SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : FOURTH JUDICIAL DEPARTMENT

DECISIONS FILED

AUGUST 20, 2020

HON. GERALD J. WHALEN, PRESIDING JUSTICE

HON. NANCY E. SMITH

HON. JOHN V. CENTRA

HON. ERIN M. PERADOTTO

HON. EDWARD D. CARNI

HON. STEPHEN K. LINDLEY

HON. PATRICK H. NEMOYER

HON. JOHN M. CURRAN

HON. SHIRLEY TROUTMAN

HON. JOANNE M. WINSLOW

HON. TRACEY A. BANNISTER

HON. BRIAN F. DEJOSEPH, ASSOCIATE JUSTICES

MARK W. BENNETT, CLERK

 SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT

DECISIONS FILED AUGUST 20, 2020

================================================================================

________ 1079 KA 18 01060 PEOPLE V MATTHEW D. RINGROSE

________ 74 TP 19 01636 DANIEL MAVROGIAN V STATE UNIVERSITY OF NEW YORK AT

________ 80 CA 19 01467 AMANDA NORTZ V NEW YORK STATE DEPARTMENT OF MOTOR

________ 82 CA 19 01320 MARY BETH B. V WEST GENESEE CENTRAL SCHOOL DI

________ 105 CA 19 00761 ALEXANDRA R. V ERIC J. KRONE

________ 106 CA 19 00477 JESSICA G. V ERIC J. KRONE

________ 107 CA 19 00478 VANESSA G. V NELSON A.

________ 108 CA 19 00755 NELSON A. V ERIC J. KRONE

________ 112 CA 19 00834 THOMAS E. MCGOVERN V YOLANDA J. MCGOVERN

________ 114 CA 19 00339 CORNELL UNIVERSITY V BOARD OF ASSESSMENT REVIEW

________ 116 CA 19 00118 SURINDER K. VIRK V CAROL A. GUTT

________ 117 CA 19 01550 C & D DESIGN, BUILD, DEVELOPMENT, L V

VILLAGE OF ALEXANDER, NEW YORK

________ 154 CA 19 01201 ANTHONY A. SCALZO V CENTRAL CO-OPERATIVE INSURANCE

________ 158 CA 19 01260 CANDY ANDERSON V JACK E. ANDERSON

________ 159 CA 19 00684 ANTHONY FARGONOLI V MARK WARFEL, D.O.

________ 161 CA 19 01616 JEFFREY KRENCIK V OAKGROVE CONSTRUCTION, INC.

________ 189 CA 18 02000 STEPHANIE L. V HOUSE OF THE GOOD SHEPHERD

________ 238 CA 19 01362 MICHAEL MCGRAW V TOWN BOARD OF TOWN OF VILLENOVA

________ 239 CA 19 01689 MICHAEL MAAK V MEDINA PROFESSIONAL FIREFIGHTERS AS

________ 243 CA 19 00713 SEIGFREID BINGHAM, P.C. V AFTERCARE NURSING SERVI

________ 245 CA 19 00464 BUFFALO TEACHERS FEDERATION, INC. In the Matter o

BOARD OF EDUCATION OF CITY SCHOOL D ISTRICT OF CIT

________ 247 CA 19 00731 ENERGYMARK LLC V NEW WAVE ENERGY CORP.

________ 262 CA 19 01234 COLOR DYNAMICS, INC. V KEMPER SYSTEM AMERICA, INC

________ 274 CA 19 00260 NEW YORK SCHOOLS INSURANCE RECIPROC V

 DEBORAH KALBFLIESH

________ 296 CA 19 01214 JOSIAH SCHUTT V MARK D. BOOKHAGEN

________ 306 CA 19 01088 JULIE E. PASEK V CATHOLIC HEALTH SYSTEM, INC.

________ 309 CA 19 00644 U.S. BANK NATIONAL ASSOCIATION V

CHARLES A. BROWN

________ 321 TP 19 00515 SARAH J. CUSHMAN V D. VENETTOZZI

________ 335 CA 19 01236 KRISTYN JOHNSON-NEULAND V NEW YORK MUNICIPAL INSUR

________ 336 CA 19 01506 JAMES MONTANA V DAVID MARKOWITZ METAL CO., INC.

________ 336.1 CA 19 01669 KEITH T. HOLMES V KEVIN D. MCCREA

________ 346 KA 15 01687 PEOPLE V FUZELL ROGERS, III

________ 350 CAF 18 02333 VALERIE J. HONEYFORD V ANDREA LUKE

________ 351 CAF 19 00956 ANDREA LUKE V VALERIE J. HONEYFORD

________ 356 KA 19 01728 PEOPLE V RICHARD L. SCOTT

________ 359 KA 19 01730 PEOPLE V AUSTIN PRATT

________ 360 KA 18 00165 PEOPLE V WAYNE A. BABB, JR.

________ 367 CA 19 01391 LINDA LOUISE GREEN V KATHERINE ANNE REPINE

________ 372 CA 19 01298 KRISTEN DEFISHER V PPZ SUPERMARKETS, INC.

________ 373 CA 19 01578 BRIAN BERMEL V VITAL TECH DENTAL LABS, INC.

________ 376 CA 19 01549 SUSAN COTTRELL V BENDERSON DEVELOPMENT COMPANY, LL

________ 379 KA 19 00864 PEOPLE V WILBERT WILSON, JR.

________ 380 KA 19 00528 PEOPLE V CHESTER J. THOMAS

________ 399 KA 19 00884 PEOPLE V TAYLOR I. BECKSTEAD

________ 400 KA 16 02127 PEOPLE V CHARLENE M. MESS

________ 422 KA 16 00928 PEOPLE V TAQUAN JONES

________ 423 KA 17 01592 PEOPLE V ANTHONY THOMPSON

________ 424 KA 18 00856 PEOPLE V SEAN M. VICKERS

________ 425 KA 19 00815 PEOPLE V ROBERT WASYL

________ 434 CA 19 01505 BRIAN MITCHELL V PO N. LAM, M.D.

________ 447 KA 16 01255 PEOPLE V JERALD J. DAVIS, JR.

________ 448 KA 16 02099 PEOPLE V JERALD J. DAVIS, JR.

________ 449 KA 19 01043 PEOPLE V KEVIN A. DUKES

________ 451 KA 18 00078 PEOPLE V JOSEPH W. SHANTZ

________ 452 KA 19 01732 PEOPLE V HECTOR SERRANO

________ 463 CA 19 01085 DONALD F. PICK V MIDROX INSURANCE COMPANY

________ 465 CA 19 01648 TJJK PROPERTIES, LLC V A.E.Y. ENGINEERING, D.P.C.

________ 466 CA 19 01074 JAMES LUPPINO V JENNIFER G. FLANNERY

________ 468 CA 19 02060 AMY PIZZOLI V NEW HARTFORD CENTRAL SCHOOL DISTRIC

________ 470 CA 19 02130 DEUTSCHE BANK NATIONAL TRUST COMPAN V

EDWARD J. LEWIS

________ 471 KA 16 00980 PEOPLE V KHARYE JARVIS

________ 473 KA 19 00977 PEOPLE V GERALD J. ORTIZ

________ 474 KA 19 00548 PEOPLE V CHELLSIE BLUE

________ 477 KA 18 01370 PEOPLE V STEVEN P. KNORR

________ 478 KA 15 00651 PEOPLE V KEION PETERSON

________ 482 CAF 18 01579 MONROE COUNTY CHILD SUPPORT ENFORCE V

ROBERT M. HEMMINGER

________ 484 CA 19 00145 JULIANNE RIZZO V NATIONAL MAINTENANCE CONTRACTING

________ 499 KA 19 00487 PEOPLE V JEFFREY T. MILLER

________ 511 CA 19 01263 WILLIAM T. KOREN, JR. V MORGAN RAINTREE, LLC

________ 519 TP 19 01983 ROCHESTER REDEVELOPMENT, LLC V

NEW YORK STATE DEPARTMENT OF ENVIRO NMENTAL CONSER

________ 520 KA 18 00658 PEOPLE V MOHAMED JUMALE

________ 521 KA 17 00620 PEOPLE V JUDITH C. KELLEY

________ 539 KA 19 01050 PEOPLE V BRYAN E. GRISWOLD

________ 540 KA 16 01242 PEOPLE V KENITH K. BROWN

________ 593 KA 18 00944 PEOPLE V HILLARD SMITH

________ 593.1 KA 20 00886 PEOPLE V HILLARD SMITH

________ 595 KA 16 02269 PEOPLE V JHON POLANCO

________ 609.1 KA 19 01040 PEOPLE V MICHAEL BRYANT

________ 609.2 KA 18 02407 PEOPLE V TERRENCE LOVE

________ 629 CA 19 00788 JAMES CONARTON V HOLY SMOKE BBQ AND CATERING, LLC

________ 630.1 KA 18 01962 PEOPLE V DESHAUN SOMERS

________ 630.2 KA 19 00068 PEOPLE V DESHAUN SOMERS

________ 630.3 KA 18 02066 PEOPLE V MELVIN WILLIAMS

________ 652 CA 19 01164 PAULA L. GIBBS V STATE FARM FIRE AND CASUALTY COMP

________ 685 KA 18 01289 PEOPLE V BERNARD DORTCH

________ 704 KA 15 00415 PEOPLE V JACOB A. HORN

________ 714.1 CAF 19 00856 Mtr of RAYMOND H., JR.

________ 716 KA 18 00931 PEOPLE V CHARLES M. PELLIS

________ 717 KA 18 01798 PEOPLE V TROY D. JONES

________ 733 CA 18 01355 STATE OF NEW YORK V DONALD G.

________ 735 KA 18 01761 PEOPLE V ROBERT T. BENTLEY

________ 736 KA 18 02274 PEOPLE V JASON CIPOLLA

 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

74
TP 19-01636
PRESENT: WHALEN, P.J., CARNI, BANNISTER, AND DEJOSEPH, JJ.

IN THE MATTER OF DANIEL MAVROGIAN, PETITIONER,

V MEMORANDUM AND ORDER

STATE UNIVERSITY OF NEW YORK AT BUFFALO,

RESPONDENT.

CIMASI LAW OFFICE, AMHERST (MICHAEL CHARLES CIMASI OF COUNSEL), AND

LIPPES & LIPPES, BUFFALO, FOR PETITIONER.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF

COUNSEL), FOR RESPONDENT.

Proceeding pursuant to CPLR article 78 (transferred to the

Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [John F.
O’Donnell, J.], entered September 3, 2019) to annul a determination of
respondent. The determination found petitioner responsible for
violations of respondent’s student code of conduct.

It is hereby ORDERED that the determination is unanimously

confirmed without costs and the petition is dismissed.

Memorandum: In this CPLR article 78 proceeding transferred to

this Court pursuant to CPLR 7804 (g), petitioner, a student at
respondent, seeks to annul a determination finding him responsible for
violations of respondent’s student code of conduct arising from
incidents of hazing. Following an administrative hearing and
administrative appeal, respondent suspended petitioner for three years
and placed a notation on petitioner’s transcript.

Contrary to petitioner’s contention, we conclude that respondent

substantially adhered to its procedural rules during the disciplinary
proceeding, and that the purported violations of those rules did not
deny petitioner “the full panoply of due process guarantees to which
he was entitled or render[ ] the finding of responsibility or the
sanction imposed arbitrary or capricious” (Matter of Sharma v State
Univ. of N.Y. at Buffalo, 170 AD3d 1565, 1566 [4th Dept 2019]
[internal quotation marks omitted]; see Matter of Budd v State Univ.
of N.Y. at Geneseo, 133 AD3d 1341, 1342-1343 [4th Dept 2015], lv
denied 26 NY3d 919 [2016]; Matter of Nawaz v State Univ. of N.Y. Univ.
at Buffalo School of Dental Medicine, 295 AD2d 944, 944 [4th Dept
2002]).
 -2- 74
TP 19-01636

Specifically, we reject petitioner’s contention that respondent

denied him due process by allegedly failing to provide him certain
documents during prehearing discovery. Indeed, “[i]n a disciplinary
proceeding at a public institution of higher education, due process
entitles a student accused of misconduct to a statement detailing the
factual findings and the evidence relied upon by the decision-maker in
reaching the determination of guilt” (Budd, 133 AD3d at 1343 [internal
quotation marks omitted]), and here the record reflects that
petitioner was provided with the documents that were relied on by
respondent (see Matter of Brucato v State Univ. of N.Y. at Buffalo,
175 AD3d 977, 979 [4th Dept 2019]; see generally Budd, 133 AD3d at
1343). We also reject petitioner’s contention that he was denied the
assistance of counsel at his hearing in violation of his right to due
process inasmuch as he was, as authorized by respondent’s
administrative hearing procedures, assisted by an attorney advisor
throughout the disciplinary process, including at the hearing (see
Brucato, 175 AD3d at 978-979; Sharma, 170 AD3d at 1566-1567). Nor was
petitioner denied due process by respondent’s alleged failure to call
live witnesses or to accept questions to be asked of such live
witnesses (see Matter of Jacobson v Blaise, 157 AD3d 1072, 1076 [3d
Dept 2018]; Budd, 133 AD3d at 1343-1344).

We likewise reject petitioner’s contention that respondent failed

to provide an unbiased finder of fact (see generally Matter of Agudio
v State Univ. of N.Y., 164 AD3d 986, 991-992 [3d Dept 2018]; Matter of
Weber v State Univ. of N.Y., Coll. at Cortland, 150 AD3d 1429, 1433-
1434 [3d Dept 2017]; Budd, 133 AD3d at 1343). Contrary to
petitioner’s further contention, respondent’s written determinations
did not violate petitioner’s right to due process inasmuch as they
contained sufficient detail “to permit [petitioner] to effectively
challenge the determination in administrative appeals and in the
courts and to ensure that the decision was based on evidence in the
record” (Budd, 133 AD3d at 1343 [internal quotation marks omitted]).
Further, the record before us does not support petitioner’s contention
that the determination of the administrative appeal was based on
matters outside of the record.

Although petitioner contends that respondent failed to provide

him with certain materials prior to the preliminary suspension
hearing, he did not raise that contention on his administrative
appeal. He thus failed to exhaust his administrative remedies with
respect to that contention, and we have no discretionary power to
reach it (see generally Matter of Inesti v Rizzo, 155 AD3d 1581, 1582
[4th Dept 2017]; Matter of Mirenberg v Lynbrook Union Free School
Dist. Bd. of Educ., 63 AD3d 943, 943-944 [2d Dept 2009]). Petitioner
failed to preserve his contention that he should have been supplied
with a transcript or recording of the administrative hearing inasmuch
as he submitted his administrative appeal without objection to the
lack of a transcript or recording, thus failing to raise that issue at
a time when it could have been corrected (see Brucato, 175 AD3d at
979; see generally Matter of Edmonson v Coombe, 227 AD2d 975, 975 [4th
Dept 1996], lv denied 88 NY2d 815 [1996]). Petitioner failed to raise
his remaining procedural contentions during the administrative
proceedings or administrative appeal, and thus they are not properly
 -3- 74
TP 19-01636

before us (see Sharma, 170 AD3d at 1567; Matter of Lampert v State

Univ. of N.Y. at Albany, 116 AD3d 1292, 1294 [3d Dept 2014], lv denied
23 NY3d 908 [2014]).

We further conclude that, contrary to petitioner’s contention,

respondent’s determination is supported by substantial evidence. The
evidence considered by respondent constituted “ ‘such relevant proof
as a reasonable mind may accept as adequate to support [the]
conclusion’ ” that petitioner violated respondent’s student code as
charged by respondent (Sharma, 170 AD3d at 1567, quoting 300 Gramatan
Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]).
Further, the alleged inconsistencies or conflict in the evidence
“presented credibility issues that were within the sole province of
respondent to determine,” and we perceive no basis to disturb
respondent’s findings (Lampert, 116 AD3d at 1294). Lastly,
petitioner’s contention that respondent’s student code
unconstitutionally restricts petitioner’s First Amendment freedom of
association is not properly raised in this proceeding pursuant to CPLR
article 78 (see generally CPLR 7803).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

80
CA 19-01467
PRESENT: WHALEN, P.J., CARNI, BANNISTER, AND DEJOSEPH, JJ.

IN THE MATTER OF AMANDA NORTZ,

PETITIONER-RESPONDENT,

V MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES

APPEALS BOARD, RESPONDENT-APPELLANT.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF

COUNSEL), FOR RESPONDENT-APPELLANT.

LEONARD CRIMINAL DEFENSE GROUP, ROME (JOHN G. LEONARD OF COUNSEL), FOR

PETITIONER-RESPONDENT.

Appeal from a judgment (denominated order) of the Supreme Court,

Oneida County (Bernadette T. Clark, J.), dated January 31, 2019 in a
proceeding pursuant to CPLR article 78. The judgment granted the
petition.

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law without costs and the petition is
dismissed.

Memorandum: Petitioner’s driver’s license was revoked in 2016 as

a result of alcohol-related driving convictions. In 2018, she applied
for a new license. The application was denied on the ground that
petitioner had three alcohol-related driving convictions within the
statutory 25-year look-back period, and thus she was subject to an
additional five-year waiting period following the revocation period
imposed pursuant to the Vehicle and Traffic Law and presumptively
ineligible for a new license until 2022 (see 15 NYCRR 136.5 [b] [3]).
Petitioner thereafter requested reconsideration of her application,
seeking a hardship exception from her presumptive ineligibility date
due to “unusual, extenuating and compelling circumstances” (15 NYCRR
136.5 [d]). That request was also denied. On administrative appeal,
respondent affirmed the denial of petitioner’s application.
Petitioner commenced this CPLR article 78 proceeding seeking to annul
respondent’s determination. Supreme Court granted the petition,
concluding that the determination denying the application was
arbitrary and capricious. Respondent appeals, and we reverse.

“[J]udicial review of an administrative determination is limited

to whether the administrative action is arbitrary and capricious or
lacks a rational basis” (Matter of Green Thumb Lawn Care, Inc. v
 -2- 80
CA 19-01467

Iwanowicz, 107 AD3d 1402, 1403 [4th Dept 2013], lv denied 22 NY3d 866
[2014]; see generally Matter of Pell v Board of Educ. of Union Free
School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester
County, 34 NY2d 222, 230-231 [1974]), and thus such a determination is
entitled to great deference (see Matter of Walker v State Univ. of
N.Y. [Upstate Med. Univ.], 19 AD3d 1058, 1059 [4th Dept 2005], lv
denied 5 NY3d 713 [2005]). A determination is arbitrary and
capricious when it is made “ ‘without sound basis in reason or regard
to the facts’ ” (Matter of Thompson v Jefferson County Sheriff John P.
Burns, 118 AD3d 1276, 1277 [4th Dept 2014], quoting Matter of Peckham
v Calogero, 12 NY3d 424, 431 [2009]). A court must “sustain the
determination even if the court concludes that it would have reached a
different result,” so long as the determination is “supported by a
rational basis” (Peckham, 12 NY3d at 431).

Here, petitioner alleged that she had established unusual,

extenuating and compelling circumstances because both she and her
child were disabled and needed to travel to various medical providers,
she could not access public transportation and she had complied with
her alcohol treatment program. Even assuming, arguendo, that
petitioner established the existence of such circumstances, we agree
with respondent that the denial of her application was not arbitrary,
irrational or an abuse of discretion in light of petitioner’s history
of recidivism and her risk to others (see Matter of Nicholson v
Appeals Bd. of Admin. Adjudication Bur., 135 AD3d 1224, 1225 [3d Dept
2017]; cf. Matter of Gurnsey v Sampson, 151 AD3d 1928, 1930 [4th Dept
2017], lv denied 30 NY3d 906 [2017]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

82
CA 19-01320
PRESENT: WHALEN, P.J., CARNI, BANNISTER, AND DEJOSEPH, JJ.

IN THE MATTER OF MARY BETH B., AS MOTHER AND

NATURAL GUARDIAN OF J.B., CLAIMANT-RESPONDENT,

V MEMORANDUM AND ORDER

WEST GENESEE CENTRAL SCHOOL DISTRICT,

RESPONDENT-APPELLANT.

THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (CHARLES C. SPAGNOLI OF

COUNSEL), FOR RESPONDENT-APPELLANT.

COZEN O’CONNOR, NEW YORK CITY (CHRISTOPHER C. FALLON, JR., OF

COUNSEL), AND CHERUNDOLO LAW FIRM, SYRACUSE, FOR CLAIMANT-RESPONDENT.

Appeal from an order of the Supreme Court, Onondaga County (James

P. Murphy, J.), entered May 9, 2019. The order, insofar as appealed
from, granted in part claimant’s application for leave to serve a late
notice of claim.

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law without costs and the application is
denied in its entirety.

Memorandum: Respondent appeals from that part of an order that

granted claimant’s application for leave to serve a late notice of
claim with respect to those claims asserted on behalf of her child
following a March 2016 assault of the child by another student. We
agree with respondent that Supreme Court abused its discretion in
granting that part of the application (see Dalton v Akron Cent.
Schools, 107 AD3d 1517, 1518 [4th Dept 2013], affd 22 NY3d 1000
[2013]). We therefore reverse the order insofar as appealed from and
deny the application in its entirety.

“ ‘In determining whether to grant such leave, the court must

consider, inter alia, whether the claimant has shown a reasonable
excuse for the delay, whether the municipality had actual knowledge of
the facts surrounding the claim within 90 days of its accrual, and
whether the delay would cause substantial prejudice to the
municipality’ ” (Tate v State Univ. Constr. Fund, 151 AD3d 1865, 1865
[4th Dept 2017]; see Matter of Friend v Town of W. Seneca, 71 AD3d
1406, 1407 [4th Dept 2010]; see generally General Municipal Law § 50-e
[5]). Initially, claimant failed to establish a reasonable excuse for
her failure to serve a timely notice of claim (see Folmar v Lewiston-
Porter Cent. School Dist., 85 AD3d 1644, 1645 [4th Dept 2011]). Even
 -2- 82
CA 19-01320

if claimant was “ ‘initially unaware of the severity of [her child’s]

injuries’ ” (Kennedy v Oswego City Sch. Dist., 148 AD3d 1790, 1791
[4th Dept 2017]), as claimant argued in her application, she conceded
in her reply affidavit that the child’s neurologist directed that the
child be homeschooled as a result of seizures and blackouts in
November 2016. Claimant “did not seek leave to serve a late notice of
claim until [two years after that diagnosis] . . . , and [s]he failed
to offer a reasonable excuse for the [post-diagnosis] delay” (id.).
Further, claimant failed to submit “supporting medical evidence
explaining why the possible permanent effects of the injury took so
long to become apparent and be diagnosed” (Diez v Lewiston-Porter
Cent. Sch. Dist., 140 AD3d 1665, 1666 [4th Dept 2016] [internal
quotation marks omitted]). There is also “no evidence in the record
that [the child’s] infancy made it more difficult to diagnose the
possible permanence of her injury” (Matter of Felice v Eastport/South
Manor Cent. School Dist., 50 AD3d 138, 151 [2d Dept 2008]).

A claimant’s failure to demonstrate a reasonable excuse for the

delay “is not fatal where . . . actual notice was had and there is no
compelling showing of prejudice to [respondent]” (Shaul v Hamburg
Cent. Sch. Dist., 128 AD3d 1389, 1389 [4th Dept 2015] [internal
quotation marks omitted]). However, a respondent’s “knowledge of the
accident and the injury, without more, does not constitute actual
knowledge of the essential facts constituting the claim” (Folmar, 85
AD3d at 1645 [internal quotation marks omitted]; see Kennedy, 148 AD3d
at 1791; Diez, 140 AD3d at 1666). Here, claimant described the
assault on her child as “unprovoked,” and the accident report prepared
contemporaneously by a school nurse, which claimant submitted with her
reply affidavit, describes a single punch resulting only in a headache
and swollen face. Inasmuch as “an injury caused by the impulsive,
unanticipated act of a fellow student ordinarily will not give rise to
a finding of negligence absent proof of prior conduct that would have
put a reasonable person on notice to protect against the
injury-causing act” (Mirand v City of New York, 84 NY2d 44, 49 [1994];
see Hale v Holley Cent. Sch. Dist., 159 AD3d 1509, 1510 [4th Dept
2018], lv denied 31 NY3d 913 [2018]), we agree with respondent that
the known facts failed to give “reasonable notice from which it could
be inferred that a potentially actionable wrong had been committed by
[respondent]” (Matter of Lavender v Garden City Union Free School
Dist., 93 AD3d 670, 671 [2d Dept 2012]; see Brown v City of Buffalo,
100 AD3d 1439, 1440 [4th Dept 2012]).

Finally, with respect to the remaining factor, substantial

prejudice, “the burden initially rests on the [claimant] to show that
the late notice will not substantially prejudice the public
corporation. Such a showing need not be extensive, but the [claimant]
must present some evidence or plausible argument that supports a
finding of no substantial prejudice” (Matter of Newcomb v Middle
Country Cent. Sch. Dist., 28 NY3d 455, 466 [2016], rearg denied 29
NY3d 963 [2017]). Although claimant’s assertion that the child was
interviewed by the school resource officer and examined by a school
nurse could constitute a “plausible argument that supports a finding
of no substantial prejudice” (id.), that assertion was made for the
 -3- 82
CA 19-01320

first time in claimant’s reply papers. Claimant’s initial submission

contained only a conclusory allegation, unsupported by any factual
detail, that respondent conducted an investigation. Inasmuch as
claimant could not meet her initial burden by relying on evidence
submitted for the first time in her reply papers (see GJF Constr.
Corp. v Cosmopolitan Decorating Co., Inc., 35 AD3d 535, 535 [2d Dept
2006]), the burden never shifted to respondent to show substantial
prejudice.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

105
CA 19-00761
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.

ALEXANDRA R., ALEXIS R., SR., AS PARENT AND

NATURAL GUARDIAN OF ALEXIS R., JR. AND YAMARIS R.,
AND AS ADMINISTRATOR OF THE ESTATE OF CHRISTIEANN G.,
AND DEMARIS M., AS GUARDIAN OF JAICOB G. AND
JAIDEN G., AND AS ADMINISTRATOR OF THE ESTATE OF
LUIS A., JR., DECEASED, PLAINTIFFS-RESPONDENTS,

V MEMORANDUM AND ORDER

ERIC J. KRONE, DEFENDANT-APPELLANT,

ET AL., DEFENDANTS.
(APPEAL NO. 1.)

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF

COUNSEL), FOR DEFENDANT-APPELLANT.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (MICHAEL J. WILLETT OF

COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

Appeal from a judgment of the Supreme Court, Erie County

(Frederick J. Marshall, J.), entered February 1, 2019. The judgment,
insofar as appealed from, adjudged that defendant Eric J. Krone acted
with reckless disregard for the safety of others and that he is 35%
liable for the subject collision.

It is hereby ORDERED that the judgment insofar as appealed from

is reversed on the law without costs and the amended complaint is
dismissed against defendant Eric J. Krone.

Memorandum: On a morning in April 2013, a minivan carrying 10

occupants on the New York State Thruway drifted from the left travel
lane to the shoulder and collided with the back of a dump truck
operated by Eric J. Krone (defendant), a New York State Thruway
Authority (Thruway Authority) employee, who had parked the truck on
the shoulder during a cleanup operation in which two other employees
were picking up debris in the median. Three of the occupants died,
and the remaining occupants, as well as defendant, sustained injuries.
Plaintiffs, consisting of the occupants and their representatives,
commenced these actions alleging, inter alia, that the collision was
caused by defendant’s recklessness. In these consolidated appeals,
defendant appeals from judgments entered upon a nonjury verdict
finding him partially liable for the collision on the ground that he
acted with reckless disregard for the safety of others.
 -2- 105
CA 19-00761

In each appeal, defendant challenges the verdict on the ground

that Supreme Court’s finding that he acted with reckless disregard for
the safety of others is against the weight of the evidence. As a
preliminary matter, we conclude that defendant was not required to
preserve his contention that the nonjury verdict is contrary to the
weight of the evidence by making a postverdict motion. Such a
requirement is inconsistent with the principle that, “[f]ollowing a
nonjury trial, the Appellate Division has ‘authority . . . as broad as
that of the trial court . . . and . . . may render the judgment it
finds warranted by the facts’ ” (Sweetman v Suhr, 159 AD3d 1614, 1615
[4th Dept 2018], lv denied 31 NY3d 913 [2018], quoting Northern
Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492,
499 [1983]; see Baba-Ali v State of New York, 19 NY3d 627, 640
[2012]). To the extent that any of our prior decisions suggest
otherwise, they should no longer be followed (see e.g. Gaiter v City
of Buffalo Bd. of Educ., 125 AD3d 1388, 1389 [4th Dept 2015], lv
dismissed 25 NY3d 1036 [2015]).

Upon our review of the record, we conclude that the weight of the
evidence does not support the court’s determination that defendant
acted with reckless disregard for the safety of others as required to
impose liability against him under Vehicle and Traffic Law § 1103 (b),
the applicability of which is not disputed by the parties. “[T]he
unambiguous language of Vehicle and Traffic Law § 1103 (b), as further
supported by its legislative history, [makes] clear that the statute
exempts from the rules of the road all vehicles . . . which are
‘actually engaged in work on a highway’ . . . , and imposes on such
vehicles a recklessness standard of care” (Deleon v New York City
Sanitation Dept., 25 NY3d 1102, 1105 [2015]). The imposition of
liability under the recklessness standard, which the Court of Appeals
has described as a “minimum standard of care” (id. at 1106 [internal
quotation marks omitted]; see Riley v County of Broome, 95 NY2d 455,
466 [2000]), “demands more than a showing of a lack of ‘due care under
the circumstances’—the showing typically associated with ordinary
negligence claims” (Saarinen v Kerr, 84 NY2d 494, 501 [1994]).
Rather, “liability under [the recklessness] standard is established
upon a showing that the covered vehicle’s operator has intentionally
done an act of an unreasonable character in disregard of a known or
obvious risk that was so great as to make it highly probable that harm
would follow and has done so with conscious indifference to the
outcome” (Deleon, 25 NY3d at 1105 [internal quotation marks omitted];
see Riley, 95 NY2d at 466).

Here, at the time of the collision, defendant had parked the

truck entirely outside of the travel lane approximately 18 inches to
the left of the yellow fog line on or near the rumble strips located
on the shoulder. Defendant had also activated multiple hazard lights
on the truck, which consisted of regular flashers, two amber lights on
the tailgate, beacon lights, and four flashing caution lights on the
arrow board. Moreover, the undisputed evidence established that there
were no weather, road, or lighting conditions creating visibility or
control issues for motorists on the morning of the incident. Even if,
as the court found, defendant knew or should have known that vehicles
 -3- 105
CA 19-00761

occasionally leave the roadway at a high rate of speed due to

motorists being tired, distracted, or inattentive, we conclude that,
here, it cannot be said that defendant’s actions were of an
“unreasonable character in disregard of a known or obvious risk that
was so great as to make it highly probable that harm would follow and
. . . done . . . with conscious indifference to the outcome” (Deleon,
25 NY3d at 1105 [internal quotation marks omitted]), given the
favorable weather and road conditions for motorists, as well as the
safety precautions taken by defendant in positioning the truck
completely off of the travel lane and activating various hazard lights
(see Sullivan v Town of Vestal, 301 AD2d 824, 825 [3d Dept 2003];
Green v Covington, 299 AD2d 636, 637-638 [3d Dept 2002]; see also
Vehicle and Traffic Law former § 1144-a [b]; see generally Roberts v
Anderson, 133 AD3d 1384, 1385 [4th Dept 2015]).

Plaintiffs nonetheless contend, and the court agreed, that

defendant was reckless because Thruway Authority safety regulations
require vehicles parked on the shoulder to be positioned “as far from
traffic as feasible,” and defendant could and should have parked the
truck farther to the left on the grassy median and his positioning
also rendered the rumble strips useless. We reject plaintiffs’
contention and the court’s conclusion. Even if defendant, despite his
belief that he was in compliance with the regulation by positioning
the truck as far from traffic as feasible without getting stuck in wet
ground on the median, could have positioned the truck even farther to
the left and off of the rumble strips, that failing establishes, at
most, a lack of due care under the circumstances, which is
insufficient to impose liability under the recklessness standard (see
Green, 299 AD2d at 638; Mitchell v State of New York, 108 AD2d 1033,
1034-1035 [3d Dept 1985], lv denied 64 NY2d 611 [1985], appeal
dismissed and lv denied 64 NY2d 1128 [1985]).

Based on the foregoing, we reverse, insofar as appealed from, the

judgments in appeal Nos. 1, 2, and 3 and reverse the judgment in
appeal No. 4.

All concur except NEMOYER and CURRAN, JJ., who dissent and vote to
affirm in the following memorandum: We agree with the majority that
defendant-appellant (defendant) was not required to preserve his
challenge to the weight of the evidence underlying Supreme Court’s
nonjury verdict (see Evans v New York City Tr. Auth., 179 AD3d 105,
108-111 [2d Dept 2019]). We cannot, however, join the majority in
holding the verdict to be against the weight of the evidence in light
of the significant proof supporting the trial judge’s conclusions. We
therefore respectfully dissent and vote to affirm the judgment in each
appeal.

We recognize, of course, that we should “set aside the trial

court’s findings if they are contrary to the weight of the evidence
and [thereupon] render the judgment we deem warranted by the facts”
(Mosley v State of New York, 150 AD3d 1659, 1660 [4th Dept 2017]
[internal quotation marks omitted]; see e.g. Sweetman v Suhr, 159 AD3d
1614, 1615 [4th Dept 2018], lv denied 31 NY3d 913 [2018]). When
conducting our factual review power in a “close case,” however, the
 -4- 105
CA 19-00761

Court of Appeals has instructed us to “tak[e] into account . . . ‘the

fact that the trial judge had the advantage of seeing the witnesses’ ”
(Northern Westchester Professional Park Assoc. v Town of Bedford, 60
NY2d 492, 499 [1983]). It has also been held that we should “view[ ]
the evidence in the light most favorable to sustain the judgment” (A&M
Global Mgt. Corp. v Northtown Urology Assoc., P.C., 115 AD3d 1283,
1287 [4th Dept 2014]), and that a civil bench verdict should be upheld
“unless it is obvious that the court’s conclusions could not be
reached under any fair interpretation of the evidence” (Thoreson v
Penthouse Intl., 80 NY2d 490, 495 [1992], rearg denied 81 NY2d 835
[1993] [internal quotation marks omitted]).

In this case, the trial court found that defendant’s “operation

of the . . . truck on the shoulder of the road only 18 inches from
high-speed traffic was intentional, unreasonable and in disregard of a
known or obvious risk that was so great as to make it highly probable
that harm would follow” and that defendant’s “parking of the truck on
the shoulder was done with a conscious indifference to the possibility
that the truck would pose a hazard to oncoming traffic.” To support
that conclusion, the trial court found that, at the time of the
accident, defendant had parked his vehicle “approximately 18 inches
from the yellow fog line”; that the regulations of the Thruway
Authority “provide that a vehicle engaged in cleanup operations, such
as [the vehicle involved here], should be parked as far from traffic
as feasible”; that defendant “could have operated and parked his
vehicle further left on the grassy median, which would have avoided
the collision . . . according to uncontroverted expert testimony”;
that, despite defendant’s “testimony to the contrary, meteorological,
photographic and testimonial evidence [demonstrates] that the grassy
area to the left of the shoulder was dry enough to accommodate
[defendant’s] truck as it proceeded along and intermittently stopped
during the cleanup operation”; that defendant’s truck “was parked
either on, or so near the rumble strips located on the left shoulder,
that this safety feature was rendered useless” and, “[i]f the . . .
vehicle [that collided with the truck] had engaged the rumble
strips[,] it is more likely than not that the accident would not have
occurred”; and that defendant “did not use any signs or channeling
devices to alert traffic that work on the median and the shoulder
close to the highway was being conducted.”

As the majority correctly states, the contested issue is whether

defendant acted with reckless disregard for the safety of others. For
these purposes, a person acts recklessly when he or she
“consciously—and, thus, with general intentionality, not necessarily
with intent to cause particular injury—disregard[s] known serious
risks of harm” (Campbell v City of Elmira, 84 NY2d 505, 511 [1994]).
In our view, the trial court correctly found that defendant acted with
the requisite reckless disregard.

At trial, plaintiffs presented two expert witnesses who opined

that defendant’s conduct recklessly disregarded the safety of others.
First, a retired State Trooper and accident reconstructionist
testified that, had defendant followed his stated practice of driving
outside of the delineators and on the grassy median, there would have
 -5- 105
CA 19-00761

been no collision. That expert also testified that, had the truck
been positioned 5 feet 3.6 inches farther left, there would not have
been a collision and that, if it had been positioned only 3.6 feet to
the left of the fog line, the collision would have only been a
sideswipe that would have resulted in much less damage. That expert
opined, without objection, that situating the truck 18 inches from the
fog line was reckless and violated the Thruway Authority’s Traffic
Safety Manual.

Plaintiffs’ second expert, a civil engineer and former Department

of Transportation employee, was also an accident reconstructionist.
He testified that it is well known that vehicles run off the road for
various reasons, that rumble strips were installed to decrease the
occurrence of run-off-the-road incidents, and that the very purpose of
defendant and his truck on the day in question was to protect two
laborers from vehicles running off or drifting off the road. The
second expert testified that, if defendant believed that the ground
was wet and that his truck might get stuck, he should have come back
another day when that area was firm and dry, particularly given that
the work being performed by the laborers on the day in question was
not urgent. Like the first expert, the second expert testified that
defendant’s actions violated the Thruway Authority’s Traffic Safety
Manual. Most importantly, and without objection, the second expert
opined that defendant’s conduct in parking approximately 18 inches
from the fog line without the necessary safety measures created known
and obvious risks to anyone driving on the Thruway and was thus
reckless.

The testimony of the foregoing experts is, in our view,

compelling proof that the trial court correctly found that defendant
acted recklessly in this case (see generally Spalla v Village of
Brockport, 295 AD2d 900, 900-901 [4th Dept 2002]; Allen v Town of
Amherst, 294 AD2d 828, 829 [4th Dept 2002], lv denied 3 NY3d 609
[2004]). The trial court also properly considered the divergence
between defendant’s actions on the day in question and his usual
practices and behavior, his employer’s policies, and departmental
rules as relevant factors in finding recklessness on this record (see
e.g. Bliss v State of New York, 95 NY2d 911, 913 [2000]; Freitag v
Village of Potsdam, 155 AD3d 1227, 1231 [3d Dept 2017]; Ruiz v Cope,
119 AD3d 1333, 1334 [4th Dept 2014]; Allen, 294 AD2d at 829).

From a broader perspective, we ought not to inadvertently

conflate the criminal recklessness standard with the civil
recklessness standard. Yes, the majority is correct that this
situation “demands more than a showing of lack of ‘due care under the
circumstances’—the showing typically associated with ordinary
negligence claims” (Saarinen v Kerr, 84 NY2d 494, 501 [1994]). But in
defining civil recklessness, the courts have never required that the
defendant’s conduct be committed with a depraved heart, or for the
purpose of bringing about a particular injury. For example, in Deleon
v New York City Sanitation Dept. (25 NY3d 1102, 1107 [2015]), the
Court of Appeals held that, “[i]f a factfinder concludes that the
driver could, but failed to, take evasive action to avoid a forceful
collision, a reasonable jury could find that this conduct rises to the
 -6- 105
CA 19-00761

recklessness standard.” Likewise, in Ruiz (119 AD3d at 1333-1334), we

affirmed a nonjury finding of liability despite “conflicting accounts
whether [the] defendant slowed down or came to a near stop prior to
entering the intersection.” And we have frequently held that the
reasonableness of a defendant’s excuse or explanation for his or her
conduct is a question best left to the trier of fact (see e.g. Chase v
Marsh, 162 AD3d 1589, 1590 [4th Dept 2018]; Gawron v Town of
Cheektowaga, 117 AD3d 1410, 1413 [4th Dept 2014]; Ham v City of
Syracuse, 37 AD3d 1050, 1051-1052 [4th Dept 2007], lv dismissed 8 NY3d
976 [2007]; Haist v Town of Newstead, 27 AD3d 1133, 1134 [4th Dept
2006]). In our view, the record in this case supports the trial
court’s finding that defendant acted with reckless disregard for the
safety of others and, therefore, the verdict is not against the weight
of the evidence and the judgment in each appeal should be affirmed.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

106
CA 19-00477
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.

JESSICA G., PLAINTIFF-RESPONDENT,

V MEMORANDUM AND ORDER

ERIC J. KRONE, DEFENDANT-APPELLANT,

ET AL., DEFENDANT.
(APPEAL NO. 2.)

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF

COUNSEL), FOR DEFENDANT-APPELLANT.

MARTIN J. ZUFFRANIERI, WILLIAMSVILLE, FOR PLAINTIFF-RESPONDENT.

Appeal from a judgment of the Supreme Court, Erie County

(Frederick J. Marshall, J.), entered February 20, 2019. The judgment,
insofar as appealed from, adjudged that defendant Eric J. Krone acted
with reckless disregard for the safety of others and that he is 35%
liable for the subject collision.

It is hereby ORDERED that the judgment insofar as appealed from

is reversed on the law without costs and the complaint is dismissed
against defendant Eric J. Krone.

Same memorandum as in Alexandra R. v Krone ([appeal No. 1] — AD3d

— [Aug. 20, 2020] [4th Dept 2020]).

All concur except NEMOYER and CURRAN, JJ., who dissent and vote to
affirm in the same dissenting memorandum as in Alexandra R. v Krone
([appeal No. 1] — AD3d — [Aug. 20, 2020] [4th Dept 2020]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

107
CA 19-00478
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.

VANESSA G., AS PARENT AND NATURAL GUARDIAN OF

ADRIANNA A., AN INFANT, PLAINTIFF-RESPONDENT,

V MEMORANDUM AND ORDER

NELSON A., AS ADMINISTRATOR OF THE ESTATE OF

LUIS A. A.-S., DECEASED,
ET AL., DEFENDANTS,
AND ERIC J. KRONE, DEFENDANT-APPELLANT.
(APPEAL NO. 3.)

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF

COUNSEL), FOR DEFENDANT-APPELLANT.

VANDETTE PENBERTHY LLP, BUFFALO (JAMES M. VANDETTE OF COUNSEL), FOR

PLAINTIFF-RESPONDENT.

Appeal from a judgment of the Supreme Court, Erie County

(Frederick J. Marshall, J.), entered February 27, 2019. The judgment,
insofar as appealed from, adjudged that defendant Eric J. Krone acted
with reckless disregard for the safety of others and that he is 35%
liable for the subject collision.

It is hereby ORDERED that the judgment insofar as appealed from

is reversed on the law without costs and the complaint is dismissed
against defendant Eric J. Krone.

Same memorandum as in Alexandra R. v Krone ([appeal No. 1] — AD3d

— [Aug. 20, 2020] [4th Dept 2020]).

All concur except NEMOYER and CURRAN, JJ., who dissent and vote to
affirm in the same dissenting memorandum as in Alexandra R. v Krone
([appeal No. 1] — AD3d — [Aug. 20, 2020] [4th Dept 2020]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

108
CA 19-00755
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.

NELSON A., AS ADMINISTRATOR OF THE ESTATE OF

LUIS A. A.-S., ALSO KNOWN AS LUIS A., SR.,
PLAINTIFF-RESPONDENT,

V MEMORANDUM AND ORDER

ERIC J. KRONE, DEFENDANT-APPELLANT.

(APPEAL NO. 4.)

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SCHNITTER CICCARELLI MILLS, PLLC, WILLIAMSVILLE (RYAN J. MILLS OF

COUNSEL), FOR PLAINTIFF-RESPONDENT.

Appeal from a judgment of the Supreme Court, Erie County

(Frederick J. Marshall, J.), entered April 4, 2019. The judgment
adjudged that defendant acted with reckless disregard for the safety
of others and that he is 35% liable for the subject collision.

It is hereby ORDERED that the judgment so appealed from is

reversed on the law without costs and the complaint is dismissed.

Same memorandum as in Alexandra R. v Krone ([appeal No. 1] — AD3d

— [Aug. 20, 2020] [4th Dept 2020]).

All concur except NEMOYER and CURRAN, JJ., who dissent and vote to
affirm in the same dissenting memorandum as in Alexandra R. v Krone
([appeal No. 1] — AD3d — [Aug. 20, 2020] [4th Dept 2020]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

112
CA 19-00834
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.

THOMAS E. MCGOVERN, PLAINTIFF-RESPONDENT,

V MEMORANDUM AND ORDER

YOLANDA J. MCGOVERN, DEFENDANT-APPELLANT.

DAVID SCOTT HEIER, CANANDAIGUA, FOR DEFENDANT-APPELLANT.

TERESA M. PARE, CANANDAIGUA, FOR PLAINTIFF-RESPONDENT.

Appeal from a judgment of the Supreme Court, Ontario County

(William F. Kocher, A.J.), entered October 24, 2018 in a divorce
action. The judgment, among other things, dissolved the marriage
between the parties and equitably distributed the marital property.

It is hereby ORDERED that the judgment so appealed from is

modified on the law by vacating the 2nd through 11th decretal
paragraphs, and as modified the judgment is affirmed without costs and
the matter is remitted to Supreme Court, Ontario County, for further
proceedings in accordance with the following memorandum: Plaintiff
husband commenced this action in 2015 seeking a divorce. In 2017, the
parties placed on the record an oral stipulation of settlement that,
inter alia, provided for the distribution of the marital property.
Although the oral stipulation contemplated the signing of a
postnuptial agreement, defendant wife refused to sign such an
agreement. Nevertheless, Supreme Court issued a judgment that
acknowledged that the parties had placed on the record in open court
an oral stipulation resolving all disputed issues, and that provided,
inter alia, that the oral stipulation was incorporated but not merged
into the judgment. Defendant appeals.

We agree with defendant that the oral stipulation rendered in

open court did not satisfy the requirements of Domestic Relations Law
§ 236 (B) (3), and it is therefore invalid and unenforceable. “In
matrimonial actions . . . an open court stipulation is unenforceable
absent a writing that complies with the requirements for marital
settlement agreements” (Keegan v Keegan, 147 AD3d 1417, 1418 [4th Dept
2017]). “More particularly, to be valid and enforceable, marital
settlement agreements must be ‘in writing, subscribed by the parties,
and acknowledged or proven in the manner required to entitle a deed to
be recorded’ (§ 236 [B] [3])” (id.; see also Lewis v Lewis, 70 AD3d
1432, 1433 [4th Dept 2010]; Tomei v Tomei, 39 AD3d 1149, 1150 [4th
Dept 2007]; Sorge v Sorge, 238 AD2d 890, 890 [4th Dept 1997]; Conti v
Conti, 199 AD2d 985, 985-986 [4th Dept 1993]).
 -2- 112
CA 19-00834

Here, inasmuch as there was no acknowledgment simultaneously

executed with the oral stipulation (cf. Ashcroft v Ashcroft [appeal
No. 2], 195 AD2d 963, 964 [4th Dept 1993]), we agree with defendant
that she is entitled to the relief she is seeking on appeal, i.e.,
vacatur of the judgment of divorce except to the extent that the
judgment granted the divorce itself, granted defendant the
corresponding right to resume the use of a prior surname, and provided
for service of the judgment upon defendant. We therefore modify the
judgment accordingly, and we remit the matter to Supreme Court for a
new determination, following a hearing if necessary (see Keegan, 147
AD3d at 1418; Lewis, 70 AD3d at 1433).

We disagree with our dissenting colleague’s conclusion that

dismissal of this appeal is required because “defendant is not
aggrieved by that to which she stipulated.” Defendant is aggrieved
because the oral stipulation rendered in open court, which was
incorporated but not merged into the judgment of divorce, did not
satisfy the requirements of Domestic Relations Law § 236 (B) (3), and
thus it is invalid and unenforceable. None of the cases cited by our
dissenting colleague involve these circumstances, and defendant was
not required to move to vacate the stipulation. Our case law, which
is not addressed by the dissent, allows the defendant in such
circumstances to seek to invalidate the oral stipulation on direct
appeal from the judgment (see Lewis, 70 AD3d at 1433; Conti, 199 AD2d
at 985-986).

All concur except CURRAN, J., who dissents and votes to dismiss
the appeal in the following memorandum: I respectfully dissent
because I conclude that this appeal must be dismissed. Inasmuch as
defendant’s contentions with respect to the judgment were resolved by
the parties’ oral stipulation that was incorporated but not merged
into the judgment of divorce, dismissal of this appeal is required
because defendant is not aggrieved by that to which she stipulated
(see Dumond v New York Cent. Mut. Fire Ins. Co., 166 AD3d 1554, 1555
[4th Dept 2018]; see generally CPLR 5511; Adams v Genie Indus., Inc.,
14 NY3d 535, 540-541 [2010]; Koziol v Koziol, 60 AD3d 1433, 1434 [4th
Dept 2009], appeal dismissed 13 NY3d 763 [2009]). Defendant’s proper
remedy was to move to vacate the stipulation and appeal from the
ensuing order, assuming that Supreme Court denied her motion (see
generally Matter of Annabella B.C. [Sandra L.C.], 136 AD3d 1364, 1365
[4th Dept 2016]; Matter of Maria J. [Peter J.], 129 AD3d 1660, 1661
[4th Dept 2015]; Koziol, 60 AD3d at 1434). In my view, the cases
relied upon by the majority do not address the fundamental requirement
that, for there to be a justiciable controversy, the appellant must be
aggrieved.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

114
CA 19-00339
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.

IN THE MATTER OF CORNELL UNIVERSITY,

PETITIONER-RESPONDENT,

V MEMORANDUM AND ORDER

BOARD OF ASSESSMENT REVIEW AND SHANA JO HILTON,

AS ASSESSOR OF TOWN OF SENECA,
RESPONDENTS-APPELLANTS.

CHALIFOUX LAW, P.C., PITTSFORD (SHEILA M. CHALIFOUX OF COUNSEL), FOR

RESPONDENTS-APPELLANTS.

JARED M. PITTMAN, ITHACA, FOR PETITIONER-RESPONDENT.

HODGSON RUSS LLP, BUFFALO (HENRY A. ZOMERFELD OF COUNSEL), FOR DYNAMIC

ENERGY SOLUTIONS, LLC, AMICUS CURIAE.

Appeal from a judgment and order (one paper) of the Supreme

Court, Ontario County (John J. Ark, J.), entered January 28, 2019 in
proceedings pursuant to RPTL article 7. The judgment and order
granted the petitions by, inter alia, directing the removal of a tax
parcel from the tax rolls of the Town of Seneca.

It is hereby ORDERED that the judgment and order so appealed from

is unanimously reversed on the law without costs and the petitions are
dismissed.

Memorandum: Petitioner, an educational institution, commenced

these proceedings pursuant to, inter alia, RPTL article 7, challenging
tax assessments on a solar photovoltaic electrical system (system)
that is located on its land in the Town of Seneca. Petitioner and
nonparty for-profit corporation Argos Solar, LLC (Argos) had entered
into an agreement pursuant to which petitioner granted Argos an
exclusive license to use certain agricultural research land owned by
petitioner “for the sole purpose of constructing, installing, owning,
operating and maintaining the [s]ystem.” The agreement obligated
petitioner to purchase from Argos the energy output generated by the
system. The initial term of the agreement was 20 years, and the
agreement further provided Argos with the option to extend the term
for as many as two additional 5-year periods, and then allowed
petitioner to continue making payments for energy output beyond the
30-year anniversary of the agreement, thereby extending it on a month-
to-month basis. In addition, Argos was obligated to remove the system
following termination of the agreement unless petitioner exercised its
 -2- 114
CA 19-00339

option to purchase the system, and the agreement also provided for
removal of the system as an available remedy in the event of
termination resulting from the default of either party.

Petitioner subsequently applied to renew its real property tax

exemption pursuant to RPTL 420-a, and although the land itself
indisputably remained tax exempt thereunder, respondent Shana Jo
Hilton, as Assessor of Town of Seneca, created a separate tax parcel
to assess taxes on the newly constructed system located on the land.
As relevant here, taxes were assessed on the system each year over a
three-year period, and respondent Board of Assessment Review denied
petitioner’s complaints challenging each of those assessments.

After petitioner commenced these proceedings, Supreme Court

determined that the tax assessments were not lawful inasmuch as the
system did not constitute real property and, even if it did, it would
be exempt on the basis of petitioner’s beneficial ownership thereof.
Respondents appeal from a judgment and order granting petitioner’s
petitions by, inter alia, removing the tax parcel from the rolls and
cancelling the taxes assessed thereunder for each of the subject
years. We agree with respondents that the court erred in granting the
petitions.

We note at the outset that the petitions must be dismissed

insofar as they seek relief pursuant to CPLR article 78, because the
proper vehicle for seeking the instant relief is a certiorari
proceeding pursuant to RPTL article 7 (see Matter of Crouse Health
Sys., Inc. v City of Syracuse, 126 AD3d 1336, 1336 [4th Dept 2015];
Matter of ViaHealth of Wayne v VanPatten, 90 AD3d 1700, 1701 [4th Dept
2011]).

Respondents contend that the system constitutes taxable real

property under RPTL 102 (12) (b). We agree. Pursuant to that
statute, taxable real property is defined as “[b]uildings and other
articles and structures, substructures and superstructures erected
upon, under or above the land, or affixed thereto” (id.). “The common
law relating to fixtures provides guidance in determining whether
particular items fall within [that] statutory definition” (Matter of
Maines v Board of Assessors of Town of Lafayette, 125 AD2d 951,
951-952 [4th Dept 1986]; see Matter of Metromedia, Inc. [Foster &
Kleiser Div.] v Tax Commn. of City of N.Y., 60 NY2d 85, 90 [1983];
Matter of Consolidated Edison Co. of N.Y. v City of New York, 44 NY2d
536, 541-542 [1978]). “To meet the common-law definition of fixture,
the personalty in question must: (1) be actually annexed to real
property or something appurtenant thereto; (2) be applied to the use
or purpose to which that part of the realty with which it is connected
is appropriated; and, (3) be intended by the parties as a permanent
accession to the freehold” (Metromedia, Inc., 60 NY2d at 90).

First, with respect to annexation, petitioner’s own submissions

show that the system consists of nearly 1,600 piles driven directly
into the ground and nearly 400 piles set on footings of concrete
poured into tube forms in the ground, bolted on top of which is a
racking system housing the solar panels that are attached thereto by
 -3- 114
CA 19-00339

nuts and bolts, as well as an inverter and associated equipment

installed on a poured concrete slab. We conclude that those
characteristics establish that the system is annexed to real property
or something appurtenant thereto (see id. at 88-90).

Second, we conclude that the system applies to the purpose of the

land to which it is connected inasmuch as petitioner devoted the land
to generating solar energy as part of its sustainability efforts and
in furtherance of its educational mission (see id. at 90; Maines, 125
AD2d at 952).

Third, contrary to petitioner’s assertion and the court’s

determination, the purported ease of physical removal is not
determinative in evaluating permanency (see Metromedia, Inc., 60 NY2d
at 89-91; Maines, 125 AD2d at 952). It has long been settled law that
“[t]he permanency of the attachment does not depend so much upon the
degree of physical force with which the thing is attached as upon the
motive and intention of the party in attaching it” (McRea v Central
Natl. Bank of Troy, 66 NY 489, 495 [1876]; see Matter of City of New
York [Kaiser Woodcraft Corp.], 11 NY3d 353, 360 [2008], rearg denied
11 NY3d 903 [2009]; Consolidated Edison Co. of N.Y., 44 NY2d at
542-543). Here, in view of the purpose and duration of the agreement,
the options to extend afforded to both Argos and petitioner, and the
terms permitting removal of the system upon termination, we conclude
that the record establishes that petitioner and Argos “intended the
[system] to be ‘permanent’ over the life of the . . . agreement”
(Metromedia, Inc., 60 NY2d at 91; see Matter of T-Mobile Northeast,
LLC v DeBellis, 143 AD3d 992, 995-996 [2d Dept 2016], affd on other
grounds 32 NY3d 594 [2018], rearg denied 32 NY3d 1197 [2019];
Consolidated Edison Co. of N.Y., 44 NY2d at 542-543).

Based on the foregoing, we conclude that the system constitutes

taxable real property under RPTL 102 (12) (b), and we therefore need
not address respondents’ remaining contentions on that issue (see
T-Mobile Northeast, LLC, 32 NY3d at 610).

Respondents further contend that the court erred in holding that

the system, even if it constituted taxable real property, would be tax
exempt on the ground that petitioner is the beneficial owner of the
system. We agree. RPTL 420-a (1) (a) provides, in relevant part,
that “[r]eal property owned by a corporation or association organized
or conducted exclusively for . . . educational . . . purposes, and
used exclusively for carrying out thereupon . . . such purposes
. . . shall be exempt from taxation.” “Land and [structures] are
separately defined as taxable forms of real property (see RPTL 102
[12] [a], [b]), and [parties to an agreement] may agree to their
separate ownership” (Matter of United Health Servs. Hosps., Inc. v
Assessor of the Town of Vestal, 122 AD3d 1177, 1178 [3d Dept 2014], lv
denied 25 NY3d 909 [2015]; see Metromedia, Inc., 60 NY2d at 91; Matter
of National Cold Stor. Co. v Boyland, 16 AD2d 267, 268-269 [1st Dept
1962], affd 12 NY2d 808 [1962]). “Although the parties’ labeling of
one as owner is not enough to create a taxable interest, a finding of
such an interest is justified where that party exercises dominion and
 -4- 114
CA 19-00339

control over the property” (Metromedia, Inc., 60 NY2d at 91; see

Matter of Colleges of the Seneca v City of Geneva, 94 NY2d 713,
716-717 [2000]; United Health Servs. Hosps., Inc., 122 AD3d at 1178-
1179).

Here, it is undisputed that petitioner is a qualifying

corporation, but Argos is not, and that the system is used for a
qualifying purpose; therefore, whether the system is tax exempt
depends on its ownership. The agreement separates ownership of the
system from the land and designates Argos as the owner of the system.
While that fact must be considered, “the question of ownership turns
on whether the . . . agreement confers incidents of ownership upon
[Argos] or whether [petitioner] retains such dominion and control over
the property that it must be deemed the beneficial owner for tax
purposes” (United Health Servs. Hosps., Inc., 122 AD3d at 1179). We
conclude for the reasons that follow that the agreement confers
incidents of ownership upon Argos to justify a finding—consistent with
the designation in the agreement—that Argos, not petitioner, is the
owner of the system.

Unless petitioner exercises its option to purchase the system

from Argos, the agreement obligates Argos to remove the system and all
assets thereto whether buried or above ground from the land following
termination of the agreement at its sole cost and expense (see
Metromedia, Inc., 60 NY2d at 91; United Health Servs. Hosps., Inc.,
122 AD3d at 1179). In addition, Argos is responsible for all taxes
associated with ownership of the system, Argos bears the risk of any
damage to the system and is entitled to all insurance proceeds, and
petitioner has the option to purchase the system from Argos upon
termination of the agreement at a price to be determined in accordance
with the provisions thereof (see Colleges of the Seneca, 94 NY2d at
718; Metromedia, Inc., 60 NY2d at 91; United Health Servs. Hosps.,
Inc., 122 AD3d at 1179; Matter of Spectapark Assoc. v City of Albany
Dept. of Assessment & Taxation, 12 AD3d 800, 801-802 [3d Dept 2004],
lv denied 4 NY3d 705 [2005]). Although the agreement provides
petitioner with some minor incidents of ownership, we conclude that
the agreement does not confer to petitioner “such dominion and control
over the property that it must be deemed the beneficial owner for tax
purposes” (United Health Servs. Hosps., Inc., 122 AD3d at 1179; see
Colleges of the Seneca, 94 NY2d at 718; Metromedia, Inc., 60 NY2d at
91). Therefore, respondents correctly determined that the system is
real property that is not tax exempt under RPTL 420-a.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

116
CA 19-00118
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.

SURINDER K. VIRK AND AMARJIT S. VIRK,

PLAINTIFFS-RESPONDENTS,

V MEMORANDUM AND ORDER

CAROL A. GUTT, DEFENDANT-APPELLANT.

LAW OFFICE OF VICTOR M. WRIGHT, ORCHARD PARK (RACHEL A. EMMINGER OF

COUNSEL), FOR DEFENDANT-APPELLANT.

ZDARSKY, SAWICKI & AGOSTINELLI LLP, BUFFALO (GERALD T. WALSH OF

COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

Appeal from an order of the Supreme Court, Erie County (Catherine

R. Nugent Panepinto, J.), entered January 16, 2019. The order,
insofar as appealed from, denied the motion of defendant for summary
judgment dismissing the complaint.

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting the motion in part and
dismissing the complaint, as amplified by the bill of particulars,
with respect to the 90/180-day category of serious injury within the
meaning of Insurance Law § 5102 (d), and as modified the order is
affirmed without costs.

Memorandum: Amarjit S. Virk (plaintiff) was injured in a motor

vehicle accident when his vehicle collided with a vehicle driven by
defendant. Plaintiff and his wife (collectively, plaintiffs)
commenced this action alleging, inter alia, that plaintiff sustained a
serious injury within the meaning of Insurance Law § 5102 (d) under
the significant limitation of use, permanent consequential limitation
of use, and 90/180-day categories. Defendant appeals from an order
that, insofar as appealed from, denied her motion for summary judgment
dismissing the complaint.

Contrary to defendant’s contention, we conclude that Supreme

Court properly denied the motion with respect to the permanent
consequential limitation of use and significant limitation of use
categories inasmuch as defendant failed to meet her initial burden
with respect to those categories. In support of her motion, defendant
submitted the affirmed report of an expert physician who examined
plaintiff on defendant’s behalf. The expert physician averred that he
reviewed plaintiff’s medical records and imaging studies from before
and after the subject accident and concluded that there was no
 -2- 116
CA 19-00118

objective evidence demonstrating that plaintiff, who had suffered two

prior injuries to his neck and back, sustained a new cervical or
lumbar disc herniation, or permanent injury to his nervous system or
spine as a result of the accident. The expert physician, however,
failed to perform a comparison of plaintiff’s pre- and post-accident
imaging studies and, therefore, was unable to aver, without engaging
in speculation, that he observed no relevant change or difference in
plaintiff’s spine caused by the accident (cf. Roger v Soos, 175 AD3d
937, 938 [4th Dept 2019]; Heatter v Dmowski, 115 AD3d 1325, 1326 [4th
Dept 2014]). Further, although defendant’s expert physician opined
that plaintiff had suffered no new injuries, there were observable
changes between plaintiff’s pre- and post-accident MRI scans, and
defendant’s expert physician noted that plaintiff had a decreased
range of motion and increased pain after the accident. Despite those
changes, defendant’s expert physician concluded that plaintiff’s
spinal condition was purely degenerative in nature, and yet failed to
explain the basis for that conclusion (see Jean v New York City Tr.
Auth., 85 AD3d 972, 974 [2d Dept 2011]).

We agree with defendant, however, that the court erred in denying

the motion with respect to the 90/180-day category, and we therefore
modify the order accordingly. Defendant met her initial burden with
respect to that category by submitting plaintiff’s deposition
testimony, wherein he testified that, one week after the subject
accident, he resumed working 60 to 70 hours per week as an
anesthesiologist. He also testified that, one week after the
accident, he was able to dress, bathe, and groom himself without
assistance, and that in the first three months after the accident, he
was able to perform numerous household chores (see Baldauf v Gambino,
177 AD3d 1307, 1308 [4th Dept 2019]; McIntyre v Salluzzo, 159 AD3d
1547, 1547-1548 [4th Dept 2018]). Plaintiffs failed to raise an issue
of fact in opposition. They failed to demonstrate that plaintiff’s
physician placed plaintiff on formal work restrictions,
notwithstanding that his physician advised him not to lift heavy items
(see LaBeef v Baitsell, 104 AD3d 1191, 1192 [4th Dept 2013]), and
plaintiffs’ assertions that plaintiff could not play golf or garden
during the relevant time period after the accident are similarly
unavailing (see McIntyre, 159 AD3d at 1548).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

117
CA 19-01550
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.

C & D DESIGN, BUILD, DEVELOPMENT, LLC,

PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

VILLAGE OF ALEXANDER, NEW YORK,

AND DANIEL J. LANG (AS BUILDING INSPECTOR),
DEFENDANTS-RESPONDENTS.

MARCUS & CINELLI, LLP, WILLIAMSVILLE (DAVID P. MARCUS OF COUNSEL), AND

ANDREOZZI BLUESTEIN, LLP, CLARENCE, FOR PLAINTIFF-APPELLANT.

DADD, NELSON, WILKINSON & WUJCIK, ATTICA (JAMES M. WUJCIK OF COUNSEL),

FOR DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Genesee County (Emilio

L. Colaiacovo, J.), entered January 22, 2019. The order, among other
things, converted defendants’ motion to dismiss the amended complaint
to a motion for summary judgment, granted that motion and dismissed
the amended complaint.

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by vacating the first ordering
paragraph and reinstating the amended complaint, and as modified the
order is affirmed without costs and the matter is remitted to Supreme
Court, Genesee County, for further proceedings in accordance with the
following memorandum: Plaintiff commenced this action seeking, inter
alia, money damages and declaratory relief pursuant to 42 USC § 1983
in connection with the condemnation by defendants of certain property
owned by plaintiff. Defendants moved to dismiss the amended complaint
pursuant to, inter alia, CPLR 3211 (a) (1), (5) and (7), and plaintiff
moved for an order, inter alia, reinstating its certificate of
occupancy for the property. Supreme Court converted defendants’
motion to a motion for summary judgment under CPLR 3212, granted that
motion, and denied plaintiff’s motion. Plaintiff now appeals.

Initially, we agree with plaintiff that the court erred in

converting defendants’ motion to dismiss to one for summary judgment.
The court did not provide “adequate notice to the parties” that it was
doing so (CPLR 3211 [c]), nor did defendants and plaintiff otherwise
receive adequate notice by “submitting facts and arguments clearly
indicating that they were deliberately charting a summary judgment
course” (Matter of Town of Geneva v City of Geneva, 63 AD3d 1544, 1544
[4th Dept 2009] [internal quotation marks omitted]).
 -2- 117
CA 19-01550

Furthermore, we conclude that defendants are not entitled to

dismissal of the amended complaint under CPLR 3211 (a) (5) on statute
of limitations grounds. We agree with plaintiff that, under these
circumstances, a CPLR article 78 proceeding is not its exclusive
remedy (see Acquest Wehrle, LLC v Town of Amherst, 129 AD3d 1644, 1646
[4th Dept 2015], appeal dismissed 26 NY3d 1020 [2015]). “ ‘In the
land-use context, 42 USC § 1983 protects against municipal actions
that violate a property owner’s rights to due process, equal
protection of the laws and just compensation for the taking of
property under the Fifth and Fourteenth Amendments to the United
States Constitution’ ” (Sonne v Board of Trustees of Vil. of Suffern,
67 AD3d 192, 200 [2d Dept 2009], quoting Bower Assoc. v Town of
Pleasant Val., 2 NY3d 617, 626 [2004]; see Town of Orangetown v Magee,
88 NY2d 41, 49 [1996]). Here, plaintiff’s first three causes of
action are based on 42 USC § 1983 and allege constitutional violations
of procedural due process, substantive due process and equal
protection, and the fourth cause of action seeks, inter alia,
declaratory relief based on those alleged violations. That relief is
appropriately sought via an action based on 42 USC § 1983, and
therefore the four-month statute of limitations applicable to CPLR
article 78 proceedings does not apply here (see Sonne, 67 AD3d at 202-
203; see also Matter of Karamalla v Devine, 159 AD3d 1368, 1369 [4th
Dept 2018]; Mulcahy v New York City Dept. of Educ., 99 AD3d 535, 536
[1st Dept 2012]). We decline, however, to consider the remaining
grounds raised by defendants in their motion inasmuch as the court
improperly converted that motion to one for summary judgment, and
therefore never addressed those grounds using the CPLR 3211 standard
(see generally Matter of South Blossom Ventures, LLC v Town of Elma,
46 AD3d 1337, 1338 [4th Dept 2007], lv dismissed 10 NY3d 852 [2008];
Fleiss v South Buffalo Ry. Co., 280 AD2d 1004, 1005 [4th Dept 2001]).

Contrary to plaintiff’s further contention, we conclude that the

court properly denied its motion inasmuch as plaintiff failed to
establish that it is entitled as a matter of law to the relief sought
therein, i.e., the removal of the placard designating the subject
structure as condemned and reinstatement of the certificate of
occupancy (see generally Zuckerman v City of New York, 49 NY2d 557,
562 [1980]).

We therefore modify the order by vacating the first ordering

paragraph and reinstating the amended complaint, and we remit the
matter to Supreme Court for further proceedings consistent with our
decision.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

154
CA 19-01201
PRESENT: WHALEN, P.J., CURRAN, TROUTMAN, WINSLOW, AND BANNISTER, JJ.

ANTHONY A. SCALZO, PLAINTIFF-RESPONDENT,

V MEMORANDUM AND ORDER

CENTRAL CO-OPERATIVE INSURANCE COMPANY,

DEFENDANT-APPELLANT,
AND ROBERT J. SALERNO, DEFENDANT-RESPONDENT.

KNYCH & WHRITENOUR, LLC, SYRACUSE (PETER KNYCH OF COUNSEL), FOR

DEFENDANT-APPELLANT.

LAW OFFICES OF RICARDO J. MAURO, P.C., UTICA (RICARDO J. MAURO OF

COUNSEL), FOR PLAINTIFF-RESPONDENT.

FELT EVANS, LLP, CLINTON (JAY G. WILLIAMS, III, OF COUNSEL), FOR

DEFENDANT-RESPONDENT.

Appeal from an order and judgment (one paper) of the Supreme

Court, Oneida County (David A. Murad, J.), entered December 3, 2018.
The order and judgment, insofar as appealed from, granted in part the
motion of plaintiff seeking, inter alia, a declaratory judgment, and
denied the cross motion of defendant Central Co-Operative Insurance
Company seeking, inter alia, summary judgment.

It is hereby ORDERED that the order and judgment insofar as

appealed from is unanimously reversed on the law without costs, the
motion is denied in its entirety, the cross motion is granted insofar
as it seeks summary judgment and judgment is granted in favor of
defendant Central Co-Operative Insurance Company as follows:

It is ADJUDGED AND DECLARED that defendant Central Co-

Operative Insurance Company is not obligated to defend or
indemnify plaintiff in the underlying action.

Memorandum: Defendant Central Co-Operative Insurance Company

(Central) appeals from an order and judgment that, inter alia, granted
that part of plaintiff’s motion for summary judgment seeking a
declaration that Central had a duty to defend plaintiff in an
underlying tort action and denied Central’s cross motion seeking,
among other things, summary judgment declaring that Central did not
have a duty to defend or indemnify plaintiff. We reverse the order
and judgment insofar as appealed from, deny plaintiff’s motion in its
entirety, grant Central’s cross motion insofar as it seeks summary
judgment, and grant judgment in favor of Central.
 -2- 154
CA 19-01201

The underlying tort action arose from an incident in which

plaintiff, allegedly in defense of his wife, struck his neighbor,
defendant Robert J. Salerno, once or twice with his fist. The
incident occurred on or near plaintiff’s property and, although
criminal charges against plaintiff were dismissed, Salerno commenced
the underlying tort action against plaintiff. The first cause of
action in the underlying tort action alleged that plaintiff
“assault[ed] [Salerno] by seizing him, striking him and punching him
in the face and in particular the left eye, among other areas of the
body” and that those actions were “willful, intentional, unwarranted
and without just cause or provocation.” The second cause of action
alleged that plaintiff “negligently struck [Salerno] so as to sustain
serious injury” and that plaintiff “acted in a reckless, careless and
negligent manner toward [Salerno].” Plaintiff sought coverage from
Central under his homeowners’ insurance policy, but Central denied
coverage based on an exclusion providing that the policy did not apply
to “liability . . . caused intentionally by or at the direction of any
insured.” Plaintiff subsequently commenced this action seeking a
declaration that Central was obligated to defend and indemnify him in
the underlying tort action.

We agree with Central that it established that the policy

exclusion for intentional actions is applicable and that it therefore
has no duty to defend or indemnify plaintiff in the underlying tort
action. “It is well settled that an insurance company’s duty to
defend is broader than its duty to indemnify” (Automobile Ins. Co. of
Hartford v Cook, 7 NY3d 131, 137 [2006]). “Indeed, the duty to defend
is exceedingly broad, and an insurer will be called upon to provide a
defense whenever the allegations of the complaint suggest . . . a
reasonable possibility of coverage” (id. [internal quotation marks
omitted]). “When an insurer seeks to disclaim coverage on the . . .
basis of [a policy] exclusion, . . . the insurer will be required to
provide a defense unless it can demonstrate that the allegations of
the complaint cast the pleading solely and entirely within the policy
exclusions, and, further, that the allegations, in toto, are subject
to no other interpretation” (id. [internal quotation marks omitted]).

In assessing whether a policy exclusion for injuries

“ ‘intentionally caused’ ” by the insured applies, a court must look
to the pleadings in the underlying action and “limit [its] examination
to the nature of the conduct [of the insured] as it is there
described” (Allstate Ins. Co. v Mugavero, 79 NY2d 153, 159 [1992]).
The “analysis depends on the facts which are pleaded, not conclusory
assertions” (id. at 162). When a complaint alleges in a conclusory
manner that an assault was committed negligently, an insurer has no
duty to defend where the insured does not provide “evidentiary support
for the conclusory characterization of [the] conduct as negligent or
provide an explanation of how the intrinsically intentional act[] of
assault . . . could be negligently performed” (id. at 163; see
Pennsylvania Millers Mut. Ins. Co. v Rigo, 256 AD2d 769, 771 [3d Dept
1998]; Monter v CNA Ins. Cos., 202 AD2d 405, 406 [2d Dept 1994]). An
insured may not “exalt form over substance by labeling [an underlying
tort] action as one to recover damages for negligence” where the
conduct is inherently intentional (State Farm Fire & Cas. Co. v Joseph
 -3- 154
CA 19-01201

M., 106 AD3d 806, 808 [2d Dept 2013] [internal quotation marks
omitted]).

Here, the second cause of action in the Salerno complaint

contains no more than a conclusory characterization of plaintiff’s
conduct as negligent without any supporting factual allegations.
Thus, the complaint in the underlying action does not contain
sufficient allegations of negligence to avoid the policy exclusion
(see Allstate Ins. Co., 79 NY2d at 162-163; cf. Automobile Ins. Co. of
Hartford, 7 NY3d at 135-138). Further, plaintiff failed to provide
“evidentiary support for the conclusory characterization of [his]
conduct as negligent” or “an explanation of how the intrinsically
intentional act[] of assault . . . could be negligently performed”
(Allstate Ins. Co., 79 NY2d at 163). Moreover, even assuming,
arguendo, that plaintiff intended only to punch Salerno but not to
injure him, the injuries were intentionally caused inasmuch as harm
was inherent in the nature of the acts alleged (see id. at 160).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

158
CA 19-01260
PRESENT: WHALEN, P.J., CURRAN, TROUTMAN, WINSLOW, AND BANNISTER, JJ.

CANDY ANDERSON, PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

JACK E. ANDERSON, DEFENDANT-RESPONDENT.

LAW OFFICE OF BARBARA A. KILBRIDGE, BUFFALO (BARBARA A. KILBRIDGE OF

COUNSEL), FOR PLAINTIFF-APPELLANT.

ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (PAUL V. WEBB, JR., OF

COUNSEL), FOR DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Chautauqua County

(Stephen W. Cass, A.J.), entered December 19, 2018. The order,
insofar as appealed from, denied that part of the motion of plaintiff
seeking summary judgment on the complaint.

It is hereby ORDERED that the order insofar as appealed from is

reversed on the law without costs and the motion is granted insofar as
it sought summary judgment on the complaint.

Memorandum: Plaintiff commenced this action, which is ancillary

to pending divorce actions commenced by plaintiff and defendant,
seeking to set aside a nuptial agreement. Plaintiff alleged that the
nuptial agreement is invalid and unenforceable because defendant’s
signature on the agreement was not acknowledged contemporaneously and,
at the time when defendant’s signature was eventually acknowledged,
the parties did not mutually reaffirm the agreement. The litigation
arises from the parties’ marriage in August 2011. One month after the
marriage, plaintiff signed and acknowledged a document titled
“Prenuptial Agreement” (agreement). The parties dispute whether
defendant also signed the agreement at that time, but there is no
dispute that defendant’s signature was not acknowledged before a
notary public until nearly seven years later, in May 2018. In June
2018, and one month after defendant’s signature was acknowledged,
defendant commenced a divorce action, in which defendant sought a
judgment of divorce that incorporated the agreement. Plaintiff
thereafter commenced a separate divorce action. In this ancillary
action to the pending divorce actions, plaintiff moved for summary
judgment on her complaint as well as an award of $3,000 in attorney’s
fees. Supreme Court denied the motion, reasoning that defendant’s
later acknowledgment of the agreement cured any defect. Plaintiff
appeals from the order insofar as it denied that part of her motion
seeking summary judgment on the complaint. We reverse the order
 -2- 158
CA 19-01260

insofar as appealed from.

Domestic Relations Law § 236 (B) (3) provides that “[a]n

agreement by the parties, made before or during the marriage, shall be
valid and enforceable in a matrimonial action if such agreement is in
writing, subscribed by the parties, and acknowledged or proven in the
manner required to entitle a deed to be recorded.” “The
acknowledgment requirement [of section 236 (B) (3)] fulfills two
important purposes” (Galetta v Galetta, 21 NY3d 186, 191 [2013]).
“First, ‘acknowledgment serves to prove the identity of the person
whose name appears on the instrument and authenticate the signature of
such person’ ” (id. at 191-192). “Second, it necessarily imposes on
the signer a measure of deliberation in the act of executing the
document” (id. at 192). “[T]he formality of an acknowledgment
underscores the weighty personal choices to relinquish significant
property or inheritance rights, or to resolve important issues
concerning child custody, education and care” (id. [internal quotation
marks omitted]).

It is undisputed that, at the time the parties entered into the

agreement, there was no certificate of acknowledgment with respect to
defendant’s signature and thus the agreement was defective. We
conclude that defendant’s attempt to cure that defect nearly seven
years later, and on the precipice of a divorce action, by having his
signature acknowledged and then filing the agreement is insufficient
to cure that defect.

Although the Domestic Relations Law does not expressly provide

that a reaffirmation of the agreement is required under these
circumstances, the statute does not speak at all regarding the cure of
a defective nuptial agreement. The Court of Appeals, however, has
remarked that the acknowledgment requirement imposed under Domestic
Relations Law § 236 (B) (3) is “onerous and, in some respects, more
exacting than the burden imposed when a deed is signed” (Galetta, 21
NY3d at 192) and that, unlike an unacknowledged deed, a prenuptial
agreement is “unenforceable even if the parties acknowledge that the
signatures are authentic and the agreement was not tainted by fraud or
duress” (id.). Thus, while our dissenting colleagues view the
acknowledgment requirement of the agreement as a mere technical step,
the Court of Appeals has viewed the requirement as “onerous” and
involving “weighty personal choices” (id.).

When discussing the issue whether a deficiency in a nuptial

agreement that lacks an acknowledgment can be later cured, the Court
noted, in dicta, that the weight of the authority in the Appellate
Division permits “the absence of an acknowledgment to be cured after
the fact, [but only if] both parties engaged in a mutual
‘reaffirmation’ of the agreement” (id. at 195 [emphasis added]). The
Court commented that a rule that prohibits a party from attempting to
unilaterally cure the absence of an acknowledgment “appears to be
sound” (id. at 196).
 -3- 158
CA 19-01260

Thus, we conclude that, when an acknowledgment is missing from a

nuptial agreement, an acknowledgment and a reaffirmation by the
parties is required to cure the defect. To hold otherwise would
permit a spouse to act unilaterally to cure the lack of his or her
acknowledgment at some later date, and would thereby permit that
spouse to choose, based on circumstances that may have changed in ways
unanticipated by the other spouse at the time of the initial signing
of the agreement, whether to acknowledge the agreement and make it
enforceable or to leave it unacknowledged and defective. When the
parties mutually sign and acknowledge the agreement, it is clear that
they are mutually binding themselves to the weighty decisions that
they deliberated on. Thus, in order for the acknowledgment to have
true significance and purpose, it must be done contemporaneously with
the parties’ signatures or, if the acknowledgment occurs at a later
date, the agreement must be mutually reaffirmed by the parties (see
generally D’Elia v D’Elia, 14 AD3d 477, 478 [2d Dept 2005]; Arizin v
Covello, 175 Misc 2d 453, 457 [Sup Ct, NY County 1998]).

Because the agreement in this case was not reaffirmed by the

parties at the time that defendant’s signature was acknowledged, we
conclude that the agreement is invalid and unenforceable and that
plaintiff is therefore entitled to summary judgment on the complaint.

All concur except CURRAN and TROUTMAN, JJ., who dissent and vote to
affirm in the following memorandum: We respectfully dissent.
Initially, it is undisputed that plaintiff’s signature on the nuptial
agreement was properly acknowledged, and she makes no assertion on
appeal that she was induced into entering the agreement by fraud,
overreaching or duress. Similarly, there is no alleged technical
infirmity in the form of defendant’s acknowledgment. We disagree,
however, with the majority’s conclusion that the agreement was invalid
because it was required to have been contemporaneously acknowledged by
the parties at the same time they signed the agreement and, because it
was not contemporaneously acknowledged, it should have been
“reaffirmed” by both parties to be valid.

Domestic Relations Law § 236 (B) (3) contains no language

expressly imposing the requirement endorsed by the majority.
Moreover, the cases on which the majority relies to support that
conclusion cannot properly be read as holding that the statute
contains a contemporaneous acknowledgment or reaffirmation
requirement. To be sure, the Court of Appeals, in Galetta v Galetta
(21 NY3d 186, 195 [2013]), observed that “the weight of Appellate
Division authority is against permitting the absence of an
acknowledgment to be cured after the fact, unless both parties engaged
in mutual ‘reaffirmation’ of the agreement.” Here, as Supreme Court
accurately observed, however, the cases cited by the Court of Appeals
in Galetta all involved the propriety of a subsequent acknowledgment
to cure a defect that occurred at the time an agreement was initially
acknowledged—they did not generally impose a “reaffirmation”
requirement.

It also should not be supposed that the Court of Appeals added a

 -4- 158
CA 19-01260

reaffirmation requirement as a precondition to establishing the

validity of nuptial agreements in mere dicta describing appellate
authority, especially absent a statutory definition of the term
“reaffirmation” in the Domestic Relations Law. Although Arizin v
Covello (175 Misc 2d 453, 454-455 [Sup Ct, NY County 1998]) referenced
a “reaffirmation” executed by the parties, the court in that case
ultimately analyzed the legal issue in terms of whether the subsequent
“acknowledgment” was valid, and the court concluded that the
acknowledgment was valid (id. at 456-460). Here, as noted above,
there is no dispute that defendant’s acknowledgment was done in a
technically correct manner.

The majority also imposes a further non-statutory

requirement—that the acknowledgment “must be done contemporaneously
with the parties’ signatures.” Respectfully, that mandate is
unsupported by any precedent and is contrary to the well-settled
principles that contracts, including nuptial agreements, are presumed
to be valid (see Bloomfield v Bloomfield, 97 NY2d 188, 193 [2001];
Matter of Sunshine, 51 AD2d 326, 327 [1st Dept 1976], affd 40 NY2d 875
[1976]), and may be executed in counterparts and at different
locations—which implies that it is possible that such agreements will
not be signed and acknowledged by the parties at exactly the same time
(see generally Pulver v Pulver, 40 AD3d 1315, 1317 [3d Dept 2007]).

In imposing reaffirmation and contemporaneousness requirements,

we submit that the majority’s approach will likely result in continued
efforts to define the precise scope of those new mandates. Thus,
inasmuch as the nuptial agreement here was already properly
acknowledged by the time its validity was required to be
evaluated—i.e., when the matrimonial action was commenced—we would
affirm the order on appeal.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

159
CA 19-00684
PRESENT: WHALEN, P.J., CURRAN, TROUTMAN, WINSLOW, AND BANNISTER, JJ.

ANTHONY FARGNOLI, PLAINTIFF-RESPONDENT,

V MEMORANDUM AND ORDER

MARK WARFEL, D.O., MARK WARFEL, D.O., P.C.,

ST. ELIZABETH’S FAMILY PRACTICE, ST. ELIZABETH’S
MEDICAL CENTER, IMAGING AT ST. ELIZABETH’S
MEDICAL ARTS, DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.

GALE GALE & HUNT, LLC, SYRACUSE (CATHERINE A. GALE OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

ROBERT F. JULIAN, P.C., UTICA (ROBERT F. JULIAN OF COUNSEL), FOR

PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Oneida County

(Bernadette T. Clark, J.), entered January 18, 2019. The order denied
in part the motion of defendants-appellants seeking summary judgment
dismissing the complaint against them.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In this medical malpractice action arising from

plaintiff’s allegations that, among other things, defendants were
negligent in failing to timely diagnose his breast cancer, defendants-
appellants (defendants) appeal from an order that, inter alia, denied
in part the motion of defendants for summary judgment dismissing the
complaint against them. We affirm.

On a motion seeking summary judgment dismissing a medical

malpractice cause of action, “ ‘a defendant has the burden of
establishing, prima facie, that he or she did not deviate from the
good and accepted standard of . . . care, or that any such deviation
was not a proximate cause of the plaintiff’s injuries’ ” (Culver v
Simko, 170 AD3d 1599, 1600 [4th Dept 2019]; see Kubera v Bartholomew,
167 AD3d 1477, 1479 [4th Dept 2018]). Here, as defendants essentially
concede, their submissions in support of the motion with respect to
the medical malpractice causes of action addressed only deviation,
inasmuch as their expert affirmation mentioned causation only in a
fleeting and conclusory manner (see generally Diaz v New York Downtown
Hosp., 99 NY2d 542, 545 [2002]; Occhino v Fan, 151 AD3d 1870, 1871
[4th Dept 2017]). Thus, because defendants did not meet their initial
 -2- 159
CA 19-00684

burden with respect to causation, we conclude that plaintiff was not

required to address that element in his opposition to the motion (see
Bubar v Brodman, 177 AD3d 1358, 1359 [4th Dept 2019]; Bhim v
Dourmashkin, 123 AD3d 862, 864 [2d Dept 2014]).

With respect to deviation from the standard of care, however, we

conclude that defendants met their initial burden through the
submission of the detailed expert affirmation of an internal medicine
physician. Defendants’ expert opined, in a nonconclusory manner, that
defendants’ treatment of plaintiff in the two years leading up to his
cancer diagnosis was consistent with the accepted standard of care and
that defendants took timely action in responding to plaintiff’s
changing condition during that time (see Nevarez v University of
Rochester, 173 AD3d 1640, 1641 [4th Dept 2019]; Boland v Imboden, 163
AD3d 1408, 1409 [4th Dept 2018], lv denied 32 NY3d 912 [2019]; Chillis
v Brundin, 150 AD3d 1649, 1650 [4th Dept 2017]).

We further conclude that plaintiff raised an issue of fact with

respect to deviation in opposition to defendants’ motion. Where, as
here, a plaintiff’s detailed expert affirmation “squarely opposes” the
affirmation of a defendant’s expert, the result is “a classic battle
of the experts that is properly left to a jury for resolution”
(Blendowski v Wiese [appeal No. 2], 158 AD3d 1284, 1286 [4th Dept
2018] [internal quotation marks omitted]; see Mason v Adhikary, 159
AD3d 1438, 1439 [4th Dept 2018]). Plaintiff’s expert affirmation is
sufficient to raise an issue of fact, inasmuch as we conclude that it
does not “misstate[] the facts in the record” and it is not “ ‘vague,
conclusory, [or] speculative’ ” (Occhino, 151 AD3d at 1871; see Diaz,
99 NY2d at 544; cf. Bubar, 177 AD3d at 1362).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

161
CA 19-01616
PRESENT: WHALEN, P.J., CURRAN, TROUTMAN, WINSLOW, AND BANNISTER, JJ.

JEFFREY KRENCIK,
PLAINTIFF-RESPONDENT-APPELLANT,

V MEMORANDUM AND ORDER

OAKGROVE CONSTRUCTION, INC.,

DEFENDANT-APPELLANT-RESPONDENT.

RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (JEFFREY F. BAASE OF

COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),

FOR PLAINTIFF-RESPONDENT-APPELLANT.

Appeal and cross appeal from an order of the Supreme Court, Erie
County (Diane Y. Devlin, J.), entered February 13, 2019. The order
granted in part and denied in part the motion of defendant for summary
judgment dismissing the complaint and denied the cross motion of
plaintiff for partial summary judgment on the issue of liability with
respect to the Labor Law § 240 (1) claim.

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting those parts of the motion
seeking summary judgment dismissing the common-law negligence cause of
action, the Labor Law § 200 claim, and the Labor Law § 241 (6) claim
insofar as it is based on the alleged violation of the federal
Occupational Safety and Health Act, and denying that part of the
motion seeking summary judgment dismissing the Labor Law § 240 (1)
claim and reinstating that claim, and as modified the order is
affirmed without costs.

Memorandum: Plaintiff commenced this Labor Law and common-law

negligence action seeking damages for injuries he sustained when a
tree fell from an excavator and struck him. Defendant was hired as
the general contractor of a highway project that included, inter alia,
excavation of embankments, grading and reshaping of ditches, and
installation of drainage culverts along the New York State Thruway
(Thruway). Defendant subcontracted the tree removal work to
plaintiff’s employer. At the time of the accident, plaintiff was
cutting down trees adjacent to the Thruway and plaintiff’s supervisor
was using the excavator to move the cut trees into piles.

Defendant appeals and plaintiff cross-appeals from an order that

granted in part defendant’s motion for summary judgment dismissing the
 -2- 161
CA 19-01616

complaint and dismissed plaintiff’s Labor Law § 240 (1) claim. The
order denied defendant’s motion with respect to the common-law
negligence cause of action and Labor Law § 200 and § 241 (6) claims,
and denied plaintiff’s cross motion for partial summary judgment on
the issue of liability with respect to the section 240 (1) claim.

Initially, we agree with plaintiff on his cross appeal that

Supreme Court erred in granting that part of defendant’s motion for
summary judgment seeking to dismiss the Labor Law § 240 (1) claim, and
we therefore modify the order accordingly. Defendant contends that it
was entitled to summary judgment dismissing this claim because
plaintiff was not injured during “the erection, demolition, repairing,
altering, painting, cleaning or pointing of a building or structure”
(§ 240 [1]). Although trees are not structures and tree removal in
and of itself is not an enumerated activity within the meaning of
Labor Law § 240 (1), tree removal performed to facilitate an
enumerated activity does come within the ambit of this statute (see
Lombardi v Stout, 80 NY2d 290, 296 [1992]). Defendant failed to meet
its initial burden on that part of its motion because defendant’s own
submissions raised a triable issue of fact whether plaintiff’s tree
removal work at the time of the accident was ancillary to the larger
construction project, specifically the culvert installation work, that
was ongoing at the time of the accident (see Prats v Port Auth. of
N.Y. & N.J., 100 NY2d 878, 881 [2003]; Lombardi, 80 NY2d at 296; cf.
Cicchetti v Tower Windsor Terrace, LLC, 128 AD3d 1262, 1264 [3d Dept
2015]). Contrary to plaintiff’s further contention, however, the
court properly denied his cross motion seeking summary judgment on the
issue of defendant’s liability under section 240 (1) inasmuch as
plaintiff failed to eliminate all triable issues of fact whether his
tree removal work “[fell] into a separate phase easily distinguishable
from other parts of the larger construction project” (Prats, 100 NY2d
at 881).

Next, we agree with defendant that the claim premised on

violations of the federal Occupational Safety and Health Act (OSHA) or
OSHA regulations must be dismissed because plaintiff was not an
employee of defendant (see Pellescki v City of Rochester, 198 AD2d
762, 763 [4th Dept 1993], lv denied 83 NY2d 752 [1994]), and we
therefore further modify the order by granting that part of the motion
seeking summary judgment dismissing the Labor Law § 241 (6) claim
insofar as it is based on 29 USC § 654 or 29 CFR 1910.135.

Defendant contends that its motion should be granted with respect

to the remainder of the Labor Law § 241 (6) claim because plaintiff
was not injured “in connection with construction, demolition or
excavation work” (Nagel v D & R Realty Corp., 99 NY2d 98, 102 [2002];
see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528
[2003]). That contention is without merit. Although it is well
settled that Labor Law § 241 (6) does not apply to a worker who
engages in tree trimming that is unrelated to construction, demolition
or excavation work (see Olarte v Morgan, 148 AD3d 918, 919-920 [2d
Dept 2017]; Crossett v Wing Farm, Inc., 79 AD3d 1334, 1336-1337 [3d
Dept 2010]; Enos v Werlatone, Inc., 68 AD3d 713, 715 [2d Dept 2009]),
 -3- 161
CA 19-01616

as noted above, there is a triable question of fact whether

plaintiff’s work at the time of his accident was related to the
culvert installation work and was thus related to construction,
demolition or excavation work. Further, defendant’s submissions in
support of its motion raised an issue of fact on the issue of
liability under section 241 (6) with respect to whether the tree
clearing in which plaintiff was involved was a part of the excavation
of the embankments, grading, and reshaping of ditches that was ongoing
at the time of his accident. Defendant’s further contention that the
court should have granted its motion with respect to the Labor Law
§ 241 (6) claim insofar as it is premised on violations of the
Industrial Code because the provisions cited by plaintiff in his first
supplemental bill of particulars are inapplicable to the facts of this
case is raised for the first time on appeal and thus is not properly
before us (see Dunlap v United Health Serv. Inc., 189 AD2d 1072, 1074
[3d Dept 1993]).

Finally, we agree with defendant that the court erred in denying

its motion with respect to the common-law negligence cause of action
and Labor Law § 200 claim, and we therefore further modify the order
accordingly. It is settled law that “where such a claim arises out of
alleged defects or dangers arising from a subcontractor’s methods or
materials, recovery against the owner or general contractor cannot be
had unless it is shown that the party to be charged exercised some
supervisory control over the operation” (Ross v Curtis-Palmer Hydro-
Elec. Co., 81 NY2d 494, 505 [1993]; see Lombardi, 80 NY2d at 295).
Here, defendant met its burden on that part of its motion by
submitting evidence establishing “that the alleged dangerous condition
arose from the . . . methods [of plaintiff’s employer] and that
defendant did not exercise supervisory control over the removal of the
tree or any aspect of plaintiff’s activities” (Young v Barden &
Robeson Corp., 247 AD2d 755, 756 [3d Dept 1998], lv denied 92 NY2d 802
[1998]), and plaintiff failed to raise a triable issue of fact in
opposition (see Ledwin v Auman, 60 AD3d 1324, 1326 [4th Dept 2009];
Kazmierczak v Town of Clarence, 286 AD2d 955, 956 [4th Dept 2001]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

189
CA 18-02000
PRESENT: WHALEN, P.J., CENTRA, CURRAN, WINSLOW, AND BANNISTER, JJ.

STEPHANIE L. AND PETER L., INDIVIDUALLY AND AS

PARENTS AND NATURAL GUARDIANS OF M.L., AN INFANT,
PLAINTIFFS-RESPONDENTS,

V MEMORANDUM AND ORDER

HOUSE OF THE GOOD SHEPHERD AND COUNTY OF ONEIDA,

DEFENDANTS-APPELLANTS.

BARCLAY DAMON LLP, SYRACUSE, MAURO LILLING NAPARTY LLP, WOODBURY

(RICHARD J. MONTES OF COUNSEL), FOR DEFENDANT-APPELLANT HOUSE OF THE
GOOD SHEPHERD.

KENNEY SHELTON LIPTAK NOWAK LLP, JAMESVILLE (DANIEL CARTWRIGHT OF

COUNSEL), FOR DEFENDANT-APPELLANT COUNTY OF ONEIDA.

THE KINDLON LAW FIRM, PLLC, ALBANY (GENNARO D. CALABRESE OF COUNSEL),

FOR PLAINTIFFS-RESPONDENTS.

Appeals from an order of the Supreme Court, Oneida County (Erin

P. Gall, J.), entered October 11, 2018. The order, among other
things, denied the motions of defendants to dismiss the amended
complaint.

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting the motion of defendant
House of the Good Shepherd in part and dismissing the first cause of
action insofar as asserted by plaintiffs, as parents and natural
guardians of M.L., an infant, and dismissing the second cause of
action insofar as asserted by plaintiffs, individually, and as
modified the order is affirmed without costs.

Memorandum: In May 2008, plaintiffs, who were the biological

parents of a then-three-month-old child (biological child), accepted
placement of a nine-year-old child (foster child) from defendant House
of the Good Shepherd (Good Shepherd), a not-for-profit corporation
that administered a foster care program. At the time of the
placement, the foster child was in the care of the County of Oneida
Department of Social Services. Plaintiffs were informed that the
foster child had been sexually abused by members of his biological
family and that he exhibited some behavioral problems. At all
relevant times, however, plaintiffs were unaware that the foster child
had a history of animal abuse and engaging in sexually inappropriate
behavior.
 -2- 189
CA 18-02000

In early 2012, plaintiffs started the process of adopting the

foster child, which was completed in December 2012. In the year
leading up to the adoption, the foster child began acting in a
sexually inappropriate manner toward the biological child and other
children. One day after the adoption was finalized, the foster child
sexually assaulted the biological child. Thereafter, plaintiffs
discovered that they had not been given a complete set of records
concerning the foster child, which records would have revealed his
full history of engaging in animal abuse and sexually inappropriate
behavior. The foster child was removed from plaintiffs’ home, and the
adoption was vacated.

Based on defendants’ alleged failure to fully disclose the foster

child’s complete history, plaintiffs commenced this action in August
2016. They asserted, individually and on behalf of the biological
child, causes of action for fraud and negligence against Good Shepherd
and asserted, on behalf of the biological child, a cause of action for
negligent infliction of emotional distress against defendants and a
cause of action for negligence against defendant County of Oneida.
Defendants appeal from an order that, inter alia, denied their
respective motions to dismiss the amended complaint against them.

Initially, as Good Shepherd contends and plaintiffs correctly

concede, Supreme Court erred in denying the motion of Good Shepherd
insofar as it sought dismissal of those claims against it that
plaintiffs expressly abandoned, i.e., the first cause of action, for
fraud, to the extent asserted on behalf of the biological child and
the second cause of action, for negligence, to the extent asserted by
plaintiffs individually. Thus, we modify the order accordingly (see
Beechler v Kill Bros. Co., 170 AD3d 1606, 1608 [4th Dept 2019], lv
denied in part and dismissed in part 34 NY3d 973 [2019]; Mortka v K-
Mart Corp., 222 AD2d 804, 804 [3d Dept 1995]).

We reject, however, Good Shepherd’s contention that the fraud

cause of action insofar as asserted in plaintiffs’ individual capacity
was barred by the statute of limitations and that the court therefore
erred in denying its motion to that extent. “The statute of
limitations for a cause of action sounding in fraud is six years from
the date of the wrong, or two years from the date the fraud could
reasonably have been discovered, whichever is later” (Siler v Lutheran
Social Servs. of Metro. N.Y., 10 AD3d 646, 648 [2d Dept
2004]; see CPLR 213 [8]). Good Shepherd relies on its admission in
its verified answer that, “[a]t all times relevant,” it knew that the
foster child had a history of animal abuse and behaving in a sexually
inappropriate manner. Good Shepherd contends that its admission
established that it knew about the foster child’s relevant history
when he was first placed with plaintiffs in May 2008. Thus, it argues
that the fraud cause of action accrued in 2008, causing the statute of
limitations to expire in 2014. We disagree.

A defendant’s mere knowledge of something is not an element of a

fraud cause of action; instead, a fraud cause of action requires a
showing of, inter alia, the false representation of a material fact
with the intent to deceive (see generally Ross v Louise Wise Servs.,
 -3- 189
CA 18-02000

Inc., 8 NY3d 478, 488 [2007]). Thus, even assuming, arguendo, that
Good Shepherd knew of the foster child’s history of animal abuse and
engaging in sexually inappropriate behavior as early as May 2008, we
conclude that its knowledge thereof did not demonstrate that the
alleged fraud occurred at that time. Good Shepherd submitted no
evidence that, in May 2008, it falsely represented the foster child’s
relevant history with the intent to deceive plaintiffs. Thus, it did
not establish as a matter of law that the fraud cause of action
accrued in 2008 (see generally Chaplin v Tompkins, 173 AD3d 1661, 1662
[4th Dept 2019]). Moreover, Good Shepherd submitted the amended
complaint, wherein plaintiffs alleged that, on numerous occasions in
early 2012, they contacted Good Shepherd about the foster child’s
sexually inappropriate behavior and that, on each occasion, Good
Shepherd assured them that the foster child had no history of that
type of behavior. We therefore conclude that Good Shepherd failed to
meet its initial burden of establishing that the fraud cause of action
asserted in 2016 was barred by the applicable six-year statute of
limitations (see CPLR 213 [8]).

Defendants contend that the court erred in denying their motions

with respect to the negligence causes of action insofar as asserted on
behalf of the biological child because they did not owe a duty to that
child. We also reject that contention. “In the context of a motion
to dismiss pursuant to CPLR 3211, [the court] ‘determine[s] only
whether the facts as alleged [in the complaint] fit within any
cognizable legal theory’ ” (Davis v South Nassau Communities Hosp., 26
NY3d 563, 572 [2015], quoting Leon v Martinez, 84 NY2d 83, 87-88
[1994] [emphasis added]). “ ‘[T]he criterion is whether the proponent
of the pleading has a cause of action, not whether he [or she] has
stated one’ ” (Leon, 84 NY2d at 88 [emphasis added]). Our review,
therefore, is limited to whether plaintiffs, on behalf of the
biological child, have a cause of action sounding in negligence based
on defendants’ failure to warn of the foster child’s complete
behavioral history.

The “threshold question” in any negligence action is whether a

defendant owes a “legally recognized duty of care to [a] plaintiff”
(Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001]), which
presents “a legal issue for the courts to decide” (Oddo v Queens Vil.
Comm. for Mental Health for Jamaica Community Adolescent Program,
Inc., 28 NY3d 731, 735 [2017] [internal quotation marks omitted]). To
establish the existence of a legal duty, “[t]he injured party must
show that a defendant owed not merely a general duty to society but a
specific duty to him or her . . . in order to avoid subjecting an
actor to limitless liability to an indeterminate class of persons
conceivably injured by any negligence in that act” (Hamilton, 96 NY2d
at 232 [internal quotation marks omitted]). “[A]ny extension of the
scope of duty must be tailored to reflect accurately the extent that
its social benefits outweigh its costs” (id.).

Additionally, as a general rule a defendant does not have a duty

“to control the conduct of third persons so as to prevent them from
harming others, even where as a practical matter defendant can
 -4- 189
CA 18-02000

exercise such control” (id. at 233 [internal quotation marks

omitted]). In determining whether a defendant owes a duty to a
plaintiff injured by a third-person tortfeasor, the court must
consider whether there is a relationship either: (1) “between [the]
defendant and [the] third-person tortfeasor that encompasses [the]
defendant’s actual control of the third person’s actions,” or (2)
“between [the] defendant and [the] plaintiff that requires [the]
defendant to protect [the] plaintiff from the conduct of others”
(id.). The central concern under both of those prongs is whether “the
defendant’s relationship with either the tortfeasor or the plaintiff
places the defendant in the best position to protect against the risk
of harm” (id. [emphasis added]). In other words, the “calculus is
such that [courts] assign the responsibility of care to the person or
entity that can most effectively fulfill th[e] obligation [of
protecting against the risk of harm] at the lowest cost” (Davis, 26
NY3d at 572). Under those circumstances, “the specter of limitless
liability is not present because the class of potential plaintiffs to
whom the duty is owed is circumscribed by the relationship” (Hamilton,
96 NY2d at 233).

In Davis (26 NY3d at 569-570), the Court of Appeals recently

determined that the defendant medical providers owed a duty to the
plaintiffs, who were injured in a car accident caused by the
defendants’ patient, to warn their patient about the danger of
medication administered by the defendants that may have impaired the
patient’s ability to safely operate an automobile. The Court noted
that, by not giving such a warning, the defendants “create[d] a peril
affecting every motorist in [the patient’s] vicinity” (id. at 577).
In determining that a duty existed, the Court noted that the
defendants were “the only ones who could have provided a proper
warning of the effects of that medication” (id.). Additionally, the
Court determined that: (1) the cost of the duty imposed was small;
(2) the duty could be easily satisfied “merely by advising one to whom
such medication is administered of the dangers of that medication”;
and (3) its decision did not “ero[de] . . . the prevailing principle
that courts should proceed cautiously and carefully in recognizing a
duty of care” (id. at 579-580 [internal quotation marks omitted]).

Here, we conclude that defendants owed a duty of care to the

biological child to warn plaintiffs, as the child’s parents, of the
foster child’s complete behavioral history (see generally id. at 577).
Defendants were the entities that oversaw the foster child’s placement
with plaintiffs in the four years preceding the adoption. In our
view, the relationship between defendants and the biological child
here was far more substantive than the relationship that supported the
finding of a duty in Davis (see id.). Although defendants contend
that they did not owe the biological child a duty because they lacked
control over the foster child during the four years that he lived with
plaintiffs, control over a third-person tortfeasor is just one way to
establish a duty. As noted above, a duty may also exist where “there
is a relationship . . . between [the] defendant and [the] plaintiff
that requires [the] defendant to protect [the] plaintiff from the
conduct of others,” and “the key . . . is that the defendant’s
relationship with either the tortfeasor or the plaintiff places the
 -5- 189
CA 18-02000

defendant in the best position to protect against the risk of harm”

(Hamilton, 96 NY2d at 233 [emphasis added]).

The amended complaint in this action alleged a relationship

between the parties that placed defendants in the best position to
protect the biological child from the risk of harm and that required
defendants to protect the child from the sexual abuse by the foster
child by warning plaintiffs of the foster child’s history of sexually
inappropriate behavior (see generally id.). Defendants were in the
best position to protect the biological child from that sexual abuse
because of their superior knowledge of the foster child’s behavioral
history and because of the relative ease with which they could have
apprised plaintiffs of that history. Indeed, defendants were the only
entities that “could have provided a proper warning” regarding the
foster child’s full behavioral history (Davis, 26 NY3d at 577).

Moreover, contrary to defendants’ contention, finding a duty here

would not raise the “specter of limitless liability . . . because the
class of potential plaintiffs to whom the duty is owed[—children of
prospective adoptive parents—]is circumscribed by the relationship”
(id. at 589 [internal quotation marks omitted]). Additionally, we
conclude that the cost of the duty imposed on defendants is a small
one, i.e., simply disclosing to plaintiffs the information regarding
the foster child’s behavioral history that was in defendants’
possession. Indeed, defendants could have met their duty largely by
complying with the disclosure requirements of Social Services Law
§ 373-a. Moreover, determining that defendants had a duty here does
not erode “the prevailing principle that courts should proceed
cautiously and carefully in recognizing a duty of care” (Davis, 26
NY3d at 580). We are not determining that defendants owed a duty to
the public at large, but rather to a very small, readily ascertainable
population—children of prospective adoptive parents. Thus, we
conclude that “reasonable persons would recognize [the duty] and agree
that it exists” (id. at 577 [internal quotation marks omitted]).

Finally, we reject defendants’ contention that the court erred in

denying the motions with respect to the negligent infliction of
emotional distress cause of action. Contrary to defendants’
assertion, “extreme and outrageous conduct is not an essential element
of a cause of action to recover damages for negligent infliction of
emotional distress” (Taggart v Costabile, 131 AD3d 243, 255 [2d Dept
2015]; see generally Ornstein v New York City Health and Hosps. Corp.,
10 NY3d 1, 6 [2008]). We have considered defendants’ remaining
contentions and conclude that none warrants further modification or
reversal of the order.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

238
CA 19-01362
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.

IN THE MATTER OF MICHAEL MCGRAW, KATHRYN MCGRAW,

ANGELO GRAZIANO, NINA GRAZIANO, J. DUDLEY ROBINSON,
DIANA ERMER, MARTIN HUBER, NANCY HUBER,
RICHARD IVORY, THOMAS IVORY, ALAN CROWELL,
MARILYN CROWELL, SUSAN BALDWIN, JULIE DELCAMP,
ROBIN DELCAMP, DAVID HORNBURG, ROBERT MCGRAW AND
JOSEPH IVORY, PETITIONERS-RESPONDENTS,

V MEMORANDUM AND ORDER

TOWN BOARD OF TOWN OF VILLENOVA, BALL HILL WIND

ENERGY, LLC AND RENEWABLE ENERGY SYSTEMS
AMERICAS, RESPONDENTS-APPELLANTS.

HODGSON RUSS LLP, BUFFALO (CHARLES W. MALCOMB OF COUNSEL), FOR

RESPONDENT-APPELLANT TOWN BOARD OF TOWN OF VILLENOVA.

NIXON PEABODY LLP, BUFFALO (LAURIE STYKA BLOOM OF COUNSEL), FOR

RESPONDENT-APPELLANT BALL HILL WIND ENERGY, LLC AND RENEWABLE ENERGY
SYSTEMS AMERICAS.

LIPPES & LIPPES, BUFFALO (RICHARD J. LIPPES OF COUNSEL), FOR

PETITIONERS-RESPONDENTS.

Appeals from a judgment (denominated order and judgment) of the

Supreme Court, Chautauqua County (James H. Dillon, J.), entered July
22, 2019 in a CPLR article 78 proceeding. The judgment, insofar as
appealed from, granted the petition in part.

It is hereby ORDERED that the judgment insofar as appealed from

is unanimously reversed on the law without costs and the petition is
denied in its entirety.

Memorandum: Petitioners commenced this CPLR article 78

proceeding seeking, inter alia, to void an approval made by respondent
Town Board of Town of Villenova (Town Board) of a local law and the
grant of a special use permit to respondent Ball Hill Wind Energy, LLC
(Ball Hill) to construct wind turbines up to 599 feet in height in the
Town of Villenova. Petitioners own property in the vicinity of the
project. By way of background, a draft environmental impact statement
(EIS) for the project was accepted by the Town Board in 2008, and a
supplemental EIS (SEIS) was prepared and accepted by the Town Board in
2016. A final EIS was completed later that year for the 29 proposed
turbines at a maximum height of 492 feet; the plan included a 5.7-mile
 -2- 238
CA 19-01362

overhead transmission line. The Town Board approved the final EIS in
November 2016, adopted local laws related to the approval of the
project, and granted Ball Hill a special use permit. No judicial
challenge was made to those determinations. In 2018, Ball Hill
applied to modify the special use permit and amend the local laws to
increase the maximum height for the turbines to 599 feet and to
replace the overhead transmission line with underground circuits. The
Town Board determined that a second SEIS was unnecessary and approved
the full environmental assessment form and issued a negative
declaration. The Town Board also amended the relevant local laws and
special use permit.

In their CPLR article 78 petition, petitioners asserted three

causes of action: violation of the State Environmental Quality Review
Act (SEQRA); violation of General Municipal Law article 18; and
violation of Town of Villenova ordinances. Supreme Court, inter alia,
granted petitioners’ first cause of action regarding SEQRA, holding
that the Town Board did not take a hard look at the effect that the
increase in height of the turbines could have on the bald eagle
population and the environmental impact of the placement of the
electrical lines underground. Respondents appeal, and we now reverse
the judgment insofar as appealed from and deny the petition in its
entirety.

During the SEQRA process, a SEIS may be required to address

“specific significant adverse environmental impacts not addressed or
inadequately addressed in the EIS,” arising from, inter alia, changes
in the project (6 NYCRR 617.9 [a] [7] [i]). A decision to require a
SEIS “must be based upon . . . the importance and relevance of the
information; and . . . the present state of the information in the
EIS” (6 NYCRR 617.9 [a] [7] [ii]). “A lead agency’s determination
whether to require a SEIS–or in this case a second SEIS–is
discretionary” (Matter of Riverkeeper, Inc. v Planning Bd. of Town of
Southeast, 9 NY3d 219, 231 [2007]), and such determination “should be
annulled only if it is arbitrary, capricious, or unsupported by the
evidence” (id. at 232).

We conclude that the Town Board “took a hard look at the areas of
environmental concern and made a reasoned elaboration of the basis for
its conclusion that a second SEIS was not necessary” (id. at 233).
The Town Board’s discretionary determination was not arbitrary,
capricious, or unsupported by the evidence (see Matter of Viserta v
Town of Wawayanda Planning Bd., 156 AD3d 797, 798-799 [2d Dept 2017];
Matter of South Bronx Unite! v New York City Indus. Dev. Agency, 115
AD3d 607, 609-610 [1st Dept 2014], lv denied 24 NY3d 908 [2014]). The
prior submissions concerning the impact of the project on bald eagles,
combined with the updated materials submitted with the latest project
modification, were sufficient to establish that the proposed changes
would not adversely impact bald eagles. The materials established
that collisions between raptors and wind turbines are rare, and that
even the higher, 599-foot turbines lie below the normal flight
altitude of bald eagles. With respect to the buried electrical
transmission lines, the materials showed that such a modification
would have a significant positive environmental impact, reducing the
 -3- 238
CA 19-01362

effect of the project on wetlands. We have reviewed petitioners’

remaining arguments regarding the SEQRA review as alternative grounds
for affirmance (see Parochial Bus Sys. v Board of Educ. of City of
N.Y., 60 NY2d 539, 545-546 [1983]), and conclude that they are without
merit.

Petitioners further contend that they are entitled to relief

under the second and third causes of action in their petition. The
court did not rule on those causes of action, and a court’s failure to
rule on requests for relief in a petition are deemed a denial thereof
(see Matter of Burkwit v Olson, 98 AD3d 1236, 1238 [4th Dept 2012];
see also Bennett Rd. Sewer Co. v Town Bd. of Town of Camillus, 243
AD2d 61, 67 [4th Dept 1998]). Those causes of action sought relief
different from the relief sought in the first cause of action, and the
court’s judgment therefore did not grant petitioners “the full relief
sought” (Parochial Bus Sys., 60 NY2d at 545). Thus, petitioners are
aggrieved by the court’s failure to rule on the requests for relief
under the second and third causes of action and, in the absence of a
cross appeal from petitioners, those issues are not properly before us
(see Matter of Feldman v Planning Bd. of the Town of Rochester, 99
AD3d 1161, 1165 [3d Dept 2012]; cf. Matter of Adrian v Board of Educ.
of City School Dist. of City of Niagara Falls, 92 AD3d 1272, 1273 [4th
Dept 2012], affd 20 NY3d 540 [2013]; Matter of Foreman v Goord, 302
AD2d 817, 817 [3d Dept 2003]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

239
CA 19-01689
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.

MICHAEL MAAK, PLAINTIFF-RESPONDENT,

V MEMORANDUM AND ORDER

MEDINA PROFESSIONAL FIREFIGHTERS ASSOCIATION,

IAFF LOCAL 2161, DEFENDANT,
STEVEN COOLEY, INDIVIDUALLY, AND AS PRESIDENT OF
MEDINA PROFESSIONAL FIREFIGHTERS ASSOCIATION,
IAFF LOCAL 2161 AND MATTHEW JACKSON, INDIVIDUALLY,
AND AS VICE PRESIDENT OF MEDINA PROFESSIONAL
FIREFIGHTERS ASSOCIATION, IAFF LOCAL 2161,
DEFENDANTS-APPELLANTS.

THE SAMMARCO LAW FIRM, LLP, BUFFALO (ANDREA L. SAMMARCO OF COUNSEL),

FOR DEFENDANTS-APPELLANTS.

CULLEY, MARKS, TANENBAUM & PEZZULO, LLP, ROCHESTER (GLENN E. PEZZULO

OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Orleans County (Tracey

A. Bannister, J.), entered February 22, 2019. The order denied
defendants’ motion for summary judgment.

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the motion is granted
and the amended complaint is dismissed in its entirety.

Memorandum: Plaintiff commenced this action against defendant

Medina Professional Firefighters Association, IAFF Local 2161
(Firefighters Association), defendant Steven Cooley, individually, and
as president of the Firefighters Association, and defendant Matthew
Jackson, individually, and as vice president of the Firefighters
Association, seeking damages for, inter alia, intentional infliction
of emotional distress and prima facie tort. According to plaintiff,
Cooley and Jackson (defendants) made false and disparaging comments
concerning plaintiff’s performance in the course of his employment
with the Village of Medina Fire Department. A prior order dismissed
all causes of action except those asserted against defendants
individually for intentional infliction of emotional distress and
prima facie tort. Defendants now appeal from an order denying their
motion for summary judgment dismissing those remaining causes of
action. We reverse.

Defendants established their entitlement to summary judgment

 -2- 239
CA 19-01689

dismissing the cause of action for intentional infliction of emotional

distress by demonstrating that their conduct was not so extreme or
outrageous “as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community” (Cooper v Hodge, 28 AD3d 1149, 1151 [4th Dept 2006]
[internal quotation marks omitted]; see generally Kondo-Dresser v
Buffalo Pub. Schools, 17 AD3d 1114, 1115 [4th Dept 2005]). In
opposition, plaintiff failed to raise a material issue of fact (see
Cleveland v Perry, 175 AD3d 1017, 1019 [4th Dept 2019]).

Defendants are entitled to summary judgment dismissing the cause

of action for prima facie tort because it is based on the same conduct
as both the cause of action for intentional infliction of emotional
distress and a previously dismissed cause of action for defamation,
and it is thus duplicative of those causes of action (see Ripka v
County of Madison, 162 AD3d 1371, 1373 [3d Dept 2018]; Bacon v Nygard,
140 AD3d 577, 578 [1st Dept 2016]; see generally Freihofer v Hearst
Corp., 65 NY2d 135, 142-143 [1985]). Moreover, defendants also
established their entitlement to summary judgment on the cause of
action for prima facie tort by demonstrating a lack of special
damages, and plaintiff failed to raise an issue of fact in opposition
(see generally Mancuso v Allergy Assoc. of Rochester, 70 AD3d 1499,
1501 [4th Dept 2010]; Vigoda v DCA Prods. Plus, 293 AD2d 265, 266 [1st
Dept 2002]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

243
CA 19-00713
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.

IN THE MATTER OF ARBITRATION BETWEEN

SEIGFREID BINGHAM, P.C., PETITIONER-APPELLANT,
ET AL., PETITIONER,

AND MEMORANDUM AND ORDER

AFTERCARE NURSING SERVICES, INC. EMPLOYEE STOCK

OWNERSHIP PLAN, AFTERCARE NURSING SERVICES, INC.
EMPLOYEE STOCK OWNERSHIP TRUST AND AFTERCARE
NURSING SERVICES, INC., RESPONDENTS-RESPONDENTS.

BURDEN, HAFNER & HANSEN, LLC, BUFFALO (ADELA APRODU OF COUNSEL), FOR
PETITIONER-APPELLANT.

PHILLIPS LYTLE LLP, BUFFALO (ERIN C. BOREK OF COUNSEL), AND DAVID H.

GOSSEL, WEST SENECA, FOR RESPONDENTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Erie County (Deborah

A. Chimes, J.), entered March 6, 2019 in a proceeding pursuant to CPLR
article 75. The order denied the petition insofar as it sought to
stay arbitration against petitioner Seigfreid Bingham, P.C. and
granted the cross petition insofar as it sought to compel arbitration
against that petitioner.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: The trustee of respondent Aftercare Nursing

Services, Inc. Employee Stock Ownership Trust (Trust) retained
petitioner-appellant (petitioner), a law firm, to provide legal
services to both the Trust and respondent Aftercare Nursing Services,
Inc. Employee Stock Ownership Plan (Plan). The Engagement and Fee
Agreement (agreement) expressly defines the “client” as both the Trust
and the Plan, and it further provides that respondent Aftercare
Nursing Services, Inc. (Company) “will assume the financial
responsibility for the legal fees incurred [there]under.” In the
section entitled “Dispute Resolution,” the agreement provides that
“[a]ny dispute between us arising out of, or relating to, this
agreement, or the breach thereof, shall be resolved by binding
arbitration between the parties. This includes, but is not limited to
any claims regarding attorney’s fees or costs under the agreement or
regarding a claim of attorney malpractice.”

The agreement was signed by the trustee on behalf of the Trust

 -2- 243
CA 19-00713

and the Plan and by an attorney acting on behalf of petitioner. The

agreement was also signed by a member of the Company’s board on behalf
of the Company, which executed the agreement “solely to assume the
financial responsibilities undertaken by the Plan pursuant to this
engagement.” Below all the signature blocks is the following
statement: “This contract contains a binding arbitration provision
which may be enforced by the parties.”

A dispute thereafter developed between petitioner and

respondents, and respondents served an arbitration demand on, inter
alia, petitioner. Petitioners then petitioned to stay arbitration.
Respondents opposed the petition and cross-petitioned to compel
arbitration. As relevant on appeal, Supreme Court granted
respondents’ cross petition insofar as it sought to compel arbitration
against petitioner and denied petitioners’ corresponding petition
insofar as it sought to stay arbitration against petitioner.
Petitioner appeals, and we now affirm.

“A familiar and eminently sensible proposition of law is that,

when parties set down their agreement in a clear, complete document,
their writing should as a rule be enforced according to its terms”
(W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). That rule
applies with equal force to arbitration agreements (see Matter of
Cullman Ventures [Conk], 252 AD2d 222, 228 [1st Dept 1998]). In this
case, the agreement provides that the arbitration clause applies to
all “parties” to the agreement, and there can be no reasonable dispute
that all three respondents—Trust, Plan, and Company—are “parties” to
the agreement. Indeed, the Trust and the Plan are collectively
defined in the agreement as the “client,” and the Company signed the
agreement and promised to pay for the services rendered to such
“client.” Thus, as signed “parties” to the agreement, all three
respondents are entitled to invoke the arbitration clause to resolve
any dispute with petitioner “arising out of, or relating to, th[e]
agreement” (see generally County of Onondaga v U.S. Sprint
Communications Co., 192 AD2d 1108, 1108-1109 [4th Dept 1993]), and it
is undisputed that the issues to be arbitrated arise out of or are
related to the agreement.

We reject petitioner’s arguments to the contrary, all of which

are preserved for appellate review.

First, petitioner’s reliance on Matter of Allegro Resorts Corp. v

Trans-Americainvest (St. Kitts) (1 AD3d 269 [1st Dept 2003]) is
misplaced. In Allegro, the First Department affirmed an order staying
arbitration because the party against whom arbitration was sought had
not signed the agreement containing the arbitration clause (id. at
270). Rather, the subject party had signed only a different, separate
agreement that did not contain an arbitration provision (id.). Here,
in contrast, all three respondents—Plan, Trust, and Company—signed and
were parties to the single, unified agreement that prescribed
arbitration for “[a]ny dispute between us arising from, or relating
to, this agreement.”

Second, the fact that the agreement provides that the Company
 -3- 243
CA 19-00713

signed it “solely to assume the financial responsibilities undertaken

by the Plan” merely limits the Company’s substantive obligations under
the agreement, not its procedural right to arbitrate whatever disputes
might arise from those—albeit limited—substantive obligations. Put
differently, the “solely to assume” language in the agreement does not
bar the Company from enforcing the binding arbitration provision in
order to resolve any dispute that might arise in connection with its
limited substantive obligations under the agreement.

Third, petitioner contends that it cannot be compelled to

arbitrate with the Plan or the Company because it—petitioner—did not
represent either the Plan or the Company as a “client.” With respect
to the Plan, petitioner’s theory is unavailing because the agreement
explicitly provides that petitioner was hired to provide
“representation to . . . the ‘Plan’[] and the trust funding the Plan”
(emphasis added). Moreover, while petitioner is correct that it did
not represent the Company as a “client,” that distinction is
irrelevant for purposes of arbitrability because the arbitration
clause applies to any “party” to the agreement, not merely to a
“client” of petitioner. As respondents put it, “[s]imply because [the
Company] was not named specifically as a Client in the Agreement . . .
does not mean it does not have the right to enforce the arbitration
[clause] for breaches of the Agreement.” Indeed, given that the
Company is solely liable for the legal fees under the agreement, the
agreement’s explicit provision for arbitrating fee disputes would be
meaningless if, as petitioner now argues, the Company could not invoke
the arbitration clause.

Finally, petitioner’s contention that the trustee lacked

authority to execute the agreement on the Plan’s behalf is without
merit under well established principles of federal employee benefits
law (see Taylor Forge Engineered Sys., Inc. v Beauchamp, 1999 WL
450955, *5-6 [D Kan, June 17, 1999, No. Civ. A. 98-2572-KHV], citing,
inter alia, 29 USC § 1103 [a]; see also Petersen v Commr. of Internal
Revenue, 924 F3d 1111, 1120 [10th Cir 2019]).

The parties’ remaining contentions are academic in light of our

determination.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

245
CA 19-00464
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.

IN THE MATTER OF ARBITRATION BETWEEN BUFFALO

TEACHERS FEDERATION, INC., PETITIONER-APPELLANT,

AND MEMORANDUM AND ORDER

BOARD OF EDUCATION OF CITY SCHOOL DISTRICT OF

CITY OF BUFFALO AND CITY SCHOOL DISTRICT OF CITY
OF BUFFALO, RESPONDENTS-RESPONDENTS.

CREIGHTON, JOHNSEN & GIROUX, BUFFALO (CATHERINE CREIGHTON OF COUNSEL),

FOR PETITIONER-APPELLANT.

NATHANIEL J. KUZMA, GENERAL COUNSEL, BUFFALO (SHAUNA L. STROM OF

COUNSEL), FOR RESPONDENTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Erie County (Mark J.

Grisanti, A.J.), entered February 26, 2019 in a proceeding pursuant to
CPLR article 75. The order denied the petition seeking to vacate an
arbitration award and granted respondents’ request to confirm the
arbitration award.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to CPLR article 75,

petitioner appeals from an order denying its petition to vacate an
arbitration award in favor of respondents and granting respondents’
request to confirm the award. We affirm.

Petitioner filed grievances on behalf of two of its members who

were passed over for transfers to City Honors School in favor of
members with less seniority. The collective bargaining agreement
(CBA) at issue provided that, in selecting teachers to be transferred
within the school district, “[l]ength of teaching experience in the
school system” is the controlling factor “where all other factors are
substantially equal.” The arbitrator assigned to the matter issued an
opinion and award, which found no violation of the CBA and dismissed
the grievances.

We reject petitioner’s contention that the arbitrator exceeded

his power in rendering the award. It is well settled that an
arbitrator exceeds his or her power within the meaning of CPLR 7511
(b) (1) (iii) where, inter alia, the arbitration award “ ‘is
irrational, or clearly exceeds a specifically enumerated limitation on
 -2- 245
CA 19-00464

the arbitrator’s power’ ” (Matter of United Fedn. of Teachers, Local

2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y.,
1 NY3d 72, 79 [2003], quoting Matter of Board of Educ. of Arlington
Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33, 37 [1991]).
“[A]n arbitrator’s rulings, unlike a trial court’s, are largely
unreviewable” (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.],
15 NY3d 530, 534 [2010]). “An arbitrator’s interpretation may even
disregard the apparent, or even the plain, meaning of the words of the
contract before him [or her] and still be impervious to challenge in
the courts” (Matter of Albany County Sheriff’s Local 775 of Council
82, AFSCME, AFL-CIO [County of Albany], 63 NY2d 654, 656 [1984]
[internal quotation marks omitted]; see Matter of Silverman [Benmor
Coats], 61 NY2d 299, 308 [1984], rearg denied 62 NY2d 803 [1984]).

The arbitrator here determined that respondent City School

District of the City of Buffalo did not violate the seniority
provision of the CBA with respect to the grievants because “all other
factors” were not “substantially equal.” We conclude that, while “a
different construction could have been accorded to the subject
provision of the [CBA], . . . it cannot be stated that the arbitrator
gave a completely irrational construction to the provision in dispute
and, in effect, exceeded [his] authority by making a new contract for
the parties” (Matter of New York Finger Lakes Region Police Officers
Local 195 of Council 82, AFSCME, AFL-CIO [City of Auburn], 103 AD3d
1237, 1237-1238 [4th Dept 2013] [internal quotation marks omitted]).

We likewise reject petitioner’s contention that the arbitrator’s

award is irrational. “An award is irrational if there is no proof
whatever to justify the award” (Matter of Professional, Clerical,
Tech., Empls. Assn. [Board of Educ. for Buffalo City Sch. Dist.], 103
AD3d 1120, 1122 [4th Dept 2013], lv denied 21 NY3d 863 [2013]
[internal quotation marks omitted]; see Matter of Lucas [City of
Buffalo], 93 AD3d 1160, 1164 [4th Dept 2012]; Matter of Buffalo
Council of Supervisors & Adm’rs, Local No. 10, Am. Fedn. of School
Adm’rs [Board of Educ. of City School Dist. of Buffalo], 75 AD3d 1067,
1068 [4th Dept 2010]). “An arbitration award must be upheld when the
arbitrator ‘offer[s] even a barely colorable justification for the
outcome reached’ ” (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d
471, 479 [2006], cert dismissed 548 US 940 [2006]; see Matter of
Monroe County Deputy Sheriffs’ Assn., Inc. [Monroe County], 155 AD3d
1616, 1617 [4th Dept 2017], lv denied 31 NY3d 910 [2018]). Here,
there is a colorable justification for the arbitrator’s determination.

We have considered petitioner’s remaining contentions and

conclude that they are without merit.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

247
CA 19-00731
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.

ENERGYMARK, LLC, PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

NEW WAVE ENERGY CORP., NICHOLAS JERGE,

JOHN LUDTKA, JAMES JERGE AND NATHAN GEARY,
DEFENDANTS-RESPONDENTS.

COLLIGAN LAW LLP, BUFFALO (KEVIN T. O’BRIEN OF COUNSEL), FOR

PLAINTIFF-APPELLANT.

THE KNOER GROUP, PLLC, BUFFALO (ALICE J. CUNNINGHAM OF COUNSEL), FOR

DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Erie County (Henry J.

Nowak, J.), entered March 19, 2019. The order, among other things,
granted defendants’ motion to dismiss the complaint.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff and defendant New Wave Energy Corp. (New

Wave) are competing energy suppliers. After New Wave began soliciting
plaintiff’s clients, plaintiff commenced an action against New Wave
and two of its officers, asserting causes of action for, among other
things, tortious interference with contractual relations, wrongful
inducement of a breach of contract and unjust enrichment. Following a
motion seeking dismissal of that complaint pursuant to CPLR 3211 and
3212, Supreme Court dismissed the complaint in its entirety.
Plaintiff thereafter commenced this action against the same three
defendants as well as two other officers of New Wave. The complaint
again asserted causes of action for wrongful and intentional
interference with contractual relations, wrongful inducement of a
breach of contract, unjust enrichment and permanent injunction. We
conclude that, pursuant to CPLR 3211 (a) (7), Supreme Court properly
granted defendants’ motion to dismiss the complaint on the ground that
it failed to state a cause of action.

Contrary to plaintiff’s contention, defendants’ motion

specifically sought dismissal under CPLR 3211 (a) (7), and the court
did not improperly convert the motion into one for summary judgment
when it concluded that “the current complaint and the documents
attached thereto fail to establish that defendants committed an
actionable wrong.” The court limited its analysis to the contents of
 -2- 247
CA 19-00731

the complaint and its attachments, which is the hallmark of a CPLR

3211 (a) (7) determination (see generally Miglino v Bally Total
Fitness of Greater N.Y., Inc., 20 NY3d 342, 351 [2013]; Guggenheimer v
Ginzburg, 43 NY2d 268, 275 [1977]).

It is well settled that “[a] motion to dismiss under CPLR 3211

(a) (7) may be granted when exhibits attached to the complaint
conclusively establish[ ] that a material fact as claimed by the
pleader to be one is not a fact at all and that no significant dispute
exists regarding it” (McMahan v McMahan, 131 AD3d 593, 594 [2d Dept
2015] [emphasis added and internal quotation marks omitted]; see Omar
v Moore, 171 AD3d 1533, 1533-1534 [4th Dept 2019]). Here, the
complaint and attached exhibits conclusively establish that there was
no underlying breach of the contracts between plaintiff and its
customers and, as a result, a fact material to the substantive causes
of action asserted by plaintiff, i.e., a breach of the contracts
between plaintiff and its customers (see Lama Holding Co. v Smith
Barney, Inc., 88 NY2d 413, 425 [1996]; Israel v Wood Dolson Co., 1
NY2d 116, 120 [1956]) or conduct by defendants that was otherwise
“tortious or fraudulent” with respect to the contractual relationships
between plaintiff and its customers (Paramount Film Distrib. Corp. v
State of New York, 30 NY2d 415, 421 [1972], rearg denied 31 NY2d 709
[1972], cert denied 414 US 829 [1973]), cannot be established.

Inasmuch as “injunctive relief is simply not available when the

plaintiff does not have any remaining substantive cause of action”
(Weinreb v 37 Apts. Corp., 97 AD3d 54, 58-59 [1st Dept 2012]; see Town
of Macedon v Village of Macedon, 129 AD3d 1639, 1641 [4th Dept 2015]),
the dismissal of all of the substantive causes of action mandated
dismissal of the permanent injunction cause of action.

Based on our determination, we do not address plaintiff’s

remaining contention.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

262
CA 19-01234
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.

COLOR DYNAMICS, INC., PETITIONER-APPELLANT,

V MEMORANDUM AND ORDER

KEMPER SYSTEM AMERICA, INC., RESPONDENT-RESPONDENT.

HURWITZ & FINE, P.C., BUFFALO (EARL K. CANTWELL OF COUNSEL), FOR

PETITIONER-APPELLANT.

GAINEY, MCKENNA & EGLESTON, NEW YORK CITY (BARRY J. GAINEY OF

COUNSEL), FOR RESPONDENT-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (Frank A.

Sedita, III, J.), entered June 7, 2019. The order denied the motion
of petitioner to compel respondent to produce certain documents.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: This appeal arises from a building renovation

project for which petitioner was hired as general contractor. As part
of the project, petitioner installed a waterproofing system,
manufactured by respondent, on the building’s recreation deck. Within
about one year of the project’s completion, however, the recreation
deck allegedly showed signs that the waterproofing system had failed.
The condominium association that retained petitioner thereafter
initiated an arbitration proceeding against petitioner, and the
arbitrator issued a subpoena duces tecum to compel respondent to
produce various documents requested by petitioner. Petitioner then
commenced this proceeding seeking, inter alia, to compel respondent to
comply with the subpoena, and Supreme Court entered an order directing
respondent to comply with the subpoena. Respondent responded by
producing some, but not all, of the documents in question, and
petitioner thereafter filed a motion to compel the production of
certain remaining documents. Respondent opposed the motion,
contending that the documents in question consisted of consultant
reports prepared for respondent in the course of respondent’s
investigation of the allegedly defective waterproofing system and were
immune from disclosure because they constituted material prepared in
anticipation of litigation, as well as attorney work product, and
because they were protected by attorney-client privilege (see CPLR
3101 [b-d]). Petitioner now appeals from an order denying its motion.
We affirm.
 -2- 262
CA 19-01234

“ ‘When a party claims that particular records or documents are

exempt or immune from disclosure, the burden is on the party asserting
such immunity’ ” (Micro-Link, LLC v Town of Amherst, 155 AD3d 1638,
1643 [4th Dept 2017]). In support of its claim of immunity,
respondent submitted, among other things, the affidavits of its
outside litigation counsel and chief financial officer (CFO). Those
affidavits explained that, prior to the preparation of the earliest of
the consultant reports, respondent was informed that the condominium
association was considering legal action against it, that respondent
then contacted outside litigation counsel, and that outside litigation
counsel directed respondent to conduct testing and prepare the
relevant reports in order to assist in the defense of a possible
future claim against it. Both affidavits confirmed that the
consultant reports were generated for the sole purpose of handling the
threatened legal action. Respondent’s CFO further averred that
respondent does not prepare such reports in the normal course of
business, and that it did so here only after litigation was threatened
and at the direction of counsel.

Although we are not bound by respondent’s characterizations of

the consultant reports as material prepared in anticipation of
litigation, we perceive no justification for disregarding the contents
of the affidavits submitted by respondent’s litigation counsel and CFO
(see Roswell Park Cancer Inst. Corp. v Sodexo Am., LLC, 68 AD3d 1720,
1722 [4th Dept 2009]). We thus conclude that the court did not abuse
its discretion in denying the motion on the ground that the reports in
question were material prepared in anticipation of litigation, and
petitioner failed to demonstrate a substantial need for such
information and that it was unable to obtain the substantial
equivalent of that information without undue hardship (see CPLR 3101
[d] [2]; Foley v West-Herr Ford, Inc., 32 AD3d 1236, 1236 [4th Dept
2006]; see also Micro-Link, LLC, 155 AD3d at 1643). Although
petitioner contends that it no longer has access to the data contained
within respondent’s consultant reports, on this record, petitioner
failed to establish the need for such data or that it did not already
obtain, or could not obtain, the “substantial equivalent” of such data
through the investigation and expert review that petitioner has
already undertaken or could undertake in the future (CPLR 3101 [d]
[2]; see generally Micro-Link, LLC, 155 AD3d at 1643).

In light of our determination, we do not address whether the

documents in question are independently immune from disclosure under
attorney-client privilege or as attorney work product.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

274
CA 19-00260
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.

IN THE MATTER OF THE ARBITRATION BETWEEN

NEW YORK SCHOOLS INSURANCE RECIPROCAL,
PETITIONER-APPELLANT,

AND MEMORANDUM AND ORDER

DEBORAH KALBFLIESH, RESPONDENT-RESPONDENT.

HURWITZ & FINE, P.C., BUFFALO (STEVEN E. PEIPER OF COUNSEL), FOR

PETITIONER-APPELLANT.

CAMPBELL & ASSOCIATES, EDEN (JOHN T. RYAN OF COUNSEL), FOR

RESPONDENT-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (Emilio L.

Colaiacovo, J.), entered February 4, 2019. The order, among other
things, denied the petition insofar as it sought a permanent stay of
arbitration.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Respondent, while working as a student monitor/aide,

sustained injuries when the van in which she was riding was struck by
another motor vehicle. The van in which respondent was riding was
operated on behalf of respondent’s employer by a separate entity,
which owned the van. Respondent’s employer had hired that entity to
provide transportation in connection with educational activities
involving respondent and the students she monitored. Following the
accident, respondent recovered the full policy limit of $100,000 from
the insurer of the vehicle that collided with the van. She thereafter
submitted a claim for supplemental uninsured/underinsured motorist
(SUM) benefits pursuant to a commercial automobile policy issued to
respondent’s employer by petitioner, New York Schools Insurance
Reciprocal (NYSIR). NYSIR disclaimed coverage on the ground that the
van was not insured for SUM coverage inasmuch as it was not owned by
respondent’s employer, and respondent did not otherwise qualify as an
insured under the policy’s SUM endorsement. Respondent then demanded
arbitration with respect to her claims for SUM coverage. NYSIR
commenced this proceeding pursuant to CPLR article 75 seeking, inter
alia, a permanent stay of arbitration. Supreme Court, inter alia,
denied NYSIR’s petition insofar as it sought a permanent stay of
arbitration. NYSIR appeals, and we affirm.
 -2- 274
CA 19-00260

Where, as here, “an automobile insurance policy contains a SUM

provision and . . . is issued to a corporation, . . . the SUM
provision does not follow any particular individual, but instead
covers any person [injured] while occupying an automobile owned by the
corporation or while being operated on behalf of the corporation”
(Matter of Progressive Cas. Ins. Co. v Beardsley, 133 AD3d 1273, 1275
[4th Dept 2015] [internal quotation marks omitted]; see Buckner v
Motor Veh. Acc. Indem. Corp., 66 NY2d 211, 215 [1985]). Contrary to
NYSIR’s contention, the court properly denied its request for a
permanent stay inasmuch as respondent was occupying a motor vehicle
that was being operated on behalf of its insured, respondent’s
employer (cf. Roebuck v State Farm Mut. Auto. Ins. Co., 80 AD3d 1126,
1128 [3d Dept 2011]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

296
CA 19-01214
PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND DEJOSEPH, JJ.

JOSIAH SCHUTT, PLAINTIFF-APPELLANT-RESPONDENT,

V MEMORANDUM AND ORDER

MARK D. BOOKHAGEN AND STACIE BOOKHAGEN,

DEFENDANTS-RESPONDENTS-APPELLANTS.

LAW OFFICE OF J. MICHAEL HAYES, BUFFALO (ANTHONY J. ZITNIK, JR., OF

COUNSEL), FOR PLAINTIFF-APPELLANT-RESPONDENT.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (NELSON E. SCHULE, JR., OF

COUNSEL), FOR DEFENDANTS-RESPONDENTS-APPELLANTS.

Appeal and cross appeal from an order of the Supreme Court, Erie
County (Timothy J. Walker, A.J.), entered April 9, 2019. The order
granted in part and denied in part plaintiff’s motion for partial
summary judgment and granted defendants’ cross motion for partial
summary judgment.

It is hereby ORDERED that the order so appealed from is modified

on the law by granting that part of the motion seeking summary
judgment on liability with respect to the Labor Law § 240 (1) cause of
action, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for

injuries he sustained while working for a company that defendants had
hired to install a new roof on one of their rental properties.
Although plaintiff served as a ground laborer on the work site, he was
injured when he fell from the roof. According to plaintiff, he had
been instructed to go onto the roof and, while there, the toe board
that he used to stabilize himself failed, causing him to slide off of
the roof. He was not wearing a harness at the time.

Plaintiff appeals and defendants cross-appeal from an order that

denied plaintiff’s motion for summary judgment on the issue of
liability with respect to his Labor Law §§ 240 (1) and 241 (6) causes
of action and granted the motion to the extent that it sought a
determination that the accident caused his injuries.

We agree with plaintiff on his appeal that Supreme Court should

have granted the motion with respect to the Labor Law § 240 (1) cause
of action, and we therefore modify the order accordingly. We conclude
that plaintiff met his initial burden on that part of the motion by
establishing that his “ ‘injuries were the direct consequence of a
 -2- 296
CA 19-01214

failure to provide adequate protection against a risk arising from a

physically significant elevation differential’ ” (Nicometi v Vineyards
of Fredonia, LLC, 25 NY3d 90, 97 [2015], rearg denied 25 NY3d 1195
[2015], quoting Runner v New York Stock Exch., Inc., 13 NY3d 599, 603
[2009]; see Lagares v Carrier Term. Servs., Inc., 177 AD3d 1394, 1395
[4th Dept 2019]; Provens v Ben-Fall Dev., LLC, 163 AD3d 1496, 1498
[4th Dept 2018]). Specifically, plaintiff submitted his deposition
testimony, wherein he stated that the toe board failed, causing him to
fall from the roof. He also testified that he was not provided with a
harness and that there were no available harnesses nearby.

In opposition, defendants failed to raise a triable issue of fact

whether plaintiff’s “own conduct, rather than any violation of Labor
Law § 240 (1), was the sole proximate cause of the accident” (Luna v
Zoological Socy. of Buffalo, Inc., 101 AD3d 1745, 1746 [4th Dept 2012]
[internal quotation marks omitted]). To establish a sole proximate
cause defense, a defendant must demonstrate that the plaintiff had
“ ‘adequate safety devices available; that [the plaintiff] knew both
that they were available and that he [or she] was expected to use
them; that [the plaintiff] chose for no good reason not to do so; and
that had [the plaintiff] not made that choice he [or she] would not
have been injured’ ” (Fazekas v Time Warner Cable, Inc., 132 AD3d
1401, 1403 [4th Dept 2015], quoting Cahill v Triborough Bridge &
Tunnel Auth., 4 NY3d 35, 40 [2004]). Here, defendants submitted
deposition testimony from the owners of plaintiff’s employer, neither
of whom wore a harness on the day of the accident, establishing that
plaintiff may have been aware that harnesses were somewhere on the
work site, was told to wear a harness while on the roof, and was
instructed on how to wear a harness. Defendants, however, failed to
raise a triable issue of fact whether “safety harnesses ‘were readily
available at the work site, albeit not in the immediate vicinity of
the accident’ ” (Lord v Whelan & Curry Constr. Servs., Inc., 166 AD3d
1496, 1497 [4th Dept 2018], quoting Gallagher v New York Post, 14 NY3d
83, 88 [2010]). The “ ‘presence of [other safety devices] somewhere
at the worksite’ does not [alone] satisfy defendants’ duty to provide
appropriate safety devices” (Williams v City of Niagara Falls, 43 AD3d
1426, 1427 [4th Dept 2007], quoting Zimmer v Chemung County Performing
Arts, 65 NY2d 513, 524 [1985], rearg denied 65 NY2d 1054 [1985]).
Significantly, our dissenting colleagues do not address our prior
determination that “the presence of a safety harness in [the]
plaintiff’s truck,” was insufficient to raise a triable issue of fact
whether the plaintiff’s conduct was the sole proximate cause of the
injuries sustained as a result of his fall from a roof (id.).

Further, “[t]he mere failure by plaintiff to follow safety

instructions” does not render plaintiff the sole proximate cause of
his injuries (cf. Fazekas, 132 AD3d at 1403-1404; see generally
Whiting v Dave Hennig, Inc., 28 AD3d 1105, 1106 [4th Dept 2006]; Young
v Syroco, Inc., 217 AD2d 1011, 1012 [4th Dept 1995]). The evidence
presented by defendants established only that plaintiff possibly
failed to follow safety instructions, not that he outright refused to
“use available, safe and appropriate equipment” (Miles v Great Lakes
Cheese of N.Y., Inc., 103 AD3d 1165, 1167 [4th Dept 2013] [internal
 -3- 296
CA 19-01214

quotation marks omitted]; see Powers v Del Zotto & Son Bldrs., 266
AD2d 668, 669 [3d Dept 1999]). Defendants failed to demonstrate that
plaintiff “ ‘chose for no good reason not to’ ” wear a safety harness
(Fazekas, 132 AD3d at 1404). At most, plaintiff’s “alleged conduct
would amount only to comparative fault and thus cannot bar recovery
under the statute” (Lagares, 177 AD3d at 1395).

Although defendants also submitted deposition testimony that,

after the accident, all of the toe boards were in place and none had
been broken, that testimony is of no moment. Regardless of whether
the toe board at issue actually broke, that device did not adequately
protect plaintiff from an elevation-related fall and therefore failed
within the meaning of Labor Law § 240 (1) (see generally Wolf v Ledcor
Constr. Inc., 175 AD3d 927, 929 [4th Dept 2019]; Provens, 163 AD3d at
1498). We also reject our dissenting colleagues’ supposition that a
harness, by itself, was an adequate safety device because there is no
testimony in the record to establish that fact. Additionally,
defendants have made no such argument on appeal.

Contrary to plaintiff’s further contention on appeal, we conclude

that the court properly denied the motion with respect to the Labor
Law § 241 (6) cause of action. The Industrial Code provisions that
plaintiff alleges defendants violated, i.e., 12 NYCRR 23-1.16 (c) and
12 NYCRR 23-1.24 (a) and (b), are “sufficiently specific to support a
Labor Law § 241 (6) cause of action” (Kuligowski v One Niagara, LLC,
177 AD3d 1266, 1268 [4th Dept 2019]; see Mills v Niagara Mohawk Power
Corp., 262 AD2d 901, 902 [3d Dept 1999]; Rudolph v Hofstra Univ., 225
AD2d 680, 681 [2d Dept 1996]). However, plaintiff failed to meet his
prima facie burden of establishing entitlement to summary judgment
with respect to those Industrial Code provisions. Plaintiff alleges
that he was not provided with a harness, which would render 12 NYCRR
23-1.16 (c) inapplicable (see Partridge v Waterloo Cent. School Dist.,
12 AD3d 1054, 1056 [4th Dept 2004]; Luckern v Lyonsdale Energy Ltd.
Partnership, 281 AD2d 884, 887 [4th Dept 2001]). Moreover, although
plaintiff stated that he was never provided with a harness or
instructed on how to use one, he also submitted deposition testimony
contradicting those assertions, thereby raising issues of fact. With
regard to the other two Industrial Code provisions, both require
evidence of the steepness of the slope of the roof, which plaintiff
failed to provide (see Perri v Gilbert Johnson Enters., Ltd., 14 AD3d
681, 682 [2d Dept 2005]).

Contrary to defendants’ contention on their cross appeal, and in

light of our decision to grant plaintiff’s motion with respect to the
Labor Law § 240 (1) cause of action, we conclude that the court
properly granted the motion insofar as it sought a determination that
those injuries identified in the medical examination reports were
caused by the accident. To the extent that defendants challenge
causation with respect to the other alleged injuries, that challenge
is improperly based on evidence outside of the record (see generally
McIntosh v Genesee Val. Laser Ctr., 121 AD3d 1560, 1561 [4th Dept
2014], lv denied 25 NY3d 911 [2015]; Matter of Gridley v Syrko, 50
AD3d 1560, 1561 [4th Dept 2008]).
 -4- 296
CA 19-01214

All concur except SMITH, J.P., and CENTRA, J., who dissent and
vote to affirm in the following memorandum: We respectfully dissent
and would affirm the order of Supreme Court. Plaintiff was employed
as a ground laborer for a business owned by Sean Cryan (Sean) and
Richard Cryan (Richard) that had been hired by defendants to install a
new roof on their rental property. Although there was deposition
testimony that ground laborers do not normally go on the roof, at the
time of the accident plaintiff was on the roof attempting to untangle
an air hose when he slid off the roof. No one witnessed the fall.
Plaintiff testified at his deposition that a toe board “gave out,” but
Sean and Richard testified that, after the accident, all the toe
boards were in place and nothing was broken.

We disagree with the majority that the court erred in denying

plaintiff’s motion insofar as it sought summary judgment on the issue
of liability with respect to the Labor Law § 240 (1) cause of action.
It is well settled that “an accident alone does not establish a Labor
Law § 240 (1) violation or causation” (Blake v Neighborhood Hous.
Servs. of N.Y. City, 1 NY3d 280, 289 [2003]). To establish liability
under Labor Law § 240 (1), the plaintiff must show that “the owner or
contractor . . . breach[ed] the statutory duty under section 240 (1)
to provide a worker with adequate safety devices, and [that] this
breach . . . proximately cause[d] the worker’s injuries” (Robinson v
East Med. Ctr., LP, 6 NY3d 550, 554 [2006]). “These prerequisites do
not exist if adequate safety devices are available at the job site,
but the worker either does not use or misuses them” (id.).

Contrary to the conclusion of the majority, we agree with the

court that there is a triable issue of fact whether there was a
violation of Labor Law § 240 (1) and, more specifically, whether
defendants provided plaintiff with adequate safety devices. There was
evidence submitted that, in addition to the toe boards, safety
harnesses were available for plaintiff to use but that he was not
wearing one at the time of the accident. A plaintiff is not entitled
to summary judgment on a Labor Law § 240 (1) cause of action when
there is an issue of fact whether the plaintiff’s own conduct was the
sole proximate cause of the accident (see Cahill v Triborough Bridge &
Tunnel Auth., 4 NY3d 35, 39-40 [2004]; Weitzel v State of New York,
160 AD3d 1394, 1394-1395 [4th Dept 2018]). A triable issue of fact
whether a plaintiff’s conduct was the sole proximate cause of his or
her accident exists when there is evidence and reasonable inferences
to be drawn therefrom that the plaintiff “had adequate safety devices
available; that [the plaintiff] knew both that they were available and
that he [or she] was expected to use them; that [the plaintiff] chose
for no good reason not to do so; and that had [the plaintiff] not made
that choice he [or she] would not have been injured” (Cahill, 4 NY3d
at 40; see Fazekas v Time Warner Cable, Inc., 132 AD3d 1401, 1403-1404
[4th Dept 2015]).

In support of his motion, plaintiff submitted excerpts from his

own deposition testimony in which he testified that he did not see
harnesses in Sean’s truck and that the Cryans did not provide him with
any safety gear other than gloves and, at times, a safety mask.
Plaintiff, however, also submitted excerpts from Richard’s deposition
 -5- 296
CA 19-01214

in which he testified that harnesses were kept in his and Sean’s

trucks, that the workers knew how to use them, and that there were
enough for all the workers on the job site. Plaintiff further
submitted excerpts from Sean’s deposition in which he testified that
ground laborers were required to wear a harness if they were on the
roof, that he had told plaintiff to wear one, and that plaintiff knew
that he had to wear one. In our view, that testimony raised a triable
issue of fact whether plaintiff’s failure to wear a harness was the
sole proximate cause of the accident, and thus plaintiff failed to
meet his initial burden on the motion with respect to the Labor Law
§ 240 (1) cause of action (see generally Winegrad v New York Univ.
Med. Ctr., 64 NY2d 851, 853 [1985]). Even assuming, arguendo, that
plaintiff met his initial burden on that part of the motion, we
conclude that defendants raised a triable issue of fact in opposition
(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Defendants submitted additional excerpts from the depositions of
Richard and Sean. Sean testified that harnesses were kept in a Dewalt
storage box and that everyone had access to them. Both he and Richard
testified that all employees, including plaintiff, were shown how to
wear them, and Richard testified that he specifically told plaintiff
that the harnesses were in the truck and that he needed to have one
on. That testimony and the reasonable inferences to be drawn
therefrom established that there were adequate safety devices, i.e.,
harnesses, available; that plaintiff knew both that the harnesses were
available and that he was expected to use them; that he chose for no
good reason not to wear one; and that had he not made that choice he
would not have been injured (see Cahill, 4 NY3d at 40; Weitzel, 160
AD3d at 1395).

The majority concludes that defendants failed to raise a triable

issue of fact with respect to the Labor Law § 240 (1) cause of action
because there was no showing that the harnesses were readily available
at the work site as opposed to being merely somewhere at the work
site. The work here was installing a new roof on a home, which was a
small construction site. It can reasonably be inferred that Sean’s
and Richard’s trucks were parked either in the driveway of the home or
very close by the home. Safety devices need to be “readily
available,” but they do not need to be “in the immediate vicinity of
the accident” (Gallagher v New York Post, 14 NY3d 83, 88 [2010]). In
our view, the evidence submitted by defendants established that the
harnesses in the Dewalt storage box in the truck(s) were readily
available to plaintiff, and plaintiff knew where to find them because
Richard testified that he told plaintiff that they were in the truck
(cf. id. at 88).

We further disagree with the majority’s assertion that defendants

failed to raise a triable issue of fact because plaintiff’s mere
failure to follow safety instructions does not render him the sole
proximate cause of his injuries. As stated by the Court of Appeals,
“an instruction by an employer or owner to avoid using unsafe
equipment or engaging in unsafe practices is not a ‘safety device’ in
the sense that plaintiff’s failure to comply with the instruction is
equivalent to refusing to use available, safe and appropriate
equipment” (Gordon v Eastern Ry. Supply, 82 NY2d 555, 563 [1993]; see
 -6- 296
CA 19-01214

Stolt v General Foods Corp., 81 NY2d 918, 920 [1993]). In our view,
we have more here than a mere instruction to plaintiff to avoid unsafe
practices. The deposition testimony of Sean and Richard established
that they told plaintiff that he needed to wear a harness and told him
where the harnesses were kept, which permits the inference that
plaintiff knew that the harnesses were available and that he was
expected to use them (see Fazekas, 132 AD3d at 1404). Contrary to the
assertion of the majority, defendants were not required to show an
outright refusal by plaintiff to wear the harness (see Cahill, 4 NY3d
at 37; cf. Gallagher, 14 NY3d at 88).

Plaintiff contends, and the majority agrees, that setting aside

the disputed testimony regarding the harnesses, the toe board at issue
did not provide adequate protection from an elevation-related risk
regardless of whether it was defective and that the failure of one
safety device to provide adequate protection entitles him to summary
judgment with respect to the Labor Law § 240 (1) cause of action.
“Under Labor Law § 240 (1), it is conceptually impossible for a
statutory violation (which serves as a proximate cause for a
plaintiff’s injury) to occupy the same ground as a plaintiff’s sole
proximate cause for the injury” (Blake, 1 NY3d at 290). “Thus, if a
statutory violation is a proximate cause of an injury, the plaintiff
cannot be solely to blame for it. Conversely, if the plaintiff is
solely to blame for the injury, it necessarily means that there has
been no statutory violation” (id.). Plaintiff reasons that the
failure of the toe board to provide adequate protection constitutes a
proximate cause of his injuries and thus that defendants cannot
establish that his failure to wear a harness was the sole proximate
cause of his injuries. We disagree with that analysis. Nothing
precludes an owner or contractor from providing a worker with more
than one safety device (see Weitzel, 160 AD3d at 1395). Here,
plaintiff was provided with two safety devices—a toe board and a
harness. Thus, regardless of any failure of the toe board to provide
proper protection, there is no breach of the statutory duty to provide
plaintiff with “adequate safety devices” if the harness is found to be
an adequate safety device (Robinson, 6 NY3d at 554 [emphasis added]).
In other words, the failure of one safety device does not
automatically result in a statutory violation of Labor Law § 240 (1)
when the worker was provided with another safety device that was
adequate to prevent any injury (see Weitzel, 160 AD3d at 1395).
Where, as here, there is a triable issue of fact whether a harness was
available to the plaintiff and the plaintiff knew that he or she was
expected to use it but failed to do so, the plaintiff cannot establish
as a matter of law that there was any statutory violation or proximate
cause.

The majority’s conclusion that plaintiff is entitled to partial

summary judgment on liability with respect to the Labor Law § 240 (1)
cause of action essentially punishes defendants for the actions of
plaintiff’s employer in providing him with a second safety device.
Under the majority’s analysis, defendants would fare better if
plaintiff’s employer had not provided the toe board at all, which
defies logic and is contrary to the goal of the statute to make
construction sites safer for workers. The purpose of the statute is
 -7- 296
CA 19-01214

to hold an owner or contractor liable for failing to provide a worker

with proper protection (see Nicometi v Vineyards of Fredonia, LLC, 25
NY3d 90, 96 [2015], rearg denied 25 NY3d 1195 [2015]). Here, there is
a triable issue of fact whether defendants provided plaintiff with
adequate protection from the risk of falling from the roof, and thus
the court properly denied the motion with respect to the Labor Law
§ 240 (1) cause of action.

We agree with the majority that the court properly denied

plaintiff’s motion insofar as it sought summary judgment on the issue
of liability with respect to the Labor Law § 241 (6) cause of action.
Among other reasons (see generally Misicki v Caradonna, 12 NY3d 511,
515 [2009]; Riffo-Velozo v Village of Scarsdale, 68 AD3d 839, 841-842
[2d Dept 2009]), plaintiff failed to meet his initial burden of
establishing that defendants violated 12 NYCRR 23-1.16 (c) or 12 NYCRR
23-1.24 (a) or (b) (see Jock v Landmark Healthcare Facilities, LLC, 62
AD3d 1070, 1074 [3d Dept 2009]).

With respect to defendants’ cross appeal, defendants contend that

the court erred in granting plaintiff’s motion to the extent that it
sought a determination that the accident caused his injuries. The
court granted that relief upon receiving no opposition from defendants
as to that part of plaintiff’s motion. Defendants do not dispute that
plaintiff sustained injuries as a result of the fall and, as plaintiff
states in his reply brief, “[t]he exact extent, scope of all injuries
claimed and their compensatory ‘value’ is and will be something to be
determined by a jury.” We therefore see no reason to modify the
order.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

306
CA 19-01088
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND BANNISTER, JJ.

JULIE E. PASEK, INDIVIDUALLY AND AS POWER OF

ATTORNEY FOR JAMES G. PASEK,
PLAINTIFF-RESPONDENT,

V MEMORANDUM AND ORDER

CATHOLIC HEALTH SYSTEM, INC., ET AL., DEFENDANTS,

AND GEORGE R. BANCROFT, M.D., DEFENDANT-APPELLANT.

ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (J. MARK GRUBER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

BROWN CHIARI LLP, BUFFALO (ANGELO S. GAMBINO OF COUNSEL), FOR

PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (Donna M.

Siwek, J.), entered January 28, 2019. The order denied the motion of
defendant George R. Bancroft, M.D., for summary judgment dismissing
the complaint and cross claims against him.

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting in part the motion of
defendant George R. Bancroft, M.D., and dismissing the complaint
against him except insofar as the complaint, as amplified by the bill
of particulars, alleges that he mismanaged the transport of James G.
Pasek to the operating room on February 7, 2014, and as modified the
order is affirmed without costs.

Memorandum: In this action for, inter alia, medical malpractice

seeking damages for injuries sustained by James G. Pasek, George R.
Bancroft, M.D. (defendant) appeals from an order denying his motion
for summary judgment dismissing the complaint and cross claims against
him.

Pasek underwent mitral valve repair surgery in February 2014.

Serious complications occurred during the surgery and, during the
post-operative period, Pasek was placed on a ventilator and an
extracorporeal membrane oxygenation (ECMO) system, which mechanically
circulated his blood outside his body through an artificial lung. A
few days after the surgery, Pasek’s condition deteriorated and he was
emergently transported from the open heart unit to the operating room.
Defendant was the attending anesthesiologist for the transport, during
which the ECMO tubing became unintentionally disconnected. Pasek
subsequently suffered, among other things, massive blood loss, hypoxic
 -2- 306
CA 19-01088

brain injury due to a lack of oxygen, and occipital lobe damage,

allegedly arising from, inter alia, defendant’s malpractice in
transporting him to the operating room.

A medical malpractice defendant meets his or her initial burden

on a motion for summary judgment by presenting “factual proof,
generally consisting of affidavits, deposition testimony and medical
records, to rebut the claim of malpractice by establishing that [he or
she] complied with the accepted standard of care or did not cause any
injury to the patient” (Hope A.L. v Unity Hosp. of Rochester, 173 AD3d
1713, 1714 [4th Dept 2019]; see Webb v Scanlon, 133 AD3d 1385, 1386
[4th Dept 2015]). We agree with defendant that he satisfied his
initial burden on the motion with respect to both compliance with the
accepted standard of care and proximate cause by presenting factual
evidence, including his own detailed affidavit that “address[ed] each
of the specific factual claims of negligence raised in plaintiff’s
bill of particulars” (Larsen v Banwar, 70 AD3d 1337, 1338 [4th Dept
2010]) and was “detailed, specific and factual in nature” (Macaluso v
Pilcher, 145 AD3d 1559, 1560 [4th Dept 2016] [internal quotation marks
omitted]; see Groff v Kaleida Health, 161 AD3d 1518, 1520 [4th Dept
2018]). The burden thus shifted to plaintiff to “raise an issue of
fact by submitting an expert’s affidavit establishing both a departure
from the accepted standard of care and that the departure was a
proximate cause of the injury” (Nowelle B. v Hamilton Med., Inc., 177
AD3d 1256, 1257 [4th Dept 2019]; see Isensee v Upstate Orthopedics,
LLP, 174 AD3d 1520, 1522 [4th Dept 2019]).

The affidavit of plaintiff’s expert anesthesiologist addressed

defendant’s conduct only with respect to the claims arising from
defendant’s alleged failure to ensure that the transport of Pasek to
the operating room was performed safely and his alleged failure to
document the disconnection event and resulting blood loss in Pasek’s
medical chart. Inasmuch as plaintiff’s expert failed to address the
claims against defendant regarding the diagnosis, consulting, testing,
examination, and pre- and post-operative treatment and did not
identify any deviation with respect to defendant’s efforts to
ventilate, monitor, or resuscitate Pasek, those claims are deemed
abandoned. Supreme Court thus erred in denying defendant’s motion
with respect to those claims (see Bubar v Brodman, 177 AD3d 1358, 1361
[4th Dept 2019]; Donna Prince L. v Waters, 48 AD3d 1137, 1138 [4th
Dept 2008]), and we therefore modify the order accordingly.

We conclude that the court properly denied defendant’s motion

with respect to plaintiff’s claim that defendant failed to ensure that
the transport of Pasek was conducted safely. Plaintiff raised a
triable issue of fact with respect to defendant’s deviation from the
standard of care by submitting, inter alia, the affidavit of her
expert anesthesiologist, the deposition testimony of defendant, and
excerpts from the depositions of a nurse and two perfusionists who
assisted with the transport. Plaintiff’s expert anesthesiologist
opined, to a reasonable degree of medical certainty, that defendant
and each of the other medical providers who participated in the
transport of Pasek had a duty to make sure that the transport was done
efficiently, quickly, and safely and to ensure that all equipment
 -3- 306
CA 19-01088

connected to Pasek, including the ECMO tubing, was secure and free
from hazards before beginning the transport.

Although defendant stated in his affidavit that his role during

the transport was limited to monitoring Pasek’s vital signs and
maintaining his airway, and that he had no responsibility with respect
to the ECMO equipment or for pushing Pasek’s bed, defendant also
testified at his deposition that it was the responsibility of “the
entire team” to make sure that Pasek’s bed exited the doorway.
Defendant’s own testimony thus indicates that, as a member of the
transport team, he was responsible, at least in part, for making sure
that Pasek’s bed exited the doorway safely. Defendant’s testimony
also conflicted with his statement in his affidavit that he “was not
involved physically with the movement of the bed during the
transport.” Additionally, a perfusionist who assisted with the
transport testified that defendant was involved in moving Pasek’s bed
to the operating room, and a nurse who assisted with the transport
testified that defendant was the “head of the transport team.” Such
testimony contradicted defendant’s testimony that there was no “head”
of the transport team and that he had no “supervisory duty over those
assisting in the transport.” Furthermore, when asked who was
responsible for the ECMO equipment during the transport, the nurse
testified that “Anesthesia” was responsible and a perfusionist
testified, “[w]e all have a responsibility to watch the tubing.”

We reject defendant’s contention that plaintiff failed to raise a

triable issue of fact with respect to proximate cause. In his
affidavit, defendant stated that there was nothing he did or allegedly
failed to do that caused or contributed to any of the injuries claimed
by plaintiff and that Pasek did not exhibit any symptoms “at that
moment following the disconnection [of the ECMO tubing] during the
transport.” Plaintiff’s expert anesthesiologist, however, stated that
defendant’s deviations from the standard of care during the transport
of Pasek contributed to the unintentional disconnection of the ECMO
tubing, which resulted in substantial blood loss, followed by a “sharp
drop in [Pasek’s] blood pressure and bradycardia.” Where, as here, “a
nonmovant’s expert affidavit squarely opposes the affirmation of the
moving part[y’s] expert, the result is a classic battle of the experts
that is properly left to a jury for resolution” (Mason v Adhikary, 159
AD3d 1438, 1439 [4th Dept 2018] [internal quotation marks omitted]).

With respect to the claim that defendant failed to document the

transport event in Pasek’s medical chart, defendant stated in his
affidavit that it was neither his duty nor his responsibility to
document the transport of Pasek to the operating room and that it
would have been inappropriate for him to do so because he did not
observe a disconnection of the ECMO tubing and the ECMO equipment was
not his responsibility. Plaintiff’s expert, however, stated that the
standard of care required defendant, as the attending
anesthesiologist, to notate his observations of Pasek’s blood loss
during the transport, and that defendant’s failure to document the
chart was a deviation from the standard of care. Thus, we conclude
that the affidavit of plaintiff’s expert was sufficient to raise a
 -4- 306
CA 19-01088

triable issue of fact whether defendant deviated from the applicable

standard of care.

We agree with defendant, however, that plaintiff’s expert failed

to raise an issue of fact with respect to the alleged documentation
failure as a proximate cause of Pasek’s injury. Defendant, in his own
affidavit, stated that nothing he did or failed to do resulted in a
misdiagnosis or resulted in a lack of understanding of Pasek’s
condition by subsequent health care providers, and plaintiff’s expert
did not opine that defendant’s failure to document Pasek’s chart
caused any injury. The court therefore erred in denying defendant’s
motion with respect to that claim, and we further modify the order
accordingly.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

309
CA 19-00644
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND BANNISTER, JJ.

U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS

INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE
FOR THE RMAC TRUST, SERIES 2016-CTT,
PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

CHARLES A. BROWN, SUSAN L. BROWN,

DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.

GROSS POLOWY, LLC, WESTBURY (TRACY FOURTNER OF COUNSEL), FOR

PLAINTIFF-APPELLANT.

Appeal from an order of the Supreme Court, Chautauqua County

(James H. Dillon, J.), entered December 6, 2018. The order granted
the motion of defendants Charles A. Brown and Susan L. Brown to
dismiss the complaint against them.

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the motion is denied,
and the complaint against defendants Charles A. Brown and Susan L.
Brown is reinstated.

Memorandum: Plaintiff commenced this mortgage foreclosure action

alleging that Charles A. Brown and Susan L. Brown (defendants)
defaulted in the payment of their mortgage, which had been assigned to
plaintiff. In moving to dismiss the complaint against them,
defendants contended that the action is barred by the six-year statute
of limitations (see CPLR 213 [4]; see also CPLR 3211 [a] [5]), and
Supreme Court granted the motion. We reverse.

In moving to dismiss the complaint on statute of limitations

grounds, the defendant has “the initial burden of establishing prima
facie that the time in which to sue has expired . . . , and thus [is]
required to establish, inter alia, when the plaintiff’s cause of
action accrued” (Larkin v Rochester Hous. Auth., 81 AD3d 1354, 1355
[4th Dept 2011] [internal quotation marks omitted]; see Chaplin v
Tompkins, 173 AD3d 1661, 1662 [4th Dept 2019]). If the defendant
meets that burden, “ ‘the burden shifts to the plaintiff to raise a
question of fact as to whether the statute of limitations was tolled
or otherwise inapplicable, or whether the plaintiff actually commenced
the action within the applicable limitations period’ ” (U.S. Bank N.A.
v Gordon, 158 AD3d 832, 835 [2d Dept 2018]; see Carrington v New York
 -2- 309
CA 19-00644

State Off. for People With Dev. Disabilities, 170 AD3d 1495, 1496 [4th
Dept 2019]; see also Siegel, NY Prac § 263 at 509 [6th ed 2018]).

We conclude that defendants met their initial burden on the

motion. Where, as here, “a loan secured by a mortgage is payable in
installments, separate causes of action accrue for each unpaid
installment, and the statute of limitations begins to run on the date
that each installment becomes due” (Wilmington Sav. Fund Socy., FSB v
Unknown Heirs at Law of Danny Higdon, 161 AD3d 1559, 1559 [4th Dept
2018]). “Thus, unless the entire debt had been accelerated by the
mortgage holder, on the date of a default the statute of limitations
begins to run only for the installment payment that became due on that
date” (id.). “If, however, the mortgage holder accelerates the entire
debt by a demand, the six-year statute of limitations begins to run on
the entire debt” (Wilmington Sav. Fund Socy., FSB v Gustafson, 160
AD3d 1409, 1410 [4th Dept 2018]). In addition, where, as here, “ ‘the
acceleration . . . is made optional with the holder of the note and
mortgage, some affirmative action must be taken evidencing the
holder’s election to take advantage of the accelerating provision, and
until such action has been taken the provision has no operation’ ”
(Wilmington Sav. Fund Socy., FSB v Fernandez, 179 AD3d 79, 81 [4th
Dept 2019]).

In this case, defendants established, prima facie, that the

present action is untimely inasmuch as “ ‘[t]he filing of [a] summons
and complaint [in March 2010] seeking the entire unpaid balance of
principal in [a] prior foreclosure action constituted a valid election
by the plaintiff[’s predecessor-in-interest] to accelerate the
maturity of the debt,’ ” and plaintiff commenced the present action in
April 2018, more than six years after the statute of limitations began
to run (U.S. Bank N.A. v Balderston, 163 AD3d 1482, 1483-1484 [4th
Dept 2018] [hereafter, Balderston]; see HSBC Bank, N.A. v Vaswani, 174
AD3d 514, 515 [2d Dept 2019], lv denied 35 NY3d 906 [2020]).
Plaintiff’s contention that defendants did not meet their initial
burden because they “failed to submit certain documents is improperly
raised for the first time on appeal” (Lowe’s Home Ctrs., Inc. v
Beachy’s Equip. Co., Inc., 49 AD3d 1213, 1214 [4th Dept 2008], lv
denied 10 NY3d 715 [2008]). “An issue may not be raised for the first
time on appeal . . . where[, as here,] it could have been obviated or
cured by factual showings or legal countersteps in the trial court”
(id. at 1214 [internal quotation marks omitted]; see also AJMRT, LLC v
Kern, 154 AD3d 1288, 1290 [4th Dept 2017]; Ryan Mgt. Corp. v Cataffo,
262 AD2d 628, 630 [2d Dept 1999]).

We nevertheless agree with plaintiff that its submissions in

opposition to the motion raised a question of fact whether the present
action was timely commenced. It is well settled that “[a] lender may
revoke its election to accelerate the mortgage, [although] it must do
so by an affirmative act of revocation occurring during the six-year
statute of limitations period subsequent to the initiation of the
prior foreclosure action” (Balderston, 163 AD3d at 1484 [internal
quotation marks omitted]).

Here, plaintiff submitted evidence that its predecessor in

 -3- 309
CA 19-00644

interest mailed letters to defendants in January 2016, i.e., before

the statute of limitations expired, revoking the prior acceleration of
the mortgage. As plaintiff correctly contends, the evidence,
including an affidavit of mailing, established that the letters were
properly mailed to defendants at their address, thereby giving rise to
the presumption that the letters were received by defendants (see
Hertz Vehs. LLC v Significant Care, PT, P.C., 157 AD3d 600, 601 [1st
Dept 2018]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d
679, 680 [2d Dept 2001]). Defendants’ unsubstantiated denial of
receipt was “insufficient to rebut the presumption of proper service
at the address where all notices under the mortgage were to be sent”
(Bank of N.Y. v Espejo, 92 AD3d 707, 708 [2d Dept 2012]; see Sansone v
Cavallaro, 284 AD2d 817, 818 [3d Dept 2001]). Moreover, on the
limited record before us, we conclude that language of the letters and
the surrounding circumstances raised a question of fact whether
plaintiff’s predecessor in interest validly revoked the prior
acceleration of the mortgage and, thus, whether the present action was
timely commenced (see generally Wells Fargo Bank, N.A. v Portu, 179
AD3d 1204, 1206-1207 [3d Dept 2020]; Milone v US Bank N.A., 164 AD3d
145, 152-154 [2d Dept 2018], lv dismissed 34 NY3d 1009 [2019]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

321
TP 19-00515
PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, AND DEJOSEPH, JJ.

IN THE MATTER OF SARAH CUSHMAN, PETITIONER,

V MEMORANDUM AND ORDER

D. VENETTOZZI, DIRECTOR OF SPECIAL HOUSING/INMATE

DISCIPLINARY PROGRAM, S. SQUIRES, SUPERINTENDENT
OF ALBION CORRECTIONAL FACILITY, M. SIMMONS,
ALBION CORRECTIONAL FACILITY’S FORMER DEPUTY
SUPERINTENDENT OF SECURITY, R. MATIAS ROBERTS,
LIEUTENANT AT ALBION CORRECTIONAL FACILITY, AND
D. MACK, CORRECTIONAL OFFICER AT ALBION CORRECTIONAL
FACILITY, RESPONDENTS.

SARAH CUSHMAN, PETITIONER PRO SE.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF

COUNSEL), FOR RESPONDENTS.

Proceeding pursuant to CPLR article 78 (transferred to the

Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Orleans County [Michael M.
Mohun, A.J.], entered March 19, 2019) to review a determination of
respondents. The determination found after a tier III hearing that
petitioner had violated an inmate rule.

It is hereby ORDERED that the determination is unanimously

confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding

seeking to annul the determination, following a tier III disciplinary
hearing, that she violated inmate rule 113.24 (7 NYCRR 270.2 [B] [14]
[xiv] [drug use]). Contrary to petitioner’s contention, the testimony
and evidence presented at the hearing, including the positive results
of two urinalysis tests indicating the presence of
buprenorphine/suboxone, constitute substantial evidence to support the
determination (see Matter of Lahey v Kelly, 71 NY2d 135, 138 [1987];
Matter of Wade v Venettozzi, 153 AD3d 1649, 1650 [4th Dept 2017];
Matter of Robinson v Herbert, 269 AD2d 807, 807 [4th Dept 2000]).
Petitioner’s denials of the reported misbehavior raised, at most, an
issue of credibility for resolution by the hearing officer (see Matter
of Foster v Coughlin, 76 NY2d 964, 966 [1990]). Contrary to
petitioner’s contention, there is no evidence of a break in the chain
of custody related to the urine sample, and the proper procedures and
documents were utilized (see Robinson, 269 AD2d at 807). Petitioner’s
 -2- 321
TP 19-00515

request that video evidence of the testing room be shown was properly
denied inasmuch as that evidence “would have been either redundant or
immaterial” (Matter of Jackson v Annucci, 122 AD3d 1288, 1288 [4th
Dept 2014] [internal quotation marks omitted]). Petitioner failed to
exhaust her administrative remedies with respect to her further
contention that she was denied the right to call a certain officer
witness, and this Court “has no discretionary power to reach [it]”
(Matter of Nelson v Coughlin, 188 AD2d 1071, 1071 [4th Dept 1992],
appeal dismissed 81 NY2d 834 [1993]; see Matter of Polanco v Annucci,
136 AD3d 1325, 1325 [4th Dept 2016]). Finally, we reject petitioner’s
contention that the hearing officer was biased or that the
determination flowed from the alleged bias (see Matter of Jones v
Annucci, 141 AD3d 1108, 1109 [4th Dept 2016]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

335
CA 19-01236
PRESENT: PERADOTTO, J.P., TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.

KRISTYN JOHNSON-NEULAND, PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

NEW YORK MUNICIPAL INSURANCE RECIPROCAL,

DEFENDANT-RESPONDENT.

STANLEY LAW OFFICES, SYRACUSE (STEPHANIE VISCELLI OF COUNSEL), FOR

PLAINTIFF-APPELLANT.

CONGDON, FLAHERTY, O’CALLAGHAN, REID, DONLON, TRAVIS & FISHLINGER,

UNIONDALE (AVIS SPENCER DECAIRE OF COUNSEL), FOR DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Oswego County (Norman

W. Seiter, Jr., J.), entered June 21, 2019. The order granted the
motion of defendant insofar as it sought summary judgment and
dismissed the complaint.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff, a parking attendant employed by the City

of Oswego (City), was injured when the City police vehicle she was
operating was struck by an underinsured motorist. Plaintiff sought
supplementary uninsured/underinsured motorist (SUM) coverage from
defendant as the City’s insurer, but defendant denied coverage to
plaintiff because she was driving a police vehicle when the accident
occurred. Plaintiff subsequently commenced the instant action against
defendant, seeking SUM coverage. Supreme Court granted defendant’s
motion insofar as it sought summary judgment dismissing the complaint.
We affirm.

Plaintiff contends that defendant’s motion for summary judgment

was premature. We reject that contention inasmuch as plaintiff failed
to demonstrate that additional discovery would lead to relevant
evidence or give rise to an identifiable issue of fact (see State of
New York v County of Erie, 265 AD2d 853, 853 [4th Dept 1999]; see also
Nationwide Affinity Ins. Co. of Am. v Beacon Acupuncture, P.C., 175
AD3d 1836, 1837 [4th Dept 2019]).

We also reject plaintiff’s contention that defendant and the City

intended for the subject insurance policy to include SUM coverage for
the subject vehicle. The insurance policy did not explicitly provide
for SUM coverage for the subject vehicle, and it is well-settled that
 -2- 335
CA 19-01236

a police vehicle is not a motor vehicle for purposes of SUM coverage

(see Matter of State Farm Mut. Auto. Ins. Co. v Fitzgerald, 25 NY3d
799, 820-821 [2015]; Matter of State Farm Mut. Auto. Ins. Co. v Amato,
72 NY2d 288, 294-295 [1988]).

Finally, we reject plaintiff’s contention that defendant should

be equitably estopped from denying SUM coverage. Defendant met its
initial burden on the motion of establishing that it did not represent
to plaintiff that SUM coverage existed, and plaintiff failed to raise
an issue of fact in opposition. Contrary to plaintiff’s contention,
the evidence does not demonstrate that defendant made affirmative
representations that SUM coverage existed and was available to her
(see Reeve v General Acc. Ins. Co. of N.Y., 239 AD2d 759, 761 [3d Dept
1997]; see also U.S. Specialty Ins. Co. v Beale, 54 Misc 3d 880, 881-
882 [Sup Ct, Dutchess County 2016]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

336.1
CA 19-01669
PRESENT: PERADOTTO, J.P., TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.

KEITH T. HOLMES, PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

KEVIN D. MCCREA, DEFENDANT-RESPONDENT,

AND STEVON K. SPENCER, DEFENDANT-APPELLANT.

CELLINO & BARNES, P.C., ROCHESTER (SAREER A. FAZILI OF COUNSEL), FOR

PLAINTIFF-APPELLANT.

BARTH SULLIVAN BEHR, LLP, BUFFALO (DOMINIC M. CHIMERA OF COUNSEL), FOR

DEFENDANT-APPELLANT.

MURA & STORM, PLLC, BUFFALO (SCOTT D. MANCUSO OF COUNSEL), FOR

DEFENDANT-RESPONDENT.

Appeals from an order of the Supreme Court, Monroe County (Debra

A. Martin, A.J.), entered February 26, 2019. The order granted the
motion of defendant Kevin D. McCrea for summary judgment and dismissed
the complaint against him.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages

for injuries that he sustained in a motor vehicle accident. At the
time of the accident, plaintiff was a passenger in a car owned by
defendant Kevin D. McCrea (owner) and operated by defendant Stevon K.
Spencer (driver), who later pleaded guilty to criminal possession of
stolen property (CPSP) in the fifth degree (Penal Law § 165.40) with
respect to his use of the car at the time of the accident. The owner
moved for summary judgment dismissing the complaint against him on the
ground that the driver’s criminal conviction constituted conclusive
proof that he lacked permission to operate the car (see generally
Vehicle and Traffic Law § 388 [1]). Supreme Court granted the motion,
and we affirm.

Initially, we agree with plaintiff and the driver that the court
erred in concluding that plaintiff is collaterally estopped by the
driver’s conviction from raising an issue of fact with respect to
permissive use. The doctrine of collateral estoppel is based on the
principle that a party, or one in privity with a party, should not be
allowed to relitigate an issue previously decided against it (see
D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]).
 -2- 336.1
CA 19-01669

“ ‘A criminal conviction may be given collateral estoppel effect in a

subsequent civil litigation if there is an identity of issues and a
full and fair opportunity to litigate in the first action’ ” (Pink v
Ricci, 100 AD3d 1446, 1447 [4th Dept 2012]; see S.T. Grand, Inc. v
City of New York, 32 NY2d 300, 304-305 [1973], rearg denied 33 NY2d
658 [1973]). Here, plaintiff lacked a full and fair opportunity to
litigate the issue of permissive use because he had no involvement or
interest in the underlying criminal proceeding (see generally D’Arata,
76 NY2d at 664; Gilberg v Barbieri, 53 NY2d 285, 291-294 [1981]).

We nevertheless conclude that the owner met his initial burden on

the motion of establishing his entitlement to judgment as a matter of
law (see Harris v Jackson, 30 AD3d 1027, 1029 [4th Dept 2006]). We
reject plaintiff’s contention that the owner failed to meet his
initial burden because his own evidentiary submissions—which included
the deposition testimony of the driver that he did not steal the car,
but instead “rented” it from the owner—raised an issue of fact with
respect to permissive use. Although, as a general matter,
“credibility is an issue that should be left to a fact finder at
trial, ‘there are of course instances where credibility is properly
determined as a matter of law’ ” (Sexstone v Amato, 8 AD3d 1116, 1117
[4th Dept 2004], lv denied 3 NY3d 609 [2004]; see Finley v Erie and
Niagara Ins. Assn., 162 AD3d 1644, 1645-1646 [4th Dept 2018]). Here,
the evidence included both the deposition testimony of the owner that
the driver stole the car and the police report indicating that the
owner timely reported the car stolen. Further, and critically, it is
undisputed that the driver pleaded guilty to CPSP in the fifth degree,
thereby establishing beyond a reasonable doubt that he knowingly
possessed the stolen car (see Penal Law § 165.40). The plea
established the very fact at issue: the driver was not a permissive
user of the vehicle at the time of the accident (cf. Kemper
Independence Ins. Co. v Ellis, 128 AD3d 1529, 1531-1532 [4th Dept
2015]). We thus conclude that the driver’s self-serving deposition
testimony that he had permission to operate the car, which is contrary
to all other evidence including the driver’s own criminal conviction,
is incredible as a matter of law (see Carthen v Sherman, 169 AD3d 416,
417 [1st Dept 2019]; Kemper Independence Ins. Co., 128 AD3d at 1531;
Smith v New York Cent. Mut. Fire Ins. Co., 13 AD3d 686, 688 [3d Dept
2004]).

In opposition, plaintiff failed to raise an issue of fact with

respect to permissive use (see generally Zuckerman v City of New York,
49 NY2d 557, 562 [1980]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

336
CA 19-01506
PRESENT: PERADOTTO, J.P., TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.

JAMES MONTANA AND APRIL MONTANA, INDIVIDUALLY

AND AS HUSBAND AND WIFE, PLAINTIFFS,

V MEMORANDUM AND ORDER

DAVID MARKOWITZ METAL CO., INC. AND MARKOWITZ

METALS GROUP, LLC, DEFENDANTS.
---------------------------------------------
DAVID MARKOWITZ METAL CO., INC., THIRD-PARTY
PLAINTIFF-RESPONDENT,

REVERE COPPER PRODUCTS, INC., THIRD-PARTY

DEFENDANT-APPELLANT.

GOLDBERG SEGALLA LLP, SYRACUSE (KENNETH M. ALWEIS OF COUNSEL), FOR

THIRD-PARTY DEFENDANT-APPELLANT.

GORDON & REES SCULLY MANSUKHANI, LLP, HARRISON, SHAUB, AHMUTY, CRITRIN
& SPRATT, LLP, LAKE SUCCESS (CHRISTOPHER SIMONE OF COUNSEL), FOR
THIRD-PARTY PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Oneida County (David

A. Murad, J.), entered May 23, 2019. The order denied in part
third-party defendant’s motion for summary judgment dismissing the
third-party complaint.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiffs commenced an action against, among

others, David Markowitz Metal Co., Inc. (Markowitz) seeking damages
for injuries sustained by James Montana (plaintiff), who was injured
while cutting steel bands off of a bale of brass in the course of his
employment with third-party defendant, Revere Copper Products, Inc.
(Revere). Markowitz then commenced a third-party action against
Revere seeking common-law contribution and indemnification. Revere
moved for summary judgment dismissing the third-party complaint, and
Supreme Court granted the motion with respect to the indemnification
cause of action and denied the motion with respect to the contribution
cause of action. Revere appeals, and we affirm.

“To sustain a third-party cause of action for contribution, a

 -2- 336
CA 19-01506

third-party plaintiff is required to show that the third-party

defendant owed it a duty of reasonable care independent of its
contractual obligations[, if any], or that a duty was owed to the
plaintiffs as injured parties and that a breach of that duty
contributed to the alleged injuries . . . [T]he remedy may be invoked
against concurrent, successive, independent, alternative and even
intentional tortfeasors . . . All that is required for contribution is
that two [parties] be held liable for the same personal injury”
(Santoro v Poughkeepsie Crossings, LLC, 180 AD3d 12, 17 [2d Dept 2019]
[internal quotation marks omitted]). “The critical requirement of a
valid third-party claim for contribution is that the breach of duty by
the contributing party must have had a part in causing or augmenting
the injury for which contribution is sought . . . Thus, contribution
is available whether or not the culpable parties are allegedly liable
for the injury under the same or different theories” (Nelson v Chelsea
GCA Realty, Inc., 18 AD3d 838, 840 [2d Dept 2005] [internal quotation
marks omitted]). Here, even assuming, arguendo, that Revere met its
initial burden on the motion with respect to the common-law
contribution cause of action, we conclude that Markowitz raised
triable issues of fact to defeat that part of Revere’s motion (see
generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In
opposition to the motion, Markowitz provided the expert affidavit of a
mechanical engineer who provided several opinions, including that
Revere did not have proper safety protocols in place to minimize the
likelihood of injury to its employees, who were instructed to
partially deconstruct a brass bale by removing some of the steel bands
holding the bale together, and that Revere’s instruction to remove
some of the steel bands securing the bale created the risk that the
baled metal could shift and fall on plaintiff or that the remaining
bands could snap under the force of the compressed metal. Contrary to
Revere’s contention, “the expert . . . possessed . . . the requisite
skill, training, education, knowledge or experience from which it can
be assumed that the information imparted or the opinion rendered is
reliable” (Matott v Ward, 48 NY2d 455, 459 [1979]). Furthermore, the
expert affidavit “was neither so conclusory or speculative, nor
without basis in the record, as to render it inadmissible . . .
Rather, [a]ny purported shortcomings in the affidavit went merely to
the weight of the opinion” (Espinal v Jamaica Hosp. Med. Ctr., 71 AD3d
723, 724 [2d Dept 2010] [internal quotation marks omitted]; see
Johnson v Pixley Dev. Corp., 169 AD3d 1516, 1520 [4th Dept 2019]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

346
KA 15-01687
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND BANNISTER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

FUZELL ROGERS, III, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Monroe County Court (Christopher S.

Ciaccio, J.), rendered July 22, 2015. The judgment convicted
defendant upon a jury verdict of criminal possession of a controlled
substance in the third degree, criminal possession of a controlled
substance in the seventh degree and criminally using drug
paraphernalia in the second degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury

verdict of, inter alia, criminal possession of a controlled substance
in the third degree (Penal Law § 220.16 [1]), defendant contends that
County Court erred in granting his request to proceed pro se for a
portion of the pretrial proceedings. We affirm.

“It is well-settled that an application to proceed pro se must be

denied unless [the] defendant effectuates a knowing, voluntary and
intelligent waiver of the right to counsel . . . To this end, trial
courts must conduct a searching inquiry to clarify that [the]
defendant understands the ramifications of such a decision” (People v
Stone, 22 NY3d 520, 525 [2014] [internal quotation marks omitted and
emphasis added]). The purpose of the requisite “searching inquiry” is
to “warn [the] defendant of the risks inherent in representing himself
[or herself]” and to “apprise him [or her] of the value of counsel”
(People v Crampe, 17 NY3d 469, 481 [2011], cert denied 565 US 1261
[2012] [internal quotation marks omitted]; see People v Kaltenbach, 60
NY2d 797, 799 [1983]). As the United States Supreme Court has
explained, such an inquiry operates to ensure that the defendant is
“made aware of the dangers and disadvantages of self-representation,
so that the record will establish that he [or she] knows what he [or
she] is doing and his [or her] choice is made with eyes open” (Faretta
 -2- 346
KA 15-01687

v California, 422 US 806, 835 [1975] [internal quotation marks omitted

and emphasis added]; see also People v Arroyo, 98 NY2d 101, 104
[2002]; People v Slaughter, 78 NY2d 485, 492 [1991]).

The Court of Appeals has consistently “ ‘eschewed application of

any rigid formula and endorsed the use of a nonformalistic, flexible
inquiry’ ” to ensure the voluntariness of a defendant’s decision to
forgo counsel (People v Providence, 2 NY3d 579, 583 [2004], quoting
Arroyo, 98 NY2d at 104; see People v Smith, 92 NY2d 516, 520-521
[1998]). Thus, although the “better practice” is for the trial judge
to interrogate the defendant about various topics relevant to self-
representation in a criminal case—such as the defendant’s age,
education, occupation, and prior experience with the criminal justice
system—the Court of Appeals in Providence nevertheless reiterated that
“a waiver of the right to counsel will not be deemed ineffective
simply because a trial judge does not ask questions designed to elicit
each of the [various] specific items of information” (2 NY3d at 583
[emphasis added]). Only when the “whole record” shows that the trial
court failed to adequately discharge its obligation to warn the
defendant of the risks inherent in self-representation and to apprise
him or her of the value of counsel in a criminal proceeding will the
resulting waiver be invalidated (id.). Conversely, when the “whole
record” memorializes the court’s compliance with its core advisory
function (id.), then the defendant’s choice to waive counsel must be
respected—even if that decision is “rash[ ]” (People v Vivenzio, 62
NY2d 775, 776 [1984]), “ ‘foolish[ ]’ ” (People v Henriquez, 3 NY3d
210, 213 [2004]), or potentially lethal (see People v Gordon, 179 Misc
2d 940, 941-945 [Sup Ct, Queens County 1999]).

Ultimately, as the above discussion demonstrates, the State and

Federal Constitutions do not protect a criminal defendant from making
a bad decision to proceed pro se; they only protect him or her from
making an uninformed decision to proceed pro se. Indeed, as the Court
of Appeals emphasized in Vivenzio, a “criminal defendant is entitled
to be master of his [or her] own fate and respect for individual
autonomy requires that he [or she] be allowed to go to jail under his
[or her] own banner if he [or she] so desires and if he [or she] makes
the choice with eyes open” (62 NY2d at 776 [internal quotation marks
omitted]).

In light of the foregoing, we reject defendant’s assertion that

his waiver of the right to counsel is automatically invalid given the
court’s failure to specifically discuss, during the Faretta colloquy,
the potential maximum sentences and the “nature” of the crimes
charged. As noted above, the Court of Appeals in Providence
explicitly held that the trial judge’s failure to mention any specific
piece of information was not dispositive of the sufficiency of the
requisite searching inquiry, and that a trial court’s failure to
perfectly align its colloquy with best practices would not invalidate
the subsequent waiver so long as the court adequately discharged its
core obligation to warn and apprise the defendant of the dangers and
pitfalls of self-representation. We respectfully decline to follow
the First Department’s contrary holding in People v Rodriguez (158
 -3- 346
KA 15-01687

AD3d 143, 152-153 [1st Dept 2018], lv denied 31 NY3d 1017 [2018]).

Defendant further contends that, by insisting upon his own

superior ability to defend his case, he failed to “[a]ccept” or
“[u]nderstand” the risks of self-representation that the court
articulated during the Faretta colloquy. Notably, defendant does not
argue that the court failed to adequately apprise him of the risks of
proceeding pro se; rather, defendant argues that his refusal to heed
those warnings—i.e., his refusal to abandon his request to proceed
without counsel—demonstrates that he did not “[u]nderstand [o]r
[a]ccept” the risks of that course.

We reject defendant’s contention. As explained above, the trial

court’s duty is to apprise the defendant of the risks and drawbacks of
self-representation. The trial court’s duty is not, as defendant
argues here, to ensure that the defendant accepts the weight afforded
those risks by the trial court, or by the legal establishment in
general. Every criminal defendant is constitutionally entitled to
proceed pro se notwithstanding the well-recognized risks of that
course, and creating a judicial duty to ensure the defendant’s
“acceptance” of the risks of self-representation would effectively
obligate every trial judge to compel the defendant to proceed with
counsel whenever he or she expresses any interest in proceeding pro
se, and that would violate the defendant’s right to
self-representation and require reversal in itself (see People v Daly,
98 AD2d 803, 807 [2d Dept 1983], affd 64 NY2d 970 [1985]).

So long as the trial court fulfills its duty to ensure that the
defendant is “made aware” of the risks of self-representation
(Faretta, 422 US at 835)—and there is no dispute that the court did so
here—then the constitutionally protected “respect for individual
autonomy requires that [the defendant] be allowed to go to jail under
his [or her] own banner,” even when he or she is “harming himself [or
herself] by insisting on conducting his [or her] own defense” (People
v McIntyre, 36 NY2d 10, 14 [1974] [internal quotation marks omitted]).
Defendant, in short, cannot fault the court for refusing to violate
his right to self-representation in the name of honoring his right to
counsel.

Finally, defendant’s contention that he was denied a fair trial

by prosecutorial misconduct on summation is unpreserved for appellate
review, and we decline to exercise our power to review it as a matter
of discretion in the interest of justice (see People v Lathrop, 171
AD3d 1473, 1475 [4th Dept 2019], lv denied 33 NY3d 1106 [2019]).

Mark W. Bennett

Entered: August 20, 2020

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

350
CAF 18-02333
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND BANNISTER, JJ.

IN THE MATTER OF VALERIE J. HONEYFORD,

PETITIONER-RESPONDENT,
AND GARY R. HONEYFORD, PETITIONER,

V MEMORANDUM AND ORDER

ANDREA LUKE AND ADAM LUKE, RESPONDENTS-APPELLANTS.

(APPEAL NO. 1.)

JAMES S. HINMAN, ROCHESTER, FOR RESPONDENTS-APPELLANTS.

MICHAEL STEINBERG, ROCHESTER, FOR PETITIONER-RESPONDENT.

ALISON BATES, VICTOR, ATTORNEY FOR THE CHILDREN.

Appeal from an order of the Family Court, Monroe County (James A.

Vazzana, J.), entered October 31, 2018 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, granted
petitioner Valerie J. Honeyford visitation with the subject children.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: These consolidated appeals arise from a proceeding

pursuant to Family Court Act article 6, in which petitioner-respondent
Valerie J. Honeyford (grandmother) sought visitation with two of her
grandchildren over the objection of their parents, respondents-
petitioners Andrea Luke and Adam Luke (parents). The parents appeal,
in appeal No. 1, from an order that, inter alia, granted visitation to
the grandmother following a hearing. In appeal No. 2, the parents
appeal from an order that dismissed, without a hearing, their petition
in which they sought an order modifying the order in appeal No. 1 and
determining that the grandmother violated that order.

Preliminarily, the appellate Attorney for the Children (AFC)

contends in each appeal that the subject children were denied
effective assistance of counsel in Family Court by their trial AFC’s
failure to meet with them. “[T]here is no indication in the record
whether the trial AFC consulted with [the subject children]. The
contention of [the children’s] appellate AFC is therefore based on
matters outside the record and is not properly before us” (Matter of
Brian S. [Tanya S.], 141 AD3d 1145, 1147 [4th Dept 2016]; see Matter
of Daniel K. [Roger K.], 166 AD3d 1560, 1561 [4th Dept 2016], lv
denied 32 NY3d 919 [2019]). Additionally, we conclude that “the issue
 -2- 350
CAF 18-02333

is not before us in either appeal because the [AFC] did not file a
notice of appeal from either order” (Matter of Baxter v Borden, 122
AD3d 1417, 1419 [4th Dept 2014], lv denied 24 NY3d 915 [2015]; see
Matter of Carroll v Chugg, 141 AD3d 1106, 1106 [4th Dept 2016]).

With respect to appeal No. 1, Domestic Relations Law § 72 (1)

gives a grandparent standing to seek visitation with his or her
grandchildren over the parents’ objections where, insofar as relevant
here, “circumstances show that conditions exist [in] which equity
would see fit to intervene.” Furthermore, it is well settled “that a
fit parent has a ‘fundamental constitutional right’ to make parenting
decisions . . . For that reason, the Court of Appeals has emphasized
that ‘the courts should not lightly intrude on the family relationship
against a fit parent’s wishes. The presumption that a fit parent’s
decisions are in the child’s best interests is a strong one’ ” (Matter
of Jones v Laubacker, 167 AD3d 1543, 1545 [4th Dept 2018]; see Troxel
v Granville, 530 US 57, 69-70 [2000]). Additionally, even where, as
here, a grandparent has established standing to seek visitation, “a
grandparent must then establish that visitation is in the best
interests of the grandchild . . . Among the factors to be considered
are whether the grandparent and grandchild have a preexisting
relationship, whether the grandparent supports or undermines the
grandchild’s relationship with his or her parents, and whether there
is any animosity between the parents and the grandparent” (Matter of
Hilgenberg v Hertel, 100 AD3d 1432, 1433 [4th Dept 2012]; see Matter
of E.S. v P.D., 8 NY3d 150, 157-158 [2007]). Animosity alone,
however, is insufficient to deny a grandparent’s request for
visitation, inasmuch as “ ‘[i]t is almost too obvious to state that,
in cases where grandparents must use legal procedures to obtain
visitation rights, some degree of animosity exists between them and
the party having custody of the [grandchildren]. Were it otherwise,
visitation could be achieved by agreement’ ” (E.S., 8 NY3d at 157; see
Hilgenberg, 100 AD3d at 1433-1434).

It is also well settled that a court’s determination of a

grandparent’s petition seeking visitation “depends to a great extent
upon its assessment of the credibility of the witnesses and upon the
assessments of the character, temperament, and sincerity of the
parents and grandparents . . . The court’s determination concerning
visitation will not be disturbed unless it lacks a sound and
substantial basis in the record” (Hilgenberg, 100 AD3d at 1434
[internal quotation marks omitted]). Here, despite the animosity
between the parties, there is a sound and substantial basis in the
record for Family Court’s determination to award visitation to the
grandmother. The court found the grandmother’s testimony credible,
the record clearly establishes that the grandmother had a loving and
beneficial relationship with the children that the parents permitted
and encouraged, and there is no evidence in the record that the
grandmother or her husband did anything to undermine the parents’
relationship with the children. We therefore affirm the order in
appeal No. 1.

We also affirm the order in appeal No. 2, in which the court

dismissed the parents’ modification and violation petition. Insofar
 -3- 350
CAF 18-02333

as the parents sought modification, “[i]t is well settled that [a]

hearing is not automatically required whenever a parent seeks
modification of a [visitation] order . . . In order to . . . warrant a
hearing, a petition seeking to modify a prior order of . . .
visitation must contain factual allegations of a change in
circumstances warranting modification to ensure the best interests of
the child” (Matter of Kriegar v McCarthy, 162 AD3d 1560, 1560 [4th
Dept 2018] [internal quotation marks omitted]). Here, inasmuch as the
parents’ petition did not allege any change in circumstances, the
court properly dismissed their petition insofar as it sought
modification of the prior order.

With respect to the parents’ request for a determination that the

grandmother violated the prior order, a hearing is required only where
the “petition[] set[s] forth sufficient allegations ‘that, if
established at an evidentiary hearing, could support granting the
relief sought’ ” (Matter of Buck v Buck, 154 AD3d 1134, 1135 [3d Dept
2017]). Here, the parents’ petition alleged only that the grandmother
allowed her husband to interact with the subject children during
visitation. Inasmuch as the prior order did not prohibit such
interaction, the allegations were insufficient to support a finding
that the grandmother violated it. Thus, the court properly dismissed
the parents’ petition insofar as it sought a determination that the
grandmother violated the prior order.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

351
CAF 19-00956
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND BANNISTER, JJ.

IN THE MATTER OF ANDREA LUKE AND ADAM LUKE,

PETITIONERS-APPELLANTS,

V MEMORANDUM AND ORDER

VALERIE J. HONEYFORD, RESPONDENT-RESPONDENT.

(APPEAL NO. 2.)

JAMES S. HINMAN, ROCHESTER, FOR PETITIONERS-APPELLANTS.

MICHAEL STEINBERG, ROCHESTER, FOR RESPONDENT-RESPONDENT.

ALISON BATES, VICTOR, ATTORNEY FOR THE CHILDREN.

Appeal from an order of the Family Court, Monroe County (James A.

Vazzana, J.), entered January 29, 2019 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, dismissed
the petition.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Same memorandum as in Matter of Honeyford v Luke ([appeal No. 1]

— AD3d — [Aug. 20, 2020] [4th Dept 2020]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

356
KA 19-01728
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

RICHARD L. SCOTT, DEFENDANT-APPELLANT.

DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF

COUNSEL), FOR RESPONDENT.

Appeal from an order of the Cayuga County Court (Thomas G. Leone,

J.), entered April 19, 2019. The order determined that defendant is a
level two risk pursuant to the Sex Offender Registration Act.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: On appeal from an order determining that he is a

level two risk pursuant to the Sex Offender Registration Act ([SORA]
Correction Law § 168 et seq.) after a conviction arising from his
possession of child pornography on his computer, defendant contends
that County Court erred in accepting the People’s recommended risk
assessment instrument score that rendered him a presumptive level two
risk. We reject that contention.

Defendant first contends that the assessment of 30 points under

risk factor three for having three or more victims is not supported by
the requisite clear and convincing evidence because the People failed
to substantiate the number of victims with sufficient admissible
evidence. That contention, however, is not preserved for our review
because defendant did not specifically oppose the People’s request for
the assessment of such points on the ground advanced on appeal (see
People v Gillotti, 23 NY3d 841, 854 [2014]; People v Leach, 158 AD3d
1240, 1240 [4th Dept 2018], lv denied 31 NY3d 905 [2018]). In any
event, defendant’s contention lacks merit. The statements in the case
summary and presentence report that defendant possessed more than 40
images of child pornography constitute reliable hearsay (see People v
Mingo, 12 NY3d 563, 573 [2009]; People v Rivera, 111 AD3d 1275, 1276
[4th Dept 2013], lv denied 22 NY3d 861 [2014]), and defendant did not
dispute during the SORA proceeding that the images depicted three or
more victims (see People v Rodriguez, 147 AD3d 1513, 1513 [4th Dept
2017], lv denied 29 NY3d 908 [2017]; People v Graziano, 140 AD3d 1541,
1542 [3d Dept 2016], lv denied 28 NY3d 909 [2016]).
 -2- 356
KA 19-01728

Defendant next contends that the court erred in assessing 30

points under risk factor five because the proof is insufficient to
establish that the images depicted a victim of 10 years old or
younger. Even assuming, arguendo, that defendant preserved that
contention for our review, we conclude that it lacks merit. “Facts
. . . elicited at the time of entry of a plea of guilty shall be
deemed established by clear and convincing evidence and shall not be
relitigated” at a SORA hearing (Correction Law § 168-n [3]). Here,
the evidence established that defendant pleaded guilty to possessing a
sexual performance by a child (Penal Law § 263.16), and he does not
dispute that, during the plea colloquy with respect to that crime, he
admitted possessing an image depicting a child less than 10 years old
(see People v Andrews, 136 AD3d 880, 880 [2d Dept 2016], lv denied 27
NY3d 905 [2016]).

Defendant further contends that the court erred in denying his

request for a downward departure from his presumptive risk level.
Initially, although defendant correctly asserts that the court should
have applied a preponderance of the evidence standard to his request
for a downward departure, rather than a clear and convincing evidence
standard (see Gillotti, 23 NY3d at 860-861), we need not remit the
matter because the record is sufficient to enable us to review
defendant’s contention under the proper standard (see People v
Merkley, 125 AD3d 1479, 1479 [4th Dept 2015]).

With respect to that review, we conclude that some of the

purported mitigating circumstances identified by defendant, such as
his lack of drug or alcohol abuse and satisfactory conduct while
confined, were adequately taken into account in the risk assessment
instrument (see Sex Offender Registration Act: Risk Assessment
Guidelines and Commentary at 15-17 [2006] [Guidelines]; People v
Davis, 170 AD3d 1519, 1519-1520 [4th Dept 2019], lv denied 33 NY3d 907
[2019]). Next, while an offender’s response to treatment, “if
exceptional” (Guidelines at 17), may constitute a mitigating factor to
serve as the basis for a downward departure, we conclude that, here,
defendant failed to prove by a preponderance of the evidence that his
response to treatment was exceptional (see Davis, 170 AD3d at 1520;
People v Bernecky, 161 AD3d 1540, 1541 [4th Dept 2018], lv denied 32
NY3d 901 [2018]). Although defendant also contends that his age and
health are mitigating factors warranting a downward departure, he
failed to establish that he has “physical conditions that minimize
[the] risk of re-offense” (Correction Law § 168-l [5] [d]; see
Guidelines at 5; People v Smith, 108 AD3d 1215, 1216 [4th Dept 2013],
lv denied 22 NY3d 856 [2013]). Finally, to the extent that defendant
otherwise established the existence of appropriate mitigating
circumstances, we conclude upon examining all of the relevant
circumstances that a downward departure is not warranted (see
Bernecky, 161 AD3d at 1541; see generally Gillotti, 23 NY3d at 864).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

359
KA 19-01730
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

V MEMORANDUM AND ORDER

AUSTIN PRATT, DEFENDANT-RESPONDENT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER,

JR., OF COUNSEL), FOR APPELLANT.

JEFFREY R. PARRY, FAYETTEVILLE, FOR DEFENDANT-RESPONDENT.

Appeal from an order of the Onondaga County Court (Stephen J.

Dougherty, J.), dated May 29, 2019. The order granted defendant’s
motion to dismiss the indictment.

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law, the motion is denied, the indictment
is reinstated and the matter is remitted to Onondaga County Court for
further proceedings on the indictment.

Memorandum: The People appeal from an order granting defendant’s

motion to dismiss the indictment on statutory speedy trial grounds.
Defendant was arrested on June 20, 2018, after his ex-girlfriend
alleged that she had received an Instagram message that included
photographs of defendant engaging in sexual acts with the ex-
girlfriend’s 10-year-old sister (victim). The victim confirmed that
the photographs were of herself and defendant. On September 7, 2018,
defendant was indicted on charges of predatory sexual assault against
a child (Penal Law § 130.96); criminal sexual act in the first degree
(§ 130.50 [3]); three counts each of use of a child in a sexual
performance (§ 263.05), promoting a sexual performance by a child
(§ 263.15), and possessing a sexual performance by a child (§ 263.16);
and two counts of endangering the welfare of a child (§ 260.10 [1]).
On September 13, 2018, defendant was arraigned on the indictment and
the People declared their readiness for trial.

Trial was scheduled to commence on May 7, 2019. On May 1, 2019,

however, the People withdrew their statement of readiness for trial,
stating that new evidence had been discovered that required further
investigation because it might contain exculpatory information.
Defendant thereafter moved to dismiss the indictment on speedy trial
grounds, and County Court granted the motion. The court determined
that the purported new evidence had been in the People’s possession
for the majority of the postreadiness period, and that the People’s
 -2- 359
KA 19-01730

failure to properly inspect the evidence in their possession until the

week before trial amounted to a lack of ordinary diligence. The court
therefore held that the People’s original statement of readiness was
illusory, and the court charged the People with the entire
postreadiness period. We reverse the order, deny the motion, and
reinstate the indictment.

“Where, as here, a felony is included in an indictment, the

People must be ready for trial within six months, after subtracting
excludable time” (People v Barden, 27 NY3d 550, 553 [2016]; see CPL
30.30 [1] [a]). “The statutory period is calculated by ‘computing the
time elapsed between the filing of the first accusatory instrument and
the People’s declaration of readiness, subtracting any periods of
delay that are excludable under the terms of the statute and then
adding to the result any postreadiness periods of delay that are
actually attributable to the People and are ineligible for
exclusion’ ” (People v Barnett, 158 AD3d 1279, 1280 [4th Dept 2018],
lv denied 31 NY3d 1078 [2018], quoting People v Cortes, 80 NY2d 201,
208 [1992]).

There are two elements to readiness for trial: (1) “ ‘a

statement of readiness by the prosecutor in open court, . . . or a
written notice of readiness’ ”; and (2) “the People must in fact be
ready to proceed at the time they declare readiness” (People v Chavis,
91 NY2d 500, 505 [1998]; see People v Kendzia, 64 NY2d 331, 337
[1985]). “The statute contemplates an indication of present
readiness, not a prediction or expectation of future readiness”
(Kendzia, 64 NY2d at 337). Thus, “[a] statement of readiness at a
time when the People are not actually ready is illusory and
insufficient to stop the running of the speedy trial clock” (People v
England, 84 NY2d 1, 4 [1994], rearg denied 84 NY2d 846 [1994]).

There is no dispute that the People were chargeable with an 85-

day delay prior to announcing their readiness for trial on September
13, 2018. The People contend only that the court erred in finding
that the entirety of the postreadiness time period was chargeable to
them. We agree with the People, and conclude that “the total delay
that resulted was less than six months, and thus defendant’s statutory
right to a speedy trial was not violated” (People v Bastian, 83 AD3d
1468, 1470 [4th Dept 2011], lv denied 17 NY3d 813 [2011]).

Defendant failed to establish that the People were not ready for
trial on September 13, 2018, and the People’s subsequent withdrawal of
their statement of readiness did not render their original statement
illusory (see People v Smith, 66 AD3d 1223, 1224-1225 [3d Dept 2009],
lv denied 14 NY3d 773 [2010]). Defendant acknowledged, at oral
argument on the motion, that he was not aware of what evidence the
People possessed at the time they announced readiness for trial, and
he therefore could not say whether the People were actually ready at
that time. “In the absence of proof that [a] readiness statement did
not accurately reflect the People’s position . . . , the People [have]
discharged their duty under CPL 30.30” (People v Carter, 91 NY2d 795,
799 [1998]).
 -3- 359
KA 19-01730

Furthermore, although defendant contends that the People had the

relevant evidence in their possession in October 2018 and thus, as of
that date, the People were not truly ready for trial and should be
chargeable for any delay occurring thereafter, the record establishes
that the People were prepared to proceed to trial until the week
before trial, when the prosecutor discovered that there may be
evidence that would be exculpatory. “ ‘[P]ostreadiness delay may be
chargeable to the People when the delay is attributable to their
inaction and directly implicates their ability to proceed to trial’ ”
(People v Fulmer, 87 AD3d 1385, 1385 [4th Dept 2011], lv denied 18
NY3d 994 [2012], quoting Carter, 91 NY2d at 799).

The record shows that the People were not aware until April 30,
2019 that mistakes by police detectives had incorrectly led them to
conclude that they could not locate the user of the Instagram account
that had been used to send the photographs of defendant engaging in
sexual acts with the victim to defendant’s ex-girlfriend. While we
agree with the court that the People’s late realization was entirely
due to the People’s failure to properly inspect the evidence within
their possession, the time chargeable to the People is only the delay
that is directly attributable to their inaction, and that which
directly implicated their ability to proceed to trial (see Fulmer, 87
AD3d at 1385). Thus, the delay that is chargeable to the People due
to their inaction with respect to the photographs is any additional
time that they required to investigate the matter, which they could
have previously investigated. Moreover, the People’s need to further
investigate the photographs did not render their prior statement of
readiness illusory because the record shows that, at the time they
announced their readiness, the People would have been able to
establish a prima facie case and proceed at trial (see People v
Hewitt, 144 AD3d 1607, 1607-1608 [4th Dept 2016], lv denied 28 NY3d
1185 [2017]; People v Rouse, 4 AD3d 553, 556 [3d Dept 2004], lv
denied 2 NY3d 805 [2004]).

Ultimately, because defendant moved to dismiss the indictment

nine days after the People withdrew their statement of readiness, that
time period is, at present, the only time that could have been
chargeable to the People as a result of their request for an
adjournment. Thus, we conclude that the court erred in granting the
motion because the 94-day period of delay attributable to the People
did not exceed six months and thereby did not violate defendant’s
right to a speedy trial (see Bastian, 83 AD3d at 1470).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

360
KA 18-00165
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

WAYNE A. BABB, JR., DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAIXI XU OF COUNSEL),

FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.

Appeal from a judgment of the Cattaraugus County Court (Ronald D.

Ploetz, J.), rendered September 11, 2017. The judgment convicted
defendant upon a jury verdict of endangering the welfare of a child.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury

verdict of endangering the welfare of a child (Penal Law § 260.10
[1]), defendant contends that the conviction is based on legally
insufficient evidence. We reject that contention. Defendant’s
girlfriend left her three-year-old son in his care while she was at
work from 7:00 a.m. until 4:00 p.m. She testified at trial that the
child had no injuries of concern when she left for work, but there
were red marks on the child’s face when she returned home for lunch
and, later that evening, she discovered that the child’s testicles
were red. The girlfriend’s testimony is sufficient to establish that
the child sustained the injuries while in defendant’s care (see People
v Tompkins, 8 AD3d 901, 902-903 [3d Dept 2004]). Moreover, the
medical evidence contradicted defendant’s explanations for how the
child sustained the injuries (see People v Wright, 81 AD3d 1161, 1163
[3d Dept 2011], lv denied 17 NY3d 803 [2011]). We thus conclude that
“ ‘there is a valid line of reasoning and permissible inferences from
which a rational jury could have found the elements of the crime
proved beyond a reasonable doubt’ ” (People v Danielson, 9 NY3d 342,
349 [2007]; see People v Bleakley, 69 NY2d 490, 495 [1987]).
Furthermore, viewing the evidence in light of the elements of the
crime as charged to the jury (see Danielson, 9 NY3d at 349), we
conclude that the verdict is not against the weight of the evidence
(see generally Bleakley, 69 NY2d at 495). Although defendant
challenges the credibility of his girlfriend’s testimony, we conclude
that “ ‘the jury was in the best position to assess the credibility of
the witness[ ] and, on this record, it cannot be said that the jury
 -2- 360
KA 18-00165

failed to give the evidence the weight it should be accorded’ ”

(People v McCall, 177 AD3d 1395, 1396 [4th Dept 2019], lv denied 34
NY3d 1130 [2020]).

Insofar as defendant contends that the verdict is inconsistent,

we reject his contention. Although the jury acquitted him of assault
in the second degree (Penal Law § 120.05 [9]) and forcible touching
(§ 130.52 [1]), those crimes require that the defendant act
intentionally (§ 15.05 [1]), whereas endangering the welfare of a
child requires only that the defendant act knowingly (§ 15.05 [2]; see
§ 260.10 [1]; People v Fernandez, 126 AD3d 639, 639 [1st Dept 2015],
lv denied 26 NY3d 967 [2015]).

Defendant further contends that County Court erred in permitting

the testimony of a Child Protective Services investigator concerning a
finding of abuse or neglect with respect to the same incident that was
entered upon defendant’s consent pursuant to Family Court Act
§ 1051 (a). We reject that contention. Consent to such an order is
analogous to an Alford plea (see Matter of William N. [Kimberly H.],
118 AD3d 703, 705 [2d Dept 2014]; Matter of Christopher H. v Lisa H.,
54 AD3d 373, 373 [2d Dept 2008]), which “binds [a defendant] as
strongly as any admission of the facts constituting the crime charged”
(Matter of Cumberland Pharmacy v Blum, 69 AD2d 903, 903 [2d Dept
1979]). Thus, testimony concerning the disposition of the Family
Court proceeding was properly received in evidence against defendant
(see People v Smielecki, 77 AD3d 1420, 1421 [4th Dept 2010], lv denied
15 NY3d 956 [2010]; see generally Matter of Aaron H. [Barbara H.], 72
AD3d 1602, 1602 [4th Dept 2010], lv denied 15 NY3d 704 [2010]).

Although we agree with defendant that the prosecutor’s comment in

summation concerning defendant’s pretrial silence was improper (see
generally People v Conyers, 52 NY2d 454, 457-458 [1981]), we conclude
that it was “ ‘not so egregious as to deprive defendant of a fair
trial’ ” (People v Jones, 155 AD3d 1547, 1549 [4th Dept 2017], amended
on rearg 156 AD3d 1493 [4th Dept 2017], lv denied 32 NY3d 1205
[2019]). By failing to object to the other allegedly improper
comments by the prosecutor during summation, defendant failed to
preserve the remainder of his contention for our review (see People v
Simmons, 133 AD3d 1227, 1228 [4th Dept 2015]), and we decline to
exercise our power to review it as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

367
CA 19-01391
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

LINDA LOUISE GREEN,

PLAINTIFF-APPELLANT-RESPONDENT,

V MEMORANDUM AND ORDER

KATHERINE ANNE REPINE AND WAYNE EUGENE REPINE,

DEFENDANTS-RESPONDENTS-APPELLANTS.

O’BRIEN & FORD P.C., BUFFALO (CHRISTOPHER M. PANNOZZO OF COUNSEL), FOR

PLAINTIFF-APPELLANT-RESPONDENT.

HAGELIN SPENCER LLC, BUFFALO (R.J. PORTER OF COUNSEL), FOR

DEFENDANTS-RESPONDENTS-APPELLANTS.

Appeal and cross appeal from an order of the Supreme Court, Erie
County (John F. O’Donnell, J.), entered January 16, 2019. The order
granted in part and denied in part the motion of defendants for
summary judgment and the cross motion of plaintiff for partial summary
judgment.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking to recover

damages for injuries that she sustained in an automobile accident. In
her supplemental bill of particulars, plaintiff alleged that she
sustained serious injuries to her shoulder, cervical spine, and lumbar
spine under the permanent loss of use, permanent consequential
limitation of use, significant limitation of use, and 90/180-day
categories set forth in Insurance Law § 5102 (d). Defendants moved
for summary judgment dismissing the complaint on the ground that
plaintiff did not sustain a serious injury, and plaintiff cross-moved
for summary judgment on, among other things, the issue of serious
injury. Plaintiff now appeals and defendants cross-appeal from an
order that, inter alia, denied both defendants’ motion and plaintiff’s
cross motion with respect to the permanent consequential limitation of
use, significant limitation of use, and 90/180-day categories of
serious injury. We affirm.

Contrary to defendants’ contention in their cross appeal, they

failed to meet their initial burden on their motion with respect to
plaintiff’s shoulder injury under the permanent consequential
limitation of use and significant limitation of use categories.
Although defendants submitted evidence that plaintiff’s injuries were
 -2- 367
CA 19-01391

caused by a preexisting condition, defendants’ submissions “ ‘fail[ed]

to account for evidence that plaintiff had no complaints of pain prior
to the accident’ ” (Sobieraj v Summers, 137 AD3d 1738, 1739 [4th Dept
2016]; see Barnes v Occhino, 171 AD3d 1455, 1456-1457 [4th Dept
2019]). Contrary to plaintiff’s contention on her appeal, she
similarly failed to meet her initial burden on her cross motion with
respect to her shoulder injury under those categories inasmuch as
plaintiff’s own submissions raised an issue of fact whether her
shoulder injury was the result of a preexisting, degenerative
condition (see generally Harris v Campbell, 132 AD3d 1270, 1271 [4th
Dept 2015]).

Regarding plaintiff’s alleged injury to her lumbar and cervical

spine under the significant limitation of use and permanent
consequential limitation of use categories, we agree with defendants
on their cross appeal that they met their initial burden on their
motion by submitting the affirmed report of a physician, who opined
that plaintiff suffered from a preexisting, degenerative condition in
her spine and did not suffer a traumatic injury as a result of the
accident (see generally Jones v Leffel, 125 AD3d 1451, 1452 [4th Dept
2015]; Schader v Woyciesjes, 55 AD3d 1292, 1293 [4th Dept 2008]). We
conclude, however, that plaintiff raised an issue of fact in
opposition. Plaintiff submitted objective medical evidence supporting
the conclusion that she sustained a serious injury to her lumbar and
cervical spine, along with the opinion of a physician who, based upon
review of plaintiff’s pre-accident and post-accident imaging,
concluded that the injury was causally related to the accident and
“that any preexisting condition suffered by plaintiff was aggravated
by the accident” (Croisdale v Weed, 139 AD3d 1363, 1364 [4th Dept
2016]; see generally Chmiel v Figueroa, 53 AD3d 1092, 1093 [4th Dept
2008]). For the same reasons, we conclude that plaintiff failed to
meet her initial burden on her cross motion with respect to the injury
to plaintiff’s lumbar and cervical spine under the significant
limitation of use and permanent consequential limitation of use
categories inasmuch as her submissions also included the report of the
physician, first submitted by defendants, who opined that plaintiff
suffered from a preexisting, degenerative condition in her spine and
did not suffer a traumatic injury as a result of the accident.

Contrary to the contentions of both parties, defendants and

plaintiff likewise failed to meet their initial burdens on their
respective motion and cross motion with respect to whether plaintiff
was prevented from “performing substantially all of the material acts
which constitute such person’s usual and customary daily activities
for not less than [90] days during the [180] days immediately
following the occurrence of the injury or impairment” (Insurance Law
§ 5102 [d]). Although the parties’ respective submissions showed that
plaintiff was out of work for not less than 90 days during the 180
days immediately following the accident, that is not dispositive of
whether plaintiff was prevented from performing “substantially all” of
her daily activities (Savilo v Denner, 170 AD3d 1570, 1571 [4th Dept
2019] [internal quotation marks omitted]; see Amamedi v Archibala, 70
AD3d 449, 450 [1st Dept 2010], lv denied 15 NY3d 713 [2010]), and the
opinion of plaintiff’s physician that plaintiff was “100% disabled” is
 -3- 367
CA 19-01391

conclusory (see generally Blake v Portexit Corp., 69 AD3d 426, 426-427

[1st Dept 2010]), and is contradicted by plaintiff’s deposition
testimony that she was able to perform certain activities and
household tasks, albeit with limitation.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

372
CA 19-01298
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

KRISTEN DEFISHER AND PAUL DEFISHER,

PLAINTIFFS-APPELLANTS,

V MEMORANDUM AND ORDER

PPZ SUPERMARKETS, INC., DOING BUSINESS AS

PATON’S MARKET PLACE, AND BPMZ, LLC,
DEFENDANTS-RESPONDENTS.

ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (ANDREW J.

CONNELLY OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (CHARLES C. SPAGNOLI OF

COUNSEL), FOR DEFENDANTS-RESPONDENTS.

Appeal from a judgment of the Supreme Court, Wayne County (Daniel

G. Barrett, A.J.), entered November 26, 2018. The judgment was
entered in favor of defendants upon a jury verdict.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this negligence action seeking

to recover damages for injuries sustained by Kristen DeFisher
(plaintiff) when she slipped and fell, allegedly due to water on the
floor, in the vestibule of defendants’ supermarket. Plaintiffs appeal
from a judgment entered in favor of defendants based upon a jury
verdict finding that there was no water on the floor where plaintiff
fell. We affirm.

Plaintiffs contend that Supreme Court improperly reversed a

purported factual finding in its earlier spoliation order by ruling,
on the eve of trial, that defendants would be permitted to contest
whether video footage that had not been retained would have captured
the area where plaintiff fell. Plaintiffs failed to include the
spoliation order in the record on appeal, however, and we are thus
unable to review their contention (see Resetarits Constr. Corp. v City
of Niagara Falls, 133 AD3d 1229, 1229 [4th Dept 2015]; Cherry v
Cherry, 34 AD3d 1186, 1186 [4th Dept 2006]). Plaintiffs, “ ‘as the
appellant[s], submitted this appeal on an incomplete record and must
suffer the consequences’ ” (Cherry, 34 AD3d at 1186).

We reject plaintiffs’ further contention that the court erred in

denying their motion for a directed verdict made at the close of
 -2- 372
CA 19-01298

proof. It is well settled that “a directed verdict is appropriate

where the . . . court finds that, upon the evidence presented, there
is no rational process by which the fact trier could base a finding in
favor of the nonmoving party . . . In determining whether to grant a
motion for a directed verdict pursuant to CPLR 4401, the trial court
must afford the party opposing the motion every inference which may
properly be drawn from the facts presented, and the facts must be
considered in [the] light most favorable to the nonmovant” (Brenner v
Dixon, 98 AD3d 1246, 1247 [4th Dept 2012] [internal quotation marks
omitted]; see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]).
“[W]hether a dangerous or defective condition exists on the property
of another so as to create liability depends on the peculiar facts and
circumstances of each case and is generally a question of fact for the
jury” (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997] [internal
quotation marks omitted]). Here, the parties introduced conflicting
evidence regarding the existence of water on the floor where plaintiff
fell, which presented a question of fact for the jury to resolve (see
Grizzanto v Golub Corp., 188 AD2d 1015, 1015 [4th Dept 1992]; cf.
Santana v Western Beef Retail, Inc., 132 AD3d 837, 838 [2d Dept
2015]).

Plaintiffs also challenge the verdict on the ground that it is

against the weight of the evidence. As a preliminary matter, we
conclude that plaintiffs were not required to preserve their
contention that the jury verdict was contrary to the weight of the
evidence by making a postverdict motion for a new trial (see Evans v
New York City Tr. Auth., 179 AD3d 105, 109-111 [2d Dept 2019]).
Inasmuch as the trial court is authorized to order a new trial “on its
own initiative” when the verdict is contrary to the weight of the
evidence (CPLR 4404 [a]) and “the power of the Appellate Division
. . . is as broad as that of the trial court” (Northern Westchester
Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]),
“this Court also possesses the power to order a new trial where the
appellant made no motion for that relief in the trial court” (Evans,
179 AD3d at 110; see Bintz v City of Hornell, 268 App Div 742, 747
[4th Dept 1945], affd 295 NY 628 [1945]; see also CPLR 5501 [c]; Cohen
v Hallmark Cards, Inc., 45 NY2d 493, 500 [1978]). To the extent that
our prior decisions hold otherwise, they should no longer be followed
(see e.g. Cyrus v Wal-Mart Stores E., LP, 160 AD3d 1487, 1488 [4th
Dept 2018]; Likos v Niagara Frontier Tr. Metro Sys., Inc., 149 AD3d
1474, 1476 [4th Dept 2017]; Mazella v Beals, 124 AD3d 1328, 1329 [4th
Dept 2015]; Barnes v Dellapenta, 111 AD3d 1287, 1288 [4th Dept 2013];
Lucas v Weiner, 99 AD3d 1202, 1202-1203 [4th Dept 2012]; Harris v
Stoelzel, 96 AD3d 1459, 1459-1460 [4th Dept 2012]; Murdoch v Niagara
Falls Bridge Commn., 81 AD3d 1456, 1457 [4th Dept 2011], lv denied 17
NY3d 702 [2011]; Homan v Herzig [appeal No. 2], 55 AD3d 1413,
1413-1414 [4th Dept 2008]).

Contrary to plaintiffs’ contention, however, the verdict is not

against the weight of the evidence. It is well settled that a verdict
may be set aside as against the weight of the evidence only if “the
evidence so preponderate[d] in favor of the [plaintiffs] that [the
verdict] could not have been reached on any fair interpretation of the
 -3- 372
CA 19-01298

evidence” (Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]

[internal quotation marks omitted]). Here, the conflicting evidence
regarding the existence of the alleged dangerous condition raised a
question of credibility to be resolved by the jury (see Parr v
Mongarella, 77 AD3d 1429, 1430 [4th Dept 2010]), and we conclude that
“the jury’s determination that there was no water on the [floor of the
vestibule] where the incident occurred was supported by a fair
interpretation of the evidence” (Grullon v West 48th St. Redevelopment
Corp., 75 AD3d 621, 623 [2d Dept 2010]).

We have reviewed plaintiffs’ remaining contentions and conclude

that they lack merit.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

373
CA 19-01578
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

BRIAN A. BERMEL, PLAINTIFF-RESPONDENT,

V MEMORANDUM AND ORDER

VITAL TECH DENTAL LABS, INC., DEFENDANT-APPELLANT.

NESPER, FERBER, DIGIACOMO, JOHNSON & GRIMM, LLP, AMHERST (GABRIEL J.

FERBER OF COUNSEL), FOR DEFENDANT-APPELLANT.

LAW OFFICE OF STEPHEN F. SZYMONIAK, WILLIAMSVILLE (STEPHEN F.

SZYMONIAK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (E.

Jeannette Ogden, J.), entered August 13, 2019. The order denied
defendant’s motion for summary judgment dismissing the complaint.

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting the motion in part and
dismissing plaintiff’s claim for commissions that accrued subsequent
to the termination of plaintiff’s employment, and as modified the
order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking, inter alia,

payment of commissions that he allegedly earned from sales that
occurred during the course of his employment with defendant. In
paragraph 17 of his complaint, plaintiff also asserted that he was
owed “commissions on sales to any accounts generated by [plaintiff] on
a future and ongoing basis including post-termination of [plaintiff’s]
employment.” Plaintiff alleges that defendant had promised to pay him
those commissions pursuant to an oral employment agreement.

On appeal from an order denying its motion for summary judgment

dismissing the complaint, defendant contends that, even assuming
arguendo that there was an oral employment agreement between plaintiff
and defendant, such an oral agreement would be void pursuant to
General Obligations Law § 5-701 (a), i.e., the statute of frauds. As
relevant here, General Obligations Law § 5-701 (a) (1) provides that
“[e]very agreement, promise or undertaking is void, unless it or some
note or memorandum thereof be in writing, and subscribed by the party
to be charged therewith, or by his lawful agent, if such agreement,
promise or undertaking . . . [b]y its terms is not to be performed
within one year from the making thereof.” “Only those agreements
which, by their terms, ‘have absolutely no possibility in fact and law
of full performance within one year’ will fall within the statute of
 -2- 373
CA 19-01578

frauds” (JNG Constr., Ltd. v Roussopoulos, 135 AD3d 709, 710 [2d Dept
2016], quoting D & N Boening v Kirsch Beverages, 63 NY2d 449, 454
[1984]).

Here, plaintiff was an at-will employee of defendant, and “an at-

will employment . . . is capable of being performed within one year
despite the fact that compensation remains to be calculated beyond the
one-year period” (Harrison v Harrison, 57 AD3d 1406, 1408 [4th Dept
2008]; see Hubbell v T.J. Madden Constr. Co., Inc., 32 AD3d 1306, 1306
[4th Dept 2006]; American Credit Servs. v Robinson Chrysler/Plymouth,
206 AD2d 918, 919 [4th Dept 1994]). We therefore reject defendant’s
contention that the court erred in denying its motion with respect to
plaintiff’s claim for payment of commissions fixed and earned during
the course of plaintiff’s employment with defendant (see Harrison, 57
AD3d at 1407-1408).

We agree with defendant, however, that the court erred in denying

its motion with respect to plaintiff’s claim for “commissions on sales
to any accounts generated by [plaintiff] on a future and ongoing basis
including post-termination of [plaintiff’s] employment,” i.e., the
claim for commissions that would accrue subsequent to the termination
of plaintiff’s employment. Although “[a]n oral agreement that is
terminable at will is capable of performance within one year and,
therefore, does not come within the Statute of Frauds . . . [,]
General Obligations Law § 5-701 (a) (1) bars enforcement of a promise
to pay commissions that extends indefinitely, dependent solely on the
acts of a third party and beyond the control of the defendant” (Murphy
v CNY Fire Emergency Servs., 225 AD2d 1034, 1035 [4th Dept 1996]
[internal quotation marks omitted]). Thus, the court erred in denying
defendant’s motion with respect to plaintiff’s claim for commissions
accruing subsequent to the termination of plaintiff’s employment, as
stated in paragraph 17 of the complaint (see Zupan v Blumberg, 2 NY2d
547, 550 [1957]; Tamara Brokerage, Inc. v Andreoli, 24 AD3d 536, 537
[2d Dept 2005]; Murphy, 225 AD2d at 1035), and we therefore modify the
order accordingly.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

376
CA 19-01549
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

SUSAN COTTRELL AND EARL COTTRELL,

PLAINTIFFS-RESPONDENTS,

V MEMORANDUM AND ORDER

BENDERSON DEVELOPMENT COMPANY, LLC, AND

BENDERSON 85-1 TRUST, DEFENDANTS-APPELLANTS.

FITZGERALD & ROLLER, P.C., BUFFALO (DEREK J. ROLLER OF COUNSEL), FOR

DEFENDANTS-APPELLANTS.

CANTOR & WOLFF, BUFFALO (DAVID WOLFF OF COUNSEL), FOR

PLAINTIFFS-RESPONDENTS.

Appeal from an order of the Supreme Court, Erie County (Frank A.

Sedita, III, J.), entered August 6, 2019. The order denied the motion
of defendants for summary judgment dismissing the second amended
complaint.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for

injuries sustained by Susan Cottrell (plaintiff) when she allegedly
slipped in the parking lot of defendants’ premises. Defendants appeal
from an order denying their motion for summary judgment dismissing the
second amended complaint. We affirm.

Contrary to defendants’ contention, they failed to meet their

initial burden of establishing that they lacked constructive notice of
the alleged icy condition. Initially, we note that plaintiffs did not
allege that defendants created or had actual notice of the icy
condition, and thus we are concerned only with whether defendants had
constructive notice (see generally Wood v Buffalo & Fort Erie Pub.
Bridge Auth., 178 AD3d 1383, 1384 [4th Dept 2019]). Defendants failed
to meet their initial burden of establishing as a matter of law that
“the alleged icy condition was not visible and apparent or that the
ice formed so close in time to the accident that [defendants] could
not reasonably have been expected to notice and remedy the condition”
(Waters v Ciminelli Dev. Co., Inc., 147 AD3d 1396, 1397 [4th Dept
2017] [internal quotation marks omitted]; see Wood, 178 AD3d at 1384).
Although plaintiff allegedly fell on “black ice,” that fact alone does
not establish as a matter of law that the ice was not visible and
apparent (see Wood, 178 AD3d at 1384) and, here, defendants’
 -2- 376
CA 19-01549

submissions included the deposition testimony of multiple witnesses

who testified that they saw the alleged patch of ice. Furthermore,
defendants’ submission of evidence of “[t]he salting of the area
approximately [seven] hours before plaintiff fell does not establish
that the ice formed so close in time to the accident that defendant[s]
could not reasonably have been expected to notice and remedy the
condition” (Conklin v Ulm, 41 AD3d 1290, 1291 [4th Dept 2007]; see
generally Waters, 147 AD3d at 1398).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

379
KA 19-00864
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, WINSLOW, AND BANNISTER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

WILBERT WILSON, JR., DEFENDANT-APPELLANT.

ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (BRIDGET L. FIELD OF

COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF

COUNSEL), FOR RESPONDENT.

Appeal from an order of the Wayne County Court (Daniel G.

Barrett, J.), entered March 6, 2019. The order determined that
defendant is a level two risk pursuant to the Sex Offender
Registration Act.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: On appeal from an order determining that he is a

level two risk under the Sex Offender Registration Act (Correction Law
§ 168 et seq.), defendant contends, and the People correctly concede,
that County Court erred in assessing five points against him under
risk factor 9, for number and nature of prior crimes. The People
failed to prove a prior crime by the requisite clear and convincing
evidence (see Correction Law § 168-n [3]; People v Cook, 29 NY3d 121,
125 [2017]) inasmuch as the only evidence of a prior crime consists of
“hearsay statements that are vague, inconsistent or equivocal, and
otherwise unsubstantiated” (People v Stewart, 61 AD3d 1059, 1060 [3d
Dept 2009]; see People v Gonzalez, 28 AD3d 1073, 1074 [4th Dept 2006];
see generally People v Mingo, 12 NY3d 563, 573 [2009]). Nevertheless,
the correct total of 75 points would still yield a presumptive level
two assessment.

Contrary to defendant’s further contention, the court did not

abuse its discretion in denying defendant’s request for a downward
departure from his presumptive risk level. We conclude that defendant
“failed to establish by a preponderance of the evidence the existence
of mitigating factors not adequately taken into account by the
guidelines” (People v Lewis, 156 AD3d 1431, 1432 [4th Dept 2017], lv
denied 31 NY3d 904 [2018]; see People v Gillotti, 23 NY3d 841, 861,
 -2- 379
KA 19-00864

864 [2014]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

380
KA 19-00528
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, WINSLOW, AND BANNISTER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

CHESTER J. THOMAS, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF

COUNSEL), FOR RESPONDENT.

Appeal from an order of the Supreme Court, Monroe County (Vincent

M. Dinolfo, A.J.), entered November 24, 2018. The order determined
that defendant is a level two risk pursuant to the Sex Offender
Registration Act.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: On appeal from an order determining that he is a

level two risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.), defendant contends that Supreme Court
erred in granting an upward departure from his presumptive
classification as a level one risk to a level two risk. We reject
that contention.

It is well settled that when the People establish, by clear and

convincing evidence (see Correction Law § 168-n [3]), the existence of
aggravating factors that are “as a matter of law, of a kind or to a
degree not adequately taken into account by the [risk assessment]
guidelines,” a court “must exercise its discretion by weighing the
aggravating and [any] mitigating factors to determine whether the
totality of the circumstances warrants a departure” from a sex
offender’s presumptive risk level (People v Gillotti, 23 NY3d 841, 861
[2014]; see People v Sincerbeaux, 27 NY3d 683, 689-690 [2016]; Sex
Offender Registration Act: Risk Assessment Guidelines and Commentary
at 4 [2006]).

Here, the People established by clear and convincing evidence the

existence of aggravating factors not adequately taken into account by
the risk assessment guidelines. Contrary to defendant’s contention,
the court “properly relied upon factors that, ‘as a matter of law,
. . . tend[ed] to establish a higher likelihood of reoffense or danger
 -2- 380
KA 19-00528

to the community’ ” (People v Vaillancourt, 112 AD3d 1375, 1376 [4th

Dept 2013], lv denied 22 NY3d 864 [2014]; see People v Wyatt, 89 AD3d
112, 123 [2d Dept 2011], lv denied 18 NY3d 803 [2012]), including his
history of violence toward the victim that, despite criminal sanctions
resulting therefrom, subsequently escalated to the underlying violent
sex offense against the victim (see People v Gonzalez, 178 AD3d 741,
742 [2d Dept 2019], lv denied 35 NY3d 902 [2020]; People v Amorin, 164
AD3d 1483, 1483-1484 [2d Dept 2018]; People v Davis, 139 AD3d 1226,
1228 [3d Dept 2016]). Contrary to defendant’s further contention, the
aggravating factors outweighed any mitigating factors, and the
totality of the circumstances thus warranted an upward departure to
avoid an under-assessment of defendant’s dangerousness and risk of
sexual recidivism (see People v Mangan, 174 AD3d 1337, 1339 [4th Dept
2019], lv denied 34 NY3d 905 [2019]; People v Sczerbaniewicz, 126 AD3d
1348, 1349-1350 [4th Dept 2015]; see generally Gillotti, 23 NY3d at
861).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

399
KA 19-00884
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

TAYLOR I. BECKSTEAD, DEFENDANT-APPELLANT.

CAITLIN M. CONNELLY, BUFFALO, FOR DEFENDANT-APPELLANT.

KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.

Appeal from a judgment of the Jefferson County Court (Kim H.

Martusewicz, J.), rendered December 12, 2018. The judgment convicted
defendant upon her plea of guilty of burglary in the first degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting her

upon her plea of guilty of burglary in the first degree (Penal Law
§ 140.30 [2]). We affirm.

Initially, we emphasize once again that, “[c]ontrary to the

People’s contention, and as we have previously noted, it is well
settled that this Court’s sentence-review power may be exercised, if
the interest of justice warrants, without deference to the sentencing
court . . . , and that we may substitute our own discretion for that
of a trial court which has not abused its discretion in the imposition
of a sentence” (People v White, 153 AD3d 1565, 1568 [4th Dept 2017],
lv denied 30 NY3d 1065 [2017] [internal quotation marks omitted]).
Nevertheless, the sentence is not unduly harsh or severe.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

400
KA 16-02127
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

CHARLENE M. MESS, DEFENDANT-APPELLANT.

NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (ADAM W. KOCH OF COUNSEL),

FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, SPECIAL PROSECUTOR, BATAVIA (WENDY EVANS LEHMANN OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Wyoming County Court (Michael M.

Mohun, J.), rendered June 23, 2016. The judgment convicted defendant
upon her plea of guilty of manslaughter in the first degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting her

upon her plea of guilty of manslaughter in the first degree (Penal Law
§ 125.20 [1]). We reject defendant’s contention that her waiver of
the right to appeal was invalid. The plea colloquy establishes that
defendant knowingly, voluntarily, and intelligently waived the right
to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]).
Inasmuch as defendant’s valid waiver of the right to appeal
specifically included a waiver of the right to challenge the severity
of the sentence and defendant was informed of the maximum sentence
County Court could impose in its discretion, the waiver encompasses
her challenge to the severity of her sentence (see People v Lococo, 92
NY2d 825, 827 [1998]; People v Lasher, 151 AD3d 1774, 1775 [4th Dept
2017], lv denied 29 NY3d 1129 [2017]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

422
KA 16-00928
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, AND BANNISTER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

TAQUAN JONES, DEFENDANT-APPELLANT.

ANTHONY F. BRIGANO, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Oneida County Court (Michael L.

Dwyer, J.), rendered February 16, 2016. The judgment convicted
defendant upon a plea of guilty of robbery in the first degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his

plea of guilty of robbery in the first degree (Penal Law § 160.15
[4]), defendant contends that his sentence is unduly harsh and severe.
Initially, we note that defendant waived his right to appeal, but we
conclude that the waiver is invalid. County Court mischaracterized
the waiver of the right to appeal as an absolute bar to defendant
taking a direct appeal, with no clarifying language in either the oral
colloquy or the written waiver that certain issues remain available
for appellate review. We therefore conclude that the colloquy and
written waiver were insufficient to ensure that the waiver was
voluntary, knowing, and intelligent (see People v Thomas, 34 NY3d 545,
562-567 [2019], cert denied — US — [Mar. 30, 2020]; People v Brown,
180 AD3d 1341, 1341 [4th Dept 2020], lv denied 35 NY3d 968 [2020];
People v Stenson, 179 AD3d 1449, 1449 [4th Dept 2020], lv denied 35
NY3d 974 [2020]). We nevertheless conclude that the sentence is not
unduly harsh or severe.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

423
KA 17-01592
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, AND BANNISTER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

ANTHONY THOMPSON, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF

COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Erie County Court (David W. Foley,

A.J.), rendered November 30, 2016. The judgment convicted defendant,
upon a plea of guilty, of criminal possession of a weapon in the
second degree and criminal possession of a controlled substance in the
third degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him,

upon his plea of guilty, of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]) and criminal possession of a
controlled substance in the third degree (§ 220.16 [12]). We affirm.
Even assuming, arguendo, that defendant’s waiver of the right to
appeal does not preclude our review of his challenge to the severity
of the period of postrelease supervision imposed by County Court, we
nevertheless conclude that such aspect of his sentence is not unduly
harsh or severe.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

424
KA 18-00856
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, AND BANNISTER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

SEAN M. VICKERS, DEFENDANT-APPELLANT.

DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Genesee County Court (Charles N.

Zambito, J.), rendered January 5, 2018. The judgment convicted
defendant upon a plea of guilty of course of sexual conduct against a
child in the first degree (two counts).

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his

plea of guilty of two counts of course of sexual conduct against a
child in the first degree (Penal Law § 130.75 [1] [b]), defendant
contends that, although he validly waived his right to appeal, he may
nevertheless seek a sentence reduction in the interest of justice (see
CPL 470.15 [6] [b]). We reject that contention inasmuch as a valid
waiver of the right to appeal encompasses a challenge to the severity
of the sentence and also “includes waiver of the right to invoke [this
Court’s] interest-of-justice jurisdiction to reduce the sentence”
(People v Lopez, 6 NY3d 248, 255 [2006]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

425
KA 19-00815
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, AND BANNISTER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

ROBERT WASYL, DEFENDANT-APPELLANT.

DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF

COUNSEL), FOR DEFENDANT-APPELLANT.

CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA THERESA

JORDAN OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Niagara County Court (Sara Sheldon,

J.), rendered February 8, 2019. The judgment convicted defendant,
upon a plea of guilty, of attempted burglary in the second degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him,

upon his guilty plea, of attempted burglary in the second degree
(Penal Law §§ 110.00, 140.25 [2]). We agree with defendant that his
waiver of the right to appeal is invalid. County Court
mischaracterized the nature of the right that defendant was being
asked to cede by portraying the waiver as an absolute bar to defendant
taking an appeal, and there is no clarifying language in either the
oral or written waiver indicating that appellate review remained
available for certain issues. Furthermore, the record fails to
establish that defendant “read and understood the contents of the
written waiver that he executed during the proceeding” (People v
Miller, 161 AD3d 1579, 1579 [4th Dept 2018], lv denied 31 NY3d 1119
[2018]; see generally People v Bradshaw, 18 NY3d 257, 265 [2011]). We
therefore conclude that the waiver of appeal was not knowing and
voluntary (see People v Thomas, 34 NY3d 545, 564-565 [2019], cert
denied — US — [Mar. 30, 2020]; see generally People v Lopez, 6 NY3d
248, 256 [2006]). We nevertheless conclude that the negotiated
sentence, which is the statutory minimum sentence (see § 70.08 [2],
[3] [c]), cannot be characterized as unduly harsh or severe (see
People v Laury, 156 AD3d 1473, 1473-1474 [4th Dept 2017], lv denied 32
NY3d 939 [2018]; see also People v Carter, 280 AD2d 977, 978 [4th Dept
2001], lv denied 96 NY2d 860 [2001]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

434
CA 19-01505
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, AND BANNISTER, JJ.

BRIAN MITCHELL, PLAINTIFF-RESPONDENT,

V MEMORANDUM AND ORDER

PO N. LAM, M.D., AND ASSOCIATED MEDICAL

PROFESSIONALS OF NY, PLLC, ALSO KNOWN AS A.M.P.,
DEFENDANTS-APPELLANTS.

GALE GALE & HUNT, LLC, SYRACUSE (MATTHEW J. VANBEVEREN OF COUNSEL),

FOR DEFENDANTS-APPELLANTS.

COTE & VANDYKE, LLP, SYRACUSE (JOSEPH S. COTE, III, OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Onondaga County

(Anthony J. Paris, J.), entered July 18, 2019. The order, among other
things, denied that part of defendants’ motion seeking to dismiss
plaintiff’s claim of lack of informed consent.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In this medical malpractice action in which

plaintiff seeks damages arising from a surgical procedure, defendants
appeal from an order that, inter alia, denied that part of their
motion seeking dismissal of plaintiff’s claim of lack of informed
consent. We reject defendants’ contention that Supreme Court erred in
denying that part of their motion, and therefore we affirm. A medical
professional may be deemed to have committed the intentional tort of
battery, rather than medical malpractice, “if he or she carries out a
procedure or treatment to which the patient has provided ‘no consent
at all’ ” (VanBrocklen v Erie County Med. Ctr., 96 AD3d 1394, 1394
[4th Dept 2012]; see McCarthy v Shah, 162 AD3d 1727, 1728 [4th Dept
2018]). Nevertheless, the lack of informed consent may be a proper
element of a medical malpractice claim against a medical professional
who is alleged to have negligently exceeded the scope of the patient’s
consent (see Ponholzer v Simmons, 78 AD3d 1495, 1496 [4th Dept 2010],
lv dismissed 16 NY3d 886 [2011]; cf. Tirado v Koritz, 156 AD3d 1342,
1343 [4th Dept 2017]). Here, plaintiff pleaded in the alternative
that defendant Po N. Lam, M.D. failed to recall the scope of the
consent while performing the hernia-related procedure and thereby
“negligently exceeded the scope of plaintiff’s consent” (Ponholzer, 78
 -2- 434
CA 19-01505

AD3d at 1496).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

447
KA 16-01255
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

JERALD J. DAVIS, JR., DEFENDANT-APPELLANT.

(APPEAL NO. 1.)

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Supreme Court, Monroe County (Joanne

M. Winslow, J.), rendered April 19, 2016. The judgment convicted
defendant upon a plea of guilty of robbery in the second degree.

It is hereby ORDERED that said appeal is unanimously dismissed.

Same memorandum as in People v Davis ([appeal No. 2] — AD3d —

[Aug. 20, 2020] [4th Dept 2020]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

448
KA 16-02099
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

JERALD J. DAVIS, JR., DEFENDANT-APPELLANT.

(APPEAL NO. 2.)

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF

COUNSEL), FOR RESPONDENT.

Appeal from a resentence of the Supreme Court, Monroe County

(Joanne M. Winslow, J.), rendered October 4, 2016. Defendant was
resentenced upon his conviction of robbery in the second degree.

It is hereby ORDERED that the resentence so appealed from is

unanimously affirmed.

Memorandum: In appeal No. 1, defendant appeals from a judgment

convicting him upon his plea of guilty of robbery in the second degree
(Penal Law § 160.10 [2] [a]) and, in appeal No. 2, he appeals from a
resentence on that conviction. Initially, we note that defendant’s
contention on appeal concerns only the resentence in appeal No. 2, and
we therefore dismiss the appeal from the judgment in appeal No. 1 (see
People v Loiz [appeal No. 2], 175 AD3d 872, 872-873 [4th Dept 2019];
People v Patterson, 128 AD3d 1377, 1377 [4th Dept 2015]). Contrary to
defendant’s contention, the resentence is not unduly harsh or severe.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

449
KA 19-01043
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH,

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

KEVIN A. DUKES, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF

COUNSEL), FOR RESPONDENT.

Appeal from an order of the Monroe County Court (John L. DeMarco,

J.), entered April 12, 2019. The order determined that defendant is a
level three risk pursuant to the Sex Offender Registration Act.

It is hereby ORDERED that the order so appealed from is affirmed

without costs.

Memorandum: Defendant appeals from an order classifying him as a

level three risk pursuant to the Sex Offender Registration Act ([SORA]
Correction Law § 168 et seq.). On appeal, defendant contends that
County Court erred in granting an upward departure based on a 2010
presentence report that, according to defendant, contained or
reflected inadmissible statement(s) that he ostensibly made in
connection with a 2007 juvenile delinquency proceeding. Although
defendant noted, during this SORA proceeding, the undisputed legal
principle that a “confession, admission or statement” made by a
juvenile delinquent in Family Court is inadmissible “as evidence
against him or his interests in any other court” (Family Ct Act
§ 381.2 [1]), he never asserted below that County Court was actually
relying on any such confession, admission or statement in this case.
In other words, while defendant recited below the legal principle upon
which he now relies, he never linked that principle to any fact in
this case nor did he explain why or how that principle should apply
here. Indeed, defendant’s appellate brief does not even identify the
purported confession, admission, or statement upon which the court
allegedly relied in its upward departure determination. By failing to
“link the asserted [principle of law] to any specific aspect of the
evidence” (People v Jean-Baptiste, 38 AD3d 418, 425 [1st Dept 2007,
McGuire, J., concurring], lv denied 9 NY3d 877 [2007]), defendant
failed to preserve his present argument for appellate review (see
generally People v Gillotti, 23 NY3d 841, 854 [2014]).
 -2- 449
KA 19-01043

In any event, the record is devoid of any indication that the

court actually relied on any confession, admission, or statement by
defendant in making its upward departure determination. Indeed, the
court’s written decision reflected its awareness of the requirements
of Family Court Act § 381.2 (1).

All concur except PERADOTTO, J.P., and LINDLEY, J., who dissent and
vote to modify in accordance with the following memorandum: We
respectfully dissent. In our view, County Court erred in relying on
the facts underlying two juvenile delinquency adjudications entered
against defendant in Family Court to grant an upward departure from
the presumptive level two risk yielded by his score on the risk
assessment instrument (RAI). We would thus modify the order
accordingly.

The relevant facts are not in dispute. When he was 17 years old,
defendant robbed a store and forced the clerk at gunpoint to perform
oral sex on him. He later pleaded guilty to robbery in the first
degree (Penal Law § 160.15 [4]) and criminal sexual act in the first
degree (§ 130.50 [1]) with respect to those acts and was sentenced as
an adult to nine years in prison. As defendant neared his release
date, County Court held a hearing pursuant to the Sex Offender
Registration Act ([SORA] Correction Law § 168 et seq.) after which it
determined that 105 points should be assessed against him on the RAI,
making defendant a presumptive level two risk. In a letter sent to
defendant following the hearing, however, the court, through its law
clerk, stated that it was considering an upward departure to a level
three risk based on the underlying facts of two juvenile delinquency
adjudications from 2007, when defendant was 14 years old. The case
was rescheduled to give defendant an opportunity to be heard in
opposition to the possible grant of a sua sponte upward departure.

At the ensuing court appearance, defense counsel objected to the

court’s consideration of the facts underlying the juvenile delinquency
adjudications. In support of the objection, defense counsel relied on
Family Court Act § 381.2 (1), which provides that “any confession,
admission or statement” made by a juvenile delinquent in Family Court
is inadmissible “as evidence against him or his interests in any other
court.” The People did not respond to defendant’s argument with
respect to the admissibility of the underlying facts of the juvenile
delinquency adjudications. Instead, they sought an upward departure
on other grounds not relevant to this appeal.

Nevertheless, the court granted an upward departure based solely

on the underlying facts of the juvenile delinquency adjudications,
which did not involve any sex offenses or allegations of sexual
misconduct. In doing so, the court cited to a portion of defendant’s
presentence report (PSR) from the predicate sex offense that recounts
defendant’s criminal history and indicates that the juvenile
delinquency adjudications arose from a home burglary and a liquor
store robbery during which defendant stole alcohol. That was error.

“[B]ecause Correction Law § 168-n (3) compels the People to prove

the existence of facts supporting a defendant’s overall risk level
 -3- 449
KA 19-01043

classification by clear and convincing evidence, the People cannot

obtain an upward departure pursuant to the guidelines unless they
prove the existence of certain aggravating circumstances by clear and
convincing evidence” (People v Gillotti, 23 NY3d 841, 861-862 [2014];
see People v Tatner, 149 AD3d 1595, 1595 [4th Dept 2017], lv denied 29
NY3d 916 [2017]). Such aggravating circumstances must, of course, be
proved by admissible evidence (cf. People v Diaz, 100 AD3d 1491, 1491
[4th Dept 2012], lv denied 20 NY3d 858 [2013]).

Although juvenile delinquency adjudications cannot be considered

crimes for SORA purposes when the court is assessing points for
criminal history (see Family Ct Act § 381.2 [1]; People v Gibson, 149
AD3d 1567, 1568 [4th Dept 2017]; People v Brown, 148 AD3d 1705, 1706-
1707 [4th Dept 2017]), the underlying facts of the adjudications may
be considered when determining whether to grant an upward departure
from the recommended risk level (see People v Updyke, 133 AD3d 1063,
1064 [3d Dept 2015]; People v Shaffer, 129 AD3d 54, 56 [3d Dept
2015]).

Here, as noted, defendant challenged the admissibility of the

underlying facts of his juvenile delinquency adjudications as set
forth in the PSR, asserting that they appeared to be based upon
admissions that he made in Family Court. The challenge was well
founded inasmuch as the PSR stated that defendant entered admissions
to both juvenile delinquency adjudications, and the PSR does not
indicate the source of its summary of the underlying facts. As
further noted, the People did not respond to defendant’s objection.
On appeal, the People state that the references in the PSR to the
underlying facts “appear to be summaries of the accusatory instruments
filed in Family Court” (emphasis added). Such speculation has no
basis in the record and cannot sustain the court’s ruling (see
generally Diaz, 100 AD3d at 1491). It is just as likely, if not more
so, that the summary of the underlying facts of the juvenile
delinquency adjudications came from defendant’s admissions thereto,
which would render the summary inadmissible under Family Court Act
§ 381.2 (1).

In light of defendant’s objection pursuant to Family Court Act

§ 381.2 (1) and the People’s failure to respond thereto, the record
does not establish the admissibility of the statements in the PSR
recounting the facts underlying defendant’s juvenile delinquency
adjudications. County Court thus erred in relying on those facts as
aggravating circumstances to justify the upward departure inasmuch as
it cannot be said that those facts are supported by admissible
evidence (see generally Diaz, 100 AD3d at 1491). We therefore
conclude that the People failed to meet their burden at the SORA
hearing of proving the existence of aggravating circumstances by clear
and convincing evidence (see generally Gillotti, 23 NY3d at 861-862),
and the court erred in granting an upward departure from risk level
two to risk level three.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

451
KA 18-00078
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

JOSEPH W. SHANTZ, DEFENDANT-APPELLANT.

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CARA A. WALDMAN OF COUNSEL),

FOR DEFENDANT-APPELLANT.

JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER

EAGGLESTON OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Supreme Court, Ontario County (Craig

J. Doran, J.), rendered September 9, 2016. The judgment convicted
defendant upon his plea of guilty of unlawful surveillance in the
second degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously modified as a matter of discretion in the interest of
justice and on the law by vacating the supplemental sex offender victim
fee, and as modified the judgment is affirmed.

Memorandum: On appeal from a judgment convicting him upon a plea

of guilty of unlawful surveillance in the second degree (Penal Law
§ 250.45 [2]), defendant contends that his waiver of the right to
appeal is invalid because Supreme Court’s explanation thereof was
confusing and inaccurate. We agree. The better practice is for the
court to use the Model Colloquy, which “ ‘neatly synthesizes . . . the
governing principles’ ” (People v Dozier, 179 AD3d 1447, 1447 [4th Dept
2020], lv denied 35 NY3d 941 [2020], quoting People v Thomas, 34 NY3d
545, 567 [2019], cert denied — US — [Mar. 30, 2020]; see NY Model
Colloquies, Waiver of Right to Appeal). Here, by telling defendant
that the waiver meant that he was giving up his right to appeal any
aspect of his case and that any attempt to appeal would likely result
in the appellate court refusing to even hear such an appeal, the court
“mischaracterized the waiver of the right to appeal, portraying it in
effect as an ‘absolute bar’ to the taking of an appeal” (People v Cole,
181 AD3d 1329, 1330 [4th Dept 2020], quoting Thomas, 34 NY3d at 564).
Moreover, the colloquy lacked adequate clarifying language indicating
that the right to take an appeal was retained; instead, when the court
solicited defendant’s understanding of its explanation, defendant
indicated that he understood the waiver to preclude an appeal and the
court failed to correct defendant’s misunderstanding (see Thomas, 34
NY3d at 564-566; People v Stenson, 179 AD3d 1449, 1449 [4th Dept 2020],
 -2- 451
KA 18-00078

lv denied 35 NY3d 974 [2020]; cf. People v Morrison, 179 AD3d 1454,
1455 [4th Dept 2020], lv denied 35 NY3d 972 [2020]). We thus conclude
on this record that the purported waiver of the right to appeal is not
enforceable inasmuch as the totality of the circumstances fails to
reveal that defendant “understood the nature of the appellate rights
being waived” (Thomas, 34 NY3d at 559; see People v Youngs, 183 AD3d
1228, 1228-1229 [4th Dept 2020]).

As defendant further contends and the People correctly concede,

the court erred in imposing a supplemental sex offender victim fee
inasmuch as defendant was convicted of an offense contained in article
250 of the Penal Law (see § 60.35 [1] [b]). Although defendant
correctly concedes that he failed to preserve his contention for our
review (see People v Coleman, 170 AD3d 1661, 1661 [4th Dept 2019], lv
denied 33 NY3d 1068 [2019]; People v Parker, 137 AD3d 1625, 1626 [4th
Dept 2016]), we exercise our power to review the contention as a matter
of discretion in the interest of justice (see CPL 470.15 [3] [c]), and
we modify the judgment by vacating the supplemental sex offender victim
fee (see People v Arnold, 107 AD3d 1526, 1528 [4th Dept 2013], lv
denied 22 NY3d 953 [2013]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

452
KA 19-01732
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

HECTOR SERRANO, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF

COUNSEL), FOR RESPONDENT.

Appeal from an order of the Monroe County Court (Stephen T.

Miller, A.J.), entered June 18, 2019. The order determined that
defendant is a level two risk pursuant to the Sex Offender Registration
Act.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he

is a level two risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). Contrary to defendant’s contention,
County Court did not err in denying his request for a downward
departure from his presumptive risk level. Even assuming, arguendo,
that defendant met his burden of establishing the existence of an
appropriate mitigating factor by a preponderance of the evidence, we
conclude that the court providently exercised its discretion in denying
defendant’s request for a downward departure (see People v Wooten, 136
AD3d 1305, 1306 [4th Dept 2016]; see also People v Bernecky, 161 AD3d
1540, 1541 [4th Dept 2018], lv denied 32 NY3d 901 [2018]). We reject
defendant’s related contention that the court erred in denying his
request for a downward departure because the assessment of points under
risk factors 3 and 7 resulted in an “inflated” score on his risk
assessment instrument (see People v Tirado, 165 AD3d 991, 992 [2d Dept
2018], lv denied 32 NY3d 914 [2019]; People v Goldman, 150 AD3d 905,
907 [2d Dept 2017]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

463
CA 19-01085
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.

DONALD F. PICK, PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

MIDROX INSURANCE COMPANY, DEFENDANT-RESPONDENT.

GUSTAVE J. DETRAGLIA, JR., UTICA, FOR PLAINTIFF-APPELLANT.

KENNEY SHELTON LIPTAK NOWAK LLP, JAMESVILLE (MATTHEW C. RONAN OF

COUNSEL), FOR DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Oneida County (Patrick

F. MacRae, J.), entered May 3, 2019. The order granted defendant’s
motion insofar as it sought summary judgment declaring that defendant
had no obligation to cover the subject damage and dismissing the
complaint.

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the motion insofar as it
sought summary judgment declaring that defendant had no obligation to
cover damage to the property and dismissing the complaint is denied,
the declaration is vacated, the complaint is reinstated, and the matter
is remitted to Supreme Court, Oneida County, for further proceedings in
accordance with the following memorandum: Defendant insures
plaintiff’s agricultural property under a policy that covers damage
from a “windstorm.” The policy, however, does not define the term
“windstorm.” After the property was damaged by an event that plaintiff
characterizes as a “windstorm,” he commenced this action for a judgment
declaring that defendant must cover the damage under the “windstorm”
provision. Defendant moved for summary judgment dismissing the
complaint and declaring that it had no obligation to cover the subject
damage, reasoning that the damage was caused by the collapse of a
structurally deficient silo on the property, not by one or more gusts
of wind. In any event, defendant continued, even had the damage been
caused by one or more gusts of wind, such a gust or gusts did not
constitute a “windstorm” covered under the policy. Alternatively,
defendant sought summary judgment declaring that its coverage
obligation was limited in various specified ways.

Supreme Court granted defendant’s motion insofar as it sought

summary judgment dismissing the complaint and declaring that defendant
had no obligation to cover the subject damage. The court deemed
defendant’s alternative ground for summary judgment to be moot given
the complaint’s dismissal. We now reverse.
 -2- 463
CA 19-01085

We agree with plaintiff that the competing expert affidavits

submitted by the parties create triable issues of fact as to the actual
cause of the damage in this case. Thus, defendant is not entitled to
summary judgment on the ground that the damage was caused by an
explicit policy exclusion, such as wear and tear or failure to act
(compare Khuns v Bay State Ins. Co., 78 AD3d 1496, 1497-1499 [4th Dept
2010] with Fairchild v Genesee Patrons Coop. Ins. Co., 238 AD2d 841,
842 [3d Dept 1997], lv denied 90 NY2d 807 [1997]).

Defendant is likewise not entitled to summary judgment on the

ground that plaintiff’s loss would not be covered under the “windstorm”
provision even had the damage been caused by one or more gusts of wind.
That issue cannot be resolved as a matter of law because the critical
term—“windstorm”—“is ambiguous and susceptible of [at least] two
reasonable interpretations, . . . and the resolution of the ambiguity
is for the trier of fact” (State of New York v Home Indem. Co., 66 NY2d
669, 671 [1985]; see Boggs v Commercial Mut. Ins. Co., 220 AD2d 973,
974-975 [3d Dept 1995]; Show Car Speed Shop v United States Fid. &
Guar. Co., 192 AD2d 1063, 1064-1065 [4th Dept 1993]; Mawardi v New York
Prop. Ins. Underwriting Assn., 183 AD2d 756, 757-758 [2d Dept 1992]).
We note that neither party submitted competent extrinsic evidence that
conclusively establishes the meaning of the term “windstorm” in the
policy, much less whether the “windstorm” provision applies upon the
occurrence of one or more sustained gusts of wind (cf. Fairchild, 238
AD2d at 842).

Given our determination, the motion is no longer moot insofar as

it sought alternative relief, and we therefore remit the matter to
Supreme Court to determine the motion to that extent (see Richardson v
Kempney Trucking, 12 AD3d 1099, 1100 [4th Dept 2004]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

465
CA 19-01648
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.

TJJK PROPERTIES, LLC, PLAINTIFF-RESPONDENT,

V MEMORANDUM AND ORDER

A.E.Y. ENGINEERING, D.P.C., AND MICHAEL G. YOUNG,

DEFENDANTS-APPELLANTS.

SUGARMAN LAW FIRM, LLP, SYRACUSE (BRITTANY L. HANNAH OF COUNSEL), FOR

DEFENDANTS-APPELLANTS.

CULLEY, MARKS, TANENBAUM & PEZZULO, LLP, ROCHESTER (GLENN E. PEZZULO OF

COUNSEL), FOR PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Wayne County (John B.

Nesbitt, A.J.), entered August 12, 2019. The order, among other
things, denied in part the motion of defendants for summary judgment
dismissing the complaint.

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by vacating the determination that
plaintiff asserted a malpractice claim and that the motion should be
denied with respect thereto and granting those parts of the motion for
summary judgment dismissing the second and third causes of action, and
as modified the order is affirmed without costs.

Memorandum: Plaintiff entered into a contract with defendant

A.E.Y. Engineering, D.P.C. (AEY) pursuant to which AEY agreed to
prepare a site plan for a campground on property plaintiff was
developing (property). Defendant Michael G. Young owns a 25% share of
AEY. Plaintiff awarded its site work contract to nonparty Affronti
Excavating and Trucking, LLC, which discovered that the topography of
the site plan differed from the actual conditions on the property.
Plaintiff believed that AEY’s site plan was inaccurate, resulting in
additional costs and delaying the opening of the campground.
Consequently, plaintiff commenced this action to recover damages
sustained as a result of defendants’ alleged breach of contract,
fraudulent misrepresentation, and negligent misrepresentation.
Defendants thereafter moved for summary judgment dismissing the
complaint. In its order, Supreme Court, sua sponte, determined that
the breach of contract cause of action “also appears to sound in
malpractice” and granted the motion with respect to the breach of
contract claim against Young. The court otherwise denied the motion,
including with respect to any malpractice claim against defendants.
Defendants appeal.
 -2- 465
CA 19-01648

We agree with defendants that plaintiff did not assert a

malpractice claim. Plaintiff asserted three causes of action sounding
only in breach of contract, fraudulent misrepresentation, and negligent
misrepresentation. Additionally, in opposing defendants’ motion,
plaintiff did not argue that it had a malpractice claim. Consequently,
we modify the order by vacating the determination that plaintiff
asserted a malpractice claim and that the motion should be denied with
respect thereto (cf. Denhaese v Buffalo Spine Surgery, PLLC, 144 AD3d
1519, 1520 [4th Dept 2016]).

Contrary to defendants’ contention, the court properly denied the

motion with respect to the breach of contract cause of action against
AEY. Although defendants met their initial burden on the motion with
respect to that cause of action against AEY (see Junger v John V. Dinan
Assoc., Inc., 164 AD3d 1428, 1430 [2d Dept 2018]), plaintiff raised
triable issues of fact by submitting the joint expert affidavit of a
civil engineer and a certified code enforcement officer (see generally
Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The
conflicting opinions in the affidavits of the parties’ experts
regarding, inter alia, whether AEY’s site plan omitted key elements
that are typically included in such plans and whether AEY was obligated
and failed to verify whether the topographic map it relied on reflected
the actual conditions at the property cannot be resolved on a motion
for summary judgment (see Junger, 164 AD3d at 1430; Swormville Fire
Co., Inc. v K2M Architects P.C., 147 AD3d 1310, 1311 [4th Dept 2017];
see also Mary Imogene Bassett Hosp. v Cannon Design, Inc., 84 AD3d
1524, 1527 [3d Dept 2011]).

We agree with defendants, however, that the court erred in denying

their motion with respect to the fraudulent and negligent
misrepresentation causes of action inasmuch as those causes of action
are duplicative of the breach of contract cause of action. We
therefore further modify the order accordingly. Here, plaintiff’s
causes of action for fraudulent and negligent misrepresentation “are
not separate and apart” from its breach of contract cause of action
inasmuch as they “are predicated upon precisely the same purported
wrongful conduct” alleged in the breach of contract cause of action (OP
Solutions, Inc. v Crowell & Moring, LLP, 72 AD3d 622, 622 [1st Dept
2010]). Indeed, all three causes of action are based upon the primary
allegations that the site plan provided by AEY was inaccurate,
incomplete, misrepresented the conditions actually existing on the
property, and contained other serious defects (see Sestito v David L.
Vickers & Sons, 175 AD3d 955, 956 [4th Dept 2019]; Muncil v Widmir Inn
Rest. Corp., 155 AD3d 1402, 1404-1405 [3d Dept 2017]; Tra-Lin Corp. v
Empire Beef Co., Inc., 113 AD3d 1141, 1141-1142 [4th Dept 2014]).

We have reviewed defendants’ remaining contentions and conclude

that none warrants reversal or further modification of the order.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

466
CA 19-01074
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.

JAMES LUPPINO, SUCCESSOR ADMINISTRATOR OF ESTATE

OF MARIA V. LUPPINO, DECEASED,
PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

JENNIFER G. FLANNERY, AS ADMINISTRATOR OF THE

ESTATE OF WILLIAM E. O’BRIEN, M.D., DECEASED,
ET AL., DEFENDANTS,
AND CATHOLIC HEALTH SYSTEM DOING BUSINESS AS
KENMORE MERCY HOSPITAL, DEFENDANT-RESPONDENT.

PAUL WILLIAM BELTZ, P.C., BUFFALO (ANNE B. RIMMLER OF COUNSEL), FOR

PLAINTIFF-APPELLANT.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (MICHAEL J. WILLETT OF

COUNSEL), AND BARGNESI BRITT PLLC, FOR DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (Diane Y.

Devlin, J.), entered November 19, 2018. The order denied the motion of
plaintiff for a new trial on the issue of damages.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In this medical malpractice and wrongful death

action, the jury returned a verdict that, inter alia, found Catholic
Health System doing business as Kenmore Mercy Hospital (defendant)
negligent and awarded no damages for pecuniary injury and $25,000 for
pain and suffering. Plaintiff, as successor administrator of the
estate of Maria V. Luppino (decedent), appeals from an order denying
his posttrial motion pursuant to CPLR 4404 to set aside the jury
verdict in part and for a new trial on damages only.

Plaintiff contends that the jury’s verdict awarding no damages for

pecuniary injury to decedent’s husband and her adult children is
against the weight of the evidence. Initially, contrary to defendant’s
assertion, we conclude that the absence of a full trial transcript
“does not ‘render[ ] meaningful appellate review impossible’ ” with
respect to plaintiff’s contention inasmuch as the record on appeal
contains the relevant testimony regarding the purported pecuniary
injuries (Eldridge v Shaw, 99 AD3d 1224, 1226 [4th Dept 2012]). We
nevertheless conclude that plaintiff’s contention lacks merit because
“the evidence on the issue of [pecuniary] loss . . . did not so
 -2- 466
CA 19-01074

preponderate in favor of . . . plaintiff such that the verdict could

not have been reached on any fair interpretation of the evidence”
(Estevez v Tam, 148 AD3d 779, 780 [2d Dept 2017]; see also Kastick v
U-Haul Co. of W. Mich., 292 AD2d 797, 799 [4th Dept 2002]; Hartman v
Dermont, 89 AD2d 807, 808 [4th Dept 1982]).

Plaintiff further contends that the award for pain and suffering
is inadequate in that it deviates materially from what would be
reasonable compensation (see CPLR 5501 [c]). We agree with defendant,
however, that the record on appeal is inadequate to enable our review
of that contention. Where, as here, “a condition existing before the
malpractice occurred may have contributed to the . . . injury, the
[injured party] is not entitled to recover those damages that the
preexisting condition would have caused in the absence of malpractice”
(Oakes v Patel, 20 NY3d 633, 647 [2013]). Thus, to evaluate the issue
raised by plaintiff, we must review the trial testimony and any
relevant exhibits to determine the extent to which the evidence
established that “the pain and suffering that [decedent] endured was
not preventable” even with appropriate medical care (id.). The record
on appeal, however, does not contain the full trial transcript or any
relevant exhibits and, in particular, omits the testimony of certain
medical experts for the defense (see Polyfusion Electronics, Inc. v
AirSep Corp., 30 AD3d 984, 985 [4th Dept 2006]; see also JR Factors,
Inc. v Astoria Equities, Inc., 159 AD3d 801, 801-802 [2d Dept 2018];
Bouchey v Claxton-Hepburn Med. Ctr., 117 AD3d 1216, 1216-1217 [3d Dept
2014]). We therefore conclude that plaintiff, “as the appellant,
‘submitted this appeal on an incomplete record and must suffer the
consequences’ ” (Polyfusion Electronics, Inc., 30 AD3d at 985).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

468
CA 19-02060
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.

AMY PIZZOLI, PLAINTIFF-RESPONDENT,

V MEMORANDUM AND ORDER

NEW HARTFORD CENTRAL SCHOOL DISTRICT AND

BOARD OF EDUCATION OF NEW HARTFORD CENTRAL
SCHOOL DISTRICT, DEFENDANTS-APPELLANTS.

THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (FRANK W. MILLER OF

COUNSEL), FOR DEFENDANTS-APPELLANTS.

LAW OFFICES OF MARC JONAS, ESQ., UTICA (MARC JONAS OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Oneida County (Patrick

F. MacRae, J.), entered July 30, 2019. The order, among other things,
denied defendants’ cross motion for summary judgment dismissing the
complaint.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for

injuries she allegedly sustained when she tripped and fell over an
extension plate that was covered by a mat inside defendants’ building.
Defendants appeal from an order that, inter alia, denied their cross
motion for summary judgment dismissing the complaint. We affirm.

Even assuming, arguendo, that Supreme Court erred in taking an

adverse inference against defendants in connection with their cross
motion as a spoliation sanction, we nevertheless conclude that the
court properly denied the cross motion inasmuch as defendants failed to
meet their initial burden of establishing that the alleged defect was
trivial as a matter of law and thus nonactionable (see Hutchinson v
Sheridan Hill House Corp., 26 NY3d 66, 82-83 [2015]). Defendants did
not submit any measurements of the alleged defect and, contrary to
their contention, the visual estimate of defendants’ maintenance
supervisor and the photographs submitted in support of the cross motion
are insufficient to establish that the alleged defect was trivial as a
matter of law (see id.; Clauss v Bank of Am., N.A., 151 AD3d 1629, 1631
[4th Dept 2017]; Padarat v New York City Tr. Auth., 137 AD3d 1095,
1096-1097 [2d Dept 2016]). Defendants’ related contention that they
are entitled to summary judgment dismissing the complaint because the
alleged defect was open and obvious is without merit (see Jaques v Brez
 -2- 468
CA 19-02060

Props., LLC, 162 AD3d 1665, 1666-1667 [4th Dept 2018]). Defendants’
remaining contention does not require modification or reversal of the
order.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

470
CA 19-02130
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS

TRUSTEE FOR SECURITIZED ASSET BACKED TRUST
RECEIVABLES LLC TRUST 2007-BRI, MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-BRI,
PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

EDWARD J. LEWIS, DEFENDANT-RESPONDENT,

DAIMLER CHRYSLER FINANCIAL SERVICES,
ET AL., DEFENDANTS.

BLANK ROME LLP, NEW YORK CITY (TIMOTHY W. SALTER OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

DOMBROW LAW FIRM, SYRACUSE (RUSSELL W. DOMBROW OF COUNSEL), FOR

DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Oneida County

(Bernadette T. Clark, J.), entered April 29, 2019. The order denied
plaintiff’s motion for summary judgment and granted the cross motion of
defendant Edward J. Lewis for summary judgment dismissing the complaint
and for leave to amend the answer to include a counterclaim.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this mortgage foreclosure action

alleging that Edward J. Lewis (defendant) defaulted by failing to pay
his monthly mortgage installments. Plaintiff, as limited by its brief,
appeals from an order insofar as it granted that part of defendant’s
cross motion for summary judgment dismissing the complaint against him
on the ground that the action is time-barred because it accrued when a
prior foreclosure action, which was later dismissed, was commenced (see
CPLR 213 [4]). We affirm.

Contrary to plaintiff’s contention, defendant met his initial

burden of establishing that the action is untimely (see Deutsche Bank
Natl. Trust Co. v Adrian, 157 AD3d 934, 935 [2d Dept 2018]). “ ‘With
respect to a mortgage payable in installments, separate causes of
action accrue[ ] for each installment that is not paid, and the statute
of limitations begins to run, on the date each installment becomes due’
” (Wilmington Sav. Fund Socy., FSB v Fernandez, 179 AD3d 79, 81 [4th
Dept 2019]). However, “[i]f the mortgage holder accelerates the debt
 -2- 470
CA 19-02130

by a demand or by commencement of a foreclosure action, the statute of

limitations begins to run on the entire debt” (Ditech Fin., LLC v
Corbett, 166 AD3d 1568, 1568 [4th Dept 2018]). Here, in support of the
cross motion, defendant submitted plaintiff’s complaint in the prior
foreclosure action, which was filed on May 20, 2008 and “declare[d]
immediately due and payable the entire unpaid balance of principal.”
Thus, defendant established that the mortgage debt was accelerated on
that date and that the six-year statute of limitations applicable to
mortgage foreclosure actions had expired by the time plaintiff
commenced the instant action on April 6, 2015 (see Deutsche Bank Natl.
Trust Co., 157 AD3d at 935).

Contrary to plaintiff’s related contention, it failed to raise a

triable issue of fact “ ‘whether the statute of limitations was tolled
or otherwise inapplicable, or whether . . . plaintiff actually
commenced the action within the applicable limitations period’ ” (Bank
of N.Y. Mellon v Dieudonne, 171 AD3d 34, 39 [2d Dept 2019], lv denied
34 NY3d 910 [2020]). It is well settled that “[a] lender may revoke
its election to accelerate the mortgage, [although] it must do so by an
affirmative act of revocation occurring during the six-year statute of
limitations period subsequent to the initiation of the prior
foreclosure action” (U.S. Bank N.A. v Balderston, 163 AD3d 1482, 1484
[4th Dept 2018] [internal quotation marks omitted]). Additionally,
“de-acceleration notices must . . . be clear and unambiguous to be
valid and enforceable” (Milone v US Bank N.A., 164 AD3d 145, 153 [2d
Dept 2018], lv dismissed 34 NY3d 1009 [2019]). Plaintiff failed to
establish that the correspondence that it sent to defendant during the
six-year limitations period constituted an unambiguous affirmative act
of de-acceleration (see Deutsche Bank Natl. Trust Co., 157 AD3d at 935-
936).

Finally, we reject plaintiff’s contention that under these

circumstances the exercise of its option to accelerate the payments did
not take effect until the entry of a judgment of foreclosure (see Bank
of N.Y. Mellon, 171 AD3d at 39-40; see also Wells Fargo Bank, N.A. v
Portu, 179 AD3d 1204, 1207 [3d Dept 2020]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

471
KA 16-00980
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, AND CURRAN, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

KHARYE JARVIS, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),

FOR RESPONDENT.

Appeal from a judgment of the Supreme Court, Monroe County

(Thomas E. Moran, J.), rendered June 2, 2016. The appeal was held by
this Court by order entered March 22, 2019, decision was reserved and
the matter was remitted to Supreme Court, Monroe County, for further
proceedings (170 AD3d 1622 [4th Dept 2019]). The proceedings were
held and completed.

It is hereby ORDERED that the case is held, the decision is

reserved and the matter is remitted to Supreme Court, Monroe County,
for further proceedings in accordance with the following memorandum:
Defendant appeals from a judgment convicting him upon his plea of
guilty of two counts of manslaughter in the first degree (Penal Law
§ 125.20 [1]). We previously held this case, reserved decision, and
remitted the matter to Supreme Court “to make and state for the record
a determination whether defendant is an eligible youth within the
meaning of CPL 720.10 (2) with the benefit of an updated presentence
report and, if so, whether defendant should be afforded youthful
offender status” (People v Jarvis, 170 AD3d 1622, 1623 [4th Dept
2019]). Upon remittal, the court determined that defendant was not an
eligible youth because he used a handgun during the course of the
crimes and there were no mitigating circumstances to warrant finding
defendant an eligible youth under the exception in CPL 720.10 (3).

Defendant contends that the court’s failure to grant certain

requests regarding the updated presentence report (PSR) violated
“basic notions of fairness and due process.” Inasmuch as the court
did not rely on the allegedly unsubstantiated statements in the PSR or
the requested victim statement letter summarized therein, defendant
was not prejudiced by the court’s denial of his requests related to
those items (see People v Ferguson, 177 AD3d 1247, 1250 [4th Dept
2019]; People v Rogers, 156 AD3d 1350, 1350 [4th Dept 2017], lv denied
31 NY3d 986 [2018]). Further, to the extent that defendant contends
 -2- 471
KA 16-00980

that the court erred in failing to strike certain statements from the
PSR, defendant did not meet his burden of establishing that the
challenged statements were inaccurate (see People v Washington, 170
AD3d 1608, 1610 [4th Dept 2019], lv denied 33 NY3d 1036 [2019]).

However, we agree with defendant that, as the People correctly

concede, the court erred in concluding that defendant was ineligible
for youthful offender treatment (see People v Willis, 161 AD3d 1584,
1584 [4th Dept 2018]; People v Dhillon, 143 AD3d 734, 735 [2d Dept
2016]). Inasmuch as “the sentencing court must make ‘a youthful
offender determination in every case where the defendant is eligible,
even where the defendant fails to request it’ ” (Willis, 161 AD3d at
1584, quoting People v Rudolph, 21 NY3d 497, 501 [2013]), we therefore
again hold the case, reserve decision, and remit the matter to Supreme
Court to make and state for the record a determination whether
defendant should be afforded youthful offender status (see id.;
Dhillon, 143 AD3d at 736).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

473
KA 19-00977
PRESENT: CARNI, J.P., LINDLEY, CURRAN, TROUTMAN, AND BANNISTER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

GERALD J. ORTIZ, DEFENDANT-APPELLANT.

ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (BRIDGET L. FIELD OF

COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF

COUNSEL), FOR RESPONDENT.

Appeal from an order of the Wayne County Court (John B. Nesbitt,

J.), entered October 25, 2018. The order determined that defendant is
a level two risk pursuant to the Sex Offender Registration Act.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he

is a level two risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). Contrary to defendant’s
contention, County Court’s determination that the victim was “10 or
less” years of age at the time the abuse began is supported by the
requisite clear and convincing evidence (see § 168-n [3]; People v
Carbone, 89 AD3d 1392, 1392 [4th Dept 2011], lv denied 18 NY3d 806
[2012]). That evidence was contained in the police reports, which
provided that the victim reported to the police officers that the
abuse began when she lived on one particular street. Although there
is no evidence concerning when the victim and her family moved to a
different address, defendant pleaded guilty to count three of the
indictment, which alleged that the victim was living at a second
address on the date of her 11th birthday. As a result, the court
correctly determined that any “abuse beginning at [the first address]
would necessarily have occurred when the victim was age 10 or less.”

As defendant correctly concedes, he failed to preserve for our

review his contention that he is entitled to a downward departure (see
People v Austin, 171 AD3d 1494, 1495 [4th Dept 2019], lv denied 33
NY3d 910 [2019]; People v Havens, 144 AD3d 1632, 1632 [4th Dept 2016],
lv denied 29 NY3d 901 [2017]). In any event, that contention lacks
merit inasmuch as defendant failed “to allege mitigating circumstances
that are, as a matter of law, of a kind or to a degree not adequately
taken into account by the Risk Assessment Guidelines and Commentary”
 -2- 473
KA 19-00977

(People v Voymas, 122 AD3d 1336, 1337 [4th Dept 2014], lv denied 25
NY3d 913 [2015]; see People v Phillips, 162 AD3d 1752, 1753 [4th Dept
2018], lv denied 32 NY3d 908 [2018]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

474
KA 19-00548
PRESENT: CARNI, J.P., LINDLEY, CURRAN, TROUTMAN, AND BANNISTER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

CHELLSIE BLUE, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF

COUNSEL), FOR RESPONDENT.

Appeal from an order of the Monroe County Court (Vincent M.

Dinolfo, J.), entered February 8, 2019. The order determined that
defendant is a level two risk pursuant to the Sex Offender
Registration Act.

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by determining that defendant is a
level one risk pursuant to the Sex Offender Registration Act and as
modified the order is affirmed without costs.

Memorandum: Defendant appeals from an order determining that she

is a level two risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.) based on her conviction in
federal court, upon her plea of guilty, of conspiracy to commit sex
trafficking of a minor (18 USC §§ 1591, 1594 [c]).

Initially, we reject defendant’s contention that her conviction

in a foreign jurisdiction did not require her to register under SORA.
As relevant to this appeal, SORA’s registration requirement applies to
persons convicted in any other jurisdiction of an offense that
“includes all of the essential elements” of a crime specified in
Correction Law § 168-a (2) (a), (b), or (c) (§ 168-a [2] [d] [i]; see
People v Kennedy, 7 NY3d 87, 89 [2006]; Matter of Dewine v State of
N.Y. Bd. of Examiners of Sex Offenders, 89 AD3d 88, 89 [4th Dept
2011]). “[T]he ‘essential elements’ provision in SORA requires
registration whenever an individual is convicted of criminal conduct
in a foreign jurisdiction that, if committed in New York, would have
amounted to a registrable New York offense” (Matter of North v Board
of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745, 753
[2007]). Making that determination “necessarily requires that the
Board compare the elements of the foreign offense with the analogous
New York offense to identify points of overlap. When the Board finds
 -2- 474
KA 19-00548

that the two offenses cover the same conduct, the analysis need
proceed no further for it will be evident that the foreign conviction
is the equivalent of the registrable New York offense for SORA
purposes. In circumstances where the offenses overlap but the foreign
offense also criminalizes conduct not covered under the New York
offense, the Board must review the conduct underlying the foreign
conviction to determine if that conduct is, in fact, within the scope
of the New York offense” (id.).

Even assuming, arguendo, that the elements of defendant’s federal

conviction for conspiracy to commit sex trafficking of a minor do not
perfectly overlap with those of an analogous New York offense, we
conclude that defendant’s underlying conduct would nonetheless
constitute promoting prostitution in the third degree under Penal Law
§ 230.25. The undisputed evidence establishes that defendant enticed
the 14-year-old victim to engage in commercial sex acts, set up
advertisements for the victim, provided a location for the victim to
perform those acts, and took all of the money made by the victim for
those acts. That evidence demonstrates that defendant “advance[d] or
profite[d] from prostitution of a person less than [19] years old”
(§ 230.25 [2]), and inasmuch as it also establishes that the victim
was in fact less than 17 years old, defendant is required to register
under SORA (see Correction Law § 168-a [2] [a] [i]; North, 8 NY3d at
753).

Contrary to defendant’s further contention, we conclude that

County Court properly assessed 15 points under risk factor 11 on the
risk assessment instrument (RAI) for her history of drug abuse
“inasmuch as [t]he statements in the case summary and presentence
report with respect to defendant’s substance abuse constitute reliable
hearsay supporting the court’s assessment of points under th[at] risk
factor” (People v Kunz, 150 AD3d 1696, 1696 [4th Dept 2017], lv
denied 29 NY3d 916 [2017] [internal quotation marks omitted]; see
People v Ramos, 41 AD3d 1250, 1250 [4th Dept 2007], lv denied 9 NY3d
809 [2007]). Specifically, defendant’s admitted daily marijuana use
and evidence that she completed drug abuse treatment while
incarcerated amply established facts sufficient to warrant the
assessment of points under risk factor 11 (see People v Palmer, 20
NY3d 373, 377-378 [2013]; People v Merkley, 125 AD3d 1479, 1479 [4th
Dept 2015]; People v Mundo, 98 AD3d 1292, 1293 [4th Dept 2012], lv
denied 20 NY3d 855 [2013]).

Upon our review of the record, however, we agree with defendant

that the court improperly assessed 25 points under risk factor two for
sexual contact with the victim and 20 points under risk factor four
for engaging in a continuing course of sexual misconduct because the
People did not establish by the requisite clear and convincing
evidence (see People v Pettigrew, 14 NY3d 406, 408 [2010]) that there
was any sexual contact between defendant and the victim (see e.g.
People v Dilillo, 162 AD3d 915, 916 [2d Dept 2018], lv denied 32 NY3d
905 [2018]; People v Costello, 35 AD3d 754, 755 [2d Dept 2006]; see
generally People v Walker, 175 AD3d 735, 736 [2d Dept 2019], lv denied
34 NY3d 908 [2020]) or that defendant shared the intent of the
 -3- 474
KA 19-00548

victim’s clients in engaging her in sexual contact (see People v S.G.,

4 Misc 3d 563, 569-571 [Sup Ct, NY County 2004]). Defendant’s score
on the RAI, originally assessed at 100 points, must therefore be
reduced by 45 points, which results in a total score of 55 and renders
defendant a presumptive level one risk. We modify the order
accordingly.

In light of our determination, defendant’s remaining contention

is academic.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

477
KA 18-01370
PRESENT: CARNI, J.P., CURRAN, TROUTMAN, AND BANNISTER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

STEVEN P. KNORR, DEFENDANT-APPELLANT.

DANIELLE C. WILD, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Monroe County Court (Vincent M.

Dinolfo, J.), rendered March 15, 2018. The judgment convicted
defendant upon a plea of guilty of sexual abuse in the first degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by vacating the sentence and as
modified the judgment is affirmed and the matter is remitted to Monroe
County Court for resentencing.

Memorandum: On appeal from a judgment convicting him upon his

plea of guilty of sexual abuse in the first degree (Penal Law § 130.65
[3]), defendant contends that County Court failed to exercise its
discretion at sentencing. We agree.

The court initially imposed a one-year term of interim probation

and informed defendant that, if he complied with the terms of interim
probation, the court would impose a nine-year term of probation.
Defendant, however, violated the terms of interim probation. At
sentencing, the court informed defendant that it had taken “quite
frankly, a lot of arm twisting” to get defendant the plea arrangement
he had received and that the court had to “twist the arm of the People
to get them to go along with giving [defendant the] chance on interim
probation.” The court then stated that if it gave defendant “a
sentence that’s anywhere less than seven years,” the People would be
“looking at [the court] on every single case that” it would have in
the future, would conclude that the court’s “word is no good,” and
thus would not continue offering plea arrangements to defendants
because they would not expect the court to abide by a pre-plea
sentencing commitment. Thus, the court said, it had “no choice today
. . . but to sentence [defendant]” to seven years’ imprisonment.

“[T]he sentencing decision is a matter committed to the exercise

of the court’s discretion and . . . can be made only after careful
 -2- 477
KA 18-01370

consideration of all facts available at the time of sentencing”

(People v Farrar, 52 NY2d 302, 305 [1981]; see People v Dupont, 164
AD3d 1649, 1650 [4th Dept 2018]; People v Dowdell, 35 AD3d 1278, 1280
[4th Dept 2006], lv denied 8 NY3d 921 [2007]). “The determination of
an appropriate sentence requires the exercise of discretion after due
consideration given to, among other things, the crime charged, the
particular circumstances of the individual before the court and the
purpose of a penal sanction, i.e., societal protection, rehabilitation
and deterrence” (Farrar, 52 NY2d at 305). Here, the court indicated
that it had no choice but to sentence defendant pursuant to its
agreement with the People (see Dupont, 164 AD3d at 1650), and the
sentencing transcript, read in its entirety, does not reflect that the
court conducted the requisite discretionary analysis (cf. People v
Clause, 167 AD3d 1532, 1532-1533 [4th Dept 2018]). We therefore
modify the judgment by vacating the sentence, and we remit the matter
to County Court for resentencing.

In light of our determination, we do not consider defendant’s

remaining contention.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

478
KA 15-00651
PRESENT: CARNI, J.P., LINDLEY, CURRAN, TROUTMAN, AND BANNISTER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

KEION PETERSON, DEFENDANT-APPELLANT.

REEVE BROWN PLLC, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR

DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Livingston County Court (Robert B.

Wiggins, J.), rendered February 17, 2015. The judgment convicted
defendant upon his plea of guilty of criminal sale of a controlled
substance in the third degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law, the plea is vacated, indictment No.
2014-042 is reinstated and the matter is remitted to Livingston County
Court for further proceedings on indictment Nos. 2014-042 and
2014-172.

Memorandum: Defendant appeals from a judgment entered in

Livingston County convicting him upon a plea of guilty of criminal
sale of a controlled substance in the third degree (Penal Law § 220.39
[1]). The plea satisfied another indictment pending against defendant
in Livingston County (indictment No. 2014-042). Pursuant to the plea
agreement, County Court sentenced defendant to a determinate term of
imprisonment that was to run concurrently with a 10-year sentence
previously imposed on defendant in Monroe County for criminal
possession of a weapon in the second degree. We later reversed the
Monroe County judgment and dismissed the indictment (People v
Peterson, 159 AD3d 1588 [4th Dept 2018]). Defendant now contends, and
the People correctly concede, that, inasmuch as his plea in Livingston
County was induced by the promise of a concurrent sentence, which is
no longer possible, the judgment must be reversed and the plea vacated
(see People v Rowland, 8 NY3d 342, 345 [2007]; People v Pichardo, 1
NY3d 126, 129 [2003]; cf. People v Walker, 148 AD3d 1569, 1569 [4th
Dept 2017], lv denied 29 NY3d 1088 [2017]; People v Kalinowski, 84
AD3d 1739, 1741 [4th Dept 2011]; see also People v Williams, 79 AD3d
1653, 1655 [4th Dept 2010], affd 17 NY3d 834 [2011]). This will
result in the reinstatement of indictment No. 2014-042, which was
satisfied by defendant’s plea (see CPL 470.55 [2]; see generally
 -2- 478
KA 15-00651

People v Green, 56 AD3d 1238, 1239 [4th Dept 2008]).

Defendant further contends that the court erred in determining

that indictment No. 2014-042 was supported by legally sufficient
evidence and that the grand jury proceedings in that case were not
defective. That contention is not properly before us on this appeal.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

482
CAF 18-01579
PRESENT: CARNI, J.P., LINDLEY, CURRAN, TROUTMAN, AND BANNISTER, JJ.

IN THE MATTER OF MONROE COUNTY CHILD SUPPORT

ENFORCEMENT UNIT, ON BEHALF OF LISA E. SPROUL,
PETITIONER-RESPONDENT,

V MEMORANDUM AND ORDER

ROBERT M. HEMMINGER, RESPONDENT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF

COUNSEL), FOR RESPONDENT-APPELLANT.

JOHN P. BRINGWATT, COUNTY ATTORNEY, ROCHESTER (ELIZABETH D. TAFFE OF

COUNSEL), FOR PETITIONER-RESPONDENT.

Appeal from an order of the Family Court, Monroe County (Dandrea

L. Ruhlmann, J.), entered July 30, 2018 in a proceeding pursuant to
Family Court Act article 4. The order denied the objections of
respondent to the order of the Support Magistrate.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Respondent father appeals from an order denying his

objections to the Support Magistrate’s determination that he willfully
violated a prior order of child support. We affirm. A parent is
presumed to have sufficient means to support his or her minor child
(see Family Ct Act § 437; Matter of Powers v Powers, 86 NY2d 63, 68-69
[1995]). “Thus, proof that respondent has failed to pay support as
ordered alone establishes petitioner’s direct case of willful
violation, shifting to respondent the burden of going forward”
(Powers, 86 NY2d at 69; see Matter of Huard v Lugo, 81 AD3d 1265, 1267
[4th Dept 2011], lv denied 16 NY3d 710 [2011]). To meet that burden,
the respondent must offer “some competent, credible evidence of his
inability to make the required payments” (Powers, 86 NY2d at 70).
Moreover, if the respondent contends that he or she was unable to meet
the support obligation because a physical disability interfered with
his or her ability to maintain employment, the respondent must “offer
competent medical evidence to substantiate” that claim and “establish
that the alleged physical disability affected [his or] her ability to
work” (Matter of Hwang v Tam, 158 AD3d 1216, 1217 [4th Dept 2018]
[internal quotation marks omitted]; see Matter of Fogg v Stoll, 26
AD3d 810, 810-811 [4th Dept 2006]).

Here, petitioner made out a prima facie case by establishing that

 -2- 482
CAF 18-01579

the father had not made certain payments required by the prior order,
a claim the father did not dispute (see Matter of Riggs v VanDusen, 78
AD3d 1577, 1577 [4th Dept 2010]). The father failed to meet his
burden of demonstrating his inability to make the required payments
inasmuch as he failed to present evidence establishing that he made
reasonable efforts to obtain gainful employment (see Matter of
Movsovich v Wood, 178 AD3d 1441, 1442 [4th Dept 2019], lv denied 35
NY3d 905 [2020]). Further, although the father asserted that he was
physically unable to perform certain work he had performed in the past
and that he had been unable to obtain employment that was suitable in
light of his alleged physical limitations, he failed to offer any
medical evidence to substantiate his claim that his disability
prevented him from making the required payments (see Movsovich, 178
AD3d at 1442; see generally Matter of Mandile v Deshotel, 166 AD3d
1511, 1512 [4th Dept 2018]). Indeed, the record reflects that the
father’s claim for Social Security benefits was denied (cf. Hwang, 158
AD3d at 1217-1218).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

484
CA 19-00145
PRESENT: CARNI, J.P., LINDLEY, CURRAN, TROUTMAN, AND BANNISTER, JJ.

JULIANNE RIZZO, INDIVIDUALLY AND ON BEHALF OF

NATIONAL VACUUM CORP., NATIONAL MAINTENANCE
CONTRACTING CORP., NATIONAL POWER ASSOCIATES CORP.,
AND NATIONAL RESPONSE & EMERGENCY SERVICES, INC.,
AND JULIANNE RIZZO CPA, P.C., FORMERLY KNOWN AS
ELLEGATE & RIZZO CPA’S P.C., INDIVIDUALLY AND ON
BEHALF OF NATIONAL VACUUM CORP., NATIONAL
MAINTENANCE CONTRACTING CORP., NATIONAL POWER
ASSOCIATES CORP., AND NATIONAL RESPONSE &
EMERGENCY SERVICES, INC., PLAINTIFFS-RESPONDENTS,

V MEMORANDUM AND ORDER

NATIONAL VACUUM CORP., ET AL., DEFENDANTS,

NATIONAL MAINTENANCE CONTRACTING CORP., AND
SAMUEL D. LEHR, DEFENDANTS-APPELLANTS.

MAGAVERN MAGAVERN GRIMM LLP, NIAGARA FALLS (EDWARD P. PERLMAN OF

COUNSEL), FOR DEFENDANTS-APPELLANTS.

GROSS SHUMAN P.C., BUFFALO (DAVID H. ELIBOL OF COUNSEL), FOR

PLAINTIFFS-RESPONDENTS.

Appeal from an order of the Supreme Court, Niagara County (Henry

J. Nowak, Jr., J.), entered January 24, 2019. The order granted the
cross motion of defendants Samuel D. Lehr and National Maintenance
Contracting Corp. for leave to reargue and, upon reargument, adhered
to a prior order granting the motion of plaintiffs for partial summary
judgment and denying the cross motion of those defendants for partial
summary judgment.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking, inter

alia, a declaration that plaintiff Julianne Rizzo, in her individual
capacity, was and remains a 20% owner of defendant National
Maintenance Contracting Corp. (NMCC). Supreme Court granted
plaintiffs’ motion for partial summary judgment on the issue of
Rizzo’s 20% ownership of NMCC, concluding that the doctrine of tax
estoppel precluded NMCC and defendant Samuel D. Lehr (collectively,
defendants) from denying Rizzo’s ownership interest in NMCC, and
denied defendants’ cross motion for summary judgment dismissing the
complaint against them insofar as it alleges that Rizzo owns 20% of
 -2- 484
CA 19-00145

NMCC. Defendants now appeal from an order that granted their cross
motion for leave to reargue their prior cross motion and their
opposition to plaintiffs’ motion and, upon reargument, adhered to the
court’s prior determination. We affirm.

The court properly granted the motion and denied the cross motion
for summary judgment based on its conclusion that the doctrine of tax
estoppel precluded defendants from denying that Rizzo has a 20%
ownership interest in NMCC. Under the doctrine of tax estoppel,
“ ‘[a] party to litigation may not take a position contrary to a
position taken in [a] . . . tax return’ ” (Matter of Elmezzi, 124 AD3d
886, 887 [2d Dept 2015], quoting Mahoney-Buntzman v Buntzman, 12 NY3d
415, 422 [2009]; see Amalfi, Inc. v 428 Co., Inc., 153 AD3d 1610, 1610
[4th Dept 2017]). Here, plaintiffs met their initial burden on the
motion by submitting a copy of Form 2553: Election by a Small
Business Corporation (election form) that Lehr—in his capacity as
president of NMCC—signed under penalty of perjury. The document was
also signed by Rizzo, Lehr, and defendant John G. Kozlowski in their
capacity as shareholders. The column in the election form labeled
“Number of shares or percentage of ownership,” lists “60” beside
Kozlowski’s name and “20” beside both Rizzo’s and Lehr’s names. By
filing that election form, Lehr—who admitted that it was his signature
on the form—and NMCC swore that Rizzo owned 20% of the company and are
thereby estopped from denying Rizzo’s ownership interest (see Matter
of Ansonia Assoc. L.P. v Unwin, 130 AD3d 453, 454 [1st Dept 2015]).

Defendants failed to raise a triable issue of fact in opposition

(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
We reject defendants’ contention that, because the election form does
not specify whether Rizzo owns 20 shares or 20% of the company, there
is an issue of fact with respect to what percentage of NMCC Rizzo
owns. Even if the numbers “60,” “20,” and “20” refer to the number of
shares issued to the shareholders instead of their percentages of
ownership, they demonstrate that NMCC issued a total of 100 shares to
its shareholders and therefore that Rizzo, as owner of 20 of the 100
shares, owns 20% of NMCC.

In light of our determination, defendants’ remaining contention

is academic.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

499
KA 19-00487
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

JEFFREY MILLER, DEFENDANT-APPELLANT.

ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (BRIDGET L. FIELD OF

COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS, FOR RESPONDENT.

Appeal from an order of the Wayne County Court (John B. Nesbitt,

J.), dated December 31, 2018. The order determined that defendant is
a level three risk pursuant to the Sex Offender Registration Act.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he

is a level three risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). In August 1994 in the State of
Virginia, defendant was convicted following his plea of guilty of rape
(Va Code Ann § 18.2-61) and malicious wounding (§ 18.2-51), after his
conviction following a trial of those crimes (criminal trial) was
reversed based on prosecutorial misconduct. Defendant had attacked
his sister’s roommate with a tire iron, raped her, and then forced her
to dress, kneel, and lean over, whereupon he began striking the back
of her head with the tire iron.

We reject defendant’s contention that County Court abused its

discretion in assessing points against him under risk factors 7, 12,
and 13 of the risk assessment instrument (RAI). The court properly
assessed 20 points under risk factor 7 inasmuch as the People
established by clear and convincing evidence that defendant and the
victim had met only the day before the offenses, had only brief
interactions, and thus were strangers (see Sex Offender Registration
Act: Risk Assessment Guidelines and Commentary at 12 and n 8 [2006]
[Guidelines]; see also People v Lewis, 178 AD3d 864, 865 [2d Dept
2019], lv denied 35 NY3d 902 [2020]; People v Mabee, 69 AD3d 820, 820
[2d Dept 2010], lv denied 15 NY3d 803 [2010]). Indeed, defendant did
not even know the victim’s name and referred to her in his criminal
trial testimony as “the girl” and “that girl” (see People v
Middlemiss, 153 AD3d 1096, 1097 [3d Dept 2017], lv denied 30 NY3d 906
[2017]). The court also properly assessed 10 points under risk factor
 -2- 499
KA 19-00487

12 because the People presented clear and convincing evidence that

defendant later claimed that the sexual activity with the victim was
consensual and that he was not responsible for his actions because he
was overcome with an irresistible impulse to harm the victim (see
generally Correction Law § 168-n [3]; People v Havens, 144 AD3d 1632,
1633 [4th Dept 2016], lv denied 29 NY3d 901 [2017]; People v Kyle, 64
AD3d 1177, 1178 [4th Dept 2009], lv denied 13 NY3d 709 [2009]).
Additionally, the court properly assessed 10 points under risk factor
13. The People established that defendant’s behavior while being
supervised on probation, including his probation violation for
disobeying his probation officer’s directive to refrain from
contacting anyone at a volunteer organization from which defendant had
been banned, was unsatisfactory (see generally People v Carlberg, 145
AD3d 1646, 1647 [4th Dept 2016]; People v Young, 108 AD3d 1232, 1233
[4th Dept 2013], lv denied 22 NY3d 853 [2013], rearg denied 22 NY3d
1036 [2013]). Consequently, we conclude that the court properly
assessed 110 points on defendant’s RAI, making him a presumptive level
three risk.

Contrary to defendant’s further contention, the People also

established by clear and convincing evidence the applicability of the
Guidelines’ fourth override, i.e., that there has been “a clinical
assessment that the offender has a psychological, physical, or organic
abnormality that decreases his [or her] ability to control impulsive
sexual behavior” (Guidelines at 4). During the criminal trial,
defendant’s expert psychiatrist testified that defendant suffered from
an “organic mental syndrome” or “organic personality syndrome,” which
was the basis for defendant’s defense of insanity due to an
irresistible impulse. The psychiatrist’s clinical assessment was
corroborated by defendant’s criminal trial testimony that he could not
stop himself from committing the offenses against the victim. That
override automatically results in a presumptive level three
designation (see People v Lagville, 136 AD3d 1005, 1006 [2d Dept
2016]; see also People v Cobb, 141 AD3d 1174, 1175 [4th Dept 2016];
Guidelines at 3-4). We have examined defendant’s remaining contention
and conclude that it does not warrant modification or reversal of the
order.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

511
CA 19-01263
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.

WILLIAM T. KOREN, JR., PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

MORGAN RAINTREE, LLC, DEFENDANT-RESPONDENT,

AND LYMAN JONES UNLIMITED, LLC, DEFENDANT.

BRIAN K. TOWEY, BUFFALO, FOR PLAINTIFF-APPELLANT.

GOLDBERG SEGALLA LLP, BUFFALO (RAUL E. MARTINEZ OF COUNSEL), FOR

DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (Diane Y.

Devlin, J.), entered February 1, 2019. The order granted the motion
of defendant Morgan Raintree, LLC for summary judgment dismissing the
amended complaint against it.

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the motion is denied,
and the amended complaint is reinstated against defendant Morgan
Raintree, LLC.

Memorandum: Plaintiff commenced this negligence action against,

among others, his landlord, Morgan Raintree, LLC (defendant), to
recover damages for the injuries he sustained after he allegedly fell
on a walkway that defendant had purportedly failed to properly clear
of ice and snow. Defendant thereafter moved for summary judgment
dismissing the amended complaint against it on the grounds that
plaintiff’s presence on the subject walkway was not reasonably
foreseeable during the winter and that, even if his presence was
reasonably foreseeable, plaintiff did not actually fall on that
walkway but rather on an adjacent grassy area that it had no duty to
maintain. Supreme Court granted defendant’s motion, and we now
reverse.

“New York landowners owe people on their property a duty of

reasonable care under the circumstances to maintain their property in
a safe condition . . . The duty of a landowner to maintain [his or
her] property in a safe condition extends to persons whose presence is
reasonably foreseeable by the landowner” (Breau v Burdick, 166 AD3d
1545, 1546 [4th Dept 2018] [internal quotation marks omitted]).
“Questions concerning foreseeability . . . are generally questions for
the jury” (Brown v Rome Up & Running, Inc., 68 AD3d 1708, 1709 [4th
Dept 2009] [internal quotation marks omitted]).
 -2- 511
CA 19-01263

Here, defendant’s own submissions on the motion raise triable

issues of fact as to the foreseeability of plaintiff’s presence on the
walkway. Specifically, defendant’s submissions established that the
walkway on which plaintiff allegedly fell connected the apartment
complex’s community center to a parking lot and that plaintiff had
frequently walked his dog in the general vicinity in the preceding
month. Moreover, there were no signs indicating that the subject
walkway was closed, nor were there any gates or other physical
barriers to accessing the walkway during the winter. Thus, when the
evidence is viewed in the light most favorable to plaintiff as the
nonmoving party, we conclude that defendant “failed to establish as a
matter of law that plaintiff’s presence on the [subject walkway] was
not reasonably foreseeable” (Breau, 166 AD3d at 1547; see Brown, 68
AD3d at 1709; Sirface v County of Erie, 55 AD3d 1401, 1402 [4th Dept
2008], lv dismissed 12 NY3d 797 [2009]).

Finally, defendant’s contention that plaintiff actually slipped

not on the subject walkway but rather on an adjacent grassy area that
it had no duty to maintain is contradicted by plaintiff’s deposition
testimony. Contrary to defendant’s contention, there is nothing
inherently incredible about plaintiff’s testimony as a matter of law
and, by submitting that testimony in support of its motion,
defendant’s own evidence created a triable issue of fact as to where
plaintiff actually fell (see Harris v FJN Props., LLC, 18 AD3d 1089,
1090 [3d Dept 2005]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

519
TP 19-01983
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, CURRAN, AND WINSLOW, JJ.

IN THE MATTER OF ROCHESTER REDEVELOPMENT, LLC,

PETITIONER,

V MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL

CONSERVATION AND BASIL SEGGOS, AS COMMISSIONER
OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION, RESPONDENTS.

KNAUF SHAW LLP, ROCHESTER (AMY K. KENDALL OF COUNSEL), FOR PETITIONER.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (DUSTIN J. BROCKNER OF

COUNSEL), FOR RESPONDENTS.

Proceeding pursuant to CPLR article 78 (transferred to the

Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Monroe County [James J.
Piampiano, J.], entered July 29, 2019) to review a determination of
respondents. The determination denied the application of petitioner
for a freshwater wetlands permit to construct a home on waterfront
property.

It is hereby ORDERED that the determination is unanimously

confirmed without costs, the petition insofar as it sought to annul
the determination is dismissed and the matter is remitted to Supreme
Court, Monroe County, for further proceedings in accordance with the
following memorandum: Petitioner commenced this CPLR article 78
proceeding seeking to annul the determination of respondents denying
its application for a freshwater wetlands permit to construct a home
on waterfront property on Irondequoit Bay. A Class I wetland
surrounds Irondequoit Bay (see 6 NYCRR 664.5 [a]). The Environmental
Conservation Law requires a permit for construction in a wetland and
adjacent area, defined as 100 feet from the boundary of the wetland
(ECL 24-0701 [1], [2]). Petitioner’s proposed dock would be located
entirely within the wetland, and the remainder of the project would be
located in the adjacent area of the wetland. A hearing was held and,
in an interim decision, respondent Basil Seggos, as Commissioner of
respondent New York State Department of Environmental Conservation,
remitted the matter for an additional hearing for further development
of the record. Following the additional hearing, the Commissioner
agreed with the recommendation of the Administrative Law Judge and
denied the application.
 -2- 519
TP 19-01983

Our review of respondents’ determination is limited to whether it

is supported by substantial evidence (see CPLR 7803 [4]; Matter of
Wilson v Iwanowicz, 97 AD3d 595, 595 [2d Dept 2012]; Matter of
Valiotis v State of New York, 95 AD3d 1026, 1027 [2d Dept 2012], lv
dismissed 19 NY3d 1008 [2012]). “[T]he substantial evidence standard
is a minimal standard” and refers to “such relevant proof as a
reasonable mind may accept as adequate to support a conclusion or
ultimate fact” (Matter of Haug v State Univ. of N.Y. at Potsdam, 32
NY3d 1044, 1045-1046 [2018] [internal quotation marks omitted]; see
Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human
Rights, 100 NY2d 326, 331 [2003]; 300 Gramatan Ave. Assoc. v State
Div. of Human Rights, 45 NY2d 176, 180 [1978]).

In enacting the Freshwater Wetlands Act, the legislature declared

that it was “the public policy of th[is] state to preserve, protect
and conserve freshwater wetlands and the benefits derived therefrom,
to prevent the despoliation and destruction of freshwater wetlands,
and to regulate use and development of such wetlands to secure the
natural benefits of freshwater wetlands, consistent with the general
welfare and beneficial economic, social and agricultural development
of the state” (ECL 24-0103). Freshwater wetlands “are invaluable
resources for flood protection, wildlife habitat, open space and water
resources” (ECL 24-0105 [1]). “Any loss of freshwater wetlands
deprives the people of the state of some or all of the many and
multiple benefits to be derived from wetlands,” including “wildlife
habitat by providing breeding, nesting and feeding grounds and cover
for many forms of wildlife, wildfowl and shorebirds, including
migratory wildfowl and rare species such as the bald eagle and
osprey,” and “erosion control by serving as sedimentation areas and
filtering basins, absorbing silt and organic matter and protecting
channels and harbors” (ECL 24-0105 [7] [b], [f]).

Construction of the type proposed by petitioner in the adjacent

area of the wetland is considered “usually incompatible with a wetland
and its functions or benefits” (6 NYCRR 663.4 [d] [42]) and requires
respondents, before issuing a permit, to consider the three tests for
“compatibility” (6 NYCRR 663.5 [d]), which determine whether “the
activity (i) would be compatible with preservation, protection and
conservation of the wetland and its benefits, and (ii) would result in
no more than insubstantial degradation to, or loss of, any part of the
wetland, and (iii) would be compatible with public health and welfare”
(6 NYCRR 663.5 [e] [1]). If all three compatibility tests are met, a
permit, with or without conditions, may be issued (6 NYCRR 663.5 [d]
[1]).

Petitioner contends that it demonstrated that the project met the

compatibility standards (see 6 NYCRR 663.5 [e] [1]) and that the
determination that it did not meet the first two tests was not based
on substantial evidence. We reject that contention. Respondents’
determination that petitioner had not shown that the project would be
compatible with the preservation, protection and conservation of the
wetland and its benefits and that the project would result in no more
than insubstantial degradation to, or loss of, any part of the wetland
is supported by substantial evidence (see Wilson, 97 AD3d at 596;
 -3- 519
TP 19-01983

Matter of Watts v New York State Dept. of Envtl. Conservation, 36 AD3d

622, 622-623 [2d Dept 2007], lv denied 8 NY3d 812 [2007]; Matter of
Kroft v New York State Dept. of Envtl. Conservation, 7 AD3d 714, 714-
715 [2d Dept 2004]). Specifically, there was evidence at the hearings
that the project would result in the loss of both wildlife habitat and
erosion control (see ECL 24-0105 [7] [b], [f]).

In its petition, petitioner sought the alternative relief of

requiring respondents to proceed under the laws of condemnation as set
forth in Environmental Conservation Law § 24-0705 (7). “Within the
context of [its] review proceeding, a court is authorized to determine
whether denial of the permit was proper and, if so, whether the
regulation of the particular land has become so rigorous as to amount
to a taking without just compensation” (Spears v Berle, 48 NY2d 254,
260 [1979]). Judicial review is thus a two-step process (see Matter
of Gazza v New York State Dept. of Envtl. Conservation, 89 NY2d 603,
612 [1997], cert denied 522 US 813 [1997]; Spears, 48 NY2d at 261).
“If [a] court finds that the permit denial is supported by substantial
evidence, then a second determination is made in the same proceeding
to determine whether the restriction constitutes an unconstitutional
taking requiring compensation” (de St. Aubin v Flacke, 68 NY2d 66, 70
[1986]; see Gazza, 89 NY2d at 612-613). A hearing must be held “at
which the landowner and the State may produce expert testimony and
other evidence bearing upon the regulation’s effect on the value of
the subject parcel” (Spears, 48 NY2d at 261). We conclude that there
was insufficient evidence at the administrative hearing regarding the
taking issue (see id. at 261 n 3), and thus we remit the matter to
Supreme Court for a hearing on that issue (see Matter of Matthews v
New York State Dept. of Envtl. Conservation, 25 AD3d 710, 711 [2d Dept
2006]; Matter of Grimaldi v New York State Dept. of Envtl.
Conservation, 299 AD2d 410, 410-411 [2d Dept 2002]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

520
KA 18-00658
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, CURRAN, AND WINSLOW, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

MOHAMED JUMALE, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF

COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Supreme Court, Erie County

(Christopher J. Burns, J.), rendered March 10, 2017. The judgment
convicted defendant upon his plea of guilty of attempted burglary in
the second degree.

It is hereby ORDERED that the case is held, the decision is

reserved and the matter is remitted to Supreme Court, Erie County, for
further proceedings in accordance with the following memorandum: On
appeal from a judgment convicting him upon his plea of guilty of
attempted burglary in the second degree (Penal Law §§ 110.00, 140.25
[2]), defendant, a noncitizen, contends that his felony guilty plea
was not knowingly, voluntarily, and intelligently entered because
Supreme Court failed to advise him of the potential deportation
consequences of such a plea, as required by People v Peque (22 NY3d
168 [2013], cert denied 574 US 840 [2014]). As a preliminary matter,
we note that defendant’s challenge to the voluntariness of his plea
would survive even a valid waiver of the right to appeal (see People v
Roman, 160 AD3d 1492, 1492 [4th Dept 2018]). Even assuming, arguendo,
that defendant was required to preserve his contention under the
circumstances of this case (see People v Delorbe, 35 NY3d 112, 118-119
[2020]), we exercise our power to address it as a matter of discretion
in the interest of justice (see CPL 470.15 [3] [c]). “[D]ue process
compels a trial court to apprise a defendant that, if the defendant is
not an American citizen, he or she may be deported as a consequence of
a guilty plea to a felony” (Peque, 22 NY3d at 176). Here, the record
of the plea proceeding establishes that the court failed to fulfill
that obligation (see id. at 200; People v Medina, 132 AD3d 1363, 1363
[4th Dept 2015]). As defendant contends and contrary to the People’s
suggestion, “the case should be remitted to afford defendant the
opportunity to move to vacate his plea upon a showing that there is a
reasonable probability that he would not have pleaded guilty had the
court advised him of the possibility of deportation” (Medina, 132 AD3d
 -2- 520
KA 18-00658

at 1363 [internal quotation marks omitted]; see Peque, 22 NY3d at

200-201). We therefore hold the case, reserve decision, and remit the
matter to Supreme Court for that purpose.

Defendant further contends that he was denied effective

assistance of counsel because defense counsel misadvised him about the
potential deportation consequences of the plea (see Padilla v
Kentucky, 559 US 356, 374 [2010]). We conclude that defendant’s
contention “is based, in part, on matter appearing on the record and,
in part, on matter outside the record and, thus, constitutes a ‘mixed
claim of ineffective assistance’ ” (People v Alvarracin, 148 AD3d
1041, 1042 [2d Dept 2017], lv denied 29 NY3d 1075 [2017]). Where, as
here, “the ‘claim of ineffective assistance of counsel cannot be
resolved without reference to matter outside of the record, a CPL
440.10 proceeding is the appropriate forum for reviewing the claim in
its entirety’ ” (People v Wilson [appeal No. 2], 162 AD3d 1591, 1592
[4th Dept 2018] [emphasis omitted]; see Medina, 132 AD3d at 1364; see
generally People v Maffei, — NY3d —, —, 2020 NY Slip Op 02680, *3
[2020]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

521
KA 17-00620
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, CURRAN, AND WINSLOW, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

JUDITH C. KELLEY, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (CAITLIN M. CONNELLY OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Monroe County Court (Victoria M.

Argento, J.), rendered August 4, 2016. The judgment convicted
defendant, upon a jury verdict, of driving while intoxicated, a class
D felony (two counts).

It is hereby ORDERED that said appeal from the judgment insofar

as it imposed a sentence of imprisonment is unanimously dismissed, the
judgment is modified as a matter of discretion in the interest of
justice by vacating the fine and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting her,

upon a jury verdict, of two counts of driving while intoxicated as a
class D felony (Vehicle and Traffic Law §§ 1192 [2], [3]; 1193 [1] [c]
[ii]). Even assuming, arguendo, that County Court erred in excluding
evidence of defendant’s homelessness at the time of the crime, we
conclude that such error was harmless because the “proof that
defendant . . . operat[ed] the vehicle . . . was overwhelming, and
there is no reasonable possibility that the jury would have acquitted
[her]” had the disputed evidence been admitted (People v Woodward, 219
AD2d 837, 837 [4th Dept 1995], lv denied 87 NY2d 1027 [1996]; see
People v Obieke, 298 AD2d 931, 932 [4th Dept 2002], lv denied 99 NY2d
538 [2002]). Defendant’s challenges to the length of her
indeterminate term of imprisonment are moot because she has already
served that term (see People v Laney, 117 AD3d 1481, 1482 [4th Dept
2014]). We agree with defendant, however, that the imposition of a
fine was unduly harsh and severe under the circumstances of this case
(see People v Neal, 148 AD3d 1699, 1700 [4th Dept 2017], lv denied 29
NY3d 1084 [2017]; People v Judd, 111 AD3d 1421, 1423 [4th Dept 2013],
lv denied 23 NY3d 1039 [2014]; see generally People v Thomas, 245 AD2d
1136, 1137 [4th Dept 1997]). We therefore modify the judgment by
vacating the fine. Defendant’s remaining challenge to the fine is
 -2- 521
KA 17-00620

academic in light of our determination.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

539
KA 19-01050
PRESENT: SMITH, J.P., TROUTMAN, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

BRYAN E. GRISWOLD, DEFENDANT-APPELLANT.

CAITLIN M. CONNELLY, BUFFALO, FOR DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),

FOR RESPONDENT.

Appeal from a judgment of the Steuben County Court (Patrick F.

McAllister, A.J.), rendered November 29, 2018. The judgment convicted
defendant upon a plea of guilty of unlawful surveillance in the second
degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously modified as a matter of discretion in the interest of
justice and on the law by amending the order of protection to expire
on November 29, 2026, and as modified the judgment is affirmed and
Steuben County Court is directed to redact all copies of defendant’s
presentence report in accordance with the following memorandum: On
appeal from a judgment convicting him upon his plea of guilty of
unlawful surveillance in the second degree (Penal Law § 250.45 [1]),
defendant contends that County Court imposed several unlawful
conditions of probation. We disagree. Notwithstanding that the
conviction is not of a sex offense, the court did not err in requiring
defendant to undergo sex offender treatment as a condition of
probation (see People v Wahl, 302 AD2d 976, 976 [4th Dept 2003], lv
denied 99 NY2d 659 [2003]; People v Brown, 34 Misc 3d 143[A], 2012 NY
Slip Op 50096[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists, 2012];
see generally People v Castaneda, 173 AD3d 1791, 1792-1793 [4th Dept
2019], lv denied 34 NY3d 929 [2019], 34 NY3d 1126 [2020]).

We reject defendant’s contention that the court denied him due

process in relying on unsubstantiated information in the presentence
report (PSR) in imposing the conditions of probation. The court
explicitly stated on the record that it was not relying on the
disputed characterizations in the PSR in imposing sentence. We agree
with defendant, however, that the court should have granted his motion
to strike any references in the PSR to defendant being a sexual
predator or having sexual predatory thoughts and engaging in sexual
predatory behaviors. “ ‘Sexual predator’ ” is a statutory term
applicable to persons who are convicted of certain specific crimes and
 -2- 539
KA 19-01050

have specific diagnosed mental conditions (Correction Law § 168-a

[7] [a]), and defendant was not so convicted or diagnosed. We
therefore direct the court to redact the PSR accordingly. We reject
defendant’s contention with respect to the probation officer’s
statement in the PSR that defendant was “grooming” the victim inasmuch
as that is a commonly understood term (see e.g. Matter of Mudge v
Huxley, 79 AD3d 1395, 1396-1397 [3d Dept 2010]).

Defendant’s contention concerning the duration of the order of

protection is not preserved for our review (see People v Nieves, 2
NY3d 310, 315-316 [2004]; People v Collins, 117 AD3d 1535, 1535 [4th
Dept 2014], lv denied 24 NY3d 1082 [2014], reconsideration denied 24
NY3d 1218 [2015]). Nevertheless, we exercise our power to review it
as a matter of discretion in the interest of justice (see CPL 470.15
[3] [c]), and we conclude that, because no determinate or
indeterminate term of incarceration was imposed, the order of
protection must be amended by limiting its duration to “eight years
from the date of . . . sentencing” (CPL 530.13 [former (4) (A) (i)]).
We therefore modify the judgment by amending the order of protection
to expire on November 29, 2026.

Finally, the bargained-for sentence is not unduly harsh or

severe.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

540
KA 16-01242
PRESENT: SMITH, J.P., TROUTMAN, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

KENITH K. BROWN, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Supreme Court, Monroe County (Alex

R. Renzi, J.), rendered May 25, 2016. The judgment convicted
defendant upon a plea of guilty of attempted criminal possession of a
weapon in the second degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him

upon his plea of guilty of attempted criminal possession of a weapon
in the second degree (Penal Law §§ 110.00, 265.03 [3]). As defendant
contends and the People correctly concede, defendant’s waiver of the
right to appeal does not encompass his challenge to the severity of
the enhanced sentence inasmuch as Supreme Court “failed to advise
defendant prior to his waiver ‘of the potential period of
incarceration that could be imposed for an enhanced sentence’ ”
(People v Newton [appeal No. 1], 173 AD3d 1680, 1680 [4th Dept 2019];
see People v Watson, 169 AD3d 1526, 1528 [4th Dept 2019], lv denied 33
NY3d 982 [2019]). Nevertheless, the sentence is not unduly harsh or
severe. We have reviewed defendant’s remaining contentions and
conclude that none warrants reversal or modification of the judgment.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

593.1
KA 20-00886
PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

HILLARD SMITH, ALSO KNOWN AS MARK SMITH,

DEFENDANT-APPELLANT.
(APPEAL NO. 2.)

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF

COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF

COUNSEL), FOR RESPONDENT.

Appeal from a resentence of the Supreme Court, Erie County (M.

William Boller, A.J.), rendered May 18, 2018. Defendant was
resentenced upon his conviction of, inter alia, criminal possession of
a weapon in the third degree (two counts).

It is hereby ORDERED that the resentence so appealed from is

unanimously reversed on the law and the matter is remitted to Supreme
Court, Erie County, for resentencing on counts 1, 3 and 5 through 10
of the indictment.

Same memorandum as in People v Smith ([appeal No. 1] — AD3d —

[Aug. 20, 2020] [4th Dept 2020]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

593
KA 18-00944
PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

HILLARD SMITH, ALSO KNOWN AS MARK SMITH,

DEFENDANT-APPELLANT.
(APPEAL NO. 1.)

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF

COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Supreme Court, Erie County (M.

William Boller, A.J.), rendered February 23, 2018. The judgment
convicted defendant, upon a jury verdict, of manslaughter in the first
degree (two counts), burglary in the first degree, assault in the
third degree, menacing in the second degree (two counts), criminal
possession of a weapon in the third degree (two counts) and criminal
contempt in the first degree (two counts).

It is hereby ORDERED that said appeal from the judgment insofar

as it imposed sentence is unanimously dismissed and the judgment is
modified on the law and the facts by reversing those parts convicting
defendant of manslaughter in the first degree under count two of the
indictment and assault in the third degree under count four of the
indictment and dismissing those counts of the indictment, and as
modified the judgment is affirmed.

Memorandum: In appeal No. 1, defendant appeals from a judgment

convicting him upon a jury verdict of, inter alia, two counts of
manslaughter in the first degree (Penal Law § 125.20 [1]) as a lesser
included offense of murder in the first degree (§ 125.27 [1] [a]
[vii]; [b]) and murder in the second degree (§ 125.25 [1]) under
counts one and two of the indictment, respectively, one count of
burglary in the first degree (§ 140.30 [3] [count three]), one count
of assault in the third degree (§ 120.00 [1] [count four]), two counts
of menacing in the second degree (§ 120.14 [1] [counts five and eight,
respectively]), and two counts of criminal possession of a weapon in
the third degree (§ 265.02 [1] [counts six and nine, respectively]).
In appeal No. 2, defendant appeals from the resentence on that
conviction.
 -2- 593
KA 18-00944

We note at the outset that, inasmuch as the sentence in appeal

No. 1 was superseded by the resentence in appeal No. 2, the appeal
from the judgment in appeal No. 1 insofar as it imposed sentence must
be dismissed (see People v Primm, 57 AD3d 1525, 1525 [4th Dept 2008],
lv denied 12 NY3d 820 [2009]). In addition, although the notice of
appeal in appeal No. 1 relates to the judgment rendered on February
23, 2018, and not the resentence on May 18, 2018, we exercise our
discretion to treat the notice of appeal as also including an appeal
from the resentence (see People v Hennigan [appeal No. 1], 145 AD3d
1528, 1528 [4th Dept 2016], lv denied 29 NY3d 998 [2017]; see also CPL
460.10 [6]).

Contrary to defendant’s contention in appeal No. 1, Supreme Court

properly denied his motion to sever counts one through three of the
indictment from the remaining counts. “Offenses are joinable if,
inter alia, proof of either offense would be material and admissible
as evidence-in-chief at the trial of the other offense” (People v
Smith, 109 AD3d 1150, 1150-1151 [4th Dept 2013], lv denied 22 NY3d
1090 [2014]; see CPL 200.20 [2] [b]). In this case, counts one
through three of the indictment arose from an April 12, 2017 incident
in which defendant broke into the home of his former girlfriend and
stabbed to death her then-boyfriend. The remaining counts of the
indictment arose from previous, escalating acts of domestic violence
by defendant against the same woman. We thus conclude that the
evidence of the prior incidents was admissible with respect to the
April 12, 2017 incident on the basis of overlapping evidence (see
People v Perez, 47 AD3d 409, 410-411 [1st Dept 2008], lv denied 10
NY3d 843 [2008]), as well as to establish defendant’s intent when he
broke into the home of his former girlfriend (see Smith, 109 AD3d at
1150-1151; People v Ivy, 217 AD2d 948, 949 [4th Dept 1995], lv denied
86 NY2d 843 [1995]). “[O]nce the offenses were properly joined, the
court lacked the statutory authority to sever” (People v Cornell, 17
AD3d 1010, 1011 [4th Dept 2005], lv denied 5 NY3d 805 [2005]; see
Smith, 109 AD3d at 1151).

Defendant next contends in appeal No. 1 that the evidence is

legally insufficient to support the conviction with respect to
manslaughter in the first degree under counts one and two of the
indictment, burglary in the first degree under count three of the
indictment, assault in the third degree under count four of the
indictment, menacing in the second degree under count five of the
indictment, and criminal possession of a weapon in the third degree
under count six of the indictment. By failing to renew his motion for
a trial order of dismissal after presenting evidence, defendant failed
to preserve his contention for our review (see People v Hines, 97 NY2d
56, 61 [2001], rearg denied 97 NY2d 678 [2001]; People v Norman, 183
AD3d 1240, 1242 [4th Dept 2020]). Nonetheless, “ ‘we necessarily
review the evidence adduced as to each of the elements of the crimes
in the context of our review of defendant’s challenge regarding the
weight of the evidence’ ” (People v Gibson, 134 AD3d 1512, 1514 [4th
Dept 2015], lv denied 27 NY3d 1151 [2016]). Viewing the evidence in
light of the elements of the crimes as charged to the jury (see People
v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict
 -3- 593
KA 18-00944

with respect to counts one, two, three, five, and six is not against
the weight of the evidence (see generally People v Bleakley, 69 NY2d
490, 495 [1987]). We agree with defendant, however, that the verdict
with respect to count four is against the weight of the evidence.
With respect to that count, which arose from a January 10, 2017
incident in which defendant struck his former girlfriend with a closed
fist, we conclude that the People failed to present evidence
establishing beyond a reasonable doubt that she sustained a physical
injury (see Gibson, 134 AD3d at 1513-1514). We thus modify the
judgment by reversing that part convicting defendant of assault in the
third degree under count four of the indictment and dismissing that
count of the indictment.

Defendant further contends in appeal No. 1 that he should not

have been convicted under both count one and count two of the
indictment inasmuch as count two of the indictment, which charged him
with murder in the second degree (Penal Law § 125.25 [1]), is a lesser
included offense of murder in the first degree (§ 125.27 [1] [a]
[vii]; [b]), the offense charged in count one of the indictment (see
People v Brown, 181 AD3d 701, 703 [2d Dept 2020]; People v Jeremiah,
147 AD3d 1199, 1206 [3d Dept 2017], lv denied 29 NY3d 1033 [2017]).
We agree. Initially, we note that defendant was not required to
preserve his contention for our review (see People v Bank, 129 AD3d
1445, 1448 [4th Dept 2015], affd 28 NY3d 131 [2016]). Under the
circumstances here, the court should have instructed the jury to
consider count two “only in the alternative as an inclusory concurrent
count” of count one (People v Flecha, 43 AD3d 1385, 1386 [4th Dept
2007], lv denied 9 NY3d 990 [2007]; see CPL 300.40 [3] [b]). The
court, however, erred when it did not instruct the jury to consider
counts one and two in the alternative and instead directed the jury to
consider the lesser included offenses of manslaughter in the first
degree and manslaughter in the second degree for each of the two
murder charges. That error resulted in the jury improperly returning
a verdict convicting defendant of two identical counts of manslaughter
in the first degree with respect to the same victim. We therefore
further modify the judgment by reversing the conviction of
manslaughter in the first degree under count two of the indictment and
dismissing that count of the indictment (see People v McIntosh, 162
AD3d 1612, 1618 [4th Dept 2018], affd 33 NY3d 1064 [2019]; Bank, 129
AD3d at 1448-1449).

We have reviewed defendant’s remaining contentions in appeal No.

1 and conclude that none requires further modification or reversal of
the judgment.

In appeal No. 2, defendant contends, and the People correctly

concede, that defendant’s 2006 conviction of robbery with firearms or
other dangerous weapons under North Carolina law (see NC Gen Stat
§ 14-87 [a]) does not constitute a predicate violent felony conviction
(see Penal Law § 70.04 [1] [b] [i]; People v Durant, 121 AD3d 709, 710
[2d Dept 2014]). Therefore, we reverse the resentence and remit the
matter to Supreme Court for resentencing on counts 1, 3 and 5 through
10 of the indictment (see People v Moss, 147 AD3d 1297, 1298 [4th Dept
 -4- 593
KA 18-00944

2017]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

595
KA 16-02269
PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

JHON POLANCO, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),

FOR RESPONDENT.

Appeal from a judgment of the Supreme Court, Monroe County

(Thomas E. Moran, J.), rendered August 1, 2016. The judgment
convicted defendant upon his plea of guilty of attempted robbery in
the first degree.

It is hereby ORDERED that the case is held, the decision is

reserved and the matter is remitted to Supreme Court, Monroe County,
for further proceedings in accordance with the following memorandum:
Defendant appeals from a judgment convicting him upon his plea of
guilty of attempted robbery in the first degree (Penal Law §§ 110.00,
160.15 [3]). We agree with defendant that Supreme Court erred in
failing to determine whether he should be afforded youthful offender
status (see People v Rudolph, 21 NY3d 497, 501 [2013]; People v
Lester, 155 AD3d 1579, 1579 [4th Dept 2017], lv denied 32 NY3d 1206
[2019]). As the People correctly concede, defendant is an eligible
youth, and a sentencing court must make “a youthful offender
determination in every case where the defendant is eligible, even
where the defendant fails to request it” (Rudolph, 21 NY3d at 501; see
People v Willis, 161 AD3d 1584, 1584 [4th Dept 2018]). We therefore
hold the case, reserve decision, and remit the matter to Supreme Court
to make and state for the record a determination whether defendant
should be afforded youthful offender status (see People v Singleton-
Pradia, 170 AD3d 1520, 1520-1521 [4th Dept 2019]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

609.1
KA 19-01040
PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

MICHAEL BRYANT, DEFENDANT-APPELLANT.

DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR

DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Wyoming County Court (Michael M.

Mohun, J.), rendered April 18, 2019. The judgment convicted defendant
upon his plea of guilty of attempted assault in the second degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his

plea of guilty of attempted assault in the second degree (Penal Law
§§ 110.00, 120.05 [7]), defendant contends that his waiver of the
right to appeal is invalid and that his sentence is unduly harsh and
severe. The record establishes that the oral waiver, together with
the written waiver of the right to appeal, was knowing, intelligent,
and voluntary (see People v Thomas, 34 NY3d 545, 560-563 [2019];
People v Lopez, 6 NY3d 248, 256 [2006]), and that valid waiver
forecloses his challenge to the severity of the sentence (see Lopez, 6
NY3d at 255; People v Hidalgo, 91 NY2d 733, 737 [1998]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

609.2
KA 18-02407
PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

TERRANCE LOVE, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF

COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Supreme Court, Erie County (Russell

P. Buscaglia, A.J.), rendered June 1, 2018. The judgment convicted
defendant, upon a plea of guilty, of robbery in the first degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him,

upon his plea of guilty, of robbery in the first degree (Penal Law
§ 160.15 [3]). Even assuming, arguendo, that defendant’s waiver of
the right to appeal is invalid and thus does not preclude our review
of his challenge to the severity of his sentence (see People v Love,
181 AD3d 1193, 1193 [4th Dept 2020]), we conclude that the sentence is
not unduly harsh or severe.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

629
CA 19-00788
PRESENT: SMITH, J.P., NEMOYER, TROUTMAN, AND BANNISTER, JJ.

JAMES E. CONARTON, ON BEHALF OF HIMSELF

AND ALL PERSONS SIMILARLY SITUATED,
PLAINTIFF-RESPONDENT,

V MEMORANDUM AND ORDER

HOLY SMOKE BBQ AND CATERING, LLC,

DEFENDANT-APPELLANT.

KNYCH & WHRITENOUR, LLC, SYRACUSE (MATTHEW E. WHRITENOUR OF COUNSEL),

FOR DEFENDANT-APPELLANT.

CERIO LAW OFFICES, SYRACUSE (MICHAEL D. ROOT OF COUNSEL), FOR

PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Onondaga County (James

P. Murphy, J.), entered April 18, 2019. The order granted plaintiff’s
motion for class action certification and denied defendant’s cross
motion to dismiss the complaint.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Defendant appeals from an order that granted

plaintiff’s motion for class action certification and denied
defendant’s cross motion to dismiss the complaint. Initially,
although it is generally improper for the moving party to submit
evidence for the first time with its reply papers, Supreme Court may
consider such evidence where, as here, the opposing party has the
opportunity to submit a surreply (see Ferrari v National Football
League, 153 AD3d 1589, 1590 [4th Dept 2017]). Contrary to defendant’s
contention, we conclude that the court properly granted the motion
inasmuch as plaintiff relied on evidence that satisfied the five
prerequisites set forth in CPLR 901 (a) (see Ferrari, 153 AD3d at
1591-1593), and the factors set forth in CPLR 902 (see id. at 1593).
We have reviewed defendant’s remaining contentions and conclude that
they do not require reversal or modification of the order.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

630.1
KA 18-01962
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND BANNISTER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

DESHAUN SOMERS, DEFENDANT-APPELLANT.

(APPEAL NO. 1.)

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF

COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER,

JR., OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Onondaga County Court (Thomas J.

Miller, J.), rendered October 2, 2017. The judgment convicted
defendant upon a plea of guilty of manslaughter in the second degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: Defendant appeals, in appeal No. 1, from a judgment

convicting him upon his plea of guilty of manslaughter in the second
degree (Penal Law § 125.15 [1]). In appeal No. 2, he appeals from a
judgment, also entered upon a plea of guilty, convicting him of
aggravated harassment of an employee by an inmate (§ 240.32).
Defendant contends in both appeals that he did not validly waive his
right to appeal, and that the sentences are unduly harsh and severe.
We agree with defendant that he did not validly waive his right to
appeal. Because County Court provided defendant with erroneous
information about the scope of the waiver of the right to appeal,
including characterizing that waiver as an absolute bar to the taking
of an appeal, we conclude that the colloquy was insufficient to
ensure that the waiver was voluntary, knowing, and intelligent (see
People v Thomas, 34 NY3d 545, 560-564 [2019], cert denied — US — [Mar.
30, 2020]). The better practice is for the court to use the Model
Colloquy, “which ‘neatly synthesizes . . . the governing principles’ ”
(People v Dozier, 179 AD3d 1447, 1447 [4th Dept 2020], lv denied 35
NY3d 941 [2020], quoting Thomas, 34 NY3d at 567; see NY Model
Colloquies, Waiver of Right to Appeal). Nevertheless, we conclude
that the sentences are not unduly harsh or severe.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

630.2
KA 19-00068
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND BANNISTER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

DESHAUN SOMERS, DEFENDANT-APPELLANT.

(APPEAL NO. 2.)

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF

COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER,

JR., OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Onondaga County Court (Thomas J.

Miller, J.), rendered October 2, 2017. The judgment convicted
defendant, upon a plea of guilty, of aggravated harassment of an
employee by an inmate.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Same memorandum as in People v Somers ([appeal No. 1] — AD3d —

[Aug. 20, 2020] [4th Dept 2020]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

630.3
KA 18-02066
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND BANNISTER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

MELVIN WILLIAMS, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF

COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Erie County Court (Sheila A.

DiTullio, J.), rendered May 3, 2018. The judgment convicted defendant
upon a plea of guilty of robbery in the first degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his

plea of guilty of robbery in the first degree (Penal Law § 160.15
[4]), defendant contends that the waiver of the right to appeal is not
valid and he challenges the severity of the sentence. We agree with
defendant that the waiver of the right to appeal is invalid (see
People v Thomas, 34 NY3d 545, 562-563 [2019], cert denied — US — [Mar.
30, 2020]), and we note that the better practice for County Court is
“to use the Model Colloquy, which ‘neatly synthesizes . . . the
governing principles’ ” (People v Dozier, 179 AD3d 1447, 1447 [4th
Dept 2020], lv denied 35 NY3d 941 [2020], quoting Thomas, 34 NY3d at
567; see NY Model Colloquies, Waiver of Right to Appeal). We
nevertheless conclude that the sentence is not unduly harsh or severe.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

652
CA 19-01164
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, BANNISTER, AND DEJOSEPH, JJ.

PAULA L. GIBBS, PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

STATE FARM FIRE AND CASUALTY COMPANY,

DEFENDANT-RESPONDENT.

PAULA L. GIBBS, PLAINTIFF-APPELLANT PRO SE.

MURA & STORM, PLLC, BUFFALO (JERRY MARTI OF COUNSEL), FOR

DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (John F.

O’Donnell, J.), entered November 28, 2018. The order, among other
things, granted defendant’s motion for sanctions as against plaintiff.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff appeals from an order that, inter alia,

granted the motion of defendant seeking the imposition of sanctions
against plaintiff and denied plaintiff’s request that sanctions be
imposed against defendant and its counsel. Contrary to plaintiff’s
contention, we conclude that Supreme Court did not abuse its discretion
in imposing a sanction against plaintiff for her frivolous conduct in
disregarding its order settling the record for another appeal (see
22 NYCRR 130-1.1 [c] [1]; Place v Chaffee-Sardinia Volunteer Fire Co.,
143 AD3d 1271, 1272 [4th Dept 2016]; Vacation Vil. Homeowners’ Assn. v
Mordkofsky, 265 AD2d 746, 746-747 [3d Dept 1999], appeal dismissed 94
NY2d 898 [2000]). We further conclude that the court did not err in
denying plaintiff’s request for sanctions. Plaintiff “did not make a
proper motion for such relief” (Nicit v Nicit, 181 AD2d 1046, 1047 [4th
Dept 1992]; see CPLR 2214, 2215; 22 NYCRR 130.1-1 [d]) and, in any
event, plaintiff’s contention that the court abused its discretion in
denying her request for the imposition of sanctions against defendant
and its counsel, to the extent that it is properly before us in the
context of this appeal, is without merit (see Amherst Magnetic Imaging
Assoc. v Community Blue, HMO of Blue Cross of W. N.Y., 286 AD2d 896,
898 [4th Dept 2001], lv denied 97 NY2d 612 [2002]; Peck v Voss, 265
AD2d 890, 891 [4th Dept 1999]).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

685
KA 18-01289
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

BERNARD DORTCH, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, SULLIVAN & CROMWELL

LLP, NEW YORK CITY (JULIA A. MALKINA OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),

FOR RESPONDENT.

Appeal from a judgment of the Supreme Court, Monroe County

(Thomas E. Moran, J.), rendered April 16, 2018. The judgment
convicted defendant, after a nonjury trial, of criminal possession of
a weapon in the second degree.

It is hereby ORDERED that the judgment so appealed from is

reversed on the law, those parts of the omnibus motion seeking to
suppress physical evidence and statements are granted, the indictment
is dismissed, and the matter is remitted to Supreme Court, Monroe
County, for proceedings pursuant to CPL 470.45.

Memorandum: Defendant appeals from a judgment convicting him,

after a nonjury trial, of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]). We agree with defendant that
Supreme Court erred in refusing to suppress the physical evidence
found on his person and his subsequent statements to the police.

In his omnibus motion, defendant sought to suppress that evidence

on various grounds. Specifically, he asserted that the police did not
possess probable cause or reasonable suspicion to stop him, inasmuch
as the police misidentified him as his brother. Defendant also
asserted that “[n]o arrest warrant or search warrant had been issued
against [him].” Furthermore, defendant “specifically challenge[d]
both the reliability and sufficiency of hearsay information” relied on
by the arresting officers.

At the suppression hearing, the People called three Rochester

police officers. One of the officers testified that he observed
defendant standing on the sidewalk in the City of Rochester and
mistakenly identified defendant for defendant’s brother. That officer
and another officer testified that defendant and his brother look
 -2- 685
KA 18-01289

alike and share the same general physical characteristics. One of the
officers testified that defendant’s brother had two outstanding arrest
warrants, and that officer informed his fellow officers of the
warrants. According to the officers’ testimony, the police then
approached defendant, who fled on foot. The police eventually
apprehended defendant and placed him under arrest based upon the
arrest warrants issued for defendant’s brother. The officers then
searched defendant’s person and found a loaded revolver in his jacket
pocket and, after waiving his Miranda rights, defendant made
statements admitting to his possession of the handgun.

We agree with defendant that, under the circumstances of this

case, the People failed to meet their burden of establishing the
existence of the alleged valid and outstanding warrants justifying the
stop and search of defendant (see generally People v Jennings, 54 NY2d
518, 520 [1981]). It is well settled that, although “a defendant who
challenges the legality of a search and seizure has the burden of
proving illegality, the People are nevertheless put to the burden of
going forward to show the legality of the police conduct in the first
instance” (People v Berrios, 28 NY2d 361, 367-368 [1971] [internal
quotation marks and emphasis omitted]).

As relevant to this appeal, “ ‘[t]he arrest of a person who is

mistakenly thought to be someone else is valid if the arresting
officer (a) has probable cause to arrest the person sought, and (b)
reasonably believed the person arrested was the person sought’ ”
(People v Tejada, 270 AD2d 655, 657 [3d Dept 2000], lv denied 95 NY2d
805 [2000]). The “ ‘reasonableness of the arresting officers’ conduct
must be determined by considering the totality of the circumstances
surrounding the arrest’ ” (id.). Thus, to establish a lawful arrest
of defendant, the People were required to establish the existence of a
validly issued arrest warrant for defendant’s brother or probable
cause to arrest him (see People v Lee, 126 AD2d 568, 569-570 [2d Dept
1987]) and, here, the People concede that the police arrested
defendant based only upon the arrest warrants issued for defendant’s
brother.

Contrary to the People’s position and the dissent’s assertion, we

conclude that defendant challenged the existence and validity of the
arrest warrants for his brother by questioning the police witnesses at
the suppression hearing concerning the status of the arrest warrants
and whether they were still valid (see People v Richards, 151 AD3d
1717, 1718-1719 [4th Dept 2017]; cf. People v Boone, 269 AD2d 459, 459
[2d Dept 2000], lv denied 95 NY2d 850 [2000], reconsideration denied
95 NY2d 961 [2000]). Notably, the court acknowledged and “accept[ed]
that the [d]efendant [was] in fact contesting the validity of [the]
warrants.” Once defendant challenged the existence and validity of
the arrest warrants, the People were “ ‘required to make a further
evidentiary showing by producing the . . . warrant[s]’ ” (Richards,
151 AD3d at 1719), or “reliable evidence that the warrant[s were]
active and valid” (People v Searight, 162 AD3d 1633, 1635 [4th Dept
2018]). Here, the People failed to meet their burden inasmuch as they
failed to produce the arrest warrants themselves or other reliable
evidence that the warrants were active and valid (see id.; People v
 -3- 685
KA 18-01289

Lopez, 206 AD2d 894, 894 [4th Dept 1994], lv denied 84 NY2d 937
[1994]; cf. Boone, 269 AD2d at 459). The dissent’s reliance on the
officers’ testimony alone is misplaced and not supported by the case
law.

Thus, inasmuch as the People failed to meet their burden of

showing the legality of the police conduct in arresting defendant in
the first instance, we conclude that the court erred in refusing to
suppress the physical evidence seized and defendant’s subsequent
statements. Because our determination results in the suppression of
all evidence supporting the crime charged, the indictment must be
dismissed (see Searight, 162 AD3d at 1635; Lee, 126 AD2d at 569-570;
see also People v Wallace, 181 AD3d 1214, 1217 [4th Dept 2020]).

All concur except NEMOYER and WINSLOW, JJ., who dissent and vote to
affirm in the following memorandum: The majority holds that the
People failed to show that the police acted lawfully in arresting
defendant. We cannot agree. We therefore respectfully dissent and
vote to affirm.

The evidence at the suppression hearing established that

defendant was arrested because the police mistook him for his brother,
Sheffield Dortch, and it is undisputed that Sheffield had two
outstanding warrants. According to the hearing testimony, the
officers were looking for Sheffield on the date in question, and one
officer explained that he confirmed the continued existence of the
warrants “almost every day” and “almost every shift when [he] was
looking for [Sheffield].” Notably, defendant never specifically
challenged the existence or validity of Sheffield’s warrants; indeed,
defendant only questioned the relevant officer about his actions in
checking those warrants. That, in our view, should be the end of the
matter; defendant did not preserve the argument upon which the
majority grants relief, i.e., that the People failed to prove the
existence and validity of Sheffield’s warrants (see People v Dodt, 61
NY2d 408, 416 [1984]).

But even assuming that the issue is adequately preserved, the law
favors upholding the suppression court’s resolution of the merits.
The arrest of a person mistaken for someone else is valid if the
arresting officer was legally authorized to arrest the person sought
and “ ‘reasonably believed the person arrested was the person
sought’ ” (People v Tejada, 270 AD2d 655, 657 [3d Dept 2000], lv
denied 95 NY2d 805 [2000]). Moreover, the existence of a warrant can
be established either by producing the instrument itself or by
adducing reliable evidence that the warrant was active and valid at
the time in question (see People v Searight, 162 AD3d 1633, 1635 [4th
Dept 2018]). Here, as the suppression court found, the police
“undertook due diligence repeatedly to assure that Sheffield Dortch’s
warrants were in fact still active and that [the officer’s] inquiry,
on the date in question or the day prior, is adequate assurance that
valid warrants existed for the arrest of Sheffield.” Thus, given the
People’s reliable evidence that Sheffield’s warrants were active and
valid at the time of defendant’s arrest, there can be no doubt that
the police were legally authorized to arrest Sheffield, and there is
 -4- 685
KA 18-01289

no dispute that the police reasonably believed that defendant was

Sheffield. It follows that defendant was lawfully arrested, and that
the evidentiary fruits of that arrest were properly admitted (see
People v Boone, 269 AD2d 459, 459 [2d Dept 2000], lv denied 95 NY2d
850 [2000], reconsideration denied 95 NY2d 961 [2000]; see also People
v Lee, 126 AD2d 568, 569 [2d Dept 1987]; People v Ferguson, 115 AD2d
615, 616 [2d Dept 1985]). The judgment should accordingly be
affirmed.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

704
KA 15-00415
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, TROUTMAN, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

JACOB A. HORN, DEFENDANT-APPELLANT.

FELDMAN AND FELDMAN, MANHASSET (STEVEN A. FELDMAN OF COUNSEL), FOR

DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),

FOR RESPONDENT.

Appeal from a judgment of the Steuben County Court (Marianne

Furfure, A.J.), rendered December 23, 2014. The judgment convicted
defendant upon a jury verdict of murder in the second degree, criminal
possession of a weapon in the third degree and tampering with physical
evidence (three counts).

It is hereby ORDERED that the judgment so appealed from is

affirmed.

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of, inter alia, murder in the second degree (Penal
Law § 125.25 [1]). We affirm. The case arose from the violent death
of an alleged drug dealer and white supremacist whose body the police
found concealed in the cupboard of an abandoned mansion. Defendant
has given three inconsistent accounts of the victim’s death. First,
he told his fiancée that he killed the victim in a rage. Then, he
told a police investigator that he killed the victim in self-defense.
Later, at trial, he testified that his accomplice coerced him into
participating in the murder and subsequently lying to the police.

At the outset, we note that defendant failed to preserve for our

review his contention that he was denied his Fourteenth Amendment
right to a fair trial by County Court’s rulings (see People v Lane, 7
NY3d 888, 889 [2006]). We decline to exercise our power to review
that contention as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]).

Defendant contends that the evidence is legally insufficient to

support the conviction of murder in the second degree because he
proved the affirmative defense of duress by a preponderance of the
evidence, thereby negating the element of intent. Defendant failed to
preserve that contention for our review because his motion for a trial
 -2- 704
KA 15-00415

order of dismissal was not “ ‘specifically directed’ ” at the alleged

error (People v Gray, 86 NY2d 10, 19 [1995]; cf. People v Hammond, 84
AD3d 1726, 1726 [4th Dept 2011], lv denied 17 NY3d 816 [2011]). In
any event, even assuming, arguendo, that defendant established duress,
we reject his contention that such a defense would negate the
requisite intent to kill (see Penal Law § 125.25 [1]). Duress is an
affirmative defense that does not negate any of the elements that the
People are required to prove in the first instance, such as intent
(see § 40.00; People v Bastidas, 67 NY2d 1006, 1007 [1986], rearg
denied 68 NY2d 907 [1986]; see also United States v Leal-Cruz, 431 F3d
667, 671 [9th Cir 2005]). Furthermore, we conclude that defendant’s
confession to his fiancée and his statement to the police constitute
legally sufficient evidence that he intended to kill the victim (see
People v Geddes, 49 AD3d 1255, 1256 [4th Dept 2008], lv denied 10 NY3d
863 [2008]).

To the extent that defendant contends that the verdict is against

the weight of the evidence with respect to the murder count, we reject
that contention. Viewing the evidence in light of the elements of
that crime as charged to the jury (see People v Danielson, 9 NY3d 342,
349 [2007]), we conclude that the verdict is not against the weight of
the evidence (see generally People v Bleakley, 69 NY2d 490, 495
[1987]).

Defendant further contends that the court abused its discretion

by allowing the prosecutor to question him about his sex life. More
particularly, the prosecutor asked defendant during cross-examination
whether he lied to his fiancée in order to convince her to have
unprotected sex with him by falsely telling her that he had not had
unprotected sex with other women. Insofar as defendant contends that
the testimony is irrelevant, we reject his contention. A testifying
defendant “may be cross-examined concerning any immoral, vicious or
criminal acts of his [or her] life [that] have a bearing on his [or
her] credibility as a witness, provided the cross-examiner questions
in good faith and upon a reasonable basis in fact” (People v Duffy, 36
NY2d 258, 262 [1975], mot to amend remittitur granted 36 NY2d 857
[1975], cert denied 423 US 861 [1975]). The testimony here was
relevant to defendant’s credibility and was properly admitted for
impeachment purposes (see People v Chebere, 292 AD2d 323, 324 [1st
Dept 2002], lv denied 98 NY2d 673 [2002]; People v Roberts, 197 AD2d
867, 868 [4th Dept 1993], lv denied 82 NY2d 901 [1993]). Insofar as
defendant contends that the probative value of the testimony at issue
was substantially outweighed by its prejudicial effect, he failed to
preserve his contention for our review because he did not object to
the testimony on that ground (see People v Cullen, 110 AD3d 1474, 1475
[4th Dept 2013], affd 24 NY3d 1014 [2014]), and we decline to exercise
our power to review that contention as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]).

We reject defendant’s contention that the court abused its

discretion by admitting seven photographs of his body in evidence for
the alleged purpose of showing that he did not sustain injury in the
incident. Those photographs were relevant to disprove self-defense,
which the People reasonably anticipated would be raised by defendant
 -3- 704
KA 15-00415

(see People v Di Bella, 277 AD2d 699, 702 [3d Dept 2000], lv denied 96
NY2d 758 [2001]). Although defendant further contends that the court
abused its discretion by admitting in evidence an eighth photograph
depicting a “666” tattoo on his neck, defendant failed to preserve his
contention for our review (see People v Dickerson, 42 AD3d 228, 236-
237 [1st Dept 2007], lv denied 9 NY3d 960 [2007]), and we decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]).

We agree with defendant, however, that the court abused its

discretion when it permitted the prosecutor to play for the jury a
scene from the film, The Boondock Saints. The scene takes place
inside a courtroom, where the protagonists threaten everyone with
pistols. Some people in the scene, presumably those playing the
jurors, watch in astonishment while ducking for cover. The
protagonists make loud, self-aggrandizing statements, declaring
themselves vigilantes tasked by God with bringing justice to the world
(e.g. “Each day we will spill their blood till it rains down from the
sky!”). For those who do not behave morally, the protagonists offer a
message: “One day you will look behind you and you will see we three
. . . and we will send you to whichever God you wish.” The
protagonists put their guns to the back of the defendant’s head while
he is knelt on the floor in an execution-style pose. Gunfire erupts,
and everyone runs out of the courthouse screaming.

The prosecutor’s ostensible reason for playing that particular

scene was to rebut defendant’s testimony that he was coerced by his
accomplice into participating in the murder and subsequently lying to
the police. The relevance of that scene is that defendant posted
quotations from it on social media two days after the victim’s murder
and one day before he gave the allegedly coerced statement to the
police.

Although that scene from The Boondock Saints was relevant for
that purpose, relevant evidence “may still be excluded by the trial
court in the exercise of its discretion if its probative value is
substantially outweighed by the danger that it will unfairly prejudice
the other side or mislead the jury” (People v Scarola, 71 NY2d 769,
777 [1988]). Here, the prejudice created by playing that scene
results not only from the possibility that the jury would perceive
defendant’s taste in movies to be an endorsement of violence. The
violence in question was directed in part against a jury during a
criminal trial, and thus the scene also likely affected the jury’s
objectivity. Moreover, the scene degrades the criminal justice
system, and the jury system in particular, implying that the
reasonable doubt legal standard is responsible for freeing murderers
and that justice can only be accomplished by vigilantes. On the other
hand, the scene had little probative value. Defendant never actually
posted the video on social media; he only quoted from it. The
prosecutor could simply have asked defendant on cross-examination
whether the quote referenced a scene from a film in which vigilantes
execute a criminal. Playing the scene served no purpose other than to
prejudice the jury against defendant. Because the probative value of
the scene from The Boondock Saints video was substantially outweighed
 -4- 704
KA 15-00415

by the danger that its admission would prejudice defendant or mislead

the jury, the court abused its discretion in admitting it (see People
v Herman, 187 AD2d 1027, 1028 [4th Dept 1992]; cf. Scarola, 71 NY2d at
777).

Nevertheless, we conclude that the error is harmless. The

evidence against defendant is overwhelming and there is no
“significant probability” that the jury would have acquitted defendant
but for the error (People v Crimmins, 36 NY2d 230, 242 [1975]; see
People v Taylor, 148 AD3d 1607, 1608 [4th Dept 2017]). There is no
dispute that defendant participated in the victim’s murder. Prior to
trial, defendant gave two differing accounts of the murder but, in
both versions, he acknowledged intentionally killing the victim.
Then, at trial, he tried to blame his accomplice, presenting an
implausible duress defense. An acquittal would not have been
impossible, but we cannot conclude that under the circumstances there
would have been a significant probability of acquittal had the jury
not watched The Boondock Saints. Although we conclude that reversal
is unwarranted on that ground, we take this opportunity to admonish
the prosecutor and to remind him that “prosecutors have ‘special
responsibilities . . . to safeguard the integrity of criminal
proceedings and fairness in the criminal process’ ” (People v
Huntsman, 96 AD3d 1387, 1388 [4th Dept 2012], lv denied 20 NY3d 1099
[2013], quoting People v Santorelli, 95 NY2d 412, 421 [2000]).

We reject defendant’s related contention concerning the admission

of another clip featuring a video montage of the Sons of Anarchy
television program, which defendant posted on his social media page on
the same date that he posted the quote from The Boondock Saints. We
conclude that the Sons of Anarchy video was relevant, and that its
probative value was not outweighed by its potential for prejudice (see
generally People v Hayes, 168 AD3d 489, 490 [1st Dept 2019], lv denied
33 NY3d 977 [2019]).

Defendant further contends that the Sandoval ruling was an abuse

of discretion (see People v Standsblack, 162 AD3d 1523, 1524-1525 [4th
Dept 2018], lv denied 32 NY3d 1008 [2018]). We reject that
contention. Because the crime of criminal impersonation “involve[s]
acts of dishonesty and thus [was] probative with respect to the issue
of defendant’s credibility,” the court did not abuse its discretion in
allowing the People to question defendant about that conviction on
cross-examination (see People v Thomas, 165 AD3d 1636, 1637 [4th Dept
2018], lv denied 32 NY3d 1129 [2018], cert denied — US —, 140 S Ct 257
[2019] [internal quotation marks omitted]).

We reject defendant’s contention that the People violated CPL

710.30. The People were not required to include his statement that
the victim “could take a hit” in a CPL 710.30 notice because the
statement was used solely for purposes of impeachment (see People v
Gunter, 284 AD2d 932, 932 [4th Dept 2001], lv denied 96 NY2d 902
[2001]; People v Rigo, 273 AD2d 258, 258-259 [2d Dept 2000], lv denied
95 NY2d 937 [2000]; People v Sanzotta, 191 AD2d 1032, 1032 [4th Dept
1993]).
 -5- 704
KA 15-00415

Contrary to defendant’s further contention, the court did not err

in failing to, sua sponte, charge the jury on intoxication given
defendant’s theory at trial (see People v Herrera, 161 AD3d 1006, 1007
[2d Dept 2018], lv denied 33 NY3d 1105 [2019], reconsideration denied
34 NY3d 951 [2019]). Contrary to defendant’s related contention,
counsel was not ineffective for failing to request such a charge or
for any additional reason claimed by defendant. Viewing the evidence,
the law and the circumstances of the case, in totality and as of the
time of the representation, we conclude that defense counsel provided
meaningful representation (see generally People v Baldi, 54 NY2d 137,
147 [1981]).

Defendant failed to preserve his remaining contentions for our

review, and we decline to exercise our power to review those
contentions as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).

All concur except LINDLEY, J., who dissents and votes to reverse
in accordance with the following memorandum: I respectfully dissent
because I do not agree with the majority that County Court’s error in
admitting in evidence the video of a scene from The Boondock Saints is
harmless. The error is not harmless because the proof of guilt is not
overwhelming. I would thus reverse the judgment and grant defendant a
new trial on counts one, two, three, five and six of the indictment.

The evidence in this case established that the victim was killed
after being repeatedly struck in the head with a fire poker. There is
no dispute that defendant and his codefendant were the only people
present when the victim was killed. Thus, we know that one or both of
them committed the murder. We also know that the codefendant alone
returned to the crime scene with bleach and ammonia hours after the
murder and attempted to clean blood from the floors and walls.
Defendant told his girlfriend the next day that he killed the victim
in a fit of rage. When later questioned by the police, however,
defendant said that he alone killed the victim in self-defense after
they argued about Adolf Hitler. Oddly, the codefendant, who was
questioned separately, admitted to the police that he alone killed the
victim. The codefendant later pleaded guilty to murder in the second
degree in return for a sentence promise of 20 years to life. The
codefendant was awaiting sentencing when defendant’s case went to
trial.

During their direct case, the People relied primarily on

defendant’s admissions that he killed the victim. The parties
stipulated that the codefendant already pleaded guilty to murder and
would invoke his rights under the Fifth Amendment if called to the
stand. Although both defendant and the codefendant were charged as
accessories, the People presented no evidence indicating how defendant
aided and abetted the codefendant in the killing, nor did they present
any evidence of how the codefendant aided and abetted defendant.
Instead, when the People rested, their theory was that defendant
killed the victim as a principal.

When defendant took the stand, he raised the defense of duress,

 -6- 704
KA 15-00415

testifying that the codefendant struck the victim multiple times in

the back of the head with a fire poker and then handed the weapon to
defendant and demanded that he strike the victim as well. Defendant
further testified that he felt threatened by the codefendant, who
previously claimed to have killed another person, and that he was
horrified to see the victim killed in such a brutal manner by the
codefendant’s unprovoked violence. According to defendant, he swung
the fire poker once at the victim after the victim had already been
struck multiple times in the head by the codefendant. Defendant
believed that the victim was probably dead when he struck him.

On cross-examination, the prosecutor sought to admit in evidence

a video of an extremely violent scene from The Boondock Saints, which
defendant acknowledged was his favorite movie and from which he quoted
on social media. According to the People, the scene was relevant to
defendant’s state of mind when he confessed to the police. Over
defendant’s objection, the court admitted the video, which was played
for the jury. The court also allowed the prosecutor to introduce a
video depicting a violent scene from the television show Sons of
Anarchy that defendant had posted on social media.

Although the majority agrees with the People that the videos were
relevant, it concludes that the court abused its discretion in
admitting in evidence the scene from The Boondock Saints on the ground
that its prejudicial effect greatly exceeds its probative value,
stating that “[p]laying the scene served no purpose other than to
prejudice the jury against defendant.” The majority nevertheless
finds the error to be harmless given that defendant admitted to the
police and his girlfriend that he intentionally killed the victim and
that he undisputedly was present when the murder was committed.

In my view, neither video was relevant to any material issue.

The fact that defendant enjoyed violent television shows and movies
does not contradict his testimony that he was horrified to see the
codefendant repeatedly strike the victim in the head with a fire
poker, nor does that fact in any way undermine defendant’s duress
claim. Moreover, as the majority concludes, the probative value of
the scene from The Boondock Saints was substantially outweighed by its
prejudicial effect, which was enormous considering the content, as
described above by the majority. We thus all agree that the court
erred in admitting the movie scene in evidence even if the court was
correct in finding it to be relevant. The question then becomes
whether the error is harmless.

“Under our traditional harmless error analysis, an appellate

court does not reach the question of prejudice unless the evidence is
overwhelming in the first instance” (People v Mairena, 34 NY3d 473,
484 [2019]). As the Court of Appeals stated long ago, “unless the
proof of the defendant’s guilt, without reference to the error, is
overwhelming, there is no occasion for consideration of any doctrine
of harmless error” (People v Crimmins, 36 NY2d 230, 241 [1975]).
“That is, every error of law (save, perhaps, one of sheerest
technicality) is, ipso facto, deemed to be prejudicial and to require
a reversal, unless that error can be found to have been rendered
 -7- 704
KA 15-00415

harmless by the weight and the nature of the other proof” (id.).

Although “ ‘overwhelming proof of guilt’ cannot be defined with

mathematical precision” (id.), it stands to reason that overwhelming
proof of guilt requires more evidence of guilt than proof beyond a
reasonable doubt. If that were not so, then all errors would be
harmless in cases where the verdict is not against the weight of the
evidence.

Here, giving deference to the jury’s credibility determinations,

I would agree that the People proved defendant’s guilt of murder in
the second degree beyond a reasonable doubt and that, viewing the
evidence in light of the elements of that crime as charged to the jury
(see People v Danielson, 9 NY3d 342, 349 [2007]), the verdict is not
against the weight of the evidence (see generally People v Bleakley,
69 NY2d 490, 495 [1987]). “Although a different verdict would not
have been unreasonable, it cannot be said that the jury failed to give
the evidence the weight it should be accorded” (People v Metales, 171
AD3d 1562, 1564 [4th Dept 2019], lv denied 33 NY3d 1107 [2019]; see
Bleakley, 69 NY2d at 495).

I cannot agree, however, that there is overwhelming proof of

defendant’s guilt. While defendant admitted to the police that he
alone killed the victim, that admission of sole culpability is belied
by the fact that the codefendant pleaded guilty to intentional murder
for killing the same person. The same is true of defendant’s
admission to his girlfriend.

Here, the only evidence that defendant acted as an accessory to

the criminal conduct of the codefendant is defendant’s testimony that
he struck the victim once after the codefendant had unexpectedly
struck the victim multiple times in the head with the fire poker. If
that is really what happened, it lends credence to defendant’s claim
of duress. Moreover, if the codefendant had repeatedly struck the
victim in the head before handing the fire poker to defendant, it
raises a question whether the victim was already dead when he was
struck by defendant, as defendant suggested during his testimony.
Even though the jury evidently did not credit defendant’s testimony,
it does not necessarily follow that the proof of guilt is
overwhelming.

Considering that there is no evidence that the murder was planned

or premeditated, it appears that either defendant or the codefendant
suddenly decided to kill the victim for some unknown reason by
striking him in the head with the fire poker. That likely scenario
leaves little room for accomplice liability. Given that the
codefendant pleaded guilty to intentional murder, the proof is far
from overwhelming that defendant alone killed the victim. And
considering that the only evidence of defendant’s guilt as an
accessory is his own testimony, which also supports his duress
defense, the proof of defendant’s guilt as an accessory is similarly
not overwhelming. In sum, there are too many unanswered questions in
this case for us to conclude that the court’s egregious evidentiary
ruling constitutes harmless error.
 -8- 704
KA 15-00415

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

714.1
CAF 19-00856
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, TROUTMAN, AND DEJOSEPH, JJ.

IN THE MATTER OF RAYMOND H., JR.

---------------------------------------------
ORLEANS COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
MEMORANDUM AND ORDER
DANA C., RESPONDENT-APPELLANT.

ANDREW G. MORABITO, EAST ROCHESTER, FOR RESPONDENT-APPELLANT.

KATHERINE K. BOGAN, COUNTY ATTORNEY, MEDINA (WENDY S. SISSON OF

COUNSEL), FOR PETITIONER-RESPONDENT.

CHARLES PLOVANICH, ROCHESTER, ATTORNEY FOR THE CHILD.

Appeal from an order of the Family Court, Orleans County (Michael

F. Griffith, A.J.), entered March 26, 2019 in a proceeding pursuant to
Social Services Law § 384-b. The order, among other things,
terminated respondent’s parental rights with respect to the subject
child.

It is hereby ORDERED that said appeal is unanimously dismissed

without costs.

Memorandum: In a proceeding pursuant to Social Services Law

§ 384-b, respondent mother appeals from an order that, inter alia,
revoked a suspended judgment and terminated her parental rights with
respect to the subject child. The mother’s contentions were not
raised before Family Court and are therefore unpreserved for our
review (see Matter of Michael S. [Charle S.], 182 AD3d 1053, 1054 [4th
Dept 2020]; Matter of Guck v Prinzing, 100 AD3d 1507, 1508 [4th Dept
2012], lv denied 21 NY3d 851 [2013]). Moreover, the mother’s
contentions are directed at the “prior order finding permanent neglect
and suspending judgment [that] was entered on consent of [the mother]
and thus is beyond appellate review” (Matter of Aiden T. [Melissa S.],
164 AD3d 1663, 1665 [4th Dept 2018], lv denied 32 NY3d 917 [2019]
[internal quotation marks omitted]; see Matter of Xavier O.V. [Sabino
V.], 117 AD3d 1567, 1567 [4th Dept 2014], lv denied 24 NY3d 903
[2014]). We therefore conclude that the mother’s appeal must be
dismissed.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

716
KA 18-00931
PRESENT: SMITH, J.P., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

CHARLES M. PELLIS, DEFENDANT-APPELLANT.

MICHAEL G. CIANFARANO, OSWEGO, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF

COUNSEL), FOR RESPONDENT.

Appeal from an order of the Oswego County Court (Donald E. Todd,

J.), dated February 22, 2018. The order determined that defendant is
a level three risk pursuant to the Sex Offender Registration Act.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he

is a level three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). Contrary to defendant’s contention,
County Court properly considered his youthful offender adjudication
for burglary in the second degree when assessing points under risk
factor 9 (see People v Francis, 30 NY3d 737, 747-748 [2018]; People v
Gamble, 141 AD3d 1119, 1119 [4th Dept 2016], lv dismissed 28 NY3d 1044
[2016]; People v Williams, 122 AD3d 1378, 1379 [4th Dept 2014]).
Burglary in the second degree is a class C violent felony offense (see
Penal Law § 70.02 [1] [b]), and thus based on that youthful offender
adjudication the court properly assessed 30 points under risk factor 9
(see People v Vasquez, 89 AD3d 816, 816 [2d Dept 2011]; People v
Stacconi, 81 AD3d 1046, 1046-1047 [3d Dept 2011]), which, when
combined with the points assessed under the other relevant risk
factors not at issue on this appeal, rendered defendant a presumptive
level three risk.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

717
KA 18-01798
PRESENT: SMITH, J.P., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

TROY JONES, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF

COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Erie County Court (Michael F.

Pietruszka, J.), rendered June 27, 2017. The judgment convicted
defendant upon a plea of guilty of attempted robbery in the first
degree and criminal possession of a weapon in the second degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him

upon his plea of guilty of attempted robbery in the first degree
(Penal Law §§ 110.00, 160.15 [2]), and criminal possession of a weapon
in the second degree (§ 265.03 [3]). He contends that he did not
validly waive his right to appeal and that the sentence is unduly
harsh and severe.

Contrary to defendant’s contention, the waiver of the right to

appeal is valid because, during the colloquy, County Court established
that the right to appeal was “separate and distinct” from those rights
automatically forfeited by pleading guilty (People v Lopez, 6 NY3d
248, 256 [2006]; see People v Bryant, 28 NY3d 1094, 1096 [2016]), and
did not “utterly mischaracterize[] the nature of the right . . .
defendant was being asked to cede” (People v Thomas, 34 NY3d 545, 565
[2019], cert denied — US — [Mar. 30, 2020] [internal quotation marks
omitted]).

The valid waiver of the right to appeal encompasses defendant’s

challenge to the severity of the sentence (see Lopez, 6 NY3d at 255-
256).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

733
CA 18-01355
PRESENT: SMITH, J.P., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.

IN THE MATTER OF STATE OF NEW YORK,

PETITIONER-RESPONDENT,

V MEMORANDUM AND ORDER

DONALD G., RESPONDENT-APPELLANT.

KAMAN BERLOVE MARAFIOTI JACOBSTEIN & GOLDMAN, LLP, ROCHESTER (GARY

MULDOON OF COUNSEL), FOR RESPONDENT-APPELLANT.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (FREDERICK A. BRODIE OF

COUNSEL), FOR PETITIONER-RESPONDENT.

Appeal from an order of the Supreme Court, Cayuga County (Mark H.

Fandrich, A.J.), entered June 29, 2018 in a proceeding pursuant to
Mental Hygiene Law article 10. The order, inter alia, granted the
motion of petitioner to set aside a jury verdict and ordered a new
trial.

It is hereby ORDERED that the order so appealed from is reversed

on the law without costs, the motion is denied and the jury verdict is
reinstated.

Memorandum: Petitioner commenced this proceeding pursuant to

Mental Hygiene Law article 10, alleging that respondent is a sex
offender requiring civil management. After a jury trial, the jury
found that respondent is not a detained sex offender suffering from a
mental abnormality (see §§ 10.03 [i]; 10.07 [d]). Thereafter, Supreme
Court granted petitioner’s motion to set aside the verdict pursuant to
CPLR 4404 (a) on the ground of juror misconduct. That was error. We
therefore reverse the order, deny the motion, and reinstate the jury
verdict (see generally Ortega v Healthcare Servs. Group, Inc., 166
AD3d 1506, 1507 [4th Dept 2018]).

In 1991, respondent was sentenced to an indeterminate term of

incarceration of 12½ to 25 years upon a conviction of, inter alia,
rape in the first degree. Respondent has served his sentence, but
remains incarcerated because his release was stayed (see Mental
Hygiene Law § 10.06 [h]). In a trial on the petition, a key piece of
evidence was that respondent had not been cited for sexual misbehavior
during his nearly 30 years in prison. Three psychology experts
testified, two on behalf of petitioner and one on behalf of
respondent. Although they all agreed that prison is a controlled
environment, their collective testimony established the manner in
 -2- 733
CA 18-01355

which incarcerated men may act out sexually, either with each other,
such as respondent had while incarcerated as a teenager, or against
female staff. For example, there was expert testimony that an inmate
may masturbate in front of, leer at, linger around, or harass female
staff. There was also expert testimony that some inmates have
documented issues dealing with women in authority, child pornography
has been found in prison and, though rare, there are instances of
vaginal rape in prison. During summations, in reference to
respondent’s argument that his lack of sexual misbehavior while
incarcerated supported the conclusion that he did not have difficulty
controlling his sexual behavior, petitioner urged the jurors to use
“common sense,” and said: “This is somewhat of a prison community,
so, there might be some common sense that you have as far as how a
prison is run. There is not a lot of opportunities for a guy like
this to find either a young girl or a single mom or some other female
to rape in prison.”

The jury returned a special verdict, finding that respondent “has

a congenital or acquired condition that predisposes him to commit sex
offenses,” but does not suffer from a “[m]ental [a]bnormality” as
defined in Mental Hygiene Law § 10.03 (i) inasmuch as his condition
does not “result[] in his having serious difficulty in controlling
such conduct.” The court ordered respondent’s immediate release, but
stayed the order to allow petitioner time to determine if there were
grounds for appeal.

Petitioner then moved to set aside the verdict pursuant to CPLR

4404 (a). Petitioner alleged, inter alia, that the jury foreperson
had informed the jurors that his father, a correction officer, said
that “ ‘if inmates wanted to do something in prison they could do
it.’ ” The court convened a hearing on the issue of juror misconduct.
After taking testimony from all 12 jurors, the court found that the
foreperson had committed juror misconduct. Although the issue of
sexual misbehavior in prison was the subject of testimony of “some
length” at trial, the “outside influence” of the statements attributed
to the foreperson’s father affected at least the foreperson, “if not
the other jurors,” thereby creating “a substantial risk of prejudice
to the rights of the state.” Based on that finding, the court granted
the motion and set aside the verdict.

We agree with respondent that the court abused its discretion in

setting aside the verdict. “A new trial may be warranted in ‘the
interests of justice’ if there is evidence that substantial justice
has not been done as a result of juror misconduct” (LaChapelle v
McLoughlin, 68 AD3d 824, 825 [2d Dept 2009]; see CPLR 4404 [a]). Such
misconduct may warrant a new trial if a juror concealed his or her
bias by failing to answer questions truthfully during voir dire (see
Luster v Schwarz, 35 AD2d 872, 874 [3d Dept 1970]; Knickerbocker v
Erie R.R. Co., 247 App Div 495, 496 [4th Dept 1936]), if a juror
injected “significant extra-record facts” into deliberations, thereby
becoming an “unsworn witness to nonrecord evidence” (Edbauer v Board
of Educ. of N. Tonawanda City School Dist. [appeal No. 3], 286 AD2d
999, 1001 [4th Dept 2001] [internal quotation marks omitted]), or if a
juror undertook the role of an expert by providing “ ‘personal
 -3- 733
CA 18-01355

specialized assessments not within the common ken of juror experience

and knowledge . . . concerning a material issue in the case’ ”
(Campopiano v Volcko [appeal No. 2], 61 AD3d 1343, 1344 [4th Dept
2009], quoting People v Maragh, 94 NY2d 569, 574 [2000]). That said,
there is no “ironclad rule” concerning juror misconduct (Alford v
Sventek, 53 NY2d 743, 745 [1981]), and “not every irregularity in the
conduct of jurors requires a new trial” (Khaydarov v AK1 Group, Inc.,
173 AD3d 721, 722-723 [2d Dept 2019]; see Russo v Mignola, 142 AD3d
1064, 1066 [2d Dept 2016]). The court must examine the specific facts
of each case “ ‘to determine the nature of the material placed before
the jury and the likelihood that prejudice would be engendered’ ”
(Alford, 53 NY2d at 745, quoting People v Brown, 48 NY2d 388, 394
[1979]). A new trial is required only if the misconduct “prejudiced a
substantial right of a party” (Khaydarov, 173 AD3d at 723; see
generally Alford, 53 NY2d at 745).

Initially, we note that the court did not rule on that part of
the motion seeking to set aside the verdict on the ground that the
foreperson engaged in misconduct by offering his own expert opinion of
the “scientific data” during jury deliberations. Petitioner does not
pursue that ground in its brief, and conceded at oral argument that it
is no longer pursuing it on appeal. Therefore, we deem that ground to
have been abandoned (see generally Ciesinski v Town of Aurora, 202
AD2d 984, 984 [4th Dept 1994]).

Upon our review of the facts of this case, we conclude that

petitioner was not prejudiced by the foreperson’s failure to disclose
during voir dire that his father previously worked as a correction
officer (see generally Alford, 53 NY2d at 745). We note that several
of the jurors in this case either worked in prison or had close
relations who worked as correction officers or in law enforcement.
Neither party seems to have considered that to have been a
disqualifying attribute because those jurors were selected to serve on
the jury. Indeed, because the trial was held in the shadow of Auburn
Correctional Facility, it would have been difficult for the parties to
select 12 qualified jurors with no connection to the prison.
Petitioner’s attorney was well aware of that fact and seized upon it
during summation, urging the jurors to draw upon their knowledge of
the internal workings of prisons in order to decide the case.
Petitioner had every reason to believe that a jury packed with prison
employees and their relations would likely return a verdict
unfavorable to the convicted offender. Petitioner cries foul only
because its strategy backfired.

Furthermore, the remarks attributed to the foreperson’s

father—i.e., “if inmates wanted to do something in prison they could
do it”—are unlikely to have caused prejudice to petitioner. That
notion was already held by several members of the jury. A juror who
worked in prison himself testified at the hearing: “I don’t think it
is any secret that things go on in prison that ain’t supposed to.”
Another juror, whose brother worked in prison, testified: “I know
that” “things can happen in prison.” Yet another juror, who had no
apparent connection to the prison system, testified: “I felt that it
is kind of a known fact what goes on in prison.” The jurors’
 -4- 733
CA 18-01355

testimony, including the statement attributed to the foreperson’s

father, merely expressed the vague notion that inmates engage in
unsavory activities in prison despite the restrictiveness of the
environment. That hardly controversial notion is one commonly held
amongst the general public. In contrast to those vague notions
expressed by the jurors at the hearing, the expert psychologists gave
detailed testimony at trial about the specific kinds of sexual
misbehavior that occur in prison, and all of that trial testimony was
properly before the jury. The foreperson’s allegedly prejudicial
remarks were not prejudicial, but superfluous or redundant.

Our dissenting colleagues suggest that the foreperson

intentionally concealed his connection to the prison system in order
to infiltrate the jury. In doing so, they assert that the foreperson
failed at the hearing to explain his failure to disclose his father’s
occupation. We respectfully submit that our colleagues’ assertion is
belied by the record. Specifically, the foreperson provided the
following testimony, which the court did not discredit: “I didn’t
[disclose that information] because it wouldn’t affect my ability to
be fair and impartial and that’s what [the court] wanted us to do.”
In our view, that testimony demonstrates that the foreperson was
acting under a reasonable misunderstanding of the questions during
voir dire. The dissent makes much of the foreperson’s level of
education, which includes a bachelor’s degree in biology and a
master’s in “Teaching,” but it is notable that the foreperson has no
legal education and therefore is not schooled in answering the court’s
questions with the degree of precision that is expected of members of
the bar. Thus, contrary to the dissent, we cannot conclude that
deception or intentional concealment is evident on the face of this
record.

Insofar as petitioner asserts that a new trial is warranted

because the foreperson inserted outside facts into the deliberations,
those being the expert opinions of his father, we conclude that a new
trial is unwarranted for the reasons discussed above.

All concur except CURRAN and WINSLOW, JJ., who dissent and vote to
affirm in the following memorandum: We respectfully dissent and vote
to affirm the order because, in our view, Supreme Court did not abuse
its discretion in granting petitioner’s motion for a new trial in the
interest of justice (see CPLR 4404 [a]; see generally Matter of Small
Smiles Litig., 125 AD3d 1395, 1395 [4th Dept 2015]). “The authority
to grant a new trial is discretionary in nature and is vested in the
trial court predicated on the assumption that the [j]udge who presides
at trial is in the best position to evaluate errors therein . . . .
Notably, [the court’s] decision in [that] regard will not be disturbed
absent an abuse of discretion” (Straub v Yalamanchili, 58 AD3d 1050,
1051 [3d Dept 2009] [internal quotation marks omitted]).

We agree with the majority that, under CPLR 4404 (a), “[a] new
trial may be warranted in ‘the interest[] of justice’ if there is
evidence that substantial justice has not been done as a result of
juror misconduct” (LaChapelle v McLoughlin, 68 AD3d 824, 825 [2d Dept
2009] [emphasis added]). Specifically, a verdict may be set aside for
 -5- 733
CA 18-01355

juror misconduct “on the ground that a juror had not truthfully
responded to questions put to him [or her]” where “the moving party .
. . show[s] concealment of facts, bias or prejudice” (Holland v Blake,
38 AD2d 344, 346 [3d Dept 1972], affd 31 NY2d 734 [1972]; see
Remillard v Louis Williams, Inc., 59 AD3d 764, 766 [3d Dept 2009];
Matter of Buchanan, 245 AD2d 642, 646 [3d Dept 1997], lv dismissed 91
NY2d 957 [1998]).

“Litigants are entitled to a full and fair disclosure of all the

facts. It is the duty of a prospective juror to answer truthfully
questions of him [or her] as to his [or her] qualifications and he [or
she] should not keep silent if, in good conscience, he [or she] ought
to reveal facts which he [or she] has reason to believe would render
him [or her] unacceptable” (Holland, 38 AD2d at 345-346). “Moreover,
a prospective juror is not only duty bound to truthfully answer all
questions posed during voir dire, but is obligated to volunteer
information which he or she has reason to believe would render him [or
her] unacceptable to the litigants” (Buchanan, 245 AD2d at 646).

Here, we conclude that the court did not abuse its discretion in
granting the motion because petitioner established that the jury
foreperson concealed facts during jury selection, which he
subsequently used to exert influence over deliberations. The
foreperson’s concealment of relevant facts readily allowed the court
to conclude that substantial justice was not done, warranting a new
trial (see LaChapelle, 68 AD3d at 825; Holland, 38 AD2d at 346). In
our view, the foreperson prejudiced the jury’s deliberations by
introducing outside material related to the concealed facts (cf.
Buchanan, 245 AD2d at 646).

The foreperson, who was well-educated, executed a juror

questionnaire affirming “that the statements made on this
questionnaire are true and I understand that any false statements made
on this questionnaire are punishable under Article 210 of the Penal
Law.” The questionnaire directly asked the prospective jurors whether
they “or someone close to [them] (relative or close friend)” had “ever
been employed by [a] . . . [l]aw [e]nforcement o[r] [c]riminal
[j]ustice [a]gency.” Despite that plain question, the foreperson did
not disclose that his father worked as a correction officer. Contrary
to the majority’s view, we do not agree that a legal education was
necessary for the foreperson to comprehend the relevant question or
the bolded language contained in the questionnaire’s affirmation.

The foreperson also failed to disclose the information about his

father during voir dire. During that part of the proceeding, the
court asked the initial panel of prospective jurors, of which the
foreperson was a member, whether “any of [them] have relatives engaged
in the field of law enforcement.” Although one prospective juror, who
sat next to the foreperson, disclosed that her brother was a police
officer, the foreperson remained silent. Later on, petitioner’s
counsel asked the prospective jurors whether there was anything else
they thought the attorneys would like to know. Another prospective
juror stated that he had volunteered at the local correctional
facility on religious retreats, but the foreperson again remained
 -6- 733
CA 18-01355

silent. In contrast, when prospective jurors were asked whether they

had any thoughts about psychology as a science, the foreperson
volunteered that he had taken courses in patient psychology, had spent
a year in medical school, and worked as a science teacher. Shortly
thereafter, the foreperson was sworn in as a trial juror, and directed
to return to court in two days. Despite having additional time to
come forward with the information about his father’s occupation before
trial commenced, the foreperson never made such disclosure.

At the posttrial hearing, the foreperson admitted that, in the

juror questionnaire, he did not disclose his father’s employment.
Rather than explaining his failure to disclose that information on a
form signed under penalty of law, the foreperson testified that he did
not understand why he would have to disclose his father’s employment.
In our view, that bold statement, coupled with the foreperson’s
silence throughout voir dire, permitted the court to reasonably
conclude that the foreperson deliberately concealed the requested
information. Furthermore, when asked whether his father’s employment
“came up” during jury selection, the foreperson equivocated between “I
don’t think it did” and “I don’t remember.” In our view, the
foreperson’s explanatory assertion, relied upon by the majority, that
he did not disclose the relevant information “because it wouldn’t
affect [his] ability to be fair and impartial and that’s what [the
court] wanted [him] to do” merely demonstrated indifference to his
obligation to truthfully answer the straightforward questions put to
him by the court. The foreperson also never indicated that he made a
mistake by not disclosing that information, or that he had forgotten
his father’s occupation (cf. Holland, 38 AD2d at 346).

The foreperson’s equivocal responses on the subject of disclosure

at the hearing—as detailed above—are, in our view, not the statements
of a juror who honored the “duty . . . to truthfully answer all
questions posed during voir dire,” and “to volunteer information which
he or she has reason to believe would render him [or her] unacceptable
to the litigants” (Buchanan, 245 AD2d at 646). The foreperson was
plainly competent enough to read and understand the questionnaire, and
was attentive throughout voir dire. To that end, we note that during
voir dire the foreperson was compelled to disclose his educational
background in response to a direct question on that subject.
Moreover, the actions of other prospective jurors in response to
relevant questions should have indicated the need for the foreperson
to disclose the fact of his father’s employment. Although “[a]n
incorrect answer given under a mistaken impression” will not warrant a
new trial (Holland, 38 AD2d at 346), here, we conclude that the
foreperson’s silence under these specific circumstances weighs heavily
in support of concluding that the court properly determined that there
had been juror misconduct warranting a new trial.

Furthermore, the court was entitled to conclude that the

foreperson’s misconduct prevented substantial justice from being done,
and therefore properly granted the motion for a new trial, because the
misconduct infected the jury’s deliberations. During trial, the court
instructed the jury to consider only the facts and evidence that they
heard and observed in the courtroom. It repeated this instruction in
 -7- 733
CA 18-01355

its charge at the end of the trial. Despite those clear instructions,
the record established that the foreperson told the other members of
the jury about his father’s occupation—the very fact he did not think
warranted any mention at jury selection. Additional evidence at the
hearing from other members of the jury permitted the court to conclude
that the foreperson told the other jurors that, according to his
father, inmates could do pretty much whatever they wanted to do in
prison, which included engaging in sexual acts. That outside
material, which the foreperson brought into the deliberation room from
an unknown and unqualified witness, directly sought to resolve the
question of whether respondent could control his sexual behavior—an
essential element in determining whether respondent suffers from a
mental abnormality such that he is a dangerous sex offender requiring
confinement (see Mental Hygiene Law § 10.03 [i]).

Although there is competing evidence in the record regarding the

extent to which that information impacted deliberations, the record
supports the court’s conclusion that it affected at least one
juror—i.e., the foreperson. Inasmuch as unanimous verdicts are
required in Mental Hygiene Law article 10 cases (see § 10.07 [d]),
that at least one juror was influenced by the foreperson’s failure to
disclose certain relevant information established that petitioner was
denied substantial justice and that a new trial should be granted.
Ultimately, where, as here, the trial court has overseen the jury
selection process, heard all of the evidence, and conducted a
posttrial evidentiary hearing on the issue of juror misconduct, we
should defer to its determination, in light of its “superior
opportunity to evaluate the proof and the credibility of the
witnesses” (Carter v Shah, 31 AD3d 1151, 1151-1152 [4th Dept 2006]
[internal quotation marks omitted]). Thus, we conclude that the court
did not abuse its discretion in granting petitioner’s motion for a new
trial in the interest of justice.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

735
KA 18-01761
PRESENT: SMITH, J.P., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

ROBERT T. BENTLEY, DEFENDANT-APPELLANT.

HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL),

FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF

COUNSEL), FOR RESPONDENT.

Appeal from an order of the Livingston County Court (Dennis S.

Cohen, J.), dated April 30, 2018. The order denied the petition of
defendant for a downward modification of his risk level pursuant to
the Sex Offender Registration Act.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Defendant appeals from an order denying his petition

pursuant to Correction Law § 168-o (2) seeking to modify the prior
determination that he is a level three risk pursuant to the Sex
Offender Registration Act (SORA) (§ 168 et seq.). We affirm.

As the party seeking a modification of his SORA risk level

determination, defendant had the “burden of proving the facts
supporting the requested modification by clear and convincing
evidence” (Correction Law § 168-o [2]; see People v Williams, 170 AD3d
1531, 1531 [4th Dept 2019]; People v Cullen, 79 AD3d 1677, 1677 [4th
Dept 2010], lv denied 16 NY3d 709 [2011]). Contrary to defendant’s
contention, he failed to meet that burden (see People v Charles, 162
AD3d 125, 140 [2d Dept 2018], lv denied 32 NY3d 904 [2018]; People v
Johnson, 124 AD3d 495, 496 [1st Dept 2015]; see generally People v
Lashway, 25 NY3d 478, 484 [2015]). It is well settled that “the
relevant inquiry regarding Correction Law § 168-o (2) applications is
whether conditions have changed subsequent to the initial risk level
determination warranting a modification thereof” (People v Anthony,
171 AD3d 1412, 1413 [3d Dept 2019]). Here, the evidence at the
hearing on the petition to modify the SORA risk level determination
failed to establish that defendant completed sex offender treatment.
Additionally, the evidence demonstrated that defendant has not
addressed the mental health issues from which he suffers, and that he
was subsequently convicted of several crimes arising from his plan to
 -2- 735
KA 18-01761

kidnap and rape his probation officer. Thus, defendant failed to

submit clear and convincing evidence of facts supporting the requested
modification (see generally People v Austin, 182 AD3d 937, 938-939 [3d
Dept 2020]; Anthony, 171 AD3d at 1413).

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

736
KA 18-02274
PRESENT: SMITH, J.P., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

JASON CIPOLLA, DEFENDANT-APPELLANT.

DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF

COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Erie County Court (James A.W.

McLeod, A.J.), rendered September 26, 2018. The judgment convicted
defendant upon a plea of guilty of burglary in the third degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his

plea of guilty of burglary in the third degree (Penal Law § 140.20),
defendant contends that the waiver of the right to appeal is not
valid. We agree. We conclude that the colloquy was insufficient to
ensure that the waiver was voluntary, knowing, and intelligent,
because County Court provided defendant with erroneous information
about the scope of the waiver of the right to appeal, including
characterizing the waiver as an absolute bar to the taking of an
appeal (see People v Thomas, 34 NY3d 545, 560-564 [2019], cert denied
— US — [Mar. 30, 2020]). The better practice is for the court to use
the Model Colloquy, “which ‘neatly synthesizes . . . the governing
principles’ ” (People v Dozier, 179 AD3d 1447, 1447 [4th Dept 2020],
lv denied 35 NY3d 941 [2020], quoting Thomas, 34 NY3d at 567; see NY
Model Colloquies, Waiver of Right to Appeal). Furthermore, although
there was also a written waiver of the right to appeal, “the court
failed to confirm that [defendant] understood the contents of the
written waiver[]” (Thomas, 34 NY3d at 566; see People v Cooper, 85
AD3d 1594, 1594 [4th Dept 2011], affd 19 NY3d 501 [2012]; People v
Testerman, 149 AD3d 1559, 1559 [4th Dept 2017]). Nevertheless, we
conclude that the sentence is not unduly harsh or severe.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court
 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

1079
KA 18-01060
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

MATTHEW D. RINGROSE, ALSO KNOWN AS ROSE,

DEFENDANT-APPELLANT.

EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF

COUNSEL), FOR DEFENDANT-APPELLANT.

JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER

EAGGLESTON OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Ontario County Court (William F.

Kocher, J.), rendered November 12, 2014. The judgment convicted
defendant upon a nonjury verdict of luring a child (six counts),
criminal sexual act in the third degree and rape in the third degree.

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by reversing those parts convicting
defendant of six counts of luring a child and dismissing counts one
through five and eight of the indictment, and as modified the judgment
is affirmed.

Memorandum: On appeal from a judgment convicting him following a

nonjury trial of criminal sexual act in the third degree (Penal Law
§ 130.40 [2]), rape in the third degree (§ 130.25 [2]), and six counts
of luring a child (§ 120.70 [1]), defendant contends, inter alia, that
the evidence is legally insufficient to support the conviction on the
counts of luring a child and that the verdict is against the weight of
the evidence with respect to those counts. We agree. We therefore
modify the judgment by reversing those parts convicting him of six
counts of luring a child and dismissing counts one through five and
eight of the indictment.

The evidence at trial established that, when defendant was 30

years old, he met 16-year-old BD on an adult dating website. The two
thereafter communicated via cell phone, text messages, Facebook
messaging, Skype and Snapchat. Shortly thereafter, NS, a friend of
BD, initiated contact with defendant through Facebook. NS was also 16
years old at the time. While communicating for weeks with both BD and
NS via cell phone, text messages, Facebook, Skype and Snapchat,
defendant lied about his age and his military status, among other
things. Also, he flattered the girls by saying that they were “really
 -2- 1079
KA 18-01060

cute” and that he “really liked” them. Both girls lived in Ontario
County and were juniors in high school.

Defendant eventually met NS in person and drove her to his house

in Monroe County, where they had sexual intercourse. Over the ensuing
two or three weeks, defendant drove NS to his house three more times
to engage in sexual activity. In the meantime, defendant twice had
both sexual intercourse and oral sexual contact with BD, once at her
house in Ontario County after picking her up at school and driving her
home, and the other time at his house after driving her there.

Defendant was later arrested and charged in Ontario County with

one count each of rape in the third degree (sexual intercourse with
BD) and criminal sexual act in the third degree (oral sex with BD) and
six counts of luring a child. The counts charging luring a child
alleged that defendant lured NS and BD into his motor vehicle for the
purpose of committing a felony sex offense against them.

Following a nonjury trial, defendant was convicted on all counts.

County Court sentenced defendant as a second felony offender to
consecutive indeterminate terms of imprisonment of 2 to 4 years on
each of the counts of luring a child, reduced by operation of law to
an aggregate term of 10 to 20 years, and to four-year determinate
terms of imprisonment on the remaining counts. The four-year terms
are to run concurrently to each other but consecutively to the
sentence imposed for luring a child. The aggregate sentence is 14 to
24 years, plus a term of postrelease supervision.

In a separate prosecution, defendant was convicted in Monroe

County of multiple counts of statutory rape for the sexual intercourse
he engaged in with BD and NS at his residence. He was also convicted
in Monroe County of raping a third girl. Monroe County Court imposed
an aggregate prison term of 16 years, concurrent to the sentence
imposed in Ontario County.

“A verdict is legally sufficient when, viewing the facts in a

light most favorable to the People, there is a valid line of reasoning
and permissible inferences from which a rational jury could have found
the elements of the crime proved beyond a reasonable doubt” (People v
Danielson, 9 NY3d 342, 349 [2007] [internal quotation marks omitted];
see People v Acosta, 80 NY2d 665, 672 [1993]). If the evidence is
legally insufficient to establish an element of the charged crime, it
necessarily follows that the verdict is against the weight of the
evidence inasmuch as we “necessarily review the evidence adduced as to
each of the elements of the crimes in the context of our review of
defendant’s challenge regarding the weight” (People v Stepney, 93 AD3d
1297, 1298 [4th Dept 2012], lv denied 19 NY3d 968 [2012]; see
Danielson, 9 NY3d at 349; People v Francis, 83 AD3d 1119, 1120 [3d
Dept 2011], lv denied 17 NY3d 806 [2011]).

Here, to convict defendant of luring a child, the People were

required to establish that, on or about the dates alleged in the
indictment, defendant lured the victims into his motor vehicle, that
the victims were less than 17 years of age, and that defendant engaged
 -3- 1079
KA 18-01060

in that activity for the purpose of committing a felony sex offense

against the victims (see Penal Law § 120.70 [1]). In our view, the
People failed to prove that defendant lured the victims into a motor
vehicle.

The indictment did not specifically allege which of defendant’s

statements to the victims constitute the acts of luring, and discovery
provided no elucidation on that point. At trial, the People argued
that defendant lured the victims by making numerous false statements
to the victims before he met them in person. The People also
suggested that defendant lured the victims with his flattering
comments about their physical appearances. Even if those statements
constitute luring, it is clear from the record that they were made
well before defendant and the victims had any concrete plans to meet.
Thus, those statements were not made by defendant in an effort to
persuade the victims to enter his motor vehicle. The fact that
defendant drove the victims to his house days and weeks later cannot
transform his statements into luring. We therefore conclude that the
evidence is legally insufficient to establish a key element of luring
a child under Penal Law § 120.70 (1), and the verdict is therefore
also against the weight of the evidence.

Moreover, as defendant points out on appeal, even if we were to

conclude that defendant lured the victims into his car with the
statements he made to them on the phone and through the various social
media platforms, all such statements were made before defendant’s
first sexual encounter with each victim and cannot be relied upon by
the People to support the subsequent counts of luring a child inasmuch
as there has to be a separate and distinct act of luring for each
count. It follows that four of the six counts of luring a child would
have to be dismissed even if we were to accept the dubious theory that
defendant lured the victims into his car by the statements he made to
them days and weeks earlier.

In light of our determination, we need not address defendant’s

other contentions regarding the weight and sufficiency of the
evidence. We have reviewed defendant’s remaining contentions and
conclude that they do not require reversal or further modification of
the judgment.

All concur except CARNI and CURRAN, JJ., who dissent and vote to
affirm in the following memorandum: We respectfully dissent and would
affirm. The majority concludes that the evidence is legally
insufficient to support defendant’s conviction on the counts of luring
a child (Penal Law § 120.70 [1]). The majority bases its conclusion
on the People’s failure to establish that defendant committed
contemporaneous acts of luring at the time that he invited the victims
to enter his motor vehicle. Defendant did not, however, raise that
issue on appeal as a ground for modifying the judgment, and thus it is
not properly before us (see generally People v Pace, 70 AD3d 1364,
1366 [4th Dept 2010], lv denied 14 NY3d 891 [2010]).

We reject the contentions raised by defendant on appeal. By

failing to seek a trial order of dismissal on the ground that the
 -4- 1079
KA 18-01060

evidence is legally insufficient to support the conviction on the

counts of luring a child because the People failed to establish that
defendant had knowledge of the age of his two minor victims, defendant
failed to preserve that contention for our review (see People v
Townsley, 50 AD3d 1610, 1611 [4th Dept 2008], lv denied 11 NY3d 742
[2008]). In any event, that contention lacks merit. The offense of
luring a child does not require that a defendant have knowledge that
his victim is less than 17 years of age (see Penal Law § 15.20 [3];
see generally People v Burman, 173 AD3d 1727, 1728-1729 [4th Dept
2019]). Defendant likewise failed to preserve for our review his
contention that the evidence is legally insufficient to support the
conviction on the counts of luring a child because the People failed
to establish that defendant acted for the purpose of engaging in a
felony sex offense (see Townsley, 50 AD3d at 1611). In any event,
that contention lacks merit inasmuch as defendant’s intent to engage
in such an offense “may be inferred from [his] conduct as well as the
surrounding circumstances” (People v Hatton, 26 NY3d 364, 370 [2015]
[internal quotation marks omitted]).

We reject defendant’s related contention that defense counsel’s

failure to raise those grounds in support of the motion for a trial
order of dismissal constituted ineffective assistance. As we
determined herein, the evidence is legally sufficient on each of the
grounds raised by defendant, and it is well settled that a defendant
“is not denied effective assistance of trial counsel merely because
counsel does not make a motion or argument that has little or no
chance of success” (People v Lopez, 119 AD3d 1426, 1428 [4th Dept
2014], lv denied 25 NY3d 990 [2015] [internal quotation marks
omitted]).

We reject defendant’s contention that the evidence is legally

insufficient to support the conviction on the counts of luring a child
because the evidence established that his minor victims followed him
voluntarily. Because the Penal Law contains no definition of “lure”
(see Penal Law § 120.70), we must give the term its “ordinary” and
“commonly understood” meaning, for which we may use dictionary
definitions as “useful guideposts” (People v Ocasio, 28 NY3d 178, 181
[2016] [internal quotation marks omitted]). The term “lure” is
defined as “to attract, entice, or tempt; allure” (Webster’s
Unabridged Dictionary [Random House 1999]). We conclude that “lure,”
as used in Penal Law § 120.70, contemplates a minor victim who has
decided to follow a defendant after the defendant encouraged, invited,
or otherwise persuaded the victim to make that decision, and we thus
further conclude that the evidence against defendant is sufficient
notwithstanding the fact that his victims accompanied him without his
use of threats, force, or other forms of compulsion. For the same
reasons, viewing the evidence in light of the elements of the crime of
luring a child as charged to the jury (see People v Danielson, 9 NY3d
342, 349 [2007]), we reject defendant’s further contention that the
verdict with respect to those counts is against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).

We also reject defendant’s contention that County Court erred in

refusing to suppress a statement defendant made to an officer before
 -5- 1079
KA 18-01060

the officer advised defendant of his Miranda rights. It is well

settled that “the safeguards required by Miranda are not triggered
unless a suspect is subject to custodial interrogation” (People v
Paulman, 5 NY3d 122, 129 [2005] [internal quotation marks omitted];
see People v Bell-Scott, 162 AD3d 1558, 1559 [4th Dept 2018], lv
denied 32 NY3d 1169 [2019]). Here, defendant’s encounter with the
officer rose at most to a level three detention under the framework of
People v De Bour (40 NY2d 210, 222-223 [1976]; see generally People v
Suttles, 171 AD3d 1454, 1455 [4th Dept 2019]; People v Layou, 71 AD3d
1382, 1383 [4th Dept 2010]), and defendant thus was not in custody
when he made the statement (see People v Bennett, 70 NY2d 891, 893-894
[1987]; People v Shelton, 111 AD3d 1334, 1336 [4th Dept 2013], lv
denied 23 NY3d 1025 [2014]; People v Wiesmore, 204 AD2d 1003, 1004-
1005 [4th Dept 1994], lv denied 84 NY2d 873 [1994]).

Even assuming, arguendo, that the court erred in allowing a

police investigator to offer testimony regarding the physical
appearance of one of defendant’s victims, we conclude that any error
in admitting that testimony is harmless (see People v LoMaglio, 124
AD3d 1414, 1416 [4th Dept 2015], lv denied 25 NY3d 1203 [2015]). “In
a bench trial, the court is presumed to have considered only competent
evidence in reaching its verdict,” and defendant has not shown “that
the admission of inadmissible testimony prejudiced him” (id. [internal
quotation marks omitted]). Although defendant is correct that the
presumption does not apply where the trial judge improperly allows
testimony over objection without “some reliable indication that,
notwithstanding the erroneous ruling, the judge knows that the
evidence must be disregarded” (People v Pabon, 28 NY3d 147, 158
[2016]), the judge here provided such a reliable indication by
sustaining two prior, related objections and establishing on the
record that the judge understood the narrow context in which the
investigator’s testimony could properly be considered.

Entered: August 20, 2020 Mark W. Bennett

Clerk of the Court