 8129(RCC)]; Greene v Allstate Ins. Co., 2004 WL 1335927, 2004 US Dist LEXIS 10860 [SD NY, June 15, 2004, No. 03 Civ. 5974(NRB)]; Greenidge v Allstate Ins. Co., 312 F Supp 2d 430 [SD NY 2004]), concluded that the noncumulation clause was fatal to the plaintiffs claim that the insurer should pay its full policy limit on all three policies.
Pursuant to the Court of Appeals’ decision in Hiraldo, the mere fact that the property owners therein renewed their policy for two additional policy periods does not permit the plaintiffs to recover more than a single policy limit. And, based upon the clear language of the policy at issue here, the number of claims and claimants does not require the insurer to pay more than its single policy limit (see Ramirez v Allstate Ins. Co., 26 AD3d 266, 266 [2006]; see generally Mt. McKinley Ins. Co. v Corning Inc., 96 AD3d 451, 452 [2012]). Thus, our determination turns on the resolution of the discrete issue whether the exposure of children to lead paint in an apartment during different tenancies is encompassed by the phrase “resulting from . . . continuous or repeated exposure to the same general conditions” in the noncumulation clause. We conclude that the only reasonable interpretation of that clause requires that the two claims be classified as a single accidental loss within the meaning of the policy.
The evidence establishes that the two sets of children lived in the same apartment at different times, less than a year apart. Although the owner testified at a deposition that he attempted to remediate the lead hazard, there is nothing in the record establishing that he removed all of the lead paint from the subject apartment. Upon a close reading of that deposition testimony, we conclude that it fails to establish what, if any, action the owner actually took to remediate the lead paint hazard. Furthermore, there is no evidence that the owner added other lead paint to the apartment in the interim, and indeed paint containing lead could not legally have been sold anywhere in the United States for more than 15 years prior to that time (see 16 CFR 1303.1; 42 Fed Reg 44199 [1977]). Consequently, the evidence establishes that the lead paint that injured the second set of children is the same lead paint that was present in the apartment when the first set of children lived there. The First *194Department concluded in asbestos-related litigation that “any group of claims arising from exposure to an asbestos condition at a common location, at approximately the same time (for example, at the same steel mill or factory), may be found to have arisen from the same occurrence,” as defined in a provision similar to the one in this case (Mt. McKinley Ins. Co., 96 AD3d at 452). We agree with that conclusion and apply it here, in the context of lead-related litigation. Inasmuch as the claims arise from exposure to the same condition, and the claims are spatially identical and temporally close enough that there were no intervening changes in the injury-causing conditions, they must be viewed as a single occurrence within the meaning of the policy.
Plaintiffs’ remaining contentions do not warrant extended discussion. We reject plaintiffs’ contention that the court properly denied defendant’s motion due to outstanding discovery issues. The court specifically stated that the issue of discovery was moot, and did not base its determination on that point. We also reject plaintiffs’ contention that, due to the remediation performed by the owner, the subsequent exposure of the second set of children must be viewed as a different accident. As discussed, there is no evidence establishing the remediation that was performed, and the evidence establishes that the same general conditions, the preexisting lead paint, caused the injury to both sets of children. “Although the children may have ingested the lead at different times and their blood tests showed different levels of exposure, the injuries all flowed from the same conditions in their immediate environment,” and thus the noncumulation clause limits the plaintiffs in the first and second tort actions to a single policy limit (Allstate Ins. Co. v Bonn, 709 F Supp 2d 161, 167 [D RI 2010]). Plaintiffs’ contention that Monroe County certified that the hazard had been removed is not supported by the record. Similarly, the record does not support the amicus curiae’s oft-repeated allegation that the two sets of children lived in different apartments.
We have considered the remaining contentions of plaintiffs and the amicus curiae and conclude that they are without merit. Accordingly, we conclude that the judgment insofar as appealed from should be reversed and that the cross motion should be denied in its entirety, and we further conclude that judgment should be granted in defendant’s favor, declaring that plaintiffs’ losses are encompassed by the $500,000 per occurrence limit in the insurance policy at issue.
*195Smith, J.P., Centra, Lindley and Whalen, JJ., concur.
It is hereby ordered that the judgment insofar as appealed from is unanimously reversed on the law without costs, the cross motion is denied in its entirety, the motion is granted insofar as declaratory relief was sought, and judgment is granted in favor of defendant as follows:
It is adjudged and declared that plaintiffs’ losses are encompassed by the $500,000 per occurrence limit in the insurance policy at issue.
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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/1363353/
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633 P.2d 1137 (1981)
102 Idaho 559
David G. NICHOLLS, d/b/a Northwest Pump Company, Plaintiff-Counterdefendant-Respondent,
v.
Albert BLASER, Bruce W. Blaser, Ruth L. Blaser and Annalee H. Blaser, Defendants-Counterclaimants-Appellants.
Dave NICHOLLS, d/b/a Northwest Pump Co., a sole proprietorship, Plaintiff-Counterdefendant-Respondent,
v.
Albert E. BLASER, Defendant-Counterclaimant-Appellant.
No. 13189.
Supreme Court of Idaho.
June 16, 1981.
Rehearing Denied October 5, 1981.
*1139 Jon Wyman, Boise, for defendants-counterclaimants-appellants.
E.C. Rood, Emmett, for plaintiff-counterdefendant-respondent.
PER CURIAM.
This is an appeal from the judgment of the district court which affirmed a judgment entered following trial in the magistrate court. We affirm.
We believe that the only substantial question before this Court is the appropriate standard of review by the Supreme Court of a judgment entered by a district court after it has sat as an appellate court reviewing on the record a judgment entered following trial at the magistrate level.
Our previous decisions involving appeals from district courts which have acted as courts of appeal from decisions of magistrate courts do not set forth a clear standard of review to be utilized by the Supreme Court. We deem the appropriate standard of review at the Supreme Court level to be: The Supreme Court reviews the trial court (magistrate) record to determine whether there is substantial and competent evidence to support the magistrate's findings of fact and whether the magistrate's conclusions of law follow from those findings. If those findings are so supported and the conclusions follow therefrom and if the district court affirmed the magistrate's decision, we affirm the district court's decision as a matter of procedure. See State v. Holt, 102 Idaho 44, 625 P.2d 398 (1981) (Bistline, J., dissenting).
Defendant-appellant Blaser and plaintiff-respondent Nicholls entered into an oral agreement under which Nicholls was to install a pump and the necessary incidentals thereto in a previously existing well located on Blaser's development property in Garden Valley, Idaho.
Blaser refused to pay for the work done by Nicholls and Nicholls filed a notice of claim of lien on lots 39 and 40 of the Garden Valley Summer Homesites and later initiated the instant action to foreclose the said lien and recover attorney fees. Blaser counterclaimed alleging that the agreement had not been performed in a good and workmanlike manner and that Nicholls wrongfully and maliciously filed the lien.
Following trial at the magistrate court level, that court found that Nicholls was hired to install the pump, that no exact price was fixed therefor, that Blaser approved the list of proposed materials and left the installation to Nicholls' expertise, that Nicholls was given discretion to substitute materials, that Nicholls was not negligent, that Nicholls installed the pump in a good and workmanlike manner and that a reasonable charge for the goods and services was $1,269.99. That court further found that Nicholls' work improved the value of the property, that Blaser had paid nothing for the work and that there was no evidence of malicious acts on the part of Nicholls. That court then concluded that Blaser was indebted to Nicholls in the amount of $1,269.99 plus interest, that Nicholls had a valid lien on lot 39 in that amount and that there was no basis for any of Blaser's counterclaims. That court, pursuant to I.C. § 12-121, also awarded attorney fees to Nicholls.
Judgment was entered by the magistrate court and Blaser appealed to the district court. The district court, pursuant to I.R.C.P. 83(u)(1), reviewed the case on the record made in the magistrate court and affirmed. The district court further awarded additional attorney fees in the amount of $1,250, stating that it believed the appeal was pursued unreasonably because two of the counterclaims were frivolous and the third counterclaim and the defense to the action bordered on being frivolous.
On appeal to the Supreme Court, Blaser contends that the findings of the magistrate court as to the terms of the agreement and the sufficiency of Nicholls' performance are not supported by the record. We disagree. On appeal to the district court, that court's opinion cited specific testimony which supported the findings of the magistrate court. The district court, sitting as an appellate court, correctly applied *1140 the rule that findings of fact based on substantial and competent, albeit conflicting, evidence will not be set aside on appeal. State v. Christensen, 100 Idaho 631, 603 P.2d 586 (1979); Hawkins v. Hawkins, 99 Idaho 785, 589 P.2d 532 (1978); I.R.C.P. 52(a), 83(u)(1). This Court has also independently reviewed the record made in the magistrate court and we find that the magistrate's findings are supported by substantial, although conflicting, evidence. We therefore, as a procedural matter, affirm the district court's decision affirming the magistrate's decision.
Blaser also asserts that both the magistrate court and the district court erred in awarding attorney fees to Nicholls. We disagree. The trial court was authorized pursuant to I.C. § 12-121 to award reasonable attorney fees to the prevailing party. The record before us discloses no abuse of the magistrate's discretion in so awarding attorney fees to Nicholls. A district court reviewing an appeal from a magistrate court, not involving a trial de novo, should determine the question of attorney fees on appeal, employing the same standards as we apply in awarding attorney fees on appeal to the Supreme Court. See Futrell v. Martin, 100 Idaho 473, 600 P.2d 777 (1979); Minich v. Gem State Developers, Inc., 99 Idaho 911, 591 P.2d 1078 (1979); I.C. § 12-111; I.R.C.P. 83(u)(1). As aforesaid, the district court expressed its belief that the counterclaim to and the defense of the action were frivolous and that the appeal was pursued without foundation. We find no error in the district court's decision to award attorney fees at that level of appeal.
Further, on this appeal we are left with the abiding belief that the appeal was brought and pursued frivolously and without foundation. See Futrell v. Martin, supra; Minich v. Gem State Developers, supra; I.C. § 12-121. Hence, attorney fees on appeal to this Court are awarded to respondent.
The judgment of the district court which affirmed the judgment of the magistrate is affirmed. Costs and attorney fees to respondent.
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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/6823519/
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—Fabric.
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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/5902512/
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In an action to recover damages for personal injuries sustained in a motor vehicle accident, etc., the plaintiffs appeal from a judgment of the Supreme Court, Rockland County (Stolarik, J.), entered August 8, 1986, which is in favor of the defendants and against them dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The trial court was correct in denying the plaintiffs’ motion to set aside the verdict as against the weight of the evidence. To prove that she sustained a “serious injury”, the plaintiff Maria Lopez was required to establish that her alleged constant back pain was permanent in nature and was caused by the automobile accident which occurred on July 19, 1982. The physician who testified for the defendants stated that in his opinion the accident caused a temporary aggravation of an arthritic condition which developed at the site of a laminectomy performed over one year before the accident. In the doctor’s opinion the plaintiff Maria Lopez’s persistent pain was caused not by the accident, but by degenerative arthritis.
The jury was entitled to credit the defendants’ witness and discredit the plaintiffs’ witnesses. Moreover on this record there was an ample basis for the jury to find that certain portions of the plaintiff Maria Lopez’s testimony were unworthy of belief. On an application for renewal of her driver’s *666license after the accident the plaintiff Maria Lopez indicated that in the preceding four years she did not sustain a physical disability or a worsening of a previous disability. Despite her complaints of severe pain, she drove her automobile home after the accident, and continued to drive regularly.
Accordingly, the jury’s determination that the plaintiff Maria Lopez did not suffer a "serious injury” was based on a fair interpretation of the evidence and should not be disturbed (Nicastro v Park, 113 AD2d 129). Brown, 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/5902513/
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In an action for a divorce and ancillary relief, (1) the plaintiff husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Richmond County (Kuffner, J.), entered July 8, 1986, which, inter alia, (a) is in favor of the defendant wife and against him in the sum of $24,571.44, as arrears in pendente lite maintenance, child support, and counsel fees, (b) is in favor of the defendant wife and against him in the sum of $679,828, payable in installments over 10 years, representing an equitable share of the plaintiff’s medical license, and (c) directed him to maintain a term life insurance policy on his life for the benefit of the defendant in an amount not less than the amount of the unpaid balance due to the defendant, and, (2) the defendant wife cross-appeals, as limited by her brief, from so much of the same judgment as denied her request for additional ancillary relief.
Ordered that the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements
The determination that a professional license is marital property for purposes of equitable distribution has been conclusively determined by the Court of Appeals in the seminal case of O’Brien v O’Brien (66 NY2d 576). Consequently, we find that it was entirely proper for the trial court to make a distributive award to the defendant wife in this case for the plaintiff husband’s medical license. Specifically, the record fully supports the determination of the trial court that the defendant was entitled to 35% of the value of the plaintiff’s medical license. The award was made in such a fashion as to "fairly and adequately reflect a 'partnership’ interest of the defendant in this marital asset while recognizing that the acquisition of such an asset is, in large measure, the result of a personal achievement of the plaintiff”. Our review of the trial court’s decision reveals .that the 35% award was made *667upon a proper weighing of the factors enumerated in Domestic Relations Law § 236 (B) (5) (d). While it is true that in marriages of long duration where both spouses have contributed almost equally, if differently, to sustaining the marriage, a division of assets which is nearly equal is desirable (see, Miller v Miller, 128 AD2d 844), the 35% award in this case reflects the moderate duration of the marriage (16 years, although the parties separated after 11 years), as well as the significant contributions made by the defendant to the acquisition of the plaintiffs medical license. Additionally, the award reflects the fact that the defendant wife has been able to complete her education to the extent that she is gainfully employed in her chosen profession.
With respect to the method of valuation utilized by the trial court, the determination that 35% of the plaintiffs medical license had a present value of $456,632 was properly based on the credible evidence adduced at the trial, as well as additional posttrial affidavits submitted by the defendant’s economic expert, and the appropriate reduction to present value (see, 1 NY PJI2d 382 [Supp]). Moreover, we are in agreement with the court’s use of a compound interest rate of 8% to insure that the defendant will not be prejudiced by the fact that the distributive award was structured to meet the plaintiffs ability to pay (i.e., annual payments over a period of 10 years). The 8% figure was derived from the only evidence regarding interest before the court (i.e., the testimony of the defendant’s expert witness), which evidence was deemed credible by the court, and, thus, is supported by the record.
Moreover, regarding the plaintiffs claim that the trial court erred in failing to consider the tax consequences of its distributive award, we note that the plaintiff failed to offer any testimony concerning tax liabilities, and, thus, the court was justified in formulating a distribution plan without consideration of tax laws (see, Brennan v Brennan, 124 AD2d 410; Scheinkman, Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C236B:14 [1986 Supp Pamph]). In this regard, we would further note that we are not pursuaded by the excuses proffered by the plaintiff on appeal concerning his failure at trial to present any expert testimony whatever on the issue of valuation or tax consequences.
Furthermore, while it is true that the trial court retains discretion to distribute other marital assets to offset the distributive award of a professional license (see, O’Brien v O’Brien, supra), in this case, contrary to the plaintiffs claim, *668the trial court properly recognized that there were no other significant marital assets aside from the medical license.
Next, we find that the trial court acted within the authority conferred upon it under Domestic Relations Law § 236 (B) (8) (a), in directing the plaintiff to purchase and maintain a term life insurance policy for the benefit of the defendant in the amount of the unpaid balance due on the distributive award (see, O’Brien v O’Brien, supra; Bofford v Bofford, 117 AD2d 643, appeal dismissed 68 NY2d 808).
Regarding the plaintiff’s claim that the trial court improperly directed him to pay arrears in child support pursuant to a previous pendente lite award, it was not an abuse of discretion for the trial court to direct the payment of such arrears where the plaintiff neither applied for a downward modification nor made a showing of good cause for his failure to seek judicial relief prior to the accrual of the arrears (see, Domestic Relations Law § 244; Rodgers v Rodgers, 98 AD2d 386, appeal dismissed 62 NY2d 646; Benjamin v Benjamin, 70 AD2d 813).
With respect to the issues raised by the defendant on her cross appeal, we conclude that the trial court was entirely justified, under the facts and circumstances of this case, in its denial of the defendant’s request for permanent maintenance and child support, as well as counsel fees. The trial court adequately set forth the factors it considered, pursuant to Domestic Relations Law § 236 (B) (6) and (7) in making its determination, and our review of the record reveals ample support for the court’s determination. The defendant is relatively young, has completed her education, is employed at an annual salary of $17,500, and has been given a sizeable distributive award to supplement her income. Moreover, pursuant to a pretrial stipulation, the parties agreed to joint custody of the children in accordance with their previous customs and practices, which include joint physical custody, and the record indicates that the plaintiff has paid, and will continue to pay, virtually all of the children’s expenses, including education, clothing, recreation and allowances. Thus, the defendant has been relieved of substantial obligations for the financial support of the parties’ two children, and is not in need of reimbursement for the minimal financial support which she contributes for their shelter and food for the time they spend with her, which amounts to about one half the time they spend with their parents.
Regarding the court’s denial of the defendant’s request for counsel fees, we note that Domestic Relations Law § 237 (a) *669provides that an award of counsel fees and expenses is "[with] in the court’s discretion * * * having regard to the circumstances of the case and of the respective parties”. The court will base its decision "primarily upon both parties’ ability to pay, the nature and extent of the services required to deal with the support dispute, and the reasonableness of their performance under the circumstances” (Sampson v Glazer, 109 AD2d 831, 832). At bar, in view of the fact that the defendant holds a teaching degree and is self-supporting, and in light of the sizeable distributive award which she will receive, we conclude that it was not an abuse of discretion for the trial court to deny counsel fees (see, Migdal v Migdal, 93 AD2d 857, appeal dismissed 59 NY2d 997, lv denied 60 NY2d 555; Kaplan v Kaplan, 77 AD2d 891, appeal dismissed 51 NY2d 822).
We have considered the remaining contentions of the parties and find them to be without merit. Brown, J. R, Rubin, Eiber and Spatt, JJ., concur.
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902514/
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OPINION OF THE COURT
Smith, J.
Plaintiffs commenced this action seeking a declaration of the rights of the parties to an insurance policy. In November 1991, defendant issued the policy to Tony Clyde Wilson, the owner of an apartment building in the City of Rochester. The policy, which had a per-occurrence limit of $500,000, was for one year, and it was renewed for two additional one-year periods. In 1993, two children were exposed to lead paint while living in an apartment in that building, and one suffered injuries as a result of that exposure. According to Wilson’s deposition testimony, he attempted to remediate the lead paint condition after learning that the children had been exposed to lead, although the record is unclear with respect to the exact actions that he undertook. That family moved out of the apartment shortly thereafter, and the mother of those children later commenced an action against, inter alia, Wilson, seeking damages for injuries that the child sustained as a result of her exposure to lead (first tort action). In 1994, two children of a subsequent tenant were also exposed to lead in the same apartment. Plaintiffs herein commenced a separate action to recover damages for the personal injuries sustained by those two children (second tort action). While the second tort action was pending, the first tort action settled for $350,000, which defendant paid pursuant to its policy. Defendant took the position that the noncumulation clause in the policy limited its liability for all lead exposures in the apartment to a single policy limit of $500,000, and offered plaintiffs the remain*192ing $150,000 of coverage to settle the second action. The parties entered into a stipulation whereby Wilson was released from liability. They further agreed that plaintiffs would recover $150,000 if the noncumulation clause limited recovery to a single policy limit as claimed by defendant, but plaintiffs would recover $500,000 if the policy also required defendant to pay the full policy limit for the injuries sustained by the second set of children. Plaintiffs then commenced this declaratory judgment action to resolve that issue. Defendant appeals from a judgment denying its motion for summary judgment dismissing the complaint and granting plaintiffs’ cross motion insofar as it sought a declaration that the amount of insurance coverage to which plaintiffs are entitled is the full $500,000 policy limit.
At issue on this appeal is whether the policy requires defendant to pay a second full policy limit under these circumstances or whether plaintiffs’ losses are encompassed by the $500,000 per occurrence limit in the insurance policy. We agree with defendant that, pursuant to the unequivocal language of the policy, defendant is responsible only up to its limit for a single policy, and we thus conclude that Supreme Court should have granted a declaration in favor of defendant.
Our analysis begins with the well-settled proposition that “unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court” (White v Continental Cas. Co., 9 NY3d 264, 267 [2007] [citations omitted]; see State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]). The policy provision at issue states:
“Regardless of the number of insured persons, injured persons, claims, claimants or policies involved, our total liability under the Family Liability Protection coverage for damages resulting from one accidental loss will not exceed the limit shown on the declarations page. All bodily injury and property damage resulting from one accidental loss or from continuous or repeated exposure to the same general conditions is considered the result of one accidental loss” (emphasis omitted).
The Court of Appeals interpreted this insurer’s nearly identical policy provision in Hiraldo v Allstate Ins. Co. (5 NY3d 508, 512 [2005]). There, a child was injured by exposure to lead in an apartment covered by a policy that the property owners renewed for two additional policy periods while the injured party stayed *193in the apartment and was further exposed to the lead. The Court of Appeals, relying in part upon three federal district court decisions applying New York law to this policy language (see Bahar v Allstate Ins. Co., 2004 WL 1782552, 2004 US Dist LEXIS 15612 [SD NY, Aug. 9, 2004, No. 01 Civ. 8129(RCC)]; Greene v Allstate Ins. Co., 2004 WL 1335927, 2004 US Dist LEXIS 10860 [SD NY, June 15, 2004, No. 03 Civ. 5974(NRB)]; Greenidge v Allstate Ins. Co., 312 F Supp 2d 430 [SD NY 2004]), concluded that the noncumulation clause was fatal to the plaintiffs claim that the insurer should pay its full policy limit on all three policies.
Pursuant to the Court of Appeals’ decision in Hiraldo, the mere fact that the property owners therein renewed their policy for two additional policy periods does not permit the plaintiffs to recover more than a single policy limit. And, based upon the clear language of the policy at issue here, the number of claims and claimants does not require the insurer to pay more than its single policy limit (see Ramirez v Allstate Ins. Co., 26 AD3d 266, 266 [2006]; see generally Mt. McKinley Ins. Co. v Corning Inc., 96 AD3d 451, 452 [2012]). Thus, our determination turns on the resolution of the discrete issue whether the exposure of children to lead paint in an apartment during different tenancies is encompassed by the phrase “resulting from . . . continuous or repeated exposure to the same general conditions” in the noncumulation clause. We conclude that the only reasonable interpretation of that clause requires that the two claims be classified as a single accidental loss within the meaning of the policy.
The evidence establishes that the two sets of children lived in the same apartment at different times, less than a year apart. Although the owner testified at a deposition that he attempted to remediate the lead hazard, there is nothing in the record establishing that he removed all of the lead paint from the subject apartment. Upon a close reading of that deposition testimony, we conclude that it fails to establish what, if any, action the owner actually took to remediate the lead paint hazard. Furthermore, there is no evidence that the owner added other lead paint to the apartment in the interim, and indeed paint containing lead could not legally have been sold anywhere in the United States for more than 15 years prior to that time (see 16 CFR 1303.1; 42 Fed Reg 44199 [1977]). Consequently, the evidence establishes that the lead paint that injured the second set of children is the same lead paint that was present in the apartment when the first set of children lived there. The First *194Department concluded in asbestos-related litigation that “any group of claims arising from exposure to an asbestos condition at a common location, at approximately the same time (for example, at the same steel mill or factory), may be found to have arisen from the same occurrence,” as defined in a provision similar to the one in this case (Mt. McKinley Ins. Co., 96 AD3d at 452). We agree with that conclusion and apply it here, in the context of lead-related litigation. Inasmuch as the claims arise from exposure to the same condition, and the claims are spatially identical and temporally close enough that there were no intervening changes in the injury-causing conditions, they must be viewed as a single occurrence within the meaning of the policy.
Plaintiffs’ remaining contentions do not warrant extended discussion. We reject plaintiffs’ contention that the court properly denied defendant’s motion due to outstanding discovery issues. The court specifically stated that the issue of discovery was moot, and did not base its determination on that point. We also reject plaintiffs’ contention that, due to the remediation performed by the owner, the subsequent exposure of the second set of children must be viewed as a different accident. As discussed, there is no evidence establishing the remediation that was performed, and the evidence establishes that the same general conditions, the preexisting lead paint, caused the injury to both sets of children. “Although the children may have ingested the lead at different times and their blood tests showed different levels of exposure, the injuries all flowed from the same conditions in their immediate environment,” and thus the noncumulation clause limits the plaintiffs in the first and second tort actions to a single policy limit (Allstate Ins. Co. v Bonn, 709 F Supp 2d 161, 167 [D RI 2010]). Plaintiffs’ contention that Monroe County certified that the hazard had been removed is not supported by the record. Similarly, the record does not support the amicus curiae’s oft-repeated allegation that the two sets of children lived in different apartments.
We have considered the remaining contentions of plaintiffs and the amicus curiae and conclude that they are without merit. Accordingly, we conclude that the judgment insofar as appealed from should be reversed and that the cross motion should be denied in its entirety, and we further conclude that judgment should be granted in defendant’s favor, declaring that plaintiffs’ losses are encompassed by the $500,000 per occurrence limit in the insurance policy at issue.
*195Smith, J.P., Centra, Lindley and Whalen, JJ., concur.
It is hereby ordered that the judgment insofar as appealed from is unanimously reversed on the law without costs, the cross motion is denied in its entirety, the motion is granted insofar as declaratory relief was sought, and judgment is granted in favor of defendant as follows:
It is adjudged and declared that plaintiffs’ losses are encompassed by the $500,000 per occurrence limit in the insurance policy at issue.
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01-03-2023
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01-13-2022
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In a proceeding in which the petitioner moved to stay arbitration while the respondent cross-moved to compel arbitration pursuant to a collective bargaining agreement of a labor dispute, the petitioner appeals from an order of the Supreme Court, Queens County (Durante, J.), dated April 29, 1987, which denied the motion and granted the cross motion.
Ordered that the order is affirmed, with costs.
In order to implement the terms of a contract between the respondent, Profile Electric, Inc. (hereinafter Profile), and New York City relative to installation and maintenance of street lights and traffic signals, Profile entered into a collective bargaining agreement with petitioner president of Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO (hereinafter the union), to be effective from July 1, 1983 until June 30, 1986. In article X of the collective bargaining agreement, the parties agreed to submit "any dispute” to arbitration, if efforts to negotiate failed.
The respondent expressed frequent dissatisfaction during the contract period with the quantity and quality of the labor being supplied by the union, which was allegedly causing the respondent to fall behind its city contract deadlines. On March 26, 1986, the respondent ceased employing union members. Following an unsuccessful effort to serve the union with *670a notice of intention to arbitrate by certified mail in June 1986 the respondent finally managed to serve the notice on the union at its office in July 1986. The Supreme Court, Queens County, by order dated October 28, 1986, stayed arbitration on the ground that this notice failed to specify which provision or provisions of the contract the union had allegedly breached.
In December of 1986 the respondent served another notice on the union alleging that its breach lay in its failure to supply the respondent with sufficient, qualified men to enable the respondent to satisfactorily carry out its contract with the city. The union moved once again to stay arbitration, arguing that the collective bargaining agreement contained no explicit provision obligating it to supply the respondent with "sufficient and qualified men”, so that breach of a nonexistent provision was impossible. The Supreme Court ruled otherwise, finding that there appeared to be a reasonable relationship between the subject matter of the dispute and the general subject matter of the underlying contract to require, given the existence of a broadly worded arbitration clause, that the dispute be submitted to arbitration. We agree.
The Supreme Court properly appreciated its role to be a threshold one. Bearing in mind that "the announced policy of this State favors and encourages arbitration as a means of conserving the time and resources of the courts and the contracting parties”, the basic function of the court in a matter like the instant one is to "determine in general terms whether the parties have agreed that the subject matter under dispute should be submitted to arbitration” (Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co., 37 NY2d 91, 95, 96). Given the presence of a broad arbitration clause in the instant contract, agreeing to submit "any dispute” between the employer and the union during the term of their contract to arbitration, it only remains to determine whether the grievance alleged by the respondent falls within the ambit of the contract so as to make it arbitrable. The standard enunciated by the Court of Appeals in Nationwide, is that when "it appears that there is * * * a reasonable relationship between the subject matter of the dispute and the general subject matter of the underlying contract, the court’s inquiry is ended” (Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co., supra, at 96). In the instant case there is no question that "the general subject matter of the underlying contract” is an exchange of union labor for consideration by the respondent in order to effectuate the terms of a contract between the *671respondent and the city. The "subject matter of the dispute” is the respondent’s allegation that the union failed to supply adequate labor to meet the respondent’s contractual needs. There is therefore a "reasonable relationship between the subject matter of the dispute and the general subject matter of the underlying contract”. (Supra, at 96.) Whether or not there is any merit to the respondent’s substantive claim is for the arbitrators to decide, since a "claim need not be tenable in order to be arbitrable” (Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co., supra, at 96).
The issue of when and how the contract was terminated, as well as the effects, if any, of that termination on the merits of the respondent’s claim, is also for the arbitrators to decide (see, Rochdale Vil. v Public Serv. Employees Union, 605 F2d 1290).
The petitioner has raised no question of fact entitling it to a jury trial as an alternative to arbitration. The issue in Anthony Drugs v Local 1199 (34 AD2d 788), where the court granted the petitioner a jury trial, was "whether or not there was a valid agreement to arbitrate”. There is no question in the instant case that the contract contains a valid agreement to arbitrate "any dispute”. Thompson, J. P., Brown, Fiber and Sullivan, JJ., concur.
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Appeal by the plaintiffs from a judgment of the Supreme Court, Suffolk County, entered September 25, 1986.
Ordered that the judgment is affirmed, with costs, for reasons stated by Justice Baisley in his memorandum decision at the Supreme Court, Suffolk County. Mangano, J. P., Bracken, Spatt and Harwood, JJ., concur.
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In an action to recover damages for breach of contract, inter alia, to construct a house on certain real property, the plaintiffs appeal from an order of the Supreme Court, Rockland County (Kelly, J.), dated October 9, 1986, which granted the motion of the defendants Interco Development Corporation and Stuart Horn, joined in by the defendant Carole Novick doing business as Carole Novick Realty, to disqualify Julian A. Schulman as the plaintiffs’ attorney on the ground that he is a necessary witness.
Ordered the order is reversed, with one bill of costs payable *672by the respondents appearing separately and filing separate briefs, and the motion to disqualify the plaintiffs’ attorney is denied.
The action at bar was commenced by the plaintiffs in June 1985 and seeks damages premised upon an alleged breach of a contract, inter alia, for the development of certain real property owned by the defendant Interco Development Corporation (hereinafter Interco). The material allegations of the complaint, as amplified by the affirmations submitted with respect to the motion in issue here, reveal that the plaintiffs contracted with the defendant Interco for the purchase of real property on which Interco was to construct a residence according to specifications in pertinent portions of the contract. Thereafter, a dispute arose, inter alia, with respect to the cost and type of residence contemplated by the contract specifications. Approximately eight months after the parties entered into the contract—and after a series of unsuccessful negotiations were conducted during this period—the defendant Interco allegedly repudiated the contract. Thereafter, the plaintiffs commenced the action at bar, alleging that Interco’s repudiation of the contract was "willful, wrongful and without just cause”.
About one year after the commencement of suit, the defendants Interco and Horn moved to disqualify the plaintiffs’ counsel, Julian A. Schulman, under Code of Professional Responsibility DR 5-102 (B). That motion was joined in by the defendant Carole Novick, doing business as Carole Novick Realty. Code of Professional Responsibility DR 5-102 (B) states that, "[i]f, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client”. According to the defendants Interco and Horn, since Schulman played an "integral part” in the negotiations concerning the dispute over the contract specifications his testimony will be "essential” to the defense, thereby necessitating his disqualification as plaintiffs’ counsel pursuant to DR 5-102 (B). Notably, in his affirmation, the defense counsel failed to elaborate as to precisely what testimony of Schulman was required by the defense or why such testimony would be prejudicial to the plaintiffs. In opposition to the motion, the plaintiffs argued (1) that there existed correspondence and other documentation which amply illuminated the parties’ respective contentions and conduct during the negotiating *673period, and (2) that the plaintiffs themselves were privy to the key events leading up to the cancellation of the contract and are available to testify to these occurrences. The Supreme Court granted the motion and disqualified Schulman as the plaintiffs’ counsel. We reverse.
Recently, in S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp. (69 NY2d 437, 444), the Court of Appeals observed that the Code of Professional Responsibility—while entitled to vigorous enforcement where equitable and appropriate—is "not [to] be mechanically applied when disqualification is raised in litigation”. Rather, the Code must be construed flexibly, so as to provide " 'guidance for the courts in determining whether a case would be tainted by the participation of an attorney or a firm’ ” (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., supra, at 444-445, quoting Armstrong v McAlpin, 625 F2d 433, 446, n 26, vacated on other grounds 449 US 1106). This is because disqualification impinges upon the rights of a litigant by depriving him of the attorney of his choice and by potentially stalling or derailing proceedings, thereby "redounding to the strategic advantage of one party over another” (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., supra, at 443). The court further cautioned that "[disqualification may be required only when it is likely that the testimony to be given by the witness is necessary” (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., supra, at 445-446). Further, "[a] finding of necessity takes into account such factors as the significance of the matters, weight of the testimony and availability of other evidence” (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., supra, at 446). Finally, the court observed that even though the testimony involved may be relevant and highly useful, it may still not be strictly "necessary” for the purposes of disqualification.
Application of the foregoing principles within the context of the facts presented at bar reveals that the respondents failed to discharge their burden of establishing that Schulman’s participation would result in unfairness or taint the proceedings (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., supra, at 444-445). At bar, the movants’ conclusory allegations with respect to Schulman’s involvement in the negotiations are insufficient to establish a plausible basis for his disqualification as the plaintiffs’ counsel in the case. Although the defendants Interco and Horn contend that they will call Schulman as a witness for the defense and that his testimony is "essential”, they fail to explain precisely what testimony *674they require, why they require it, and in what respect Schulman’s testimony will be prejudicial to the plaintiffs (see, Code of Professional Responsibility DR 5-102 [B]). We note, moreover, that the defendants Interco and Horn delayed in seeking Schulman’s disqualification for a period of about one year from the commencement of the action, even though they were well aware of Schulman’s alleged "integral” role in the negotiations, the very basis upon which they now claim that his disqualification is required. Further, the defendants Interco and Horn have failed to rebut the plaintiffs’ contentions that: (1) the pertinent events occurring during the negotiating period are memorialized in correspondence and other documentation obviating the need for Schulman’s testimony other than for authentication purposes, if so required, and (2) that the plaintiffs themselves were present during various conferences and are available to testify to the key events surrounding the parties’ dispute concerning the house construction plans.
In light of the foregoing, and considering the admonition of the Court of Appeals that the right to counsel of one’s choice is a "valued right” whose restriction "must be carefully scrutinized” (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443, supra), we conclude that the motion to disqualify Schulman should have been denied. Lawrence, J. P., Kunzeman, Kooper and Balletta, JJ., concur.
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In an action, inter alia, to foreclose mortgages, the plaintiff appeals from a judgment of the Supreme Court, Rockland County (Silberman, J.H.O.), dated April 3, 1987, which, after a nonjury trial, canceled the mortgage and the notes upon which they were based, ordered the surrender of those notes, and canceled all documents and collateral pertaining to those notes, based upon the defense of usury.
Ordered that the judgment is affirmed, with costs.
On appeal, the plaintiff argues that the usury defense accepted by the Judicial Hearing Officer is not available to defaulting corporate entities or to individual guarantors of a corporate debt (General Obligations Law § 5-521; General Phoenix Corp. v Cabot, 300 NY 87, 95). While it is conceded that this is the general rule, an exception is recognized where the corporate form is used to conceal a usurious loan to an individual to discharge his personal obligations, and not to further a corporate enterprise (Schneider v Phelps, 41 NY2d 238).
*678Here, the defendant Michael Friedman testified that he repeatedly confided the personal purposes of the various loans at issue to one of the plaintiffs attorneys, who did not testify. Initially, Friedman claimed he needed to purchase his ex-wife’s interest in their marital home in order to keep the house while paying her her share of their divorce settlement. Significantly, the deed conveying Friedman’s ex-wife’s interest in this property and the mortgage on the same property from Friedman to the plaintiff were recorded by the Rockland County Clerk at the same moment (June 18, 1975, at 9:00 a.m.), with instructions that both deed and mortgage were thereafter to be returned to the plaintiffs attorneys. In addition, a stipulation, drafted by the plaintiffs attorneys and designed to resolve a prior foreclosure action that had led Friedman to file a petition in the United States Bankruptcy Court, made no mention of a corporate debt and was signed by Friedman, individually, acting pro se. This strongly suggests an understanding between the parties that the loan was a personal one, although it bore a rate of interest of 24% per annum at a time when the maximum legal rate of interest upon a loan made to an individual was 8.5% (General Obligations Law § 5-501; Banking Law § 14-a).
During the trial, the plaintiff made no objection to the interposition of the usury defense, and, in his closing arguments, counsel addressed the merits of that defense which the plaintiff now complains was not interposed in the pleadings; thus the issue of whether that defense was properly Interposed is not preserved for appellate review. In any event, the plaintiff has failed to show in what way it was or could have been surprised, misled or prejudiced by the proffering of this defense at trial (CPLR 3025 [c]). Lawrence, J. P., Kunzeman, Kooper and Balletta, JJ., concur.
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In an action to recover rents and other moneys claimed to be due under an alleged sublease, the defendant appeals from a judgment of the Supreme Court, Suffolk County (Underwood, Jr., J.), entered January 21, 1987, which, after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $9,787.50.
Ordered that the judgment is modified, on the facts, by reducing the sum awarded to the plaintiff to $8,775; as so modified, the judgment is affirmed, without costs or disbursements.
*679The plaintiff Valente and Allen Shuman, both podiatrists, were shareholders in a professional corporation for five years. The plaintiff purchased the prime lease to the corporation’s business premises and subleased it to the corporation pursuant to a sublease which was executed by the plaintiff both as individual sublessor and as president of the sublessee corporation. The plaintiff sold his half of the shares in the corporation to Irwin Richt with the express representation that there were no prior debts or claims against the corporation. The plaintiff now seeks to recover from the defendant, a successor corporation formed by Allen Shuman and Irwin Richt, $12,900 he claims is due for rents and utilities pursuant to the sublease. The defendant denies any knowledge of a written sublease and contends that, even if there was a sublease, it was invalid.
Contrary to the defendant’s contentions, we find the sublease valid and enforceable. As president of the corporation, the plaintiff had the power and authority to enter into the sublease on behalf of the corporation. Furthermore, the plaintiff’s execution of the sublease as both sublessor and sublessee did not present a conflict of interest. An officer may lease property to the corporation provided the transaction is not intended to enrich the officer or director or majority shareholder at the expense of the minority shareholders (see, Metzger v Knox, 77 Misc 271, affd 153 App Div 911). The record reveals no improper motive on the part of the plaintiff.
We also disagree with the defendant’s contention that the court improperly excluded evidence of partial payment at trial. The defendant’s failure to plead payment as an affirmative defense in either its answer or in its motion to dismiss constitutes a waiver of the defense and barred it from introducing the evidence of partial payment at the trial (see, CPLR 3211 [e]; 3018 [b]; Siegel, NY Frac § 263).
Also without merit is the defendant’s contention that the plaintiff’s testimony that $225 of the corporation’s $625 monthly rent payments were allotted to utilities should have been excluded under the parol evidence rule. Where a valid contract is incomplete, parol evidence is admissible to complete the writing if it is apparent from an inspection of the writing that all the particulars of the agreement are not present and the parol evidence sought to be introduced does not vary or contradict the writing (see, Thomas v Scutt, 127 NY 133; Richardson, Evidence § 614 [Prince 10th ed]). It is apparent from the face of the sublease that provision for the *680monthly utility charge was omitted and the plaintiffs testimony neither varied nor contradicted the sublease terms.
Finally, we find that the court properly found the defendant liable for payments for utilities. However, just as the defendant is not liable for rent for the period prior to its formation, it cannot be held liable for utility charges incurred during the same period. Therefore, that portion of the judgment which awarded the plaintiff utility payments is reduced accordingly.
We have examined the defendant’s remaining contentions and find them to be without merit. Thompson, J. P., Brown, Eiber and Sullivan, JJ., concur.
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https://www.courtlistener.com/api/rest/v3/opinions/5902524/
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In an action to recover damages for dental malpractice, etc., the defendant appeals from an order of the *681Supreme Court, Westchester County (Marbach, J.), dated May 6, 1987, which denied his motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
As has been repeatedly stated: "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see, Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d, 395, 404). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649; Greenberg v Manlon Realty, 43 AD2d 968, 969)” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).
Contrary to the defendant’s contention, his affidavit and supporting documents are not sufficient proof that he properly treated plaintiff Cindy Wertheimer and that he did not depart from the accepted standard of care in the dental community. In his affidavit, the defendant merely alleged, in pertinent part, that he was "familiar with the facts of this case” and that he "did not deviate from the normal standards of dental care recognized in the County of Westchester in [his] treatment of Cindy Wertheimer”. These allegations, even taken together with the defendant’s unsigned deposition, annexed to his attorney’s reply affirmation, do not specifically refute with factual reference the plaintiffs’ claims of malpractice set forth in detail in their complaint and verified bill of particulars. As noted by the Court of Appeals, "the bare conclusory [assertion by the defendant] that [he] did not deviate from good and accepted medical practices, with no factual relationship to the alleged injuries], do[es] not establish that the cause of action has no merit so as to entitle [him] to summary judgment” (Winegrad v New York Univ. Med. Center, supra, at 853). Alvarez v Prospect Hosp. (68 NY2d 320, 324), Neuman v Greenstein (99 AD2d 1018), Fileccia v Massapequa Gen. Hosp. (63 NY2d 639), Pan v Coburn (95 AD2d 670), Himber v Pfizer Labs. (82 AD2d 776) and Baldwin v Gretz (65 AD2d 876), relied upon by the defendant, are inapposite, since in those cases, the defendant’s affidavit, coupled with supporting documentation, set forth everything that the defendant had done during the treatment of the patient and indicated that the treatment was not the proximate cause of the patient’s complaints.
*682In this case, since the defendant failed to set forth a prima facie showing that the plaintiffs’ claims were without merit, the denial of his summary judgment motion was warranted, despite the insufficiency of the plaintiffs’ opposing papers. Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.
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In a proceeding pursuant to Family Court Act article 6 to modify an out-of-State judgment fixing custody, the petitioner father appeals from so much of an order of the Supreme Court, Suffolk County (Fierro, J.), entered April 7, 1987, as denied his application for a transfer of custody and granted the respondent mother’s cross motion to dismiss the proceeding.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
In 1979 the parties were divorced in Indiana and the respondent mother was awarded custody of their two daughters. Shortly thereafter, the petitioner father moved to New York. The mother and the children remained in Indiana. The father does not deny that he failed to make support payments as directed by the Indiana decree.
The father had no further contact with his daughters until sometime in 1985 when they began to communicate over the telephone. In the spring of 1986, the mother found herself without employment and decided to move to Florida with her two daughters. She reached an agreement with the father whereby the children would spend the summer in New York while she arranged for their relocation to Florida. On June 28,
1986, the mother and her daughters left Indiana and arrived in New York. The father concedes that the children were to remain in his custody only for "summer visitation”. However, the mother experienced some financial difficulties and delays in getting the children enrolled in a Florida school. Accordingly, the parties agreed that the children would remain in New York until January 16, 1987, when the father would return them to Florida in order to start the new school semester.
The father enrolled the children in a Long Island school in late August 1986. On January 11, 1987, the mother telephoned the father to confirm her daughters’ travel plans to Florida. The father informed her that he would not return the children. The following day he filed an order to show cause seeking temporary custody which was signed on January 15, 1987. The mother arrived in New York on January 16, 1987, *683and returned to Florida with the two children before being served with the order awarding the father temporary custody.
Thereafter, the father commenced an "emergency” proceeding in Florida seeking enforcement of the New York order. He served the mother with the order on January 23, 1987, when she appeared for the hearing. After the hearing, the Florida court declined to accord the New York order full faith and credit, finding that the mother had been denied due process.
On February 20, 1987, the mother appeared and moved to dismiss the instant proceeding on the ground that the court lacked jurisdiction over her person.
Although the Supreme Court properly dismissed the proceeding, we affirm on different grounds. The instant proceeding was commenced at a time when New York had become the "home state” of the children and Indiana no longer had jurisdiction (Uniform Child Custody Jurisdiction Act, Domestic Relations Law § 75-d [1] [a] [i]; § 75-c [5]; Parental Kidnaping Prevention Act, 28 USC § 1738A; see, e.g., People ex rel. Throneberg v Butcher, 102 AD2d 693, 694; Lansford v Lansford, 96 AD2d 832).
Nonetheless, we conclude that New York is an inconvenient forum and that the father’s admitted abuse of his interstate visitation privilege requires this State to decline to exercise its jurisdiction (Domestic Relations Law §§ 75-h, 75-i; see also, Matter of Gloria S. v Richard B., 80 AD2d 72, 73).
The best interests of the children will not be served by conducting a custody proceeding in New York (Domestic Relations Law § 75-h [3]). Further, Florida is a "more appropriate forum” which may properly exercise jurisdiction in conformity with the Uniform Child Custody Jurisdiction Act and the Parental Kidnaping Prevention Act (Domestic Relations Law § 75-d [1] [d]; 28 USC § 1738A). Under the facts of this case, it is in the best interest of the children that Florida assume jurisdiction because the children and their mother have a significant connection with that State, and there is within that State substantial evidence concerning the children’s present and future welfare.
Moreover, this court is cognizant of the strong policy consideration to "deter abductions and other unilateral removals of children undertaken to obtain custody awards” (Domestic Relations Law § 75-b [1] [e]; see also, Pub L 96-611, § 7 [c] [6]). Where, as here, the father has "without consent of the person entitled to custody * * * improperly retained the child after a visit or other temporary relinquishment of physical custody” *684(Domestic Relations Law § 75-i [2]), an exercise of jurisdiction would only serve to "reward the father’s undenied abuse of interstate visitation” (People ex rel. Throneberg v Butcher, supra, at 696). Mangano, J. P., Bracken, Spatt and Harwood, JJ., concur.
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OPINION OF THE COURT
Per Curiam.
By decision and order on motion of this Court dated May 15, 2012, the Grievance Committee for the Ninth Judicial District (hereinafter the Grievance Committee) was authorized to institute and prosecute a disciplinary proceeding against the respondent based upon a verified petition dated January 23, 2012, the respondent was directed to serve and file an answer to the petition within 20 days of service upon him of the decision and order, and a Special Referee was appointed to hear and report. That branch of the Grievance Committee’s motion which was to suspend the respondent pursuant to 22 NYCRR 691.4 (1) (1) (i), (ii) and (iii) was denied.
The verified petition dated January 23, 2012 contains seven charges of professional misconduct alleging that the respondent, inter alia, failed to promptly disburse funds held in escrow, failed to cooperate with the Grievance Committee, failed to respond to communications from clients, neglected legal matters entrusted to him, failed to file a retainer and/or closing statement as required, and failed to account for funds he received as a fiduciary.
On May 23, 2012, the respondent was personally served with a copy of the decision and order dated May 15, 2012, together with notice of its entry, as well as a copy of the verified petition dated January 23, 2012. More than 20 days have elapsed without an answer to the petition, as directed, or a request for an adjournment.
The Grievance Committee now moves to deem the charges against the respondent established, and to impose such discipline upon him as the Court deems appropriate, based upon his default. The respondent has neither opposed the Grievance Committee’s motion nor interposed any response thereto.
Accordingly, the Grievance Committee’s motion is granted, the charges in the verified petition are deemed established and, effective immediately, the respondent is disbarred, and his name is stricken from the roll of attorneys and counselors-at-law.
Eng, P.J., Mastro, Rivera, Skelos and Balkin, JJ., concur.
Ordered that the motion of the Grievance Committee for the Ninth Judicial District is granted; and it is further,
*201Ordered that, pursuant to Judiciary Law § 90, effective immediately, the respondent, F. Hollis Griffin, Jr., admitted as Francis H. Griffin, Jr., is disbarred, and his name is stricken from the roll of attorneys and counselors-at-law; and it is further,
Ordered that the respondent, F. Hollis Griffin, Jr., admitted as Francis H. Griffin, Jr., shall 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, the respondent, F. Hollis Griffin, Jr., admitted as Francis H. Griffin, Jr., is commanded to desist and refrain from (1) practicing law in any form, either as principal, 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, F. Hollis Griffin, Jr., admitted as Francis H. Griffin, Jr., 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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In this medical malpractice claim to recover damages for personal injuries, etc., the claimants appeal from an order of the Court of Claims (Silverman, J.), entered September 17, 1986, which granted the State’s motion to dismiss the claim.
Ordered that the order is reversed, without costs or disbursements, and the motion to dismiss the claim is denied.
The claimant Theresa Wolff’s gall bladder was removed in February 1985 at the respondent’s hospital. In March 1986 she complained of pain radiating from the prior surgical incision. A second surgical procedure to remove wire stitches was performed. Both surgeries were performed by the same doctor. Discharged on March 9, 1986, the claimant Theresa Wolff filed a claim on May 5, 1986, in which she alleged malpractice because "surgical staples and stitches were left inside the claimant” at the time her gall bladder was removed.
The respondent moved to dismiss the claim as untimely pursuant to CPLR 3211. In response the claimants neither identified the theory on which they relied to support their argument that the claim was timely nor did they specifically refer to the second hospitalization. The respondent in reply attached discharge summaries of both hospitalizations. The Court of Claims granted the respondent’s motion solely on ground that the claim was untimely.
In determining the motion, the discharge summary supplied by respondent was considered (Guggenheimer v Ginzburg, 43 NY2d 268, 275). Since the discharge summary of March 1986 clearly refers to the prior operation in February 1985 and states that the claimant Theresa Wolff was admitted on the second occasion upon her complaint of pain radiating from the incision resulting from the first operation, a course of continuous treatment was established (see, McDermott v Torre, 56 NY2d 399; Borgia v City of New York, 12 NY2d 151, 156-157).
It is further required as a matter of law that the interval between the treatments not exceed the period of limitation provided for claims to be made (see, Blythe v City of New York, 119 AD2d 615, 618, lv denied 69 NY2d 604). Court of *685Claims Act § 10 (3) requires that when the claimant begins the action by filing a claim, it must be filed within 90 days of the accrual of the claim. Although filing a claim is a jurisdictional requirement (Greenspan Bros. v State of New York, 122 AD2d 249), failure to file within 90 days is not an absolute bar to the institution of a claim since Court of Claims Act § 10 (6) provides that a claimant may file a late claim to recover damages for medical malpractice if an application to file a late claim is made within 2Vi years, the period of limitation provided in CPLR 214-a (cf., Liberty Mut. Ins. Co. v. State of New York, 121 AD2d 694, 695).
As a result of the continuous treatment, the 90-day filing requirement of Court of Claims Act § 10 (3) was extended to the date of the claimant Theresa Wolff’s discharge on March 9, 1986, so that the claim filed on May 5, 1986 was timely (see, McDermott v Torre, supra). Brown, J. P., Rubin, Eiber and Sullivan, JJ., concur.
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OPINION OF THE COURT
Per Curiam.
By decision and order on motion of this Court dated May 15, 2012, the Grievance Committee for the Ninth Judicial District (hereinafter the Grievance Committee) was authorized to institute and prosecute a disciplinary proceeding against the respondent based upon a verified petition dated January 23, 2012, the respondent was directed to serve and file an answer to the petition within 20 days of service upon him of the decision and order, and a Special Referee was appointed to hear and report. That branch of the Grievance Committee’s motion which was to suspend the respondent pursuant to 22 NYCRR 691.4 (1) (1) (i), (ii) and (iii) was denied.
The verified petition dated January 23, 2012 contains seven charges of professional misconduct alleging that the respondent, inter alia, failed to promptly disburse funds held in escrow, failed to cooperate with the Grievance Committee, failed to respond to communications from clients, neglected legal matters entrusted to him, failed to file a retainer and/or closing statement as required, and failed to account for funds he received as a fiduciary.
On May 23, 2012, the respondent was personally served with a copy of the decision and order dated May 15, 2012, together with notice of its entry, as well as a copy of the verified petition dated January 23, 2012. More than 20 days have elapsed without an answer to the petition, as directed, or a request for an adjournment.
The Grievance Committee now moves to deem the charges against the respondent established, and to impose such discipline upon him as the Court deems appropriate, based upon his default. The respondent has neither opposed the Grievance Committee’s motion nor interposed any response thereto.
Accordingly, the Grievance Committee’s motion is granted, the charges in the verified petition are deemed established and, effective immediately, the respondent is disbarred, and his name is stricken from the roll of attorneys and counselors-at-law.
Eng, P.J., Mastro, Rivera, Skelos and Balkin, JJ., concur.
Ordered that the motion of the Grievance Committee for the Ninth Judicial District is granted; and it is further,
*201Ordered that, pursuant to Judiciary Law § 90, effective immediately, the respondent, F. Hollis Griffin, Jr., admitted as Francis H. Griffin, Jr., is disbarred, and his name is stricken from the roll of attorneys and counselors-at-law; and it is further,
Ordered that the respondent, F. Hollis Griffin, Jr., admitted as Francis H. Griffin, Jr., shall 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, the respondent, F. Hollis Griffin, Jr., admitted as Francis H. Griffin, Jr., is commanded to desist and refrain from (1) practicing law in any form, either as principal, 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, F. Hollis Griffin, Jr., admitted as Francis H. Griffin, Jr., 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/5903220/
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Appeal by the defendant from a judgment of the County Court, Westchester County (Monseratte, J.), rendered November 29, 1984, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant entered his guilty plea voluntarily and with full knowledge of all of his rights (see, People v Harris, 61 NY2d 9). The fact that the plea was entered before a Huntley hearing was held does not indicate that the defendant’s counsel was ineffective (see, People v Morris, 100 AD2d 630, affd 64 NY2d 803). Since the sentence imposed was the minimum sentence that may be legally imposed for the crime of murder in the second degree, we will not disturb it (see, People v Pearson, 118 AD2d 737, lv denied 67 NY2d 1055). Mollen, P. J., Lawrence, Eiber, Sullivan 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/5902530/
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In a proceeding pursuant to CPLR article 78 to review the respondents’ determination dated December 29, 1986, which found the petitioner not qualified for employment as a Suffolk County Police Officer, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Stark, J.), entered July 7, 1987, which dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
Upon a review of the record in this case, including the confidential medical reports and evaluations of the petitioner, we conclude that the respondents’ determination was rendered upon a rational basis (see, Matter of Pell v Board of Educ., 34 NY2d 222, 231). The petitioner’s attempt to refute the opinions of the respondents’ medical consultants that he was not qualified for the position with the contrary opinion of an independent psychiatrist is unavailing. As the court explained in McCabe v Hoberman (33 AD2d 547, 548): "It is not for the court to choose between the diverse professional opinions. That is the function of the proper department heads and as long as they act reasonably and responsibly, the courts will not interfere” (see, Matter of Palozzolo v Nadel, 83 AD2d 539, affd 55 NY2d 984). Mollen, P. J., Brown, Eiber and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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