Summer Zervos - Against - Donald J. Trump, 1st Dept. 2019 - 03 - 14 - Dec

SUPREME COURT, APPELLATE DIVISION
FIRST DEPARTMENT
MARCH 14, 2019
THE COURT ANNOUNCES THE FOLLOWING DECISIONS:
Acosta, P.J., Manzanet-Daniels, Kapnick, Kahn, Oing, JJ.
8686 The People of the State of New York, Ind. 2533/15

Respondent,
-against-
Jesus Perez,
Defendant-Appellant.
_________________________
Seymour W. James, Jr., The Legal Aid Society (David Crow of

counsel), and Davis Polk & Wardwell LLP, New York (Lindsay Schare
of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran

of counsel), for respondent.
_________________________
Judgment, Supreme Court, New York County (Arlene D.
Goldberg, J.), rendered March 24, 2016, convicting defendant,
after a jury trial, of criminal sale of a controlled substance in
the third degree, and sentencing him, as a second felony drug
offender previously convicted of a violent felony, to a term of
six years, unanimously reversed, on the law and the facts,
defendant’s motion to suppress physical evidence and
identification testimony granted, and the matter remanded for a
new trial preceded by an independent source hearing.
The hearing court expressly determined that the police

detention of defendant was supported by reasonable suspicion, but
that probable cause did not exist until the undercover officer
who allegedly bought drugs from defendant made an identification.
Because the record provides no reason for the officers to have
concluded that defendant, a suspect in a street drug sale, was
armed or dangerous, or likely to resist arrest or flee,
handcuffing him was inconsistent with an investigatory detention
and elevated the intrusion to an arrest not based on probable
cause (see People v Steinbergin, 159 AD3d 591 [1st Dept 2018];
People v Blanding, 116 AD3d 498 [1st Dept 2014]; People v
Acevedo, 179 AD2d 465, 465-466 [1st Dept 1992], lv denied 79 NY2d
996 [1992]). Accordingly, the undercover officer’s
identification of defendant and the buy money recovered as a
result of the unlawful arrest should have been suppressed, and
defendant is entitled to a new trial preceded by an independent
source hearing (see People v Burts, 78 NY2d 20, 23-24 [1991]).
2
Because we are ordering a new trial, we find it unnecessary
to reach any other issues.
THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 14, 2019
_______________________
CLERK
3
8687 Alexandria Grant, et al., Index 25864/14E

Plaintiffs-Appellants,
-against-
AAIJ African Market Corp.,

Defendant-Respondent,
Justin C. Canaday,
Defendant.
_________________________
Steven Adam Rubin & Associates PLLC, New York (Steven Adam Rubin
of counsel), for appellants.
Saretsky Katz & Dranoff, L.L.P., New York (Daniel P. Rifkin of

counsel), for respondent.
_________________________
Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.),
entered August 7, 2017, which granted the motion of defendant
AAIJ African Market Corp. (AAIJ) for summary judgment dismissing
the complaint and all cross claims as against it, unanimously
reversed, on the law, without costs, and the motion denied.
The failure to provide seatbelts in a taxicab is a violation
of Vehicle and Traffic Law § 383, and constitutes negligence as a
matter of law (see DiMauro v Metropolitan Suburban Bus Auth., 105
AD2d 236, 246 [2d Dept 1984]; McMahon v Butler, 73 AD2d 197, 199
[3d Dept 1980]). Where an injured party fails to wear an
available seatbelt, such failure would go to damages, not
liability (see Spier v Barker, 35 NY2d 444, 450 [1974]). That is
4
not the case when the vehicle owner fails to provide seatbelts in
the first instance (see DiMauro at 246; McMahon at 199).
Here, the alleged failure to provide seatbelts warranted
denial of AAIJ’s summary judgment motion. That the vehicle that
struck AAIJ’s vehicle in the rear did not provide a nonnegligent
reason for doing so does not relieve AAIJ of its alleged separate
liability, if it is found to be a proximate cause of plaintiffs’
injuries.
Furthermore, plaintiffs did not cross-move for summary
judgment, and the record does not sufficiently reflect that AAIJ
was placed on notice of the need to develop facts on the issue of
whether seatbelts were present in the vehicle, and whether they
were “clearly visible, accessible, and maintained in good working
order” (Vehicle and Traffic Law § 383[4-b]). Accordingly, we
decline plaintiffs’ request to find AAIJ negligent as a matter of
law.

_______________________
CLERK
5
8688-
8689-
8690 In re Evanna S., and Another,
Dependent Children Under the Age of

Eighteen Years etc.,
Omatee S., et al.,

Respondents-Appellants,
Administration for Children’s Services,

Petitioner-Respondent.
_________________________
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of

counsel) for Omatee S., appellant.
Law and Mediation Office of Helene Bernstein, PLLC, Brooklyn

(Helene Bernstein of counsel), for Santiago D., appellant.
Zachary W. Carter, Corporation Counsel, New York (Melanie T. West

Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement
of counsel), attorney for the children.
_________________________
Order of disposition, Family Court, New York County (Clark
V. Richardson, J.), entered on or about April 25, 2017, to the
extent it brings up for review a fact-finding order, same court
and Judge, entered on or about March 7, 2017, which found that
respondent father and respondent mother neglected the subject
children, unanimously affirmed, without costs. Appeals from
fact-finding order, unanimously dismissed, without costs, as
subsumed in the appeals from the order of disposition.
6
The findings of neglect were supported by a preponderance of
the evidence (see Family Court Act 1046[b][i]). The chronic
unsanitary conditions of the mother and children’s living space,
including dirty diapers and feces strewn around the room, as well
as the children’s odor and unkempt appearance, were well
documented in the record and demonstrated that the children were
at imminent risk of impairment (see Matter of Nivek A.S. [Juanita
S.]), 148 AD3d 459 [1st Dept 2017]). The mother also failed to
provide the children with adequate nutrition and medical care,
notwithstanding that the children’s pediatrician identified the
children’s weight loss as an issue and prescribed a feeding plan
(see id.). The mother also failed to heed the caseworker’s
advice to seek prompt medical attention for the children when
they were seriously ill. Furthermore, the mother failed to
comply with her service plan and attend required weekly therapy,
and routinely exercised poor judgment in caring for herself and
the children (see e.g. Matter of Viveca AA., 51 AD3d 1072, 1073
[3d Dept 2008].
The record supports a finding of neglect against the father
7
in light of his untreated mental illness (see Matter of Enrique
S. [Kelba S.], 134 AD3d 576 [1st Dept 2015], lv denied 27 NY3d
948 [2016]), and failure to provide adequate care during the
period that the children resided with him. The court also
properly drew a negative inference from his failure to testify
(see Matter of Zelda McM. [Patrick L.-O. McM.], 154 AD3d 573, 574
[1st Dept 2017]).

_______________________
CLERK
8
8691 Alyson Shatsky, Index 162531/15

Plaintiff-Respondent,
-against-
Highpoint Associates V, LLC,

et al.,
Defendants-Appellants.
_________________________
Law Offices of Michael E. Pressman, New York (Steven H. Cohen of

counsel), for appellants.
Pasich LLP, New York (Jeffrey L. Schulman of counsel), for

respondent.
_________________________
Order, Supreme Court, New York County (Carmen Victoria St.
George, J.), entered August 21, 2018, which, inter alia, denied
defendants’ motions for summary judgment, unanimously affirmed,
without costs.
Triable issues of fact regarding whether defendant Bagels
and More created a slipping hazard allegedly responsible for
plaintiff’s accident by diverting condensation from its air
conditioning unit down the side of the door with a plastic tube,
such that water streamed down the tube onto the sidewalk and onto
the warning tile (see Gary v 101 Owners Corp., 89 AD3d 627 [1st
Dept 2011]), combined with photographs, video, deposition
testimony, and expert affidavits that provide conflicting
9
evidence as to whether the other defendants had notice of the
hazardous condition, preclude the granting of summary judgment
(see Irizarry v 1915 Realty LLC, 135 AD3d 411 [1st Dept 2016];
Jahn v SH Entertainment, LLC, 117 AD3d 473 [1st Dept 2014]).

_______________________
CLERK
10
8692 The People of the State of New York, Ind. 4372N/13

Respondent,
-against-
Donald Bowman,
_________________________
Seymour W. James, Jr., The Legal Aid Society, New York (Harold V.
Ferguson, Jr. of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Eric Del Pozo
_________________________
Judgment, Supreme Court, New York County (James M. Burke,
J.), rendered March 12, 2014, convicting defendant, upon his plea
of guilty, of criminal possession of a controlled substance in
the fourth degree, and sentencing him, as a second felony drug
offender previously convicted of a violent felony, to a term of
five years, unanimously affirmed.
We do not find that defendant made a valid waiver of his
11
right to appeal. We have conducted an in camera review of the
minutes of the examination of the confidential informant and the
unredacted warrant application and find no basis for suppression.

_______________________
CLERK
12
8693 Union Ave Estates, LLC, Index 25848/15E

-against-
Garsan Realty Inc., et al.,

_________________________
Joseph A. Altman, P.C., Bronx (Joseph A. Altman of counsel), for

appellants.
Law Offices of Geoffrey S. Hersko, P.C., Cedarhurst (Geoffrey S.

Hersko of counsel), for respondent.
_________________________
Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.),
entered February 23, 2018, which denied defendants’ motion for
summary judgment dismissing the complaint, unanimously affirmed,
with costs.
The disclaimer provisions in the contract of sale and the
rider are not sufficiently specific to preclude the claim that
defendants fraudulently induced plaintiff to purchase the
property by misrepresenting the status of the commercial tenants’
leases (see Basis Yield Alpha Fund [Master] v Goldman Sachs
Group, Inc., 115 AD3d 128, 137 [1st Dept 2014]). None of the
provisions relied upon by defendants specifically disclaim any
warranties about the status of commercial tenants’ leases, or
indeed of any leases.
Whether plaintiff’s reliance on defendants’ alleged
13
misrepresentations – that the commercial tenants were month-to-
month tenants and that their respective leases expired on July
31, 2014 – was reasonable or whether due diligence would have
revealed the truth are issues of fact that cannot be resolved at
this stage of the litigation (see Lunal Realty, LLC v DiSanto
Realty, LLC, 88 AD3d 661, 664 [2d Dept 2011], citing DDJ Mgt.,
LLC v Rhone Group L.L.C., 15 NY3d 147, 154 [2010]).
The motion court correctly concluded that if defendant
Gardon, the principal owner of defendant Garsan Realty Inc.,
concealed pertinent documents on behalf of Garsan, he may be held
personally liable for fraud, regardless of the corporate veil
(see First Bank of Ams. v Motor Car Funding, 257 AD2d 287, 294
[1st Dept 1999]).
We have considered defendants’ remaining arguments and find
them unavailing.

_______________________
CLERK
14
8694 Joseph Smith, Index 306697/14

Plaintiff-Appellant,
-against-
The City of New York, et al.,

Defendants-Respondents.
_________________________
Apicella & Schlesinger, New York (Philip S. Schlesinger of

counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of

counsel), for respondents.
_________________________
Judgment, Supreme Court, Bronx County (Lizbeth Gonzalez,
J.), entered March 20, 2018, to the extent appealed from as
limited by the briefs, dismissing the 42 USC § 1983 claims,
unanimously reversed, on the law, without costs, and the claims
reinstated.
The complaint, as amplified by plaintiff’s opposition
papers, alleges that, on February 13, 2013, plaintiff and a
friend, both black men, were driving in a luxury sports car in
the Bronx. They were not driving recklessly or violating any
traffic laws. Nevertheless, they were pulled over by the police,
and five or six officers, including the individual defendants,
removed them from the car and searched them and the car. The
police found marijuana in the friend’s pocket, but recovered no
other contraband, either in the car or on plaintiff’s person.
15
Nevertheless, plaintiff was arrested and held for two days.
Charges against him were dismissed in October 2013.
The complaint alleges further that, during this time period,
the New York City Police Department employed a “stop and frisk”
policy, pursuant to which every year the police stopped hundreds
of thousands of overwhelmingly and disproportionately minority
persons, including black men, and subjected them to searches, for
no reason other than that they were in supposedly high-crime
areas. The complaint alleges that the “stop and frisk” policy,
rather than some constitutionally cognizable cause, was the
reason plaintiff was detained, searched, and arrested. To prove
the existence of this policy, plaintiff submitted, among other
things, the New York City Bar Association’s 24-page “Report on
the NYPD’s Stop-and-Frisk Policy,” dated May 2013, which examined
the policy and made recommendations for its reform and the
protection of city residents’ civil liberties.
The foregoing states a cause of action under 42 USC § 1983
against the individual defendants (see Shelton v New York State
Liq. Auth., 61 AD3d 1145, 1148 [3d Dept 2009]; Littlejohn v City
of New York, 795 F3d 297, 314 [2d Cir 2015]). At this procedural
juncture, it is not necessary for plaintiff to allege that any of
the individual defendants did any more than participate in his
unlawful arrest.
16
By alleging the existence of an extraconstitutional
municipal “stop and frisk” policy, and that the individual
defendants unlawfully arrested plaintiff pursuant to that policy,
the complaint states a cause of action under 42 USC § 1983
against the City (see Monell v Department of Social Servs. of
City of N.Y., 436 US 658, 694-695 [1978]; see also Ashcroft v
Iqbal, 556 US 662, 678-681 [2009] [setting forth federal pleading
standards]; Cabrera v City of New York, 2014 NY Slip Op 30533[U]
[Sup Ct, Bronx County 2014] [comparing federal and state pleading
standards]).
Defendants’ contention that plaintiff has not pointed to any
cognizable evidence that the stop and frisk policy even exists is
without merit (see Floyd v City of New York, 959 F Supp 2d 540
[SD NY 2013]).

_______________________
CLERK
17

Respondent,
-against-
Gregory Kettrell,
_________________________
Seymour W. James, Jr., The Legal Aid Society, New York (Susan
Epstein of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Vincent

Rivellese of counsel), for respondent.
_________________________
An appeal having been taken to this Court by the above-named

appellant from a judgment of the Supreme Court, New York County
(Melissa C. Jackson, J.), rendered January 14, 2016,
Said appeal having been argued by counsel for the respective

parties, due deliberation having been had thereon, and finding
the sentence not excessive,
It is unanimously ordered that the judgment so appealed from

be and the same is hereby affirmed.

_______________________
CLERK
Counsel for appellant is referred to

§ 606.5, Rules of the Appellate
Division, First Department.
18
8700- Index 652323/14

8701- 595472/16
8702 Hoyt David Morgan, 595475/16
Plaintiff,
-against-
Worldview Entertainment Holdings,

Inc., et al.,
Defendants.
- - - - -
Worldview Entertainment Holdings, Inc.,
Third-Party Plaintiff,
Worldview Entertainment Holdings LLC, et al.,

Third-Party Plaintiffs-Appellants,
-against-
Goetz Fitzpatrick LLP, et al.,

Third-Party Defendants-Respondents,
Christopher Woodrow,
Third-Party Defendant.
- - - - -
Maria Cestone,
Second Third-Party Plaintiff-Appellant,
-against-

Second Third-Party Defendants-Respondents,
Second Third-Party Defendant.
- - - - -
19
Hoyt David Morgan,
Plaintiff,
-against-
Worldview Entertainment Holdings, Inc.,

et al.,
Defendants.
- - - - -
Worldview Entertainment Holdings,
Inc., et al.,
Third-Party Plaintiffs-Appellants,
-against-

Third-Party Defendants,
Third-Party Defendant-Respondent.
- - - - -
Maria Cestone,
Second Third-Party Plaintiff-Appellant,
-against-

Second Third-Party Defendants,
Second Third-Party Defendant-Respondent.
_________________________
Quinn McCabe LLP, New York (Simon Block of counsel), for

Worldview Entertainment Holdings, Inc., Worldview Entertainment
Holdings LLC, Worldview Entertainment Partners VII, LLC and Molly
Conners, appellants.
Schenck, Price, Smith & King LLP, New York (Ryder T. Ulon of
counsel), for Maria Cestone, appellant.
Furman Kornfeld & Brennan LLP, New York (A. Michael Furman of
counsel), for Goetz Fitzpatrick LLP and Aaron Boyajian,
respondents.
20
Pinnisi & Anderson, Ithaca (Michael D. Pinnisi of counsel), for
Christopher Woodrow, respondent.
_________________________
Order, Supreme Court, New York County (Eileen A. Rakower,
J.), entered July 27, 2017, which granted third-party and second
third-party defendants Goetz Fitzpatrick LLP and Aaron Boyajian,
Esq.’s (the Goetz Defendants) motion to dismiss the third-party
and second third-party complaints as against them pursuant to
CPLR 3211(a)(1) and (7), unanimously modified, on the law, to
deny the motion as to so much of the malpractice claims as is
based on the Goetz Defendants’ inclusion of “its parents,
successors, predecessors, divisions, affiliates, and assigns,”
without defining “affiliates,” in the separation agreement
entered into by plaintiff and defendant/third-party plaintiff
Worldview Entertainment Holdings Inc., and otherwise affirmed,
without costs. Order, same court and Justice, entered on or
about August 16, 2017, which granted third-party defendant
Christopher Woodrow’s motion to dismiss the third-party complaint
as against him pursuant to CPLR 3211(a)(7), unanimously modified,
on the law, to deny the motion as to the fourth cause of action
for breach of fiduciary duty, and otherwise affirmed, without
costs. Order, same court and Justice, entered on or about August
16, 2017, which granted Woodrow’s motion to dismiss the second
third-party complaint as against him pursuant to CPLR 3211(a)(7),
21
unanimously affirmed, without costs.
As noted in our decision on the prior appeal (Morgan v
Worldview Entertainment Holdings, Inc., 141 AD3d 461 [1st Dept
2016]), plaintiff was the chief financial officer of
defendant/third-party plaintiff Worldview Entertainment Holdings
Inc. (Worldview Inc.), a movie production company wholly owned by
defendant/third-party plaintiff Worldview Entertainment Holdings
LLC (Holdings LLC). When his employment was terminated,
plaintiff and Worldview Inc.’s then chief executive officer,
third-party and second third-party defendant Christopher Woodrow,
signed a separation agreement (the contract).
The contract, which was drafted by the Goetz Defendants,
begins, “WORLDVIEW . . . INC.[,] its parents, successors,
predecessors, divisions, affiliates, and assigns (collectively
hereinafter referred to as ‘Worldview’ or the ‘Company’) and
. . . MORGAN, his heirs, executors, administrators, and assigns
(hereinafter referred to as ‘Employee’), agree . . .” (boldface
omitted). The document does not define “affiliates.”
Worldview Inc.’s business model was to set up a separate
company for each movie in which it invested. For example,
defendant/third-party plaintiff Worldview Entertainment Partners
VII LLC (Partners VII) provided funding for the film Birdman.
Plaintiff, who in addition to being an employee of Worldview Inc.
22
invested money in various Worldview films, did not invest in
Partners VII.
In the contract, the Company agreed to give plaintiff
executive producer credit for various films, including Birdman.
It also guaranteed to return any nonrecouped principal as of May
31, 2014. When Worldview Inc. failed to comply with these
provisions, plaintiff sued not only Worldview Inc., but also (as
relevant to this appeal) Holdings LLC, Partners VII, third-party
plaintiff Molly Conners, and second third-party plaintiff
(Cestone). Plaintiff obtained an attachment against Partners VII
in the amount of $2.7 million (see 141 AD3d at 462).
Conners and Cestone moved to dismiss the claims against
them. We affirmed the denial of their motion to dismiss
plaintiff’s breach of contract claim, on the ground that the term
“affiliates” was not defined within the contract and that neither
its meaning nor whether the parties intended to bind Conners and
Cestone under the contract could be determined on a pre-answer
motion (id. at 463).
Third-party plaintiffs and Cestone then sued the Goetz
Defendants for malpractice and breach of fiduciary duty and the
Goetz Defendants and Woodrow for common-law indemnity. Third-
party plaintiff Partners VII sued Woodrow for negligence and
breach of fiduciary duty.
23
On appeal, Holdings LLC, Partners VII, Conners, and Cestone
(appellants) argue that the Goetz Defendants were negligent in
failing to investigate Woodrow’s authority to enter into the
agreement on their (appellants’) behalf. However, they did not
plead this claim. In any event, the Goetz Defendants had no duty
to inquire into Woodrow’s authority to act on behalf of Holdings
LLC and Partners VII (see Goldston v Bandwidth Tech. Corp., 52
AD3d 360, 363 [1st Dept 2008], lv denied 14 NY3d 703 [2010]).
Appellants’ allegation that the Goetz Defendants were
negligent in making them obligors under the contract states a
cause of action (see Flintlock Constr. Servs., LLC v Rubin,
Fiorella & Friedman LLP, 110 AD3d 426, 426-427 [1st Dept 2013]).
It is premature to determine on this pre-answer motion to dismiss
whether it was reasonable for the Goetz Defendants to include
Worldview Inc.’s “parents, successors, predecessors, divisions,
affiliates, and assigns” in the contract, especially without
defining “affiliate” (see Escape Airports [USA], Inc. v Kent,
Beatty & Gordon, LLP, 79 AD3d 437, 439 [1st Dept 2010]).
The Goetz Defendants contend that appellants’ malpractice
claims fail due to lack of privity. The third-party complaint
alleges that the Goetz Defendants represented Holdings LLC and
Partners VII. Boyajian denied that the Goetz Defendants
represented Cestone and said that the matters on which they
24
represented Conners were unrelated to the issues raised in the
main and third-party actions. By contrast, he made no such
denials or qualifications about Holdings LLC and Partners VII.
Thus, Boyajian’s affidavit does not establish conclusively that
the Goetz Defendants had no attorney-client relationship with
Holdings LLC and Partners VII (see Rovello v Orofino Realty Co.,
40 NY2d 633, 636 [1976]). As for Conners and Cestone, the
“special circumstances” exception to the privity rule applies
(see Deep Woods Holdings LLC v Pryor Cashman LLP, 145 AD3d 447,
449-450 [1st Dept 2016]).
The motion court correctly dismissed the fiduciary duty
claims against the Goetz Defendants as duplicative of the
previously dismissed malpractice claims (see e.g. Murray Hill
Invs. v Parker Chapin Flattau & Klimpl, 305 AD2d 228, 229 [1st
Dept 2003]).
Dismissal of the indemnification claim against the Goetz
Defendants was also correct. Under New York law, the gravamen of
an indemnity claim is that the third-party plaintiff and third-
party defendant both owe a duty to the plaintiff and that,
because of the third-party defendant’s negligence or wrongful
conduct, the third-party plaintiff has been held legally liable
25
and cast in damages to the plaintiff (see City of New York v Lead
Indus. Assn., 222 AD2d 119, 126-127 [1st Dept 1996]). The Goetz
Defendants owed no duty to plaintiff.
Woodrow contends that Partners VII waived its negligence and
fiduciary claims. However, Partners VII’s operating agreement
shows that its members – not Partners VII itself – waived those
claims.
Woodrow contends that the claims against him are governed by
Delaware law because Partners VII is a limited liability company
that is managed by Worldview Inc., a Delaware corporation.
However, as he has not shown an actual conflict between New York
and Delaware regarding negligence (on the contrary, he says they
are similar), New York law, the law of the forum, should apply
(see SNS Bank v Citibank, 7 AD3d 352, 354 [1st Dept 2004]). In
any event, it would not be anomalous to apply New York law;
Partners VII’s and Worldview Inc.’s place of business was New
York during the relevant time frame.
The third cause of action in the third-party complaint (by
Partners VII against Woodrow for negligence) was correctly
dismissed, because it is, in essence, a contract claim rather
than a tort claim (see Sommer v Federal Signal Corp., 79 NY2d
540, 552 [1992]). But for two contractual relationships –
Partners VII’s operating agreement, which made Worldview Inc.
26
Partners VII’s manager, and Worldview Inc.’s employment of
Woodrow – Woodrow would have no relationship with Partners VII.
Partners VII’s injury “was not personal injury or property
damage; there was no abrupt, cataclysmic occurrence” (id.).
Woodrow may have shown that New York and Delaware differ
somewhat regarding breach of fiduciary duty. New York precedent
states that determining whether a fiduciary relationship exists
requires a fact-specific inquiry (see e.g. Roni LLC v Arfa, 18
NY3d 846, 848 [2011]). By contrast, Delaware does not hesitate
to dismiss a fiduciary duty claim (see Feeley v NHAOCG, LLC, 62
A3d 649, 672 [Del Ch 2012]). Woodrow was arguably Worldview
Inc.’s “controller” at the time of the agreement with plaintiff,
because Woodrow was Worldview Inc.’s CEO at that time.
Therefore, he can be held liable if he used his control over
Partners VII’s property to advantage Worldview Inc. at Partners
VII’s expense (id. at 671-672). The fourth cause of action in
the third-party complaint alleges that Woodrow made Partners VII
liable for Worldview Inc.’s obligations to plaintiff, even though
plaintiff had never invested in Partners VII.
Regardless of whether New York or Delaware law applies, the
business judgment rule does not protect Woodrow (see Amfesco
Indus. v Greenblatt, 172 AD2d 261, 264 [1st Dept 1991]; Brehm v
Eisner, 746 A2d 244, 264 n 66 [Del 2000]). Partners VII alleges
27
that making it an obligor under the agreement “served no rational
purpose in connection with the business of Partners VII, and in
fact was adverse to the interests thereof.”
Woodrow has not shown that New York and Delaware differ
regarding the substance of indemnification; hence, New York law
applies (see SNS, 7 AD3d at 354). As noted earlier, New York law
requires both the third-party plaintiff and the third-party
defendant to owe a duty to the plaintiff. Woodrow owed no duty
to plaintiff.

_______________________
CLERK
28

Respondent,
-against-
Keenon Lozano,
_________________________
Center for Appellate Litigation, New York (Robert S. Dean of

Cyrus R. Vance, Jr., District Attorney, New York (Megan DeMarco

_________________________

(Ronald A. Zweibel, J. at plea; Ellen Biben, J. at sentencing),
rendered July 15, 2016,



_______________________
CLERK

29

Respondent,
-against-
Juan Cruz,
_________________________
Robert S. Dean, Center for Appellate Litigation, New York (David

J. Klem of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of

_________________________

(Neil Ross, J.), rendered October 30, 2017,



_______________________
CLERK

30
8705 Svetlana Martin, Index 103214/10

-against-
Stephen Silver, M.D.,

Defendant-Respondent.
_________________________
Svetlana Martin, appellant pro se.
DeCorato Cohen Sheehan & Federico LLP, New York (Amanda L. Tate
_________________________
Appeal from order, Supreme Court, New York County (Alexander
M. Tisch, J.), entered May 26, 2017, which granted defendant’s
motion for a directed verdict, deemed appeal from judgment, same
court and Justice, entered February 27, 2018 (CPLR 5220[c]), and,
so considered, said judgment, unanimously affirmed, without
costs.
Plaintiff failed to adduce expert testimony establishing
that the information disclosed to her about the risks inherent in
the procedure was qualitatively inadequate or that defendant
deviated or departed from any accepted standard of medical
practice (Gardner v Wider, 32 AD3d 728, 730 [1st Dept 2006] [lack
of informed consent]; Rivera v Jothianandan, 100 AD3d 542 [1st
Dept 2012], lv denied 21 NY3d 861 [2013] [medical malpractice]).
We have considered plaintiff’s remaining arguments with
31
respect to informed consent and medical malpractice and find them
unavailing.
We lack jurisdiction to entertain plaintiff’s arguments as
to the trial court’s grant of defendant’s motions in limine,
preclusion of plaintiff’s expert, or refusal to admit the out-of-
state records of one of her doctors. Plaintiff’s notice of
appeal does not refer to or otherwise incorporate those
determinations (see CPLR 5515[1]; Frank v City of New York, 161
AD3d 713, 713 [1st Dept 2018]), and those determinations do not
necessarily affect the final judgment (see CPLR 5501[a][1];
Siegmund Strauss, Inc. v East 149th Realty Corp., 20 NY3d 37, 42
[2012]).

_______________________
CLERK
32
8706 Manuel D. Paulino, Index 22499/17E

-against-
Menachem Braun,
_________________________
Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of

Gropper Law Group, PLLC, New York (Joshua Gropper of counsel),

for respondent.
_________________________
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.),
entered on or about June 13, 2018, which, to the extent appealed
from, denied defendant’s motion to dismiss the complaint,
unanimously affirmed, without costs.
Plaintiff alleges that he sustained a fractured pelvis as a
result of defendant’s negligent operation of a boat on the Hudson
River. Defendant moved to dismiss the complaint on the ground
that plaintiff accepted $6,000 in settlement and release of all
claims. In opposition, plaintiff submitted an affidavit stating
that a claim specialist for defendant’s insurer made him the
$6,000 offer while he was still recovering from surgery and
unable to work, and that, despite his response that it was
insufficient, continued to “pressure” him to sign the release
until “[f]inally” he “relented.” At this posture of the
33
litigation, the evidence of overreaching and unfair circumstances
raises an issue of fact as to the validity of the release (see
Mangini v McClurg, 24 NY2d 556, 567 [1969]; Sacchetti-Virga v
Bonilla, 158 AD3d 783, 784 [2d Dept 2018]; Powell v Adler, 128
AD3d 1039, 1041 [2d Dept 2015]). Both the “nature of the
relationship between the parties” that negotiated the release and
“the disparity between the consideration received and the fair
value” of plaintiff’s claim weigh in plaintiff’s favor (see
Skolnick v Goldberg, 297 AD2d 18, 20 [1st Dept 2002]).
Defendant’s contention that plaintiff ratified the release
is unpreserved and does not present a pure question of law
appearing on the face of the record that may be considered for
the first time on appeal (see Nadella v City of New York, 161
AD3d 412, 413 [1st Dept 2018]).

_______________________
CLERK
34
8707- Index 651472/12

8708N American Stevedoring, Inc.,
Plaintiff,
-against-
Red Hook Container Terminal LLC,

et al.,
Defendants,
Seneca Insurance Company, Inc.

doing business as The Seneca Companies,
Defendant-Respondent,
The Alex N. Sill Company,

Nominal Defendant.
- - - - -
Red Hook Container Terminal, LLC,
Third-Party Plaintiff,
-against-
JBL Trinity Group, LTD,

Third-Party Defendant-Appellant.
_________________________
Keidel, Weldon & Cunningham, LLP, White Plains (Robert J. Grande

Saretsky Katz & Dranoff, L.L.P., New York (Allen L. Sheridan of

_________________________
Order, Supreme Court, New York County (O. Peter Sherwood,
J.), entered August 15, 2016, which, to the extent appealed from
as limited by the briefs, denied third-party defendant’s (JBL)
request for production by defendant Seneca Insurance Company,
Inc. of insurance policies issued to other customers containing
35
commercial property and inland marine coverage, in addition to
the subject flood endorsement, denied its request for all but 10%
of the underwriting files for policies already produced, and
denied its request for documents related to the flood endorsement
that were provided to state insurance departments for approval to
use the form, unanimously affirmed, without costs. Appeal from
order, same court and Justice, entered January 20, 2017,
unanimously dismissed, without costs, as abandoned.
The motion court providently exercised its discretion in
denying JBL’s requests for unrelated insurance policies
containing commercial property and inland marine coverage, in
addition to the flood endorsement, and for submissions to state
insurance departments regarding the flood endorsement form, and
limiting its request for the underwriting files for policies
already produced, because JBL has failed to demonstrate that the
information produced thus for was insufficient to prepare its
defense.

_______________________
CLERK
36
8709N Hearst Communications, Inc., Index 650835/18

et al.,
Plaintiffs-Respondents,
-against-
Anil Kottoor,
_________________________
Paduano & Weintraub, LLP, New York (Leonard Weintraub of

The Hearst Corporation Office of General Counsel, New York

(Jonathan R. Donnellan of counsel), for respondents.
_________________________
Order, Supreme Court, New York County (Barry R. Ostrager,
J.), entered on or about September 26, 2018, which denied
defendant’s motion for a preliminary injunction, unanimously
affirmed, without costs.
In seeking to enjoin plaintiffs’ enforcement of a
noncompetition agreement, defendant’s motion for a preliminary
injunction was properly denied to the extent it sought the
ultimate relief in the action (SportsChannel Am. Assoc. v
National Hockey League, 186 AD2d 417, 418 [1st Dept 1992]).
Moreover, even if this Court were to ignore the defects in
the relief sought, defendant’s motion would fail based on his
failure to point to any specific activity of plaintiffs to be
enjoined. Thus, defendant did not establish that plaintiffs are
37
“threaten[ing] or . . . about to do, or [are] doing or procuring
or suffering to be done, an act in violation of [defendant’s]
rights” as required for relief under CPLR 6301.
We have considered the parties’ remaining contentions and
find them unavailing.

_______________________
CLERK
38
Richter, J.P., Gesmer, Kern, Moulton, JJ.
7978 Capital One, N.A., Index 35191/15E

-against-
Carmela Saglimbeni,
Defendant-Appellant,
Sterling Recoveries, Inc., et al.,

Defendants.
_______________________
Petroff Amshen LLP, Brooklyn (Christopher Villanti of counsel),

for appellant.
Woods Oviatt Gilman LLP, Rochester (Stephanie Rowe of counsel),

for respondent.
_______________________
Order, Supreme Court, Bronx County (Ben R. Barbato, J.),
entered September 11, 2017, which granted plaintiff’s motion for,
inter alia, summary judgment on its foreclosure complaint,
unanimously reversed, on the law, without costs, and the motion
denied.
Defendant contends that this action is time-barred, because
the six year statute of limitations was triggered by a prior
foreclosure action, in which the lender (plaintiff’s assignor)
accelerated the mortgage debt, and the instant action was not
commenced until after the limitations period expired.
Summary judgment was not precluded by plaintiff’s failure to
demonstrate that it served defendant with a 30-day notice in
39
compliance with Section 22 of the mortgage, because defendant
waived the argument by failing to raise it in her answer with the
requisite specificity and particularity required by CPLR 3015(a)
(see 1199 Hous. Corp. v International Fid. Ins. Co., 14 AD3d 383,
384 [1st Dept 2005]).
However, in this action, Supreme Court erred in nullifying
plaintiff’s assignor’s acceleration in the prior action based on
Section 22 of the mortgage which provides that the lender may
accelerate the mortgage only if, inter alia, it has served
defendant with a proper 30-day notice of default. Where the
acceleration is optional as here, some affirmative action must be
taken to evince the note holder’s election to accelerate (see
Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 982-983 [2d Dept
2012]). Affirmative action can be in the form of a letter (see
Deutsche Bank Natl. Trust Co. v Royal Blue Realty Holdings, Inc.,
148 AD3d 529, 530 [1st Dept 2017], lv denied 30 NY3d 959, 960
[2017]) or the commencement of a foreclosure action (see
Nationstar Mtge. LLC v Islam, 158 AD3d 553, 553 [1st Dept 2018]).
Plaintiff’s assignor accelerated the mortgage debt by commencing
the prior action and stating in its complaint that “plaintiff
elects herein to call due the entire amount secured by the
mortgage(s).”
Because there was no finding in the prior action that
40
plaintiff’s assignor did not have the authority or standing to
accelerate the mortgage debt (see Deutsche Bank Natl. Trust Co. v
Board of Mgrs. of the E. 86th St. Condominium, 162 AD3d 547, 547
[1st Dept 2018]; EMC Mtge. Corp. v Suarez, 49 AD3d 592, 593 [2d
Dept 2008]), Supreme Court had no basis to nullify the prior
assignor’s acceleration. In fact, in the prior action, Supreme
Court found that plaintiff’s assignor had standing to sue,
despite defendant’s argument to the contrary. Nor can plaintiff
raise plaintiff’s assignor’s failure to serve a proper 30-day
notice to nullify the prior acceleration. Noncompliance with a
condition precedent is an affirmative defense (Azriliant v
Oppenheim, 91 AD2d 586, 587 [1st Dept 1982] [“any condition
precedent must be raised by the defendants as an affirmative
defense”]). Defendant did not raise the affirmative defense of
noncompliance with Section 22 of the mortgage in the prior
action.
However, an issue of fact exists regarding whether the
action is time-barred, which is dependent on whether plaintiff’s
assignor’s voluntary discontinuance of the prior action due to a
“defective default notification” de-accelerated the mortgage debt
(see NMNT Realty Corp. v Knoxville 2012 Trust, 151 AD3d 1068,
1070 [2d Dept 2017]).
Contrary to plaintiff’s argument, it is not entitled to a 90
41
day toll under CPLR 204(a) where it served the 90-day notice
under RPAPL 1304 one year before it commenced this action and
where nothing in RPAPL 1304 proscribed it from commencing this
action earlier (see HSBC Bank USA v Kirschenbaum, 159 AD3d 506,
507 [1st Dept 2018]).

_______________________
CLERK
42
Renwick, J.P., Manzanet-Daniels, Oing, Moulton, JJ.
8385 Ewart A. Haynes, Index 305322/14

-against-
Boricua Village Housing Development

Fund Company, Inc., et al.,
- - - - -
Boricua Village Housing Development
Fund Company, Inc., et al.,
Third-Party Plaintiffs-Appellants.
-against-
United Commercial Development, LLC, et al.,

Third-Party Defendants-Respondents.
_________________________
Carol R. Finocchio, New York, for appellants.
The Perecman Firm, P.L.L.C., New York (David H. Perecman of

counsel), for Ewart A. Haynes, respondent.
Linda A. Stark, New York, for United Commercial Development, LLC,

respondent.
Law Office of Kevin P. Westerman, Garden City (Jonathan R. Walsh

of counsel), for Evergreen Electrical Corp., respondent.
_________________________
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.),
entered on or about June 20, 2018, which, insofar as appealed
from as limited by the briefs, granted plaintiff’s motion for
partial summary judgment on the issue of liability on his Labor
Law § 241(6) claim as against defendants Boricua Village Housing
Development Fund Company, Inc., Boricua Village F, LLC, and
43
Knickerbocker Construction II, LLC (Knickerbocker) (collectively,
defendants), denied Knickerbocker’s motion for summary judgment
dismissing the common-law negligence and Labor Law § 200 claims
as against it, denied Knickerbocker’s motion for summary judgment
on its contractual indemnification claims against third-party
defendants United Commercial Development, LLC (United) and
Evergreen Electrical Corp. (Evergreen), and denied defendants’
motion for summary judgment on their common-law indemnification
claim against Evergreen, unanimously affirmed, without costs.
Supreme Court was correct in granting plaintiff partial
summary judgment on the Labor Law § 241(6) claim. Plaintiff’s
deposition testimony and an affidavit by his supervisor,
Maldonado, who did not witness the accident but arrived at the
scene shortly thereafter, indicated that plaintiff was performing
his assigned tasks of installing pins in a drop ceiling using a
Hilti gun when he received an electrical shock, and that exposed,
uncapped electrical wiring was seen hanging from the ceiling in
the vicinity of where plaintiff was working. His co-worker,
Eagan, further averred that after plaintiff’s accident he
observed electricians, who were working in the building, arriving
at the accident site and capping the exposed wires. The owner of
plaintiff’s employer, Calhoun, however, testified that when he
arrived at the accident site, he saw no exposed wiring or any
44
other signs of anything unusual. This apparent discrepancy does
not raise a factual issue because the employer also testified
that he came onto the scene 20 to 30 minutes after the accident.
As such, defendants have failed to raise an issue of fact as to
whether they violated Industrial Code 12 NYCRR §§ 23-1.13(b)(3)
and (4), and that such violation proximately caused plaintiff’s
injuries (see Rubino v 330 Madison Co., LLC, 150 AD3d 603, 604
[1st Dept 2017]).
The court properly denied Knickerbocker’s motion for summary
judgment dismissing the Labor Law § 200 and common-law negligence
claims as against it. Issues of fact exist as to whether
Knickerbocker had actual or constructive notice of a defective
condition on the premises that proximately caused plaintiff’s
injuries (see McCullough v One Bryant Park, 132 AD3d 491, 492
[1st Dept 2015]; Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d 553,
555 [1st Dept 2009]). In contrast, it is noted that no issues of
fact exist as to whether Knickerbocker is liable for negligence
based on the means and methods of the work. Plaintiff followed
instructions given to him solely by his employer and used only
equipment provided by his employer or himself. Knickerbocker’s
general responsibility for ensuring site safety does not rise to
the level of supervisory control required to hold a contractor
liable for an accident caused by the means and methods of the
45
work (see Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund
Co., Inc., 104 AD3d 446, 449 [1st Dept 2013]).
In light of the issues of fact as to negligence in this
case, the court properly denied Knickerbocker’s motion for
summary judgment on its contractual indemnification claims
against United and Evergreen, United’s motion for summary
judgment dismissing defendants’ contractual indemnification
claims against it, and defendants’ motion for summary judgment on
their common-law indemnification claims against Evergreen (see
Correia v Professional Data Mgt., 259 AD2d 60, 64 [1st Dept
1999]; see also Miano v Battery Place Green LLC, 117 AD3d 489,
490 [1st Dept 2014]).

_______________________
CLERK
46
Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.
8443N David Hill, et al., Index 24128/15E

Plaintiffs-Respondents,
-against-
City of New York, et al.,

_______________________
Zachary W. Carter, Corporation Counsel, New York (Elina Druker of

counsel), for appellants.
Pollack, Pollack, Isaac & DeCicco LLP, New York (Jillian Rosen of
counsel), for respondents.
_______________________
Order, Supreme Court, Bronx County (Mitchell J. Danziger,
J.), entered on or about August 14, 2017, which denied
defendants’ motion for a protective order preventing disclosure
of a confidential informant’s personal identifying information,
including the dates, times and amounts of the controlled buys
leading up to a search warrant, unanimously reversed, on the law
and in the exercise of discretion, without costs, and the motion
for a protective order granted.
The court’s denial of a protective order was an improvident
exercise of discretion. Defendants showed that the redactions to
the police paperwork were necessary to protect the identity of a
confidential informant, and plaintiff failed to show that he has
a compelling interest in the information that would outweigh
47
defendants’ interest in nondisclosure (see generally Aguilar v
Immigration & Customs Enforcement Div., 259 FRD 51, 56-58 [SD NY
2009]; see also Matter of the City of New York, 607 F3d 923, 941
[2d Cir 2010]). The court’s direction that disclosure be made on
an attorneys’-eyes-only basis was not sufficiently protective of
the confidential informant’s identity. In all likelihood, the
information at issue would aid plaintiff’s case only if the
attorney were to discuss it with plaintiff or others, which could
endanger the informant’s safety.

_______________________
CLERK
48
Manzanet-Daniels, J.P., Kapnick, Kahn, Oing, JJ.
8698 Marisol Munoz, Index 112223/09

-against-
New York Presbyterian Hospital, et al.,

_________________________
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for

appellant.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Deirdre E.

Tracey of counsel), for respondents.
_________________________
Judgment, Supreme Court, New York County (Joan A. Madden,
J.), entered December 6, 2017, which, after a jury verdict in
defendants’ favor, dismissed the complaint, unanimously affirmed,
without costs.
This case essentially came down to a battle of the experts
with respect to the standard of care and whether antibiotics
should have been administered to plaintiff as a precaution
several hours earlier, and surgery performed within an hour of
her manifesting likely symptoms of necrotizing fasciitis and
compartment syndrome. During trial, the jury heard conflicting
expert testimony as to these issues, thus raising an issue of
credibility peculiarly within the province of the jury (see
Briggins v Chynn, 204 AD2d 158 [1st Dept 1994]), which is
49
afforded great deference (see Cholewinski v Wisnicki, 21 AD3d
791, 791 [1st Dept 2005]). However, upon review of the record, a
“fair interpretation of the evidence” supports the jury’s verdict
that defendants comported with good and accepted practice in
plaintiff’s treatment (see Lolik v Big V Supermarkets, 86 NY2d
744, 746 [1995]). Accordingly, we find no reason to disturb the
verdict.

_______________________
CLERK
50
Richter, J.P., Gische, Kern, Moulton, JJ.
8710 The People of the State of New York, SCI 30205/15

Respondent,
-against-
Chad Dworkowitz,
_________________________
Seymour W. James, Jr., The Legal Aid Society, New York (Whitney
A. Robinson of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Noreen M.

Stackhouse of counsel), for respondent.
_________________________
Order, Supreme Court, New York County (Robert M. Mandelbaum,
J.), entered on or about January 8, 2016, which adjudicated
defendant a level two sex offender pursuant to the Sex Offender
Registration Act (Correction Law art 6-C), unanimously affirmed,
without costs.
The court providently exercised its discretion when it
declined to grant a downward departure (see People v Gillotti, 23
NY3d 841 [2014]), in light of its legitimate concerns regarding
defendant’s criminal history. That history included, among other
things, violations of the probation-like sentence defendant
received in another state for the underlying sex crime, resulting
51
in revocation of that sentence, as well as a conviction for
failing to register as a sex offender.

_______________________
CLERK
52
8711 Kenia Garcia, Index 302654/15

-against-
Shauntay E. McCrea, et al.,

_________________________
Law Offices of Igor Tarasov, Brooklyn (Harlan Wittenstein of

Purcell & Ingrao, P.C., Mineola (Terrance J. Ingrao of counsel),

for respondents.
_________________________
Order, Supreme Court, Bronx County (Donna Mills, J.),
entered on or about December 27, 2017, which denied plaintiff’s
motion for partial summary judgment on the issue of liability,
unanimously reversed, on the law, without costs, and the motion
granted.
Plaintiff made a prima facie showing of negligence on the
part of defendants by submitting an affidavit stating that as she
was driving through the intersection she noticed that defendant
driver failed to stop at the stop sign when plaintiff had the
right of way (see Vehicle and Traffic Law § 1142[a]). Plaintiff
was not required to demonstrate her own freedom from comparative
negligence to be entitled to summary judgment as to defendants’
53
liability (see Rodriguez v City of New York, 31 NY3d 312 [2018];
Silverio v Ford Motor Co., ___ AD3d ___, 2019 NY Slip Op 00568
[1st Dept 2019]). Furthermore, defendants’ argument that triable
issues were raised by the police accident report and weather
records is unpersuasive since such documents were uncertified
(see e.g. Silva v Larkin, 118 AD3d 556, 557 [1st Dept 2014];
Morabito v 11 Park Place LLC, 107 AD3d 472 [1st Dept 2013]).

_______________________
CLERK
54
8712 In re Elisa N.,

Petitioner-Respondent,
-against-
Yoav I.,
Respondent-Appellant.
_________________________
Bruce A. Young, New York, for appellant.
Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar
of counsel), attorney for the children.
_________________________
Order, Family Court, New York County (Susan M. Doherty,
Referee), entered on or about January 20, 2016, insofar as it
granted petitioner mother’s summary judgment motion and petition
to modify a prior custody order, and awarded her sole custody of
the subject children, unanimously affirmed, without costs.
A motion for summary judgment may be utilized in proceedings
under Family Court Act article 6 (see Matter of Suffolk County
Dept. of Social Servs. v James M., 83 NY2d 178, 182-183 [1994]).
The motion should only be granted when there are no material
facts disputed sufficiently to warrant a trial (see Matter of
Singer v Levitt, 65 AD3d 634 [2d Dept 2009]). The Family Court
providently exercised its discretion in allowing the mother to
file a late motion for summary judgment and did not err in
55
granting her application (Goodman v Gudi, 264 AD2d 758 [2nd Dept
1999]).
Contrary to the father’s contention, the court properly
determined that a full plenary hearing was not required because
it possessed ample information to render an informed decision on
the children’s best interests and because the father offered no
proof that he was in compliance with his treatment of his mental
health issue (see Matter of Martha V. v Tony R., 151 AD3d 653
[1st Dept 2017]; Matter of Tony R. v Stephanie D., 146 AD3d 691
[1st Dept 2017]; Matter of Fayona C. v Christopher T., 103 AD3d
424 [1st Dept 2013]). Both parties and the attorney for the
children were provided an opportunity to present their positions,
and the court made the factual basis for its determination clear
on the record.
Further, the court’s decision to modify custody based on a
change in circumstances and the best interests of the children
has a sound and substantial basis in the record. Contrary to the
father’s contention, the neglect finding against him constituted
a change in circumstances warranting a modification of the prior
custody arrangement (Matter of Zen’Nya G. [Nina W.], 126 AD3d 566
[1st Dept 2015]; Matter of Gabriel J.[Dainee A.], 100 AD3d 572,
573 [1st Dept 2012]). Moreover, in October 2014, following a
full hearing, the court made an award of custody to the mother,
56
with supervised visitation to the father. The court indicated
that supervision would be without end unless the father could
demonstrate that he was receiving treatment for his mental
illness within the next six months. There is no dispute that he
did not get such treatment and that the safety risk to the
children has not been mitigated since then.
The Family Court properly determined that supervision of the
father’s visits was in the children’s best interests,
particularly given the evidence of the father’s persistent
noncompliance with treatment for his mental illness and his
threats to harm the children, which placed the children at risk
(see Braverman v Braverman 140 AD3d 413 [1st Dept 2016], lv
denied 28 NY3d 910 [2016]; Matter of Arelis Carmen S. v Daniel
H., 78 AD3d 504 [1st Dept 2010], lv denied 16 NY3d 707 [2011]).
We have considered the father’s remaining contentions and
find them unavailing.

_______________________
CLERK
57
8713 RJR Mechanical Inc., Index 158764/15

-against-
Harold J. Ruvoldt, et al.,

_________________________
Law Office of Misha M. Wright, New York (Misha M. Wright of

Elman Freiberg PLLC, New York (Jeremy C. Bates of counsel), for

respondents.
_________________________
Order, Supreme Court, New York County (Jeffrey K. Oing, J.),
entered on or about June 14, 2017, which granted defendants’ CPLR
3211(a) motion to dismiss the complaint on statute of limitations
grounds, unanimously affirmed, without costs.
The statute of limitations on a cause of action for legal
malpractice is three years (see CPLR 214[6]). Contrary to
plaintiff’s assertions, the claim was not tolled by the
continuous representation doctrine. Generally, tolling under the
continuous representation doctrine “end[s] once the client is
informed or otherwise put on notice of the attorney’s withdrawal
from representation” (Shumsky v Eisenstein, 96 NY2d 164, 171
[2001]).
Moreover, there was not a “mutual understanding of the need
for further representation on the specific subject matter
58
underlying the malpractice claim” (McCoy v Feinman, 99 NY2d 295,
306 [2002]).
Finally, the cause of action for unjust enrichment is
redundant of the legal malpractice claim, since they arise from
the same allegations and seek identical relief (see Estate of
Nevelson v Carro, Spanbock, Kaster & Cuiffo, 290 AD2d 399 [1st
Dept 2002]; see also Weksler v Kane Kessler, P.C., 63 AD3d 529
[1st Dept 2009]).

_______________________
CLERK
59

Respondent,
-against-
Robert Shapiro,
_________________________
Justine M. Luongo, The Legal Aid Society, New York (Eve Kessler
Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of

_________________________

(James M. Burke, J. at plea; Abraham Clott, J. at sentencing),
rendered February 10, 2016,



_______________________
CLERK

60
8720-
8720A In re Jaylyn Z., and Others,
Dependent Children Under the Age

of Eighteen Years, etc.,
Jesus O.,
Respondent-Appellant,
Administration for Children’s Services,

Petitioner-Respondent.
_________________________
The Bronx Defenders, Bronx (Roshell Amezcua of counsel), for

appellant.
Zachary W. Carter, Corporation Counsel, New York (Carolyn Walther

Steven N. Feinman, White Plains, attorney for the children Jaylyn

Z., Hevenly O., Jaydan O., Destiny O., and Maci O.
Dawne A. Mitchell, The Legal Aid Society, New York (Claire V.

Merkine of counsel), attorney for the child Ashley F.
________________________
Order of disposition, Family Court, Bronx County (Valerie A.
Pels, J.), entered on or about January 27, 2017, to the extent it
brings up for review a fact-finding order (denominated a
decision), same court and Judge, entered on or about December 5,
2016, which found that respondent sexually abused Ashley F., and
derivatively abused Jaylyn Z., Destiny O., Jaydyan O., Maci O.,
and Hevenly O., unanimously affirmed, without costs. Appeal from
fact-finding order, unanimously dismissed, without costs, as
subsumed in the appeal from the order of disposition.
61
The contention of Ashley’s attorney that respondent’s appeal
as applied to Ashley should be dismissed since the dispositional
order from which he appealed did not include Ashley’s name and
her case docket number, nor did the notice of appeal, is
unavailing. By order entered May 29, 2018, this Court, sua
sponte, deemed respondent’s notice of appeal to include the
Family Court’s fact-finding order, which included the docket
numbers for all of the children, including Ashley (see 2018 NY
Slip Op 73601[U] [1st Dept 2018]). Accordingly, this issue has
already been decided by this Court.
On the merits, this appeal raises the issue of whether a
child’s testimony stricken from a hearing pursuant to Family Ct
Act § 1028 may be considered in connection with a fact-finding
hearing regarding abuse allegations, pursuant to Family Ct Act §
1046(a)(vi). We hold that it may be so used. Family Ct Act §
1046(a)(vi) sets forth, in relevant part, that “previous
statements made by the child relating to any allegations of abuse
or neglect shall be admissible in evidence,” when corroborated,
and “[t]he testimony of the child shall not be necessary to make
a fact-finding of abuse or neglect.” Here, then 14-year-old
Ashley refused to continue with her testimony at the FCA 1028
hearing regarding her allegations of sexual abuse after she
already had been cross-examined for three days by respondent’s
62
counsel. According to a letter from Ashley’s therapist submitted
to the court, it would be detrimental for the child to return to
testify. We agree with the Family Court that it could rely upon
Ashley’s incomplete testimony for the purposes of the subsequent
fact-finding hearing, subject to a statutory requirement of
corroboration. The use of Ashley’s incomplete testimony was in
accordance with the legislative intent of Family Ct Act §
1046(a)(vi) to address “the reluctance or inability of victims to
testify” (Matter of Nicole V., 71 NY2d 112, 117 [1987]).
Respondent’s arguments regarding the timing and circumstances of
Ashley’s incomplete testimony only go its weight, not
admissibility.
Significantly, during the fact-finding hearing, the
allegations of sexual abuse were corroborated by testimony from
Ashley’s therapist, who stated that Ashley disclosed that
respondent sexually abused her, and expressed symptoms and
behaviors consistent with Post-Traumatic Stress Disorder (PTSD)
and other symptoms consistent with the abuse. A psychologist
supervising the therapist also testified, confirming Ashley’s
diagnosis of PTSD, sexual abuse and neglect. Such expert
testimony was sufficient to support a finding of sexual abuse
(see e.g. Matter of Estefania S. [Orlando S.], 114 AD3d 453 [1st
Dept 2014]), and we see no reason to disturb the findings of
63
derivative abuse as to the other children.
In light of the corroboration requirement for previous
statements of abuse under Family Ct Act § 1046(a)(vi),
respondent’s due process concerns are unsupported (see Nicole V.,
71 NY2d at 124).
We have considered the remaining arguments and find them
unavailing.

_______________________
CLERK
64

Respondent,
-against-
Richard Porter,
_________________________
Justine M. Luongo, The Legal Aid Society, New York (Laura Boyd of
_________________________
Judgment, Supreme Court, New York County (Patricia Nunez,
J.), rendered July 2, 2015, unanimously affirmed.
Application by defendant's counsel to withdraw as counsel is
granted (see Anders v California, 386 US 738 [1967]; People v
Saunders, 52 AD2d 833 [1st Dept 1976]). We have reviewed this
record and agree with defendant's assigned counsel that there are
no non-frivolous points which could be raised on this appeal.
Pursuant to Criminal Procedure Law § 460.20, defendant may
apply for leave to appeal to the Court of Appeals by making
application to the Chief Judge of that Court and by submitting
such application to the Clerk of that Court or to a Justice of
the Appellate Division of the Supreme Court of this Department on
reasonable notice to the respondent within thirty (30) days after
service of a copy of this order.
65
Denial of the application for permission to appeal by the
judge or justice first applied to is final and no new application
may thereafter be made to any other judge or justice.

_______________________
CLERK
66
8724 Mettie Alicia Chapman, Index 21457/13E

-against-
Winifred S. Tovar, M.D., et al.,

Defendants,
St. Barnabas Hospital,

_________________________
Garbarini & Scher, P.C., New York (Rita Aronov of counsel), for
appellant.
Hasapidis Law Offices, Scarsdale (Annette G. Hasapidis of

_________________________
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.),
entered February 22, 2018, which, insofar as appealed from as
limited by the briefs, in this action alleging medical
malpractice, denied the motion of defendant St. Barnabas Hospital
for summary judgment dismissing plaintiff’s claim that St.
Barnabas was vicariously liable for the negligence of defendant
Dr. Tovar, unanimously affirmed, without costs.
St. Barnabas failed to make a prima facie showing of
entitlement to summary judgment by demonstrating the absence of
any material issues of fact as to whether Dr. Tovar was acting as
its agent (see Malcolm v Mount Vernon Hosp., 309 AD2d 704, 706
[1st Dept 2003], lv dismissed 2 NY3d 793 [2004]). St. Barnabas
67
also failed to show that the plaintiff could not have reasonably
believed Dr. Tovar was acting at the hospital’s behest (Malcolm
at 706). Plaintiff and Dr. Tovar had no relationship prior to
the emergency room visit that led to St. Barnabas referring
plaintiff to Dr. Tovar, and questions of fact exist as to whether
plaintiff was aware of the nature of Dr. Tovar’s affiliation with
St. Barnabas (see Shafran v St. Vincent’s Hosp. & Med. Ctr., 264
AD2d 553, 557-558 [1st Dept 1999]).

_______________________
CLERK
68
8725- Ind. 4607N/15

8725A The People of the State of New York, 4747N/15
Respondent,
-against-
Enrique Nunez-Reyes,
_________________________
Seymour W. James, Jr., The Legal Aid Society, New York (Robin V.
Richardson of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Vincent

Rivellese of counsel), for respondent.
_________________________

appellant from judgments of the Supreme Court, New York County
(Michael R. Sonberg, J.), rendered January 5, 2016,

It is unanimously ordered that the judgments so appealed

from be and the same are hereby affirmed.

_______________________
CLERK

69
8729N WDF, Inc., Index 651250/16

-against-
The Trustees of Columbia University

in the City of New York, et al.,
_________________________
Pepper Hamilton LLP, New York (Frank T. Cara of counsel), for

appellant.
Zetlin & DeChiara LLP, New York (Joeann E. Walker of counsel),

for The Trustees of Columbia University in the City of New York,
respondent.
Milber Makris Plousadis & Seiden, LLP, White Plains (Lorin A.

Donnelly of counsel), for Lend Lease (US) Construction LMB, Inc.,
respondent.
_________________________
Order, Supreme Court, New York County (Barry R. Ostrager,
J.), entered on or about May 9, 2018, which denied plaintiff’s
motion to amend the complaint, unanimously affirmed, without
costs.
Plaintiff, an HVAC subcontractor hired to perform work on a
construction project on Columbia University’s Manhattanville
campus, filed a complaint alleging, inter alia, that defendants
delayed the project causing them damages. To defeat an
enforceable no delay damages clause in the subcontract, plaintiff
made conclusory allegations to try to apply one of the exceptions
70
set forth in Corinno Civetta Constr. Corp. v City of New York (67
NY2d 297, 309 [1986]), and this Court affirmed dismissal of the
claims relating to delay damages on that basis (156 AD3d 530 [1st
Dept 2017]).
Denial of plaintiff’s motion was properly denied since the
allegations set forth in the proposed amended complaint are
“palpably insufficient or clearly devoid of merit” (MBIA Ins.
Corp. v Greystone & Co., Inc., 74 AD3d 499, 500 [1st Dept 2010]).
Plaintiff merely alleges additional details regarding the delays
due to failure to erect the steel work for the building in a
timely fashion, not enclosing the building’s floors in the winter
months, interfering with plaintiff’s plan to complete its work on
a floor-by-floor basis, having to deal with extreme revisions to
change orders and redesigned mechanical work, and failing to
provide a complete project schedule. Plaintiff’s allegations
amount to “inept administration or poor planning” and do not
constitute bad faith or willful, malicious, or grossly negligent
conduct (Advanced Automatic Sprinkler Co., Inc. v Seaboard Sur.
Co., 139 AD3d 424, 425 [1st Dept 2016] [internal quotation marks
omitted]). Furthermore, these alleged delays were within the
contemplation of the broad no-damages-for-delay clause of the
subcontract (see Blau Mech. Corp. v City of New York, 158 AD2d
373, 374 [1st Dept 1990]).
71
In view of the foregoing, we need not consider whether
defendants were prejudiced by plaintiff’s delay in seeking leave
to amend.

_______________________
CLERK
72
SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT,
Dianne T. Renwick, J.P.

Peter Tom
Angela M. Mazzarelli
Troy K. Webber
Cynthia S. Kern, JJ.
7610
Index 150522/17
_______________________________________x
Summer Zervos,
-against-
Donald J. Trump,
- - - - -
Law Professors,
Amici Curiae.
_______________________________________x
Defendant appeals from an order of the Supreme Court, New York

County (Jennifer G. Schecter, J.), entered
March 21, 2018, which denied his motion to
dismiss the defamation complaint or in the
alternative to stay the action, and denied
his special motion to strike the complaint
under California’s anti-SLAAP statute.
Kasowitz Benson Torres LLP, New York (Marc E.

Kasowitz, Christine A. Montenegro and Paul J.
Burgo of counsel), for appellant.
Cuti Hecker Wang LLP, New York (Mariann Meier

Wang, John Cuti, Eric Hecker, Daniel Mullkoff
and Heather Gregorio of counsel), for
respondent.
Ropes & Gray LLP, New York (Robert S.

Fischler, Patrick J. Reinikainen, Elizabeth
Bierut and Nicholas C. Spar of counsel), for
amici curiae.
RENWICK, J.P.
This case raises a constitutional issue of first impression:
whether the Supremacy Clause of the United States Constitution
requires a state court to defer litigation of a defamation action
against a sitting President until his terms end.
Two decades ago, in Clinton v Jones (520 US 681 [1997]), the
United States Supreme Court rejected the then-sitting President’s
attempt to shield himself from alleged unofficial misconduct by
relying upon the constitutional protection of the Presidency.
Specifically, the Supreme Court found that the Separation of
Powers doctrine of the United States Constitution did not afford
President Clinton temporary immunity from civil damages
litigation, in federal court, arising out of events that occurred
before he took office. The Court determined that a federal
court’s exercise of its constitutional authority to decide cases
and controversies did not encroach upon the exercise of the
executive powers of the President.
More than 20 years later, the current sitting President
attempts to shield himself from consequences for his alleged
unofficial misconduct by relying upon the constitutional
protection of the Presidency. We reject defendant President
Trump’s argument that the Supremacy Clause of the United States
Constitution prevents a New York State court - and every other
2
state court in the country - from exercising its authority under
its state constitution. Instead, we find that the Supremacy
Clause was never intended to deprive a state court of its
authority to decide cases and controversies under the state’s
constitution.
As more fully explained below, the Supremacy Clause provides
that federal law supersedes state law with which it conflicts,
but it does not provide that the President himself is immune from
state law that does not conflict with federal law. Since there
is no federal law conflicting with or displacing this defamation
action, the Supremacy Clause does not provide a basis for
immunizing the President from state court civil damages actions.
Moreover, in the absence of a federal law limiting state court
jurisdiction, state and federal courts have concurrent
jurisdiction. Thus, it follows that the trial court properly
exercised jurisdiction over defendant and properly denied his
motion to dismiss.
The hypothetical raised by the dissent, in explaining its
position, that a state court could potentially exercise direct
control over the President by holding him in contempt, should not
be the basis for this Court to broadly hold that a state court
lacks jurisdiction over defendant at this juncture. Rather, we
should not and do not make a present jurisdictional determination
3
based on a hypothetical scenario that is highly unlikely to occur
in the context of this lawsuit. In the event that, in the
future, the trial court should hold defendant in contempt, the
issue of whether the court has jurisdiction over the President to
do so can be determined as a discrete issue. Concerns about
contempt, however, should not be the underpinning for a
conclusion that the Supremacy Clause renders defendant immune
from this civil lawsuit while he is serving as President.
Factual and Procedural Background
This defamation lawsuit was commenced by Summer Zervos, a
former contestant on the “Apprentice,” a reality show starring
defendant Donald Trump. Plaintiff alleges that in 2016, when
defendant was a Presidential candidate, he wrongly smeared her
by claiming that her allegations of sexual misconduct against him
were lies.
Specifically, on October 14, 2016, plaintiff held a press
conference to recount two separate incidents in which defendant
had made unwanted sexual advances towards her. The first
incident allegedly occurred when she met with defendant at his
New York office in 2007, where he kissed her on the lips upon her
arrival, and after stating that he would love to have her work
for him, kissed her on the lips again as she was about to leave.
The kisses made her feel “very nervous and embarrassed” and
4
“upset.”
The second encounter occurred soon thereafter. Ms. Zervos
went to meet defendant for dinner at a restaurant in the Beverly
Hills Hotel. Instead, she was escorted to his bungalow, where he
kissed her “open mouthed,” “grabbed her shoulder, again kissing
her very aggressively, and placed his hand on her breast.” After
she pulled back and walked away, defendant took her hand, led her
into the bedroom, and when she walked out, turned her around and
suggested that they “lay down and watch some telly telly.” He
embraced her, and after she pushed him away, he “began to press
his genitals against her, trying to kiss her again.” She
“attempt[ed] to make it clear that [she] was not interested” and
insisted that she had come to have dinner. They had dinner,
which ended abruptly when defendant stated that he needed to go
to bed. Later that week, plaintiff, who was seeking a position
in the Trump Organization, was offered a job at half the salary
that she had been seeking. Plaintiff called defendant and told
him that she “was upset, because it felt like she was being
penalized for not sleeping with him.” Plaintiff concluded her
press statement by stating that after hearing the released
audiotape and defendant’s denials during the debate, “I felt that
I had to speak out about your behavior. You do not have the right
to treat women as sexual objects just because you are a star.”
5
The audiotape referred to by plaintiff had been released a
week earlier. On October 7, 2016, during the 2016 United States
presidential election, the Washington Post published a video and
accompanying article about then-presidential candidate Donald
Trump and television host Billy Bush having an extremely lewd
conversation about women in 2005. Trump and Bush were in a bus
on their way to film an episode of Access Hollywood. In the
video, defendant described his attempt to seduce a married woman
and indicated he might start kissing a woman that he and Bush
were about to meet. He added, “I don't even wait. And when
you're a star, they let you do it. You can do anything. Grab
them by the pussy. You can do anything.”
Several hours after plaintiff’s press conference, defendant
posted on his campaign the following statement: “To be clear, I
never met her at a hotel or greeted her inappropriately a decade
ago. That is not who I am as a person, and it is not how I’ve
conducted my life.” Between October 14, 2016 and October 22,
2016, defendant, on Twitter, at campaign rallies, and at a
presidential debate, made additional statements in response to
plaintiff’s allegations and other women’s claims of sexual
misconduct, including, “These allegations are 100% false. . . .
They are made up, they never happened. . . . It’s not hard to
find a small handful of people willing to make false smears for
6
personal fame, who knows maybe for financial reasons, political
purposes”; “Nothing ever happened with any of these women.
Totally made up nonsense to steal the election”; these were
“false allegations and outright lies, in an effort to elect
Hillary Clinton President. . . . False stories, all made-up.
. . . All big lies”; the reports were “totally false,” he “didn’t
know any of these women,” and “didn’t see these women”; and
“Every woman lied when they came forward to hurt my campaign,
total fabrication. The events never happened. Never. All of
these liars will be sued after the election is over.” He also
re-tweeted statements by others, including one that had a picture
of plaintiff and stated, “This is all yet another hoax.”
On January 17, 2017, plaintiff commenced this action against
defendant who in November 2016 had been elected President of the
United States. Plaintiff alleged that the above statements by
defendant were false and defamatory, and that defendant made them
“knowing they were false and/or with reckless disregard for their
truth or falsity.” Plaintiff alleged that the statements about
her were “defamatory per se,” because “they would tend (and did)
injure [her] trade, occupation or business,” that “[b]eing
branded a liar who came forward only for fame or at the
manipulation of the Clinton campaign has been painful and
demoralizing,” and that as a direct result of those statements,
7
she has suffered “both emotionally and financially.” She also
alleged that defendant’s statements “have been deeply detrimental
to [her] reputation, honor and dignity.” The complaint seeks an
order directing defendant to retract any and all defamatory
statements and/or apologize for such statements, as well as an
order directing defendant to pay compensatory and punitive
damages.
Defendant moved to dismiss the complaint pursuant to CPLR
3211(a) on the basis that the state court had no jurisdiction to
entertain a suit against a sitting President. Alternatively,
defendant sought a stay, pursuant to CPLR 2201, that would remain
in effect for the duration of his presidency. First, defendant
argued that, as implied by the United States Supreme Court in
Clinton v Jones (520 US 681 [1997], supra), the Supremacy Clause
of the United States Constitution prevents a state court from
hearing an action, whatever its merit or lack thereof, against a
sitting President, because a state court may not exercise “direct
control” over or interfere with the President, and that the
action should be dismissed without prejudice to plaintiff’s
refiling after defendant leaves office, or stayed until such
time.
Second, defendant argued that the complaint should be
dismissed on the merits because plaintiff, who resides and was
8
allegedly injured in California, cannot state a single cause of
action for defamation under California law, because the
statements at issue “were made during a national political
campaign that involved heated public debate in political forums,”
and that “[s]tatements made in that context are properly viewed
by courts as part of the expected fiery rhetoric, hyperbole, and
opinion that is squarely protected by the First Amendment.”
Defendant further argued that his denials of plaintiff’s
“accusations cannot constitute defamation as a matter of law,”
because plaintiff cannot show that each of the purportedly
defamatory statements was “of and concerning” her because they
make no mention of her, and that plaintiff’s complaint fails to
adequately plead damages.
Finally, defendant argued that California’s “Anti-SLAPP”
statute, which protects defamation defendants from “strategic
lawsuits against public participation” (lawsuits brought
primarily to chill the valid exercise of free speech in
connection with a public issue) also bars the action, contending
that plaintiff could not satisfy the heightened burden of showing
a probability that she will prevail on her claim, and that his
motion to strike should be granted.
In opposition, plaintiff first argued that a state court may
adjudicate civil claims against a sitting President, where those
9
claims involve unofficial conduct that occurred prior to the
President’s taking office, at least in the absence of any showing
of local prejudice in the state court or that the discovery would
involve disclosure of secret information deemed vital to national
security. Plaintiff argued that Clinton v Jones did not
suggest otherwise. Plaintiff further argued that there is no
basis to stay the action for years on the ground that the
proceeding might interfere with the President’s official duties.
Second, plaintiff argued that New York law applies to the
defamation claim because there is no conflict with California’s
defamation law, and that the claim is well pleaded, contending
that the cited statements charging plaintiff with making false
allegations of defendant’s sexual misconduct for political
purposes or to seek fame and fortune are factual in nature and
not opinions or rhetoric, and that there is no immunity for
defamation by a political candidate during a campaign. Plaintiff
further argued that, even assuming she is a limited purpose
public figure, she sufficiently pleaded actual malice by alleging
defendant made the statements knowing they were false and/or with
reckless disregard for their truth or falsity, and that she
adequately pleaded damages.
Finally, plaintiff argued that California’s anti-SLAPP
statute does not apply to this New York State case because it is
10
procedural, not substantive, and that even if it did apply, the
special motion to strike was untimely filed and without merit.
The motion court denied defendant’s motion in its entirety.
First, the court found that Clinton v Jones, where the Supreme
Court required President Clinton to defend against a federal
civil rights action that included a state-law defamation claim,
“settled that the President of the United States has no immunity
and is ‘subject to the laws’ for purely private acts” (quoting
Clinton at 696). That case, the motion court explained, found
that regardless of the outcome, there was no possibility that the
decision would curtail the scope of the official powers of the
executive branch or involve the risk of misallocation of judicial
power, and that the doctrine of Separation of Powers did not
mandate a stay of even burdensome private actions against the
President, which did not “necessarily rise to the level of
constitutionally forbidden impairment of the [e]xecutive’s
ability to perform its constitutionally mandated functions.”
The motion court concluded that the “rule is no different
for suits commenced in state court related to the President’s
unofficial conduct,” ruling that “[n]othing in the Supremacy
Clause of the United States Constitution even suggests that the
President cannot be called to account before a state court for
wrongful conduct that bears no relationship to any federal
11
executive responsibility.” This is because, the motion court
explained, “there is no risk that a state will improperly
encroach on powers given to the federal government by interfering
with the manner in which the President performs federal
functions,” and “[t]here is no possibility that a state court
will compel the President to take any official action or that it
will compel the President to refrain from taking any official
action.” While the court noted that the Supreme Court in Clinton
v Jones had pointed out that state court proceedings may warrant
a different analysis than those in federal court, the motion
court found that the concerns raised by the Supreme Court
involved “unlawful state intrusion into federal government
operations,” concerns that are “nonexistent when only unofficial
conduct is in question.”
Further, the court concluded that there is no legitimate
fear of local prejudice in state court when the actions under
review bear no relationship to federal duties, and that there is
“no reason . . . that state courts like their federal
counterparts will be ‘either unable to accommodate the
President’s needs or unfaithful to the tradition . . . of giving
the utmost deference to Presidential responsibilities’” (quoting
Clinton at 709 [internal quotation marks omitted]). Accordingly,
the court also denied the motion for a stay of the action for the
12
same reasons as in Clinton v Jones, finding that important
federal responsibilities will be afforded precedence over the
prosecution of the lawsuit.
Second, finding that New York law applies and that the
California anti-SLAPP provision is procedural and inapplicable,
the motion court declined to dismiss the defamation action for
failure to state a claim. The court cited Court of Appeals
precedent (Davis v Boeheim, 24 NY3d 262 [2014]) in determining
that “a defamation action could be maintained against a defendant
who called individuals claiming to have been victims of sexual
abuse liars and stated that he believed that they were motivated
by money to go public,” noting that a reader or listener,
cognizant that defendant knows exactly what transpired, could
reasonably believe that his statements of “fact” that the
allegations of sexual misconduct were totally false and
fabricated for personal gain conveyed that plaintiff was
contemptible. The court further found that “in their context,
defendant’s repeated statements – which were not made through op-
ed pieces or letters to the editor but rather were delivered in
speeches, debates and through Twitter . . . - cannot be
characterized simply as opinion, heated rhetoric or hyperbole,”
and that the fact that the statements were made in a political
campaign does not make them any less actionable.
13
This appeal ensued. We now affirm for the reasons explained
below.
Discussion
We first address the threshold question of whether the
Supremacy Clause prevents a New York court from exercising
jurisdiction over defendant in this defamation lawsuit.
Defendant essentially argues that the motion court erred in
failing to dismiss or stay the action under the Supremacy Clause
because the clause makes federal law the “supreme law” of the
land, and the Clause is violated when a state court exercises
“direct control” over a sitting President, who has principal
responsibility to ensure that federal laws are faithfully
executed. Defendant submits that such forbidden direct control
necessarily occurs where a state court hears an action like this
one, that would inevitably involve a court issuing, among others,
scheduling and discovery orders that would require a response
from the President, such as the production of documents and an
appearance at a deposition. As explained below, defendant’s
arguments fail and he must necessarily revert to the policy
arguments made by then-President Clinton and rejected by the
United States Supreme Court.
The Supremacy Clause provides, “Th[e] Constitution, and the
Laws of the United States which shall be made in Pursuance
14
thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary
notwithstanding” (US Const, art VI, cl 2).
Read plainly, the Supremacy Clause confers “supreme” status
on federal laws, not on the status of a federal official (see
Haywood v Drown, 556 US 729, 751-752 [2009, Thomas, J.,
dissenting] [“(A) valid federal law is substantively superior to
a state law” and the “exclusive function” of the Supremacy Clause
“is to disable state laws that are substantively inconsistent
with federal law”]). The Supreme Court has interpreted the
Clause to affirmatively permit Congress to impose limitations on
state sovereignty (see Tafflin v Levitt, 493 US 455, 459 [1990];
see also id. at 470 [Scalia, J., concurring] [“It therefore takes
an affirmative act of power under the Supremacy Clause to oust
the States of jurisdiction”]); Goodyear Atomic Corp. v Miller,
486 US 174, 180 [1988] [“(A)ctivities of federal installations
are shielded by the Supremacy Clause from direct state regulation
unless Congress provides ‘clear and unambiguous’ authorization
for such regulation”]). The President may also preempt state law
through an executive order (see American Ins. Assn. v Garamendi,
539 US 396, 416 [2003]).
15
In the jurisdictional context, the Supreme Court has held
that “if exclusive jurisdiction [is] neither express nor implied,
the State courts have concurrent jurisdiction whenever, by their
own constitution, they are competent to take it” (Claflin v
Houseman, 93 US 130, 136 [1876]; Tafflin, 493 US at 458, citing
Claflin). “So strong is the presumption of concurrency [of
federal and state court jurisdiction] that it is defeated only in
two narrowly defined circumstances: first, when Congress
expressly ousts state courts of jurisdiction and second, [w]hen a
state court refuses jurisdiction because of a neutral state rule
regarding the administration of the courts” (Haywood, 556 US at
735 [internal quotation marks and citation omitted]).
Defendant’s reading of the Supremacy Clause -- that it bars
a state court from exercising jurisdiction over him because he is
the “ultimate repository of the Executive Branch’s powers and is
required by the Constitution to be ‘always in function’” -– finds
no support in the constitutional text or case law. Defendant’s
interpretation conflicts with the fundamental principle that the
United States has a “government of laws and not of men” (Cooper v
Aaron, 358 US 1, 23 [1958] [internal quotation marks omitted]).
Despite the suggestion in his brief that he is the “embodi[ment
of] the Executive Branch,” and though he is tasked with
significant responsibilities, the President is still a person,
16
and he is not above the law. Supremacy Clause jurisprudence
makes clear that an affirmative act is required to divest a state
court of jurisdiction and defendant is not exempt from state
court jurisdiction solely because of his identity as
commander-in-chief (see Clinton v Jones, 520 US at 695
[“(I)mmunities are grounded in nature of the function performed,
not the identity of the actor who performed it”] [internal
quotation marks omitted]). Therefore, the Supremacy Clause does
not provide blanket immunity to the President from having to
defend against a civil damages action against him in state court.
Defendant has not demonstrated entitlement to immunity from
a state court civil damages lawsuit where his acts are purely
unofficial. Analysis of defendant’s presidential immunity
argument is informed by Nixon v Fitzgerald (457 US 731 [1982]),
the first case to present the claim that the President of the
United States possesses absolute immunity from civil damages
liability, and Clinton v Jones. In Fitzgerald, a discharged Air
Force employee brought suit against former President Nixon under
two federal statutes and the First Amendment, alleging that
Nixon, while acting in his official capacity, improperly
dismissed him. The employee had testified before a congressional
subcommittee on the cost overruns and unexpected technical
difficulties in the design of a certain type of aircraft (id. at
17
734). After his discharge, Fitzgerald filed a claim alleging
that President Nixon, certain White House aides, and other
Department of Defense officials discharged him in retaliation for
his congressional testimony (id. at 739).
Fitzgerald contended that Nixon could only claim qualified
immunity, which only protected the President from certain suits.
In contrast, Nixon claimed he was entitled to absolute immunity
for his official acts. The Supreme Court agreed with President
Nixon, stating that “[i]n view of the special nature of the
President's constitutional office and functions, we think it
appropriate to recognize absolute Presidential immunity from
damages liability for acts within the ‘outer perimeter’ of his
official responsibility” (id. at 756). The Supreme Court gave
little guidance as to what type of acts were within the “outer
perimeter” of the President's official responsibility. The Court
simply stated that the President has the “constitutional and
statutory authority to prescribe the manner in which the
Secretary will conduct the business of the Air Force” (id. at
757). This absolute immunity for official conduct is necessary
because the President is “an easily identifiable target for
[civil] suits” and such vulnerability “could distract a President
from his public duties, to the detriment of not only the
President and his office but also the Nation that the Presidency
18
was designed to serve” (id. at 753).
Accordingly, the premise underlying presidential immunity
(and governmental immunity in general) is that society does not
want the government's acts and decisions to be influenced by the
fear of future civil liability. Society insists that the
President base his decisions on sound policy for the nation, not
on individual threats of a lawsuit. In furtherance of this
rationale, cabinet members and presidential aides are entitled to
qualified immunity to protect the free flow of ideas during
communications with the President (Harlow v Fitzgerald, 457 US
800, 810 [1982]; see also Butz v Economou, 438 US 478 [1978]).
Judicial recognition of the President's immunity from civil suit
for his official acts protects the nation from a presidential
decision based on potential civil liability, which could be
significantly different from the decision that is best for the
country.
In Clinton v Jones, the Supreme Court was presented with the
opportunity to expand upon the doctrine of presidential immunity
as set forth in Nixon v Fitzgerald. The Supreme Court, however,
rejected the invitation to extend the reasoning of Nixon v
Fitzgerald to cases in which a sitting President is sued for
civil damages that occurred before he took office. In Clinton v
Jones, the plaintiff alleged misconduct by President Clinton,
19
which allegedly took place in 1991 and 1992, before he became
President (Clinton v Jones, 520 US at 685-686). The Supreme
Court described the alleged misconduct as “unrelated to any of
his official duties as President of the United States,” having
“occurred before he was elected to that office” (id. at 686).
The Supreme Court explained that the rationale for
immunizing the President from liability for his official conduct
does not apply to unofficial conduct (id. at 694-695). Applying
a “functional approach,” the Court stated that “an official’s
absolute immunity should extend only to acts in performance of
particular functions of his office” and the President’s “effort
to construct an immunity from suit for unofficial acts grounded
purely in the identity of his office is unsupported by precedent”
(id. citing Fitzgerald).
In so holding, the Supreme Court weighed conflicting
historical evidence. The parties pointed to statements made by
various Founding Fathers that reflected differences in their
views of the role of the President in American society.
Ultimately, however, the Supreme Court credited as “consistent
with both the doctrine of Presidential immunity as set forth in
Fitzgerald and rejection of the immunity claim in this case” the
statement that, “although the President ‘is placed [on] high,’
‘not a single privilege is annexed to his character; far from
20
being above the laws, he is amenable to them in his private
character as a citizen, and in his public character by
impeachment’” (id. at 696, quoting 2 Jonathan Elliot, Debates on
the Federal Constitution at 480 [2d ed. 1863 [statement in favor
of the Constitution’s adoption by James Wilson, one of the
leading framers of the Constitution, who also served as a Supreme
Court Justice]).
The Supreme Court also rejected the President’s argument
that the Separation of Powers doctrine placed limits on the
federal judiciary’s authority to interfere with the executive
branch because the President’s role in American society is unique
and his duties so important that he must “devote his undivided
time and attention to his public duties” (id. at 697). The Court
“recognized the ‘unique position in the constitutional scheme’”
that the presidency occupies (id. at 698-699, quoting Fitzgerald,
457 US at 749) but noted that the “‘separation-of-powers doctrine
does not bar every exercise of jurisdiction over the President’”
(Clinton at 705, quoting Fitzgerald, at 753-754) and does not
“require federal courts to stay all private actions against the
President until he leaves office” (Clinton, at 705-706). The
Court also identified historical instances when the President has
complied with judicial orders and proposed various
accommodations, such as depositions taken at the White House or
21
via teleconference, that could be made to avoid burdensome
impositions on the President (id. at 704-705, 709).
In short, the Supreme Court’s decision in Clinton v Jones
clearly and unequivocally demonstrates that the Presidency and
the President are indeed separable. Hence, the Court in Clinton
v Jones effectively recognized that the President is
presumptively subject to civil liability for conduct that had
taken place in his private capacity. The Supreme Court, however,
held that within the exercise of its judicial discretion and
power, rather than a constitutionally mandated rule of
presidential immunity, a federal court may determine that such
presumption has been overcome when the President establishes
unusual circumstances that outweigh a plaintiff’s legal remedy
for constitutionally protected rights (id. at 707-708).1
To be sure, because Clinton v Jones did not involve a state
court action, the Supreme Court declined to resolve whether the
President may claim immunity from suit in state court (id. at
691). Instead, it presumed that if the case was being heard in
state court, the President would rely on federalism and comity
concerns, “as well as the interest in protecting federal
1
President Clinton did not show at the federal district
court level that the public interest outweighed the plaintiff
Jones’s right to a legal remedy for constitutional violations
(see Clinton v Jones, 520 US at 707-708).
22
officials from possible local prejudice” (id.). In a footnote,
the Court also stated:
“Because the Supremacy Clause makes federal

law ‘the Supreme Law of the Land,’ Art. VI,
cl. 2, any direct control by a state court
over the President, who has principal
responsibility to ensure that those laws are
‘faithfully executed,’ Art. II, § 3, may
implicate concerns that are quite different
from the interbranch separation-of-powers
questions addressed here (cf. e.g., Hancock v
Train, 426 US 167, 178-179 [1976]; Mayo v
United States, 319 US 441, 445 [1943])”
(Clinton v Jones, 520 US at 691 n 13 [third
citation omitted]).
This observation by the Court provides the primary fuel for
defendant’s arguments and the dissent’s conclusion that defendant
is immune from suit in state court because a state court “is not
part of the Constitution’s tripartite system of governance and so
has none of the powers of a federal court.” However, the cases
cited in the footnote above suggest only that the Supreme Court
was concerned with a state’s exercise of control over the
President in a way that would interfere with his execution of
federal law (Hancock, 426 US at 167 [holding that the State of
Kentucky could not force federal facilities in the State to
obtain state permits to operate]; Mayo, 319 US at 441 [holding
that a Florida state official could not order the cessation of a
federal fertilizer distribution program]; but see Alabama v King
& Boozer, 314 US 1 [1941] [holding that the State of Alabama
23
could charge a tax on lumber that a federal government contractor
purchased within the state for construction of an army base,
where the federal government would ultimately pay the tax]).
Indeed, aside from the forum, plaintiff’s case is materially
indistinguishable from Clinton v Jones. Plaintiff’s state law
claims against defendant are based purely on his pre-presidential
unofficial conduct. By holding that the President can be sued
for civil damages based on his purely unofficial acts, Clinton v
Jones implicitly rejected the notion that because the President
is “always in function,” he cannot be subjected to state court
litigation (id. at 695 [“Petitioner’s effort to construct an
immunity from suit for unofficial acts grounded purely in the
identity of his office is unsupported by precedent”]). The
Supreme Court also considered that “[i]f Congress deems it
appropriate to afford the President stronger protection, it may
respond with appropriate legislation” (id. at 709; cf. Brett M.
Kavanaugh, Separation of Powers During the Forty-Fourth
Presidency and Beyond, 93 Minn L Rev 1454, 1460-1461 [2009]
[“(I)t would be appropriate for Congress to enact a statute
providing that any personal civil suits against presidents . . .
be deferred while the President is in office. The result the
Supreme Court reached in (Clinton v) Jones . . . . may well have
been entirely correct . . . But the Court in (Clinton v) Jones
24
stated that Congress is free to provide a temporary deferral of
civil suits while the President is in office”]).
Congress has not passed any law immunizing the President
from state court damages lawsuits since Clinton v Jones was
decided. Therefore, because Clinton v Jones held that a federal
court has jurisdiction over the kind of claim plaintiff now
asserts and because there is no federal law limiting a state
court from entertaining similar claims, it follows that state
courts have concurrent jurisdiction with federal courts over
actions against the President based on his purely unofficial
acts.
Contrary to defendant’s contention, Clinton v Jones did not
suggest that its reasoning would not apply to state court
actions. It merely identified a potential constitutional
concern. Notwithstanding that concern, this Court should not be
deterred from holding that a state court can exercise
jurisdiction over the President as a defendant in a civil
lawsuit.
Likewise, defendant’s contention that the President is
always in function and thus not separable from the office of the
Presidency does not make him immune from state civil litigation
simply because a court has the power to hold a party in contempt.
Defendant’s contention and dissent’s reasoning rest primarily on
25
a hypothetical concern about a state court’s authority to hold
the President in contempt and concomitantly impose imprisonment.
That is not, however, the question before this Court. The issue
before this Court is whether a state court has jurisdiction over
the President, not whether it can hold him in contempt. We
should not “make mere hypothetical adjudications, where there is
no presently justiciable controversy” regarding contempt and
“where the existence of a controversy is dependent upon the
happening of future events” (Prashker v United States Guar. Co.,
1 NY2d 584, 592 [1956] [internal quotation marks omitted]).
Defendant’s concerns, adopted by the dissent, regarding
contempt are also unsupported. In fact, as a practical matter,
courts rarely hold litigants in contempt and the requirements for
a finding of contempt are quite onerous (see Matter of McCormick
v Axelrod, 59 NY2d 574, 583 [1983]). Furthermore, regarding
penalties for refusal to comply with discovery demands and
notices, CPLR 3126 provides a broad range of sanctions tailored
to protect the parties, but which fall short of a finding of
contempt.2 To the extent that the President must be involved in
discovery, the court can minimize the impact on his ability to
2
Like federal court judges (see Fed R Civ P 37[b][2]; see
e.g. Southern New England Tel. Co. v Global NAPs Inc., 624 F3d
123, 149 [2d Cir 2010]), state court judges have wide latitude in
imposing sanctions.
26
carry out his official duties by issuing protective orders to
prevent abuse (CPLR 3103).3 Should the trial court find it
necessary to require the President to testify, it could allow him
to do so by videotape, as has been the custom in recent
proceedings involving sitting Presidents.4
Ultimately, contrary to defendant and dissent’s suggestion,
state courts are fully aware that they should not compel the
President to take acts or refrain from taking acts in his
official capacity or otherwise prevent him from executing the
responsibilities of the Presidency. It is likely that holding
the President in contempt would be the kind of impermissible
“direct control” contemplated by Clinton v Jones and violative of
the Supremacy Clause.
However, defendant does not appeal from a contempt order and
plaintiff does not argue that defendant should be held i

cnontempt.
In fact, in Clinton v Jones, the Supreme Court held that it did
3
Courts have held that the President need only testify on
matters for which no other source is available (see e.g. United
States v North, 713 F Supp 1448, 1449 [D DC 1989]; United States
v Mitchell, 385 F Supp 1190, 1193 [D DC 1974]).
4
See e.g. United States v Branscum, No. LRP-CR-96-49 (ED
Ark June 7, 1996) (Clinton); United States v McDougal, 934 F Supp
296, 298 (ED Ark 1996) (Clinton); United States v Poindexter, 732
F Supp 142, 160 (DDC 1990) (Ronald Reagan); 1 Ronald D. Rotunda &
John E. Nowak, Treatise on Constitutional Law § 7.1(b), at 575
(2d ed. 1992) (Jimmy Carter) (citing several instances); United
States v Fromme, 405 F Supp 578, 583 (ED Cal 1975) (Gerald Ford).
27
not have to rule on the constitutionality of ordering a President
to appear at a particular time and place because it assumed, as
we must do here, that reasonable accommodations would be made
with respect to the President’s schedule (520 US at 691-692), and
thus the particular issue of whether any hypothetical order would
be so onerous as to interfere with the President’s official
duties was not relevant to the appeal. We follow the prudent
course charted by the Clinton v Jones Court.
Accordingly, where, as here, purely unofficial
pre-Presidential conduct is at issue, we find, consistent with
Clinton v Jones, that a court does not impede the President’s
execution of his official duties by the mere exercise of
jurisdiction over him.
Since the Supremacy Clause does not deprive a state court of
its power and authority to decide this case, we must examine
defendant’s alternative grounds for the dismissal of the action:
whether plaintiff has failed to state a cause of action for
defamation and whether the action is barred by California anti-
SLAAP law. We find neither argument persuasive.
First, we find that the motion court properly determined
that New York’s law of defamation applies. Defendant, who cites
to both California and New York law in support of his defense,
fails to show there is the required “actual conflict” between the
28
law of defamation in California and defamation law in New York.
Absent a showing of a discernable difference in the laws of the
two states, no choice of law analysis is necessary, and New York
law is applicable (see SNS Bank v Citibank, 7 AD3d 352, 354 [1st
Dept 2004]). In any event, as plaintiff shows, California
defamation 1aw is the same as New York defamation law in all
relevant ways.
In determining whether a “reasonable” reader would consider
that defendant’s statements that plaintiff lied about their
encounters connotes fact or nonactionable opinion, there are
three relevant factors to be considered holistically: (1) whether
the statements have a “precise meaning” that is “readily
understood”; (2) whether the statements can be proven true or
false; and (3) whether either the context in which the statements
were made or the “broader social context and surrounding
circumstances [were] such as to signal . . . readers or listeners
that what [was] being read or heard [was] likely to be opinion,
not fact” (Davis v Boeheim, 24 NY3d at 270 [2014] [internal
quotation marks omitted]).
Here, defendant's denial of plaintiff's allegations of
sexual misconduct is susceptible of being proven true or false,
since he either did or did not engage in the alleged behavior.
To be sure, a denial, which is a statement of purported fact and
29
not mere opinion, does not always provide a basis for a
defamation claim, even though it implicitly claims that the
alleging party is not telling the truth. However, a denial,
coupled with the claim that the accuser is or will be proven a
liar, impugns a person’s character as dishonest or immoral and
typically crosses the line from nonactionable general denial to a
specific factual statement about another that is reasonably
susceptible of defamatory meaning (see McNamee v Clemens, 762 F
Supp 2d 584, 601 [ED NY 2011]).
The use of the term liar could be perceived in some cases as
no more than rhetorical hyperbole that is a nonactionable
personal opinion (see Davis, 24 NY3d at 271, citing Independent
Living Aids, Inc. v Maxi-Aids, Inc., 981 F Supp 124, 128 [ED NY
1997]). However, that is not the case here, where, again,
defendant used the term in connection with his specific denial of
factual allegations against him, which was necessarily a
statement by him of his knowledge of the purported facts.
Further, although defendant's statement that plaintiff was
motivated by financial gain was not accompanied with recitation
of the “facts” upon which it was based, and although it did not
plainly imply that it was based on undisclosed facts, the
statement could be viewed by a reasonable reader as containing
the implication that defendant knows certain facts, unknown to
30
his audience, concerning organized political efforts to destroy
his campaign, which supports his opinion. Given that, the
complaint at the very least includes allegations of “mixed
opinion” that are actionable (see Davis, 24 NY3d at 271-73).
Defendant further argues that the statements, are
nonactionable given the political context in which he made them.
We recognize that in light of the hotly contested 2016 campaign,
not to mention the fora in which the statements were made
(defendant’s Internet posting, campaign literature, rallies, and
debates), the average reader would largely expect to hear the
vigorous expressions of personal opinion, rather than rigorous
and comprehensive presentation of factual matter. However,
defendant’s flat-out denial of a provable, specific allegation
against him concerning his own conduct, accompanied by a claim
that the accuser was lying, could not be viewed even in that
context as a rhetorical statement of pure opinion or as “vague,
subjective, and lacking in precise meaning” (Jacobus v Trump, 156
AD3d 452, 453 [1st Dept 2017], lv denied 31 NY3d 903 [2018]).
Nor is there any support for defendant's claim that such
statements when made in the context of a heated political
campaign are protected political speech. Indeed, claims for
defamation may arise out of acrimonious political battles (see
Silsdorf v Levine, 59 NY2d 8 [1983], cert denied 464 US 831
31
[1983]).
Defendant’s argument that some of the alleged defamatory
statements are not “of and concerning plaintiff” is also without
merit. Even where statements alleged by plaintiff do not refer
to her by name, most of the challenged statements could
reasonably be considered of and concerning her. Defendant began
making the challenged statements immediately after plaintiff gave
her press conference and they were all made within eight days
thereafter. The “allegations” that defendant’s statements attack
as false and politically motivated and the “events” the
statements claim “never happened” are easily understood as
relating to plaintiff's accusations, as well as the accusations
by other women who had come forward by that time (see Elias v
Rolling Stone, 872 F3d 97, 108 [2d Cir 2017]).
Finally, we find that the motion court correctly declined to
apply the California anti-SLAPP statute here, and that even if
the motion to strike under that statute were to be considered, it
would likely be denied. Plaintiff has established that the
defamation claim has the requisite “minimal merit” (Grenier v
Taylor, 34 Cal App 4th 471, 480 [2014]).
Accordingly, the order of the Supreme Court, New York County
(Jennifer G. Schecter, J.), entered March 21, 2018, which denied
defendant’s motion to dismiss the defamation complaint or in the
32
alternative to stay the action, and denied his special motion to
strike the complaint under California’s anti-SLAAP statute,
should be affirmed, without costs.
All concur except Tom and Mazzarelli, JJ.

who dissent in part in an Opinion by
Mazzarelli, J.
33
MAZZARELLI, J. (dissenting in part)
In Clinton v Jones (520 US 681 [1997]), the United States
Supreme Court held that separation of powers concerns did not
preclude a federal lawsuit against a sitting President of the
United States based on unofficial acts allegedly committed by him
before he assumed office. The Court expressly cautioned in that
decision that different concerns, including the Supremacy Clause
of the United States Constitution, might influence the result if
such a case were brought against the President in state court.
However, the Court did not rule that such a suit could or could
not proceed. This matter gives us an opportunity to squarely
address the question.
Since the majority accurately relates the facts, which are
not in controversy, I need not repeat them here. Further, I
agree with the majority’s conclusion that plaintiff has stated a
claim for defamation and that the action is not barred by
California’s anti-SLAAP law. Where I depart from the majority is
in its conclusion to the question outlined above. As explained
below, subjecting the President to a state trial court’s
jurisdiction imposes upon him a degree of control by the State of
New York that interferes with his ability to carry out his
constitutional duty of executing the laws of the United States.
Since the Supremacy Clause guarantees that any effort by the
34
individual states to annul, minimize, or otherwise interfere with
those laws will be struck down, it follows that any effort by a
state court to control the President must likewise fail.
As a preliminary matter, I do not accept plaintiff’s
contention that because defendant did not invoke the Supremacy
Clause in unrelated actions in which he or an affiliated entity
was sued in the court of a different state for activities not
related to his official duties, he cannot invoke it here.
Plaintiff has offered no support for the notion that the
President can waive the operation of the Supremacy Clause, which
is an important underpinning of the Constitution’s federalist
system.
Turning to the merits, the parties agree that the President
enjoys complete immunity from suit as concerns actions he takes
in his official capacity. They differ, however, on the impact of
Clinton v Jones, which, like this case, was based on allegations
involving behavior unrelated to any official acts1, and which
appears to be the only other case addressing whether the
President is amenable to suit based on behavior not related to
1
The case arose out of allegations that when he was
Governor of the state of Arkansas, President Clinton made
unwanted sexual advances toward Paula Jones, a state employee,
and then retaliated against her when she spurned those advances
(520 US at 685).
35
his office. The Supreme Court in that case rejected President
Clinton’s argument that the separation of powers doctrine
afforded him absolute immunity from suit for unofficial acts,
notwithstanding the extraordinary demands of his job. Plaintiff
posits that Clinton v Jones stands for the proposition that,
regardless of the forum, so long as the President is not being
asked to defend official actions, there is no danger of judicial
encroachment into the executive branch. She highlights the
Court’s statement that
“[w]hatever the outcome of this case, there

is no possibility that the decision will
curtail the scope of the official powers of
the Executive Branch. The litigation of
questions that relate entirely to the
unofficial conduct of the individual who
happens to be the President poses no
perceptible risk of misallocation of either
judicial power or executive power” (520 US at
701).
Plaintiff sees no functional difference between the effect a
federal court’s supervision of litigation would have over a
President’s executive power and the effect a state court’s would,
as long as the subject matter were unrelated to the President’s
official duties, arguing that “the logic of the Court’s analysis
was aimed at judicial power generally, not at any unique
characteristics of federal judicial power.”
In arguing that the holding in Clinton v Jones does not
36
compel the same result in this action, defendant stresses that,
contrary to plaintiff’s characterization of the “logic” of
Clinton, the case was entirely about “the unique characteristics
of federal judicial power.” He relies on the Supreme Court’s
statement that
“[i]f this case were being heard in a state

forum, instead of advancing a separation of
powers argument, petitioner would presumably
rely on federalism and comity concerns, as
well as the interest in protecting federal
officials from possible local prejudice that
underlies the authority to remove certain
cases brought against federal officers from a
state to a federal court” (520 US at 691).”
Footnote 13, inserted after the phrase “federalism and comity
concerns” in the quoted material, stated
“Because the Supremacy Clause makes federal

law “the supreme Law of the Land,” Art. VI,
cl. 2, any direct control by a state court
over the President, who has principal
responsibility to ensure that those laws are
“faithfully executed,” Art. II, § 3, may
implicate concerns that are quite different
from the interbranch separation-of-powers
questions addressed here. Cf., e.g., Hancock
v. Train, 426 U.S. 167, 178–179, 96 S.Ct.
2006, 2012–2013, 48 L.Ed.2d 555 (1976); Mayo
v. United States, 319 U.S. 441, 445, 63 S.Ct.
1137, 1139–1140, 87 L.Ed. 1504 (1943). See L.
Tribe, American Constitutional Law 513 (2d
ed.1988) (“[A]bsent explicit congressional
consent no state may command federal
officials ... to take action in derogation of
their ... federal responsibilities”).”
Defendant argues that the Supremacy Clause acts as an
37
absolute bar to state courts’ authority to exercise jurisdiction
over a sitting President, citing McCulloch v Maryland (17 US 316,
436 [1819]), which held that “the states have no power, by
taxation or otherwise, to retard, impede, burden, or in any
manner control, the operations of the constitutional laws enacted
by congress to carry into execution the powers vested in the
general government.” He describes the President as being “vested
with the entire executive authority,” such that to permit a state
court to have any degree of control over defendant himself would
be tantamount to giving that court control over the entire
executive branch of the United States government.
Defendant is correct that, in stressing the Supreme Court’s
view in Clinton v Jones that the litigation against the President
would not unduly interfere with his executive power because it
was not related to any official acts, plaintiff glosses over the
fact that the Court’s analysis was limited to whether the
separation of powers doctrine barred the litigation. The
separation of powers doctrine precludes one branch of the federal
government from performing a function of another branch or
significantly impairing another branch’s ability to perform its
function (520 US at 701). As the Clinton Court emphasized,
however, separation of powers “‘does not bar every exercise of
jurisdiction over the President of the United States’” (id. at
38
705, quoting Nixon v Fitzgerald, 457 US 731, 753-754 [1982]).
The Court quoted James Madison in the Federalist No. 47, who
wrote that “separation of powers does not mean that the branches
‘ought to have no partial agency in, or no controul over the acts
of each other’” (id. at 702). Indeed, as the Clinton Court noted,
the federal courts have exerted their control over the Presidency
in dramatic ways, such as by issuing holdings sharply limiting
the President’s exercise of executive authority, citing
Youngstown Sheet & Tube Co. v Sawyer (343 US 579 [1952]), in
which the Court struck down President Truman’s plan to
nationalize the country’s steel mills. The Court also cited to
historical examples of Presidents being ordered to submit to
federal judicial process, such as Thomas Jefferson when he was
served with a subpoena in the treason trial of Aaron Burr (United
States v Burr (25 F Cas 30 [No. 14,692d][CC Va 1807]), and
Richard Nixon when he was forced to comply with a subpoena
seeking tape recordings made in the Oval Office (United States v
Nixon (418 US 683 [1974]). Thus, the Clinton Court concluded,
the level of intrusion into the President’s duties that would be
caused by his having to engage in litigation related to
unofficial actions would “pose [] no perceptible risk of
misallocation of either judicial power or executive power” (id.
at 701).
39
This, of course, is not a separation of powers case.
Indeed, plaintiff fails to address the key hypothetical question
posed in footnote 13 of Clinton, which is whether there is a
corollary notion that a state court, which is not part of the
Constitution’s tripartite system of governance and so has none of
the powers of a federal court, has leeway to “direct appropriate
process to the President himself . . .[and] determine the
legality of his unofficial conduct” (520 US at 705). In
exclusively relying on the logic of Clinton v Jones, which did
not analyze the issue, she offers no independent reason why the
Supremacy Clause does not prevent the New York state courts from
having jurisdiction over her action. I believe that it is her
burden to do so, and that she has failed to carry it.
To be sure, the United States Supreme Court has identified some
very limited circumstances where state institutions may take
action that impacts the federal government, without violating the
Supremacy Clause. Mayo (319 US at 447) and Hancock (426 US at
179-180), the cases cited by the Clinton Court in footnote 13,
each alluded to, but distinguished, the same two cases in which a
state successfully argued that the Supremacy Clause did not
preclude it from enforcing regulations that had an effect on the
United States. In Alabama v King & Boozer (314 US 1 [1941]), the
Court upheld the ability of Alabama to charge a sales tax on
40
lumber that a government contractor purchased in connection with
construction of an army base, over the objection of the federal
government, which would ultimately pay the cost of the tax. And
in Penn Dairies, Inc., v Milk Control Commn. of Pennsylvania (318
US 261 [1943]), the Court rejected a milk seller’s Supremacy
Clause argument when it was cited for violating a Pennsylvania
law setting a floor on the amount milk purveyors could charge for
their product. The dairy argued that because it was selling to a
United States Army encampment, the statutory scheme did not
apply. The Court found that it was irrelevant that the price
control imposed by the state would result in higher costs for the
federal government, since the dairy was not a federal agency (318
US at 269).
As stated by the Court in Hancock, these cases reinforce the
notion that “[n]either the Supremacy Clause nor the Plenary
Powers Clause bars all state regulation which may touch the
activities of the Federal Government” (426 US at 179). Here, the
court’s jurisdiction over defendant would go much further than
merely “touch[ing] the activities of the Federal Government.” As
defendant correctly notes, “the President alone is vested with
the entire executive authority, and is therefore uniquely
required under the Constitution to be ‘always in function,’ [such
that] he is inseparable from the office he holds.” This notion
41
that the President occupies a unique place in the Constitutional
structure was endorsed by the Clinton Court, which accepted as
true the observations of former Presidents from the beginning of
the Republic to the modern era as to the sheer magnitude and
incessant press of the job (520 US at 698). The Court
additionally pointed to the 25th Amendment to the Constitution,
which was adopted to ensure that there was never a moment when
the nation was not without a President who is up to the task of
discharging that office’s responsibilities (id.). The question
then becomes whether this all-consuming nature of the Presidency
creates a constitutional barrier to defendant’s susceptibility to
suit in state court.
I believe that it does. A state court’s jurisdiction over
any person is an exercise of considerable power (see Licci v
Lebanese Can. Bank, SAL, 20 NY3d 327, 340 [2012] [“personal
jurisdiction is fundamentally about a court’s control over the
person of the defendant”]). Besides the court’s ability to issue
a decree by which a defendant must abide (here, if plaintiff
prevails, to award a money judgment and order defendant to
retract his statements and offer an apology), the court holds the
power to direct him to respond to discovery demands, to sit for a
deposition, and to appear before it. This power includes
formidable enforcement mechanisms, including the ability to hold
42
parties in criminal contempt, and, as a last resort, to imprison
them. I recognize that this is a highly unlikely event in this
case, as the motion court made clear that it would accommodate
the singular nature of defendant’s job. However, while the
court’s need to order the President of the United States before
it so he can answer to contempt charges is hypothetical, the even
remote possibility of such an event elevates an arm of the state
over the federal government to a degree that the Supremacy Clause
cannot abide. While I have no reason to doubt that the court
would demonstrate extraordinary deference to defendant and no
reason to believe that defendant would not cooperate in the
litigation, there is no way to be absolutely certain that the
court would not at some point have to take steps to protect its
own legitimacy.
The majority argues that, in light of the doctrine of
concurrent jurisdiction, there is no basis in law for depriving
state courts of jurisdiction over the President. The majority
further contends that there is no policy reason why the President
should be immune from suit in state court for unofficial acts he
commits before he takes office. Considering each of those
arguments in a vacuum, the majority may very well be right.
However, each is unhelpful in terms of determining whether the
President may be a defendant in state court. Tafflin v Levitt
43
(493 US 455 [1990]), cited by the majority, dealt with whether
state courts have concurrent jurisdiction over civil claims
brought under the federal Racketeer Influenced and Corrupt
Organizations Act. The Supreme Court held in that case that they
do, since state courts had not been divested of jurisdiction over
such claims “by ‘an explicit statutory directive, by unmistakable
implication from legislative history, or by a clear
incompatibility between state-court jurisdiction and federal
interests’” (493 US at 460, quoting Gulf Offshore Co. v Mobil Oil
Corp., 453 US 473, 478 [1981]). Not at issue was whether the
state court’s exercise of jurisdiction would interfere with the
very ability of the President to execute federal law, which is
what defendant is arguing.
Nor do I (nor does defendant, for that matter) take any
issue with the concept that, focusing on the acts themselves, the
President is not immune from suit in state court for unofficial
acts. Again, however, in holding that there is no immunity for
the President’s unofficial acts, the Supreme Court in Clinton v
Jones merely distinguished unofficial acts from the official acts
at issue in Nixon v Fitzgerald (457 US 731 [1982], supra).
Citing the rationale for the immunity found in Fitzgerald, which
was “‘to forestall an atmosphere of intimidation that would
conflict with [public officials’] resolve to perform their
44
designated functions in a principled fashion’” (Clinton, 520 US
at 693, quoting Ferri v Ackerman, 444 US 193, 204 [1979]), the
Court held that any immunity that stemmed not from presidential
functions but from presidential identity was not justified.
Again because Clinton was litigated in federal court, the impact
of the Supremacy Clause was not relevant. I disagree with the
majority that the Clinton Court’s holding that the President’s
identity alone confers on him no special cloak of immunity when
he is sued is an “implicit reject[ion of] the notion that because
the President is ‘always in function,’ he cannot be subjected to
state court litigation.” Had the Supreme Court meant to imply
any such thing it would have had no reason to suggest in footnote
13 that the Supremacy Clause might demand a different result.
The ultimate proof of the irrelevancy of these arguments is
that the majority, along with the amici, ultimately agrees with
defendant’s position, stating that “[i]t is likely that holding
the President in contempt would be the kind of impermissible
‘direct control’ contemplated by Clinton v Jones and violative of
the Supremacy Clause.” However, the majority minimizes the
possibility that the court would have to exercise its contempt
power, and is not at all concerned about this sword of Damocles
hanging over the President’s head. It is instead content to
allow the litigation to proceed until such time as a
45
constitutional crisis is at hand. In my view, this is too narrow
an approach. It is not the act of holding the President in
contempt that would trigger a Supremacy Clause violation, but the
very power to do so once personal jurisdiction is conferred over
the President. It is at that point that the court unquestionably
has “direct control” over the President, that is, the immediate
and ever-present power to issue an order requiring him to take
some action, as mundane as directing him to produce discovery or
as consequential as mandating his appearance in court on a date
certain. For this reason, the majority’s suggestion that the
court could employ “reasonable accommodations” designed to
alleviate the burden on the President is irrelevant. That there
is any burden to be managed is the problem. Furthermore, the
Clinton Court’s discussion of how the litigation involving
President Clinton could be managed so as to accommodate his
schedule came after it had already determined that he was
amenable to suit in federal court, and also after it noted that
the analysis might be very different in state court.
The amici argue that the sheer happenstance of a President
being sued in state court, rather than federal court, should not
be the factor that determines whether the President should have
to answer to charges related to his unofficial duties. We do not
view this as a conundrum. Indeed, King & Boozer and Penn Dairies
46
turned on the fact that an intermediary prevented a state’s
regulatory scheme from working directly against the federal
government, thus implicating the Supremacy Clause, even though
the regulatory scheme ultimately impacted the United States.
Accordingly, I do not see this argument as particularly
compelling.
Because of the concerns addressed above, the President
should not be forced to defend this lawsuit while he is in
office. Therefore, in my view the action should be stayed until
such time as defendant no longer occupies the office of President
of the United States (CPLR 2201).
Order, Supreme Court, New York County (Jennifer G. Schecter,

J.), entered March 21, 2018, affirmed, without costs.
Opinion by Renwick, J.P. All concur except Tom and

Mazzarelli, JJ. who dissent in part in an Opinion by Mazzarelli,
J.
Renwick, J.P., Tom, Mazzarelli, Webber, Kern, JJ.

_______________________
CLERK
47

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SUPREME COURT, APPELLATE DIVISION

MARCH 14, 2019

THE COURT ANNOUNCES THE FOLLOWING DECISIONS:

Acosta, P.J., Manzanet-Daniels, Kapnick, Kahn, Oing, JJ.

8686 The People of the State of New York, Ind. 2533/15

Seymour W. James, Jr., The Legal Aid Society (David Crow of

Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran

Judgment, Supreme Court, New York County (Arlene D.

Goldberg, J.), rendered March 24, 2016, convicting defendant,

after a jury trial, of criminal sale of a controlled substance in

the third degree, and sentencing him, as a second felony drug

offender previously convicted of a violent felony, to a term of

six years, unanimously reversed, on the law and the facts,

defendant’s motion to suppress physical evidence and

identification testimony granted, and the matter remanded for a

new trial preceded by an independent source hearing.

The hearing court expressly determined that the police

who allegedly bought drugs from defendant made an identification.

Because the record provides no reason for the officers to have

concluded that defendant, a suspect in a street drug sale, was

armed or dangerous, or likely to resist arrest or flee,

handcuffing him was inconsistent with an investigatory detention

and elevated the intrusion to an arrest not based on probable

People v Blanding, 116 AD3d 498 [1st Dept 2014]; People v

996 [1992]). Accordingly, the undercover officer’s

identification of defendant and the buy money recovered as a

result of the unlawful arrest should have been suppressed, and

defendant is entitled to a new trial preceded by an independent

source hearing (see People v Burts, 78 NY2d 20, 23-24 [1991]).

to reach any other issues.

THIS CONSTITUTES THE DECISION AND ORDER

ENTERED: MARCH 14, 2019

8687 Alexandria Grant, et al., Index 25864/14E

AAIJ African Market Corp.,

Saretsky Katz & Dranoff, L.L.P., New York (Daniel P. Rifkin of

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.),

entered August 7, 2017, which granted the motion of defendant

AAIJ African Market Corp. (AAIJ) for summary judgment dismissing

the complaint and all cross claims as against it, unanimously

reversed, on the law, without costs, and the motion denied.

The failure to provide seatbelts in a taxicab is a violation

of Vehicle and Traffic Law § 383, and constitutes negligence as a

matter of law (see DiMauro v Metropolitan Suburban Bus Auth., 105

[3d Dept 1980]). Where an injured party fails to wear an

available seatbelt, such failure would go to damages, not

liability (see Spier v Barker, 35 NY2d 444, 450 [1974]). That is

the first instance (see DiMauro at 246; McMahon at 199).

Here, the alleged failure to provide seatbelts warranted

denial of AAIJ’s summary judgment motion. That the vehicle that

struck AAIJ’s vehicle in the rear did not provide a nonnegligent

liability, if it is found to be a proximate cause of plaintiffs’

Furthermore, plaintiffs did not cross-move for summary

was placed on notice of the need to develop facts on the issue of

whether seatbelts were present in the vehicle, and whether they

were “clearly visible, accessible, and maintained in good working

order” (Vehicle and Traffic Law § 383[4-b]). Accordingly, we

decline plaintiffs’ request to find AAIJ negligent as a matter of

THIS CONSTITUTES THE DECISION AND ORDER

ENTERED: MARCH 14, 2019