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SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION FOURTH

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					              SUPREME COURT OF THE STATE OF NEW YORK

          APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT




                            DECISIONS FILED

                            June 13, 2003


HON. EUGENE F. PIGOTT, JR., PRESIDING JUSTICE

HON. SAMUEL L. GREEN

HON. ELIZABETH W. PINE

HON. DONALD J. WISNER

HON. ROBERT G. HURLBUTT

HON. HENRY J. SCUDDER

HON. L. PAUL KEHOE

HON. CHRISTOPHER J. BURNS

HON. JEROME C. GORSKI

HON. JOHN F. LAWTON

HON. LEO F. HAYES, ASSOCIATE JUSTICES




JOANN M. WAHL, CLERK
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

243
KA 02-00344
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND GORSKI, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TERRY B. MINTER, DEFENDANT-APPELLANT.


EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (PATRICK H. FIERRO OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of Monroe County Court (Connell, J.),
entered January 17, 2002, which denied defendant's CPL article 440
motion seeking to vacate the judgment of conviction.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed.

     Memorandum: Although County Court properly denied defendant's
CPL article 440 motion seeking to vacate the judgment of conviction,
we conclude that the court erred in its reasoning. Defendant
contends, inter alia, that his plea of guilty to burglary in the first
degree in exchange for a term of incarceration not to exceed 12 years
was not knowing and voluntary because the court failed to advise him
of the mandatory period of postrelease supervision at the time of the
plea. When defendant raised that contention on his direct appeal from
the judgment of conviction, we noted in our decision therein that his
contention was not preserved for our review, and we declined to
exercise our power to review it as a matter of discretion in the
interest of justice (People v Minter, 295 AD2d 92, lv denied 98 NY2d
712). The court should have denied defendant's motion pursuant to CPL
440.10 (2) (b) because defendant's direct appeal from the judgment of
conviction was pending at the time of the motion and there were
sufficient facts in the record to permit adequate review of
defendant's contention on the direct appeal. Instead, the court
denied the motion as a matter of law, relying upon our decision in
People v Bloom (269 AD2d 838, lv denied 94 NY2d 945). The court's
reliance on Bloom was misplaced. In Bloom (269 AD2d at 838), we
determined that there was no need for the sentencing court to specify
a period of postrelease supervision inasmuch as, pursuant to Penal Law
§ 70.45 (2), the period of postrelease supervision is five years
                                 -3-                           243
                                                         KA 02-00344

unless a shorter period is specified by the court.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

245
KA 02-02188
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND GORSKI, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DUANE N. WALLACE, DEFENDANT-APPELLANT.


BUTTARAZZI LAW OFFICES, P.C., ROCHESTER (MAURICE J. VERRILLO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Genesee County Court (Noonan, J.),
entered March 4, 2002, convicting defendant after a jury trial of
sexual abuse in the first degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is reversed on the facts, the indictment is dismissed
and the matter is remitted to Genesee County Court for proceedings
pursuant to CPL 470.45. All findings of fact made by the jury that
are inconsistent with the Memorandum herein are hereby reversed and
new findings are made pursuant to CPLR 5712 (c) as contained in the
following Memorandum: On appeal from a judgment convicting him after
a jury trial of sexual abuse in the first degree (Penal Law § 130.65
[3]), defendant contends that the verdict is against the weight of the
evidence. We agree. The resolution of credibility issues by the jury
and its determination of the weight to be given to the evidence are
accorded great deference (see People v Davis, 191 AD2d 705, 706;
People v Walker, 191 AD2d 603, 604, lv denied 81 NY2d 1021, 1022;
People v Adams, 164 AD2d 546, 549, lv denied 77 NY2d 957).
Nevertheless, reversal is warranted where the testimony "'is
incredible and unbelievable, that is, impossible of belief because it
is manifestly untrue, physically impossible, contrary to experience,
or self-contradictory'" (People v Garafolo, 44 AD2d 86, 88; see People
v Black, 226 AD2d 1113, lv denied 88 NY2d 1019).

     Defendant's great niece testified that, on the afternoon of June
16, 2001, defendant and his wife visited her family at their home.
According to the testimony of defendant's great niece, defendant was
seated with her on the living room couch when he allegedly put his
hand under her dress and fondled her in front of her mother and his
wife, among others. She gave conflicting testimony with respect to
her position on the couch and with respect to whether she and
defendant were playing a game called "top of the mountain" when the
                                 -5-                           245
                                                         KA 02-02188

alleged incident occurred. Her mother testified to essentially the
same facts, and she further testified that she was "very mad" when she
allegedly saw defendant fondle her daughter. Nonetheless, she allowed
her daughter to continue to play with defendant and did not say
anything about the incident to defendant or his wife, despite the fact
that they did not leave her home until approximately one hour later.
Defendant's great niece was not taken to a doctor, and a statement to
police was not given until six days later.

     Defendant testified that his great niece was never seated on the
couch in the position alleged by her. He testified that he and his
great niece were playing "top of the mountain" that afternoon and that
he never lifted her dress, nor did he ever inappropriately touch or
fondle her. Defendant's wife corroborated defendant's testimony
regarding the great niece's position on the couch, and she further
testified that she never saw defendant lift the dress of her great
niece and fondle her. The trial evidence was presented in less than
one day, yet the jury deadlocked over the course of two days and sent
numerous notes on issues of both fact and law. The jury rendered its
verdict only after advising County Court that it was deadlocked,
whereupon the court issued an Allen charge.

     Upon our review of the evidence, we find that the evidence is
both contrary to experience and self-contradictory (see Garafolo, 44
AD2d at 88) and that the jury "failed to give the evidence the weight
it should be accorded" (People v Bleakley, 69 NY2d 490, 495). Thus,
reversal is required.

     All concur except SCUDDER, J., who dissents and votes to affirm in
the following Memorandum: I respectfully dissent and would affirm the
judgment of conviction. Although in my view, a different finding
would not have been unreasonable, I cannot agree with the majority
that the jury "'failed to give the evidence the weight it should be
accorded' (People v Bleakley, 69 NY2d 490, 495)." Here, the jury
considered the testimony of the victim and her mother, which
conflicted with the testimony of defendant and his wife. The victim
testified that she was lying on the couch behind defendant and his
wife and that defendant reached behind him and placed his hand up her
dress, between her legs, and pinched her vaginal area. The victim's
mother testified that defendant is her aunt's husband, that they came
to her home to bring food, and that they agreed to assist her in
moving from the apartment in which she lived with her five children.
The victim's mother testified that, from where she was seated across
the room, she observed defendant place his hand up the victim's dress
so that his arm, up to his elbow, was covered by the dress. She
further testified that she immediately told the victim to get off the
couch, and that defendant's wife was seated next to defendant and
therefore could not observe defendant's actions. The victim's mother
testified that defendant and his wife stayed approximately 30 minutes
to one hour after the incident and that, when they left, she asked her
daughter whether there was "something [she] want[ed] to talk to [her]
about." The victim's mother testified that the victim explained what
defendant did and that the explanation was consistent with her own
observations of defendant's actions. According to the majority, the
                                 -6-                           245
                                                         KA 02-02188

victim gave conflicting testimony with respect to her position on the
couch. In my view, that discrepancy in the victim's testimony is of
no moment. Although the victim identified an exhibit depicting her as
lying behind defendant with her legs straight out before her and she
testified at trial that her legs were in fact bent, the victim
consistently testified that she was lying behind defendant on the
couch when the crime occurred. The majority further notes that a
statement to the police was not given until six days later.
Significantly, however, the victim's mother immediately arranged for a
friend to care for her other children while she took the victim to the
police station that same day, despite the fact that she is a single
mother and that defendant and his wife had been providing her with
assistance. The evidence that the victim's mother took the victim to
the police station on the day of the incident and that she signed a
deposition six days later is not controverted. I submit that the
majority misconstrues the evidence by implying that the victim's
mother waited six days to report the incident to the police. In
addition, the majority seems to consider it significant that the
victim was not examined by a physician, yet the majority provides no
support for its implicit conclusion that a physical examination would
have provided corroborative evidence that defendant touched the
victim's vaginal area. I am not aware of any such support for that
implicit conclusion.

     Defendant and his wife both testified that the victim was seated
on the back of the couch with her legs draped over the couch behind
defendant's back and that it therefore would have been physically
impossible for defendant to reach up under the victim's dress. That
testimony conflicts with the statement given by defendant to the
police, wherein he stated that, "[w]hen she was [lying] behind me[,] I
would reach behind me with both hands and move her knees." When
confronted with that statement at trial, defendant testified only that
he was "under heavy pain medication *** at the time," which in my
view, and apparently in the view of the jury, does not explain the
discrepancy between defendant's statement and trial testimony.

     In my view, the majority mischaracterizes the testimony of the
victim (which also was essentially the same as that of her mother)
when it writes that the victim testified that, while "defendant was
seated with [the victim] on the living room couch," defendant
"allegedly put his hand under her dress and fondled her in front of
her mother and his wife, among others." However, that
mischaracterization provides support for the majority's position,
citing People v Garafolo (44 AD2d 86, 88), "that the evidence is ***
contrary to experience ***." In Garafolo, the Second Department,
unlike the suppression court itself, rejected the testimony of a
police officer who testified at the suppression hearing that, when he
observed defendant, he could "see into [a] brown paper bag which the
defendant had obligingly left open at the top, discerned that one of
the cartons had a loose flap and that a cigarette pack inside the
carton had a North Carolina decal on the bottom of it" (id. at 87). I
simply cannot agree with the majority that the evidence presented by
the victim and her mother is "contrary to experience and self-
contradictory." The jury was presented with two versions of what
                                 -7-                           245
                                                         KA 02-02188

transpired between the victim and defendant, i.e., either the victim
was lying behind defendant and he subjected her to sexual contact (see
Penal Law § 130.65 [3]) or the victim was seated on the back of the
couch with her legs dangling behind defendant and they were playing
"top of the mountain." The jury rejected the version proffered by
defendant and his wife and thus rejected the theory that the acts
described by the victim were, inter alia, "physically impossible."

     Furthermore, in my view, the length of the trial, the length of
the jury deliberations, the number of notes sent by the jury to County
Court, and the fact that the verdict was rendered approximately three
hours after the court gave an Allen charge are factors that do not
bear upon the quality of the evidence and the credibility of the
witnesses and therefore are not relevant to the issue whether the
verdict is against the weight of the evidence. Conflicting evidence
was presented at trial and the jury, which had the "advantage of
observing the witnesses and, necessarily, [was] in a superior position
to judge veracity than an appellate court, which reviews but the
printed record" (People v Shedrick, 104 AD2d 263, 274, affd 66 NY2d
1015, rearg denied 67 NY2d 758), made a credibility determination
resulting in a guilty verdict. In my view, there is no basis upon
which to disturb that credibility determination. The cogent
discussion in People v Cohen (223 NY 406, 411, rearg denied 227 NY
623) is particularly apt here: "If diverse inferences may properly be
drawn from the testimony; if witnesses contradict each other, or if
their character is criticized; if the probability of the stories told
by them is questioned; [or] if their interest in the result may
influence them, [then] it is for the jury to decide where the truth
lies. We may not reverse its finding because some of us or all of us
would have hesitated to reach the same conclusion."




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

293
CA 02-02284
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, LAWTON, AND HAYES, JJ.


HAYNER HOYT CORPORATION, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

UTICA FIRST INSURANCE COMPANY, DEFENDANT-RESPONDENT.


SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (GABRIELLE MARDANY
TUCCI OF COUNSEL), FOR PLAINTIFF-APPELLANT.

BROWN & MICHAELS, PC, ITHACA (FRANCIS LOSURDO OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from a judgment (denominated order) of Supreme Court,
Onondaga County (McCarthy, J.), entered December 14, 2001, which,
inter alia, granted defendant's cross motion for summary judgment.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is modified on the law by granting judgment in favor
of defendant as follows:

               It is ADJUDGED and DECLARED that plaintiff is
          not entitled to a defense or indemnification from
          defendant with respect to the underlying actions

and as modified the judgment is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking judgment
declaring, inter alia, that defendant must defend and indemnify
plaintiff in two underlying personal injury actions. Plaintiff
entered into a construction contract with subcontractor M.S. Olender &
Sons (Olender) to complete the "rough framing scope" on a project.
Pursuant to that subcontract, Olender was required to name plaintiff
as an additional insured under a subcontractor's comprehensive general
liability and property damage policy. Plaintiff was named as an
additional insured in the certificate of liability insurance issued by
defendant to Olender. The plaintiffs in the underlying personal
injury actions are two employees of Olender who were injured while
working on the project. When plaintiff demanded that defendant defend
and indemnify it in those two underlying actions, defendant disclaimed
coverage based on policy exclusions. Plaintiff moved for summary
judgment seeking, inter alia, an order striking the affirmative
defenses in the answer and a declaration that defendant must defend
and indemnify plaintiff in the underlying actions. Defendant cross-
moved for summary judgment dismissing the complaint and a declaration
                                 -9-                           293
                                                         CA 02-02284

that plaintiff is not entitled to a defense or indemnification from
defendant. Supreme Court denied the motion and granted the cross
motion.

      We do not consider plaintiff's contention, raised for the first
time on appeal, that defendant is estopped from denying coverage with
respect to one of the underlying actions because its disclaimer was
untimely and that there is an issue of fact whether its disclaimer was
untimely with respect to the other underlying action (see Matter of
USAA Cas. Ins. Co. [Kaufman], 261 AD2d 275, lv denied 94 NY2d 758; see
also Fischer v Zepa Consulting, 263 AD2d 946, 947, affd 95 NY2d 66;
Deputy Sheriff's Benevolent Assn. of Onondaga County v County of
Onondaga, 288 AD2d 953, 954). "It is well settled that '[a]n
appellate court should not, and will not, consider different theories
or new questions, if proof might have been offered to refute or
overcome them had those theories or questions been presented in the
court of first instance'" (Ciesinski v Town of Aurora, 202 AD2d 984,
985).

     We reject plaintiff's further contention that the policy
exclusion relied upon by the court in granting the cross motion does
not apply with respect to the two underlying actions. Pursuant to
that exclusion, there is no coverage for "bodily injury to an employee
of an insured if it occurs in the course of employment." Plaintiff
contends that the exclusion does not apply to it. We disagree. The
term "an insured" is unambiguous and, when used in the policy,
encompasses both Olender and plaintiff (see Moleon v Kreisler Borg
Florman Gen. Constr. Co., ___ AD2d ___, ___ [Apr. 3, 2003];
Consolidated Edison Co. of N.Y. v United Coastal Ins. Co., 216 AD2d
137, lv denied 87 NY2d 808; Tardy v Morgan Guar. Trust Co. of
N.Y., 213 AD2d 296). The exclusion thus applies to plaintiff as an
additional insured because the plaintiffs in the underlying actions
were employees "of an insured," i.e., Olender (cf. Greaves v Public
Serv. Mut. Ins. Co., 5 NY2d 120, 125).

      Inasmuch as the court failed to declare the rights of the
parties in this declaratory judgment action (see Pless v Town of
Royalton, 185 AD2d 659, 660, affd 81 NY2d 1047; Maurizzio v Lumbermens
Mut. Cas. Co., 73 NY2d 951, 954; Boyd v Allstate Life Ins. Co. of
N.Y., 267 AD2d 1038, 1039), we modify the judgment by granting
judgment in favor of defendant declaring that plaintiff is not
entitled to a defense or indemnification from defendant with respect
to the underlying actions.

     All concur except PIGOTT, JR., P.J., and PINE, J., who dissent and
vote to reverse in accordance with the following Memorandum: We
respectfully dissent. In our view, plaintiff is entitled to coverage
under the policy of insurance issued by defendant. When plaintiff,
the general contractor on the project, contracted with subcontractor
M.S. Olender & Sons (Olender) to perform framing work on the project,
it insisted that it be named as an additional insured on Olender's
insurance policy in order to be covered under that policy in the event
of an accident such as occurred here. When two of Olender's employees
fell from a height, were injured and brought actions against plaintiff
                                     -10-                      293
                                                         CA 02-02284

pursuant to Labor Law § 240 (1), plaintiff accordingly turned the
claims over to defendant. This is so common a practice that it is
governed by its own rule, i.e., the antisubrogation rule (see
generally North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281,
294-295). Pursuant to the antisubrogation rule, an insurer "has no
right of subrogation against its own insured for a claim arising from
the very risk for which the insured was covered" (id. at 294). Thus,
defendant must undertake, under the policy, to defend each insured
under its policy unless coverage is excluded under the terms of the
policy. The policy exclusion at issue here states:

          "8.   We do not pay for:

          "a. bodily injury to an employee of an insured if
          it occurs in the course of employment ***.

           "Exclusion 8. applies where the insured is liable
          either as an employer or in any other capacity; or
          there is an obligation to fully or partially
          reimburse a third person for damages arising out
          of paragraph 8.a. *** above ***" (italics added).

     Defendant maintains, and the majority agrees, that the above
exclusion, which expressly applies to bodily injury to an employee of
an insured, in actuality applies to bodily injury to an employee of
any insured. We cannot agree. Defendant has separate and distinct
obligations to Olender as the primary insured and to plaintiff as the
additional insured under the separability of insureds doctrine (see
Greaves v Public Serv. Mut. Ins. Co., 5 NY2d 120, 124-125; Morgan v
Greater N.Y. Taxpayers Mut. Ins. Assn., 305 NY 243, 247-248). "[A]n
additional although unnamed insured *** [is] to be treated as if [it
has] a separate policy" in determining the applicability of an
exclusion (Greaves, 5 NY2d at 125). Thus, the obligations of
defendant to plaintiff, as the additional insured, must be considered
separately from its obligations to Olender, as the named insured (see
BMW Fin. Servs. v Hassan, 273 AD2d 428, 429, lv denied 95 NY2d 767).
Here, the policy excludes coverage for bodily injuries sustained by
"an employee of an insured." Applying the aforementioned principles
and reading that exclusion as if the policy had been issued separately
to plaintiff, we conclude that the injuries were not sustained by "an
employee of an insured" for the simple reason that, here, the injured
persons were not in fact employees of plaintiff. That interpretation
properly construes the language of the policy and is consistent with
the fact that plaintiff insisted that it be named as an additional
insured on Olender's insurance policy as well as the fact that Olender
agreed to do so. Were that not the case, plaintiff would not be
barred by the antisubrogation rule from seeking recovery from Olender
and, indeed, could commence a third-party action against Olender for
contribution and/or indemnification – the precise scenario that the
parties sought to avoid by having plaintiff named as an additional
insured.

     In our view, the majority's reliance on Consolidated Edison Co.
of N.Y. v United Coastal Ins. Co. (216 AD2d 137, lv denied 87 NY2d
                                 -11-                          293
                                                         CA 02-02284

808) and Tardy v Morgan Guar. Trust Co. of N.Y. (213 AD2d 296) is
misplaced. Those cases both involved a policy exclusion for "bodily
injury to any employee of any named insured" (Consolidated Edison Co.
of N.Y., 216 AD2d at 137 [emphasis added]; Tardy, 213 AD2d at 296
[emphasis added]). The phrases "any named insured," "any insured" and
"an insured," as well as the phrase "the insured" (see e.g. Ramirez v
United States Fid. & Guar. Co., 133 AD2d 146, 148) have distinct
meanings, particularly when viewed in light of the severability of
insureds doctrine. The majority also relies on the decision of the
First Department in Moleon v Kreisler Borg Florman Gen. Constr. Co.
(___ AD2d ___ [Apr. 3, 2003]), a case that appears to construe the
above phrases as synonyms. We would decline to follow it.

     In any event, we further note that the policy exclusion refers to
"bodily injury to an employee of an insured if it occurs in the course
of employment" yet then recites that "[e]xclusion 8. applies where the
insured is liable either as an employer or in any other capacity"
(italics added). Given our view that those phrases have precise
meanings, the conflicting use of the terms "an insured" and "the
insured" within the same exclusion leads us to conclude that the
language is ambiguous as a matter of law. Thus, the language must be
construed against defendant, as the drafter of the policy, and
plaintiff therefore is entitled to coverage on that basis as well (see
Westview Assoc. v Guaranty Natl. Ins. Co., 95 NY2d 334, 339). Thus,
we would reverse the order, grant plaintiff's motion, grant judgment
in favor of plaintiff declaring that defendant must defend and
indemnify it in the underlying actions and deny defendant's cross
motion.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

459
CA 02-01994
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND LAWTON, JJ.


STEPHEN STALIKAS, JR., AND HEIDI STALIKAS,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

UNITED MATERIALS, L.L.C., ET AL., DEFENDANTS,
AND MICHAEL DEAKIN, DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


LAW OFFICES OF EUGENE C. TENNEY, BUFFALO (ERIC M. SHELTON OF COUNSEL),
FOR PLAINTIFFS-APPELLANTS.

HAGELIN & BISCHOF, LLC, BUFFALO (DENNIS J. BISCHOF OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from a judgment of Supreme Court, Erie County (Dillon,
J.), entered December 6, 2001, upon a jury verdict rendered in favor
of defendant Michael Deakin.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is affirmed without costs.

     Memorandum: Supreme Court properly denied plaintiffs’ motion
pursuant to CPLR 4404 (a) seeking to set aside the verdict of no cause
of action as against the weight of the evidence. Stephen Stalikas,
Jr. (plaintiff) was injured when his van was struck from behind in a
five-vehicle collision. Plaintiff was required to stop his van on the
highway when a vehicle abruptly entered his lane of travel ahead of
his van. The pickup truck traveling directly behind plaintiff also
stopped, and there was conflicting evidence whether the pickup truck
that was two vehicles behind plaintiff, operated by defendant James
Pierce and owned by defendant United Materials, L.L.C., was stopped
before it was struck from behind by the vehicle operated by defendant
Michael Deakin. It is undisputed, however, that Deakin’s vehicle
struck the pickup truck operated by Pierce and that the pickup truck
operated by Pierce struck the pickup truck ahead of it, which in turn
struck plaintiff’s van.

      “‘[A] rear-end collision with a stopped vehicle establishes a
prima facie case of negligence on the part of the driver of the rear
vehicle ***. In order to rebut a prima facie showing of negligence,
the driver of the rear vehicle must submit a nonnegligent explanation
for the collision” (Ruzycki v Baker, 301 AD2d 48, 49). Here, although
plaintiffs established a prima facie case of negligence, Pierce and
                                 -13-                          459
                                                         CA 02-01994

Deakin offered a nonnegligent explanation for the collision. Pierce
testified that he applied his brakes when he saw the vehicle abruptly
enter his lane ahead of plaintiff, that he stopped his pickup truck
without striking the pickup truck directly behind plaintiff, and that
he struck the pickup truck directly behind plaintiff only after the
vehicle operated by Deakin struck his pickup truck. Deakin testified
that he was unable to see any vehicles ahead of Pierce’s large pickup
truck and thus, from his vantage point at the time of the collision,
Pierce stopped suddenly, without an apparent reason to do so (see
Niemiec v Jones, 237 AD2d 267, 267). The jury’s fact-finding
determination that neither Pierce nor Deakin was negligent is entitled
to great deference and we decline to disturb it (see Reno v AMR Serv.
Corp., 273 AD2d 454, 455).

     Even assuming, arguendo, that the court erred in failing to
charge the jury pursuant to PJI3d 2:26 (2001) (now PJI3d 2:26 [2003]),
we conclude that any error was harmless (see CPLR 2002). That PJI
charge “reflects the settled rule that a defendant’s unexcused
violation of the Vehicle and Traffic Law constitutes negligence per
se” (Holleman v Miner, 267 AD2d 867, 868-869). On the facts of this
case, a finding of negligence per se based upon a violation of Vehicle
and Traffic Law § 1129 (following too closely) would have been
inconsistent with the jury’s finding that defendants had nonnegligent
explanations for the rear-end collisions. Thus, even in the event
that the jury found that defendants violated the statute, it is
evident that, based upon the nonnegligent explanations of defendants
credited by the jury, the jury would have found that any violation was
excused. We have considered plaintiffs' remaining contention and
conclude that it is without merit.

     All concur except WISNER, J.P., and GORSKI, J., who dissent and
vote to reverse in accordance with the following Memorandum: We
respectfully dissent. In our view, Supreme Court’s refusal to charge
the jury with PJI3d 2:26 (2001) (now PJI3d 2:26 [2003]) along with
PJI3d 2:82 (2001) (now PJI3d 2:82) requires reversal and a new trial.
Here, there are issues of fact whether defendants James Pierce and
Michael Deakin violated Vehicle and Traffic Law § 1129, prohibiting
following too closely, and whether such violations were excusable
under the circumstances then existing. “[T]he clear import of the
instruction [pursuant to PJI3d 2:26] is that upon finding that a
defendant violated such a statute, the jury must conclude that the
defendant was negligent, and if such negligence was the proximate
cause of the plaintiff’s injury liability will follow. Any deviation
from the pattern instruction suggesting that violation of a statute is
merely ‘evidence of negligence’ is improper” (Holleman v Miner, 267
AD2d 867, 869 [emphasis added]). It appears from the transcript of
the charge conference that the court was under the misimpression that,
if the jury was instructed in accordance with PJI3d 2:26, the jury’s
inquiry would end, without consideration of proximate cause.

     In charging only PJI3d 2:82, the court instructed the jury to
evaluate whether Pierce and Deakin were following too closely and, if
so, whether they were negligent in doing so. Thus, “the language
employed by Supreme Court constituted the functional equivalent of
                                 -14-                          459
                                                         CA 02-01994

charging the jury that such statutory violations merely constituted
‘evidence of negligence’” (Holleman, 267 AD2d at 869), not negligence
per se. We believe that the jury should have been instructed that the
violation of Vehicle and Traffic Law § 1129 would constitute
negligence per se, not just some evidence of negligence to evaluate
along with the other evidence in the case. If the verdict sheet had
asked the jury to determine whether the actions of Pierce and Deakin
constituted a statutory violation, we could then determine whether the
court’s refusal to charge PJI3d 2:26 was harmless error but, in the
absence of such a question on the verdict sheet, we are unable to do
so.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

460
CA 02-01995
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND LAWTON, JJ.


STEPHEN STALIKAS, JR., AND HEIDI STALIKAS,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

UNITED MATERIALS, L.L.C., JAMES PIERCE,
DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANT.
(APPEAL NO. 2.)


LAW OFFICES OF EUGENE C. TENNEY, BUFFALO (ERIC M. SHELTON OF COUNSEL),
FOR PLAINTIFFS-APPELLANTS.

LAW OFFICES OF JOHN QUACKENBUSH, BUFFALO (WILLIAM E. NITTERAUER OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of Supreme Court, Erie County (Dillon,
J.), entered January 10, 2002, upon a jury verdict rendered in favor
of defendants United Materials, L.L.C. and James Pierce.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is affirmed without costs.

     Same Memorandum as in Stalikas v United Materials ([appeal No. 1]
___ AD2d ___ [June 13, 2003]).

     All concur except WISNER, J.P., and GORSKI, J., who dissent and
vote to reverse in accordance with the same dissenting Memorandum as
in Stalikas v United Materials ([appeal No. 1] ___ AD2d ___ [June 13,
2003]).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

461
CA 02-01996
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND LAWTON, JJ.


STEPHEN STALIKAS, JR., AND HEIDI STALIKAS,
PLAINTIFFS-APPELLANTS,

                    V                                            ORDER

UNITED MATERIALS, L.L.C., JAMES PIERCE,
AND MICHAEL DEAKIN, DEFENDANTS-RESPONDENTS.
(APPEAL NO. 3.)


LAW OFFICES OF EUGENE C. TENNEY, BUFFALO (ERIC M. SHELTON OF COUNSEL),
FOR PLAINTIFFS-APPELLANTS.

LAW OFFICES OF JOHN QUACKENBUSH, BUFFALO (WILLIAM E. NITTERAUER OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS UNITED MATERIALS, L.L.C. AND
JAMES PIERCE.

HAGELIN & BISCHOF, LLC, BUFFALO (DENNIS J. BISCHOF OF COUNSEL), FOR
DEFENDANT-RESPONDENT MICHAEL DEAKIN.


     Appeal from an order of Supreme Court, Erie County (Dillon, J.),
entered January 14, 2002, which denied plaintiffs' motion to set aside
the verdict.

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs (see Smith v Catholic Med. Ctr. of
Brooklyn & Queens, 155 AD2d 435; see also CPLR 5501 [a] [1]).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

474
CA 02-02591
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND LAWTON, JJ.


TODD C. ULLMAN, PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

GERALD C. MUSALL, INDIVIDUALLY AND DOING BUSINESS AS MUSALL
PANEL DOOR & CABINET CO., MARY LEE ARMOUR, DEFENDANTS-RESPONDENTS,
AND WALLY ARMOUR, DEFENDANT-APPELLANT-RESPONDENT.


J. MICHAEL SHANE, OLEAN, FOR DEFENDANT-APPELLANT-RESPONDENT AND
DEFENDANT-RESPONDENT MARY LEE ARMOUR.

GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (HOWARD B. COHEN OF
COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.

WALSH & WILKINS, BUFFALO (DEBORAH A. CHIMES OF COUNSEL), FOR
DEFENDANT-RESPONDENT GERALD C. MUSALL, INDIVIDUALLY AND DOING BUSINESS
AS MUSALL PANEL DOOR & CABINET CO.


     Appeal and cross appeal from an order of Supreme Court,
Cattaraugus County (Himelein, J.), entered July 9, 2002, which, inter
alia, denied plaintiff's cross motion seeking partial summary judgment
on the issue of liability under Labor Law § 240 (1) against defendant
Wally Armour.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously modified on the law by granting plaintiff's
cross motion seeking partial summary judgment on the issue of
liability under Labor Law § 240 (1) against defendant Wally Armour and
as modified the order is affirmed without costs.

     Memorandum: Plaintiff was employed by a prime contractor hired
by Wally Armour (defendant) in connection with the construction of a
home owned by defendant's wife, defendant Mary Lee Armour
(collectively defendants). Plaintiff commenced this action seeking
damages for injuries that he sustained when coworkers on the third
floor handed down to plaintiff on the second floor a sheet of drywall
that was 12 feet long and weighed 125 pounds. The drywall slipped
from the hands of a coworker and struck plaintiff's eye. We agree
with plaintiff that Supreme Court erred in denying his cross motion
seeking partial summary judgment on the issue of liability under Labor
Law § 240 (1) against defendant. Contrary to defendants' contention,
the court properly determined that plaintiff was injured when he was
struck "'by a falling object that was improperly hoisted or
inadequately secured'" (Panattoni v Inducon Park Assoc., 247 AD2d 823)
                                 -18-                          474
                                                         CA 02-02591

and thus that this was a hazard contemplated by section 240 (1) (see
generally Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267). The
court erred, however, in determining that there is an issue of fact
whether defendant was the general contractor. Plaintiff established
that defendant designed the home, hired and scheduled the work of the
prime contractors, purchased liability insurance, was present on the
site on a daily basis and placed a sign at the site stating that he
was the general contractor. Defendants failed to raise a triable
issue of fact with respect to defendant's status as a general
contractor.

     We agree with defendants, however, that the court properly
granted those parts of their motion seeking summary judgment
dismissing the causes of action alleging common-law negligence and a
violation of Labor Law § 200 against defendant. Defendants
established that defendant did not supervise or control the work of
the various prime contractors and plaintiff failed to raise a triable
issue of fact (see Krick v Fluor Daniel, 236 AD2d 783). We further
conclude that the court properly granted that part of the motion
seeking summary judgment dismissing the cause of action alleging a
violation of Labor Law § 241 (6) because none of the regulations
allegedly violated applies to the facts here.

     The court also properly granted that part of defendants' motion
seeking summary judgment dismissing the complaint against defendant's
wife because she produced uncontroverted proof that she is the owner
of a single-family dwelling and that she exercised no supervision or
control over the construction of the home (see Labor Law § 240 [1];
Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877).

     Finally, defendant Gerald C. Musall established that he did not
exercise supervision or control over plaintiff's work and therefore is
not liable as an agent of the owner or general contractor (see Nowak v
Kiefer, 256 AD2d 1129, 1130, lv dismissed in part and denied in part
93 NY2d 887, rearg dismissed 93 NY2d 1000). Plaintiff failed to raise
a triable issue of fact, and thus we conclude that the court properly
granted the motion of Musall for summary judgment dismissing the
complaint against him.

     We therefore modify the order by granting plaintiff's cross
motion seeking partial summary judgment on the issue of liability
under Labor Law § 240 (1) against defendant and otherwise affirm.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

477
CA 02-02344
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND LAWTON, JJ.


MATTER OF APPLICATION OF H.E. SMITH,
EXECUTIVE DIRECTOR OF CENTRAL NEW YORK
PSYCHIATRIC CENTER, PETITIONER-RESPONDENT,                        ORDER

FOR AN ORDER AUTHORIZING THE INVOLUNTARY
TREATMENT OF WILSON G., RESPONDENT-APPELLANT.


EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, ROCHESTER
(LISA L. PAINE OF COUNSEL), FOR RESPONDENT-APPELLANT.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (EVELYN M. TENENBAUM OF
COUNSEL), FOR PETITIONER-RESPONDENT.

SARAH KERR, NEW YORK, FOR LEGAL AID SOCIETY, PRISONERS' RIGHTS
PROJECT, BETSY STERLING, ITHACA, FOR PRISONERS' LEGAL SERVICES OF NEW
YORK, AND TAMMY SELTZER, WASHINGTON, D.C., FOR JUDGE DAVID L. BAZELON
CENTER FOR MENTAL HEALTH LAW, AMICI CURIAE.


     Appeal from an order of Supreme Court, Oneida County (Ringrose,
J.), entered August 7, 2002, which, inter alia, granted petitioner's
application for an order authorizing the involuntary treatment of
respondent.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs for the reasons
stated in decision at Supreme Court, Oneida County, Ringrose, J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

479
CA 02-01030
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND LAWTON, JJ.


TRAVELERS COMMERCIAL INSURANCE COMPANY AND TRAVELERS
CASUALTY & SURETY COMPANY, PLAINTIFFS-RESPONDENTS,

                    V                                        ORDER

HARTFORD FIRE INSURANCE COMPANY, ET AL., DEFENDANTS,
AND CNA INSURANCE COMPANIES, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


SUGARMAN LAW FIRM, LLP, SYRACUSE (TIMOTHY J. PERRY OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WARD NORRIS ZORN & REIDY LLP, ROCHESTER (CHERYL A. HELLER OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of Supreme Court, Monroe County (Polito,
J.), entered June 22, 2001, which, inter alia, denied the motion of
defendant CNA Insurance Companies for partial summary judgment.

     Now, upon reading and filing the stipulation withdrawing appeals
signed by the attorneys for the parties on May 12, 2003,

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs upon stipulation.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

480
CA 02-01031
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND LAWTON, JJ.


TRAVELERS COMMERCIAL INSURANCE COMPANY AND TRAVELERS
CASUALTY & SURETY COMPANY, PLAINTIFFS-RESPONDENTS,

                    V                                               ORDER

HARTFORD FIRE INSURANCE COMPANY, ET AL., DEFENDANTS,
AND CNA INSURANCE COMPANIES, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


SUGARMAN LAW FIRM, LLP, SYRACUSE (TIMOTHY J. PERRY OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WARD NORRIS ZORN & REIDY LLP, ROCHESTER (CHERYL A. HELLER OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of Supreme Court, Monroe County (Polito,
J.), entered November 20, 2001, which, inter alia, denied the motion
of defendant CNA Insurance Companies for partial summary judgment.

     Now, upon reading and filing the stipulation withdrawing appeals
signed by the attorneys for the parties on May 12, 2003,

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs upon stipulation.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

481
CA 02-01032
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND LAWTON, JJ.


TRAVELERS COMMERCIAL INSURANCE COMPANY AND TRAVELERS
CASUALTY & SURETY COMPANY, PLAINTIFFS-RESPONDENTS,

                    V                                               ORDER

HARTFORD FIRE INSURANCE COMPANY, ET AL., DEFENDANTS,
AND CNA INSURANCE COMPANIES, DEFENDANT-APPELLANT.
(APPEAL NO. 3.)


SUGARMAN LAW FIRM, LLP, SYRACUSE (TIMOTHY J. PERRY OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WARD NORRIS ZORN & REIDY LLP, ROCHESTER (CHERYL A. HELLER OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of Supreme Court, Monroe County (Polito,
J.), entered March 2, 2002, which denied the motion of defendant CNA
Insurance Companies for partial summary judgment.

     Now, upon reading and filing the stipulation withdrawing appeals
signed by the attorneys for the parties on May 12, 2003,

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs upon stipulation.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

482
CA 02-01311
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND LAWTON, JJ.


TRAVELERS COMMERCIAL INSURANCE COMPANY AND TRAVELERS
CASUALTY & SURETY COMPANY, PLAINTIFFS-RESPONDENTS,

                    V                                               ORDER

HARTFORD FIRE INSURANCE COMPANY, ET AL., DEFENDANTS,
AND CNA INSURANCE COMPANIES, DEFENDANT-APPELLANT.
(APPEAL NO. 4.)


SUGARMAN LAW FIRM, LLP, SYRACUSE (TIMOTHY J. PERRY OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WARD NORRIS ZORN & REIDY LLP, ROCHESTER (CHERYL A. HELLER OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of Supreme Court, Monroe County (Polito,
J.), entered April 22, 2002, which, inter alia, granted plaintiffs'
motion for summary judgment.

     Now, upon reading and filing the stipulation withdrawing appeals
signed by the attorneys for the parties on May 12, 2003,

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs upon stipulation.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

483
CA 02-02649
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND LAWTON, JJ.


TRAVELERS COMMERCIAL INSURANCE COMPANY AND TRAVELERS
CASUALTY & SURETY COMPANY, PLAINTIFFS-RESPONDENTS,

                    V                                               ORDER

HARTFORD FIRE INSURANCE COMPANY, ET AL., DEFENDANTS,
AND CNA INSURANCE COMPANIES, DEFENDANT-APPELLANT.
(APPEAL NO. 5.)


SUGARMAN LAW FIRM, LLP, SYRACUSE (TIMOTHY J. PERRY OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WARD NORRIS ZORN & REIDY LLP, ROCHESTER (CHERYL A. HELLER OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     Appeal from a judgment of Supreme Court, Monroe County (Polito,
J.), entered April 29, 2002, which awarded plaintiffs the sum of
$633,333.33, plus interest, costs and disbursements.

     Now, upon reading and filing the stipulation withdrawing appeals
signed by the attorneys for the parties on May 12, 2003,

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs upon stipulation.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

488
CA 02-02475
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND LAWTON, JJ.


THOMAS DESHOTEL, PLAINTIFF-RESPONDENT,

                    V                                               ORDER

PAMELA DESHOTEL, DEFENDANT-APPELLANT.


SCHELL & SCHELL, P.C., FAIRPORT (GEORGE A. SCHELL OF COUNSEL), FOR
DEFENDANT-APPELLANT.

JOI CARY, FAIRPORT, FOR PLAINTIFF-RESPONDENT.

NANCY M. LORD, LAW GUARDIAN, LYONS, FOR ASHLEY D.


     Appeal from that part of a judgment of Supreme Court, Wayne
County (Keenan, J.), entered February 27, 2002, that, inter alia,
provided that the physical residence of the parties' child was to be
with plaintiff.

      Now, upon reading and filing the stipulation signed by the
attorneys for the parties and the Law Guardian and filed on May 16,
2003,

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs upon stipulation.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

491
CA 02-02559
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND LAWTON, JJ.


RANDALL D. DAILEY, SR., AND CONNIE R. DAILEY,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

PATRICIA KEITH AND TIMOTHY KEITH,
DEFENDANTS-APPELLANTS.
(APPEAL NO. 1.)


DAVIDSON & O'MARA, P.C., ELMIRA (DONALD S. THOMSON OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

PAUL A. ARGENTIERI, HORNELL, FOR PLAINTIFFS-RESPONDENTS.


     Appeal from that part of an order of Supreme Court, Steuben
County (Furfure, J.), entered January 29, 2002, that denied
defendants' motion to set aside the verdict.

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs.

     Memorandum: Defendants appeal from a judgment entered on a jury
verdict awarding Randall D. Dailey, Sr. (plaintiff) $240,000 in
damages on a personal injury claim. Plaintiffs cross-appeal from that
part of an order denying their cross motion to set aside the verdict
insofar as it awarded plaintiff's wife no damages on her derivative
claim. In the exercise of our discretion, we treat plaintiffs' notice
of appeal as one taken from the final judgment (see CPLR 5520 [c];
DiCesare v Glasgow, 295 AD2d 1007, 1008) and we dismiss the separate
appeal of defendants from that part of the order denying their motion
to set aside the verdict (see Smith v Catholic Med. Ctr. of Brooklyn &
Queens, 155 AD2d 435; see also CPLR 5501 [a] [1]).

     Plaintiffs commenced this action to recover damages for injuries
allegedly sustained by plaintiff in a motor vehicle accident in March
1996. Plaintiffs alleged that a motor vehicle operated by Patricia
Keith (defendant) ran a stop sign and collided with the motor vehicle
operated by plaintiff. Contrary to the contention of defendants,
Supreme Court did not err in refusing to allow them to use defendant's
own deposition pursuant to CPLR 3117 (a) (3) (ii) as direct evidence
on the issue of liability. Although defendant had recently moved to
Texas, her absence from the State and refusal to return for trial were
voluntary, notwithstanding her change in employment and fear of
flying. The court's exercise of discretion under CPLR 3117 is
                                 -27-                          491
                                                         CA 02-02559

reviewable only for "clear abuse" (Feldsberg v Nitschke, 49 NY2d 636,
643). Given "the law's preference for oral testimony in open court"
(Siegel, NY Prac § 358, at 559) and all the relevant facts and
circumstances, we perceive no such abuse of discretion here.

     We further conclude that the court properly denied defendants'
motion to preclude plaintiffs' expert from testifying. Contrary to
defendants' contentions, plaintiffs' belated disclosure of the expert
was not intentional or willful (see Cutsogeorge v Hertz Corp., 264
AD2d 752, 753-754; Aversa v Taubes, 194 AD2d 580, 582) and "[t]he
expert testimony offered no surprises" (Lillis v D'Souza, 174 AD2d
976, 976, lv denied 78 NY2d 858). Furthermore, "any potential
prejudice to the defendants could have been alleviated by *** an
adjournment" (Shopsin v Siben & Siben, 289 AD2d 220, 221), which they
failed to request. Defendants' further contention that the expert
should not have been allowed to testify because he did not review
plaintiff's medical records is not supported by the record.
Defendants' additional contentions concerning plaintiffs' expert are
not preserved for our review (see CPLR 4017; 5501 [a] [3]).

     We further reject defendants' contention that the court erred in
admitting plaintiff's certified medical records in evidence (see Maxcy
v County of Putnam, 178 AD2d 729, 730, lv dismissed 80 NY2d 826). We
also conclude that defendants' request for a missing witness charge
with respect to plaintiff's treating physicians was not timely (see
Thomas v Triborough Bridge & Tunnel Auth., 270 AD2d 336, 337-338; cf.
Adkins v Queens Van-Plan, 293 AD2d 503, 504). Furthermore, to the
extent that defendants contend that the court erred in charging the
jury on the issue of serious injury, that contention is not preserved
for our review (see CPLR 4110-b).

     Defendants also contend that they were denied a fair trial by
comments made by plaintiffs' counsel on summation allegedly
"implor[ing] the jury to sit in the shoes of this poor plaintiff."
Defendants failed to object to the comments when they were made and
thus defendants' contention is not preserved for our review (see
Padilla v Style Mgt. Co., 256 AD2d 27). In any event, in response to
defendants' belated objection after summations were completed, the
court gave a curative instruction alleviating any possible prejudice
(see Blanar v Dickinson, 296 AD2d 431; Bacigalupo v Heathshield, 231
AD2d 538, 539). We further reject defendants' contention that
comments made by plaintiffs' counsel on summation concerning
defendants' failure to call any expert witnesses were improper; the
remarks were fair comment in response to remarks by defense counsel
(see Boshnakov v Board of Educ. of Town of Eden, 277 AD2d 996, lv
denied 96 NY2d 703). Finally, we reject defendants' contention that
the judgment should be reversed as a result of cumulative error.

     On their cross appeal, plaintiffs contend that the jury's failure
to award any damages on the derivative claim is inconsistent with the
verdict in favor of plaintiff and thus the court erred in denying
their cross motion to set aside the verdict. The court, however,
properly denied the cross motion on the ground that plaintiffs failed
to raise that alleged inconsistency before the jury was discharged
                                 -28-                          491
                                                         CA 02-02559

(see Bowes v Noone, 298 AD2d 859, 860-861, lv denied 99 NY2d 506; see
also Everding v Bombard, 272 AD2d 937, 938).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

492
CA 02-02562
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND LAWTON, JJ.


RANDALL D. DAILEY, SR., AND CONNIE R. DAILEY,
PLAINTIFFS-RESPONDENTS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

PATRICIA KEITH AND TIMOTHY KEITH,
DEFENDANTS-APPELLANTS-RESPONDENTS.
(APPEAL NO. 2.)


DAVIDSON & O'MARA, P.C., ELMIRA (DONALD S. THOMSON OF COUNSEL), FOR
DEFENDANTS-APPELLANTS-RESPONDENTS.

PAUL A. ARGENTIERI, HORNELL, FOR PLAINTIFFS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from a judgment of Supreme Court, Steuben
County (Furfure, J.), entered January 29, 2002, which awarded
plaintiff Randall D. Dailey, Sr., money damages upon a jury verdict.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.

     Same Memorandum as in Dailey v Keith ([appeal No. 1] ___ AD2d ___
[June 13, 2003]).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

495.1
CA 02-02739
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND LAWTON, JJ.


RODNEY BRUCE PETERS, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE FARM FIRE AND CASUALTY COMPANY, DEFENDANT-RESPONDENT.


BRENNA & BRENNA, ROCHESTER (ROBERT L. BRENNA, JR., OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

HISCOCK & BARCLAY, LLP, ROCHESTER (ROBERT M. SHADDOCK OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of Supreme Court, Monroe County (Siracuse,
J.), entered July 10, 2002, which, inter alia, granted defendant's
cross motion for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is affirmed without costs.

     Memorandum: Plaintiff sustained injuries when Curtis Johnson,
Jr. struck him with a baseball bat. At the time of the incident,
Johnson was insured under a homeowner's policy issued to his parents
by defendant. Johnson pleaded guilty to assault in the third degree
for causing physical injury to plaintiff by means of a dangerous
instrument with criminal negligence (see Penal Law § 120.00 [3]). On
or about January 9, 1992, plaintiff commenced an action against, inter
alia, Johnson to recover damages for his personal injuries, alleging
that Johnson's actions were "willful, intentionally harmful *** [and]
committed with actual malice," and that Johnson "while intoxicated,
recklessly, carelessly, and negligently, failed to control his actions
and *** negligently allowed a baseball bat to come into contact with
the Plaintiff." Defendant denied coverage based upon exclusions for
injury "expected or intended by an insured" or "the result of wilful
and malicious acts of an insured." Johnson defaulted in the personal
injury action and Supreme Court (Polito, J.) granted plaintiff's
motion for partial summary judgment on the issue of liability.
Plaintiff thereafter commenced the instant action seeking judgment
declaring that defendant is obligated to indemnify Johnson in the
underlying personal injury action.

     Supreme Court (Siracuse, J.) properly granted defendant's cross
motion for summary judgment dismissing the complaint. In Allstate
Ins. Co. v Mugavero (79 NY2d 153, 159), the Court of Appeals set forth
the standard to be applied in determining whether the exclusion for
                                 -31-                          495.1
                                                         CA 02-02739

"bodily injury 'intentionally caused by an insured'" under a standard
liability insurance policy applies. "The critical question is whether
the harm that resulted *** could have been other than harm
'intentionally caused'" (id.). Subsequently, in Slayko v Security
Mut. Ins. Co. (98 NY2d 289, 293), the Court qualified that standard,
explaining that "conduct, though reckless, [that] was not inherently
harmful" did not fall within the exclusion. The Court further noted
that "[t]he general rule remains that 'more than a causal connection
between the intentional act and the resultant harm is required to
prove that the harm was intended'" (id., quoting Allstate Ins. Co., 79
NY2d at 160). Applying that standard to the facts in Slayko, the
Court held that there was insufficient proof of intentional harm
because there was no evidence that the insured knew that the shotgun
was loaded when he pointed it at the plaintiff, pulled the trigger and
shot him (see id.). That reasoning does not apply to the facts of
this case. Johnson testified at an examination before trial that, in
order to help extricate his brother from an altercation with
plaintiff, he repeatedly swung a baseball bat knowing that the bat was
striking a person. The injuries sustained by plaintiff as a result of
that conduct can only be described as "intentionally caused" as a
matter of law (Allstate Ins. Co., 79 NY2d at 156-157). In addition,
the public policy argument advanced in Allstate Ins. Co. is also
applicable here (see id. at 161). Consequently, we affirm.

     All concur except GREEN, AND BURNS, JJ., who dissent in part and
vote to modify in accordance with the following Memorandum: We
respectfully dissent in part. In our view defendant failed to
establish as a matter of law that plaintiff's injuries were not the
result of a covered occurrence (see Aetna Cas. & Sur. Co. v Gigante,
229 AD2d 975, 976), or that they fell within the policy exclusions for
injuries that were expected or intended by Curtis Johnson, Jr. or the
result of his willful and malicious acts (see Allstate Ins. Co. v Zuk,
78 NY2d 41, 46-47; Matijiw v New York Cent. Mut. Fire Ins. Co., 292
AD2d 865-866). Contrary to the majority, we do not believe that the
testimony of Johnson supports the conclusion that, as a matter of law,
Johnson knew that he was striking a person when he was swinging the
bat or that he "intended the damages" to plaintiff (see General Acc.
Ins. Co. v Zazynski, 229 AD2d 920). Defendant also failed to
establish that it timely disclaimed coverage based upon the policy
exclusions (see Insurance Law § 3420 [d]; Hartford Ins. Co. v County
of Nassau, 46 NY2d 1028, 1029, rearg denied 47 NY2d 951; Allegany Co-
op. Ins. Co. v Kohorst, 254 AD2d 744, 745). We would therefore modify
the order by denying defendant's cross motion for summary judgment
dismissing the complaint and reinstating the complaint.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

507
KA 00-02995
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                                               ORDER

GERALD SMITH, DEFENDANT-APPELLANT.


R. ADRIAN SOLOMON, ROCHESTER, FOR DEFENDANT-APPELLANT.

HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (DANIEL P. MAJCHRZAK,
JR., OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Supreme Court, Monroe County (Fisher,
J.), entered August 10, 2000, convicting defendant after a jury trial
of, inter alia, assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

528
CA 02-01679
PRESENT: PINE, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


CHERYL ANDREA, JOHN S. ANDREA, LOUISE CIANCIO,
JOSEPH CIANCIO, MICHELLE GEISLER, THOMAS P. KEELEY, JANET
H. KEELEY, ARTHUR V. KENNEDY, CONCETTA M. KENNEDY,
EVANGELINE LAMPER, JERRY ROBERT LAMPER, SAMANTHEE ANN
MOORE, JOHN R. MOORE, KARA L. (REED) MORAN, TIMOTHY MORAN,
KIM RICHIR, LEE ANN RICHIR, SHARYL SHIELDS, KENT C. SHIELDS,
NANCY TAYLOR, GERALDINE TEDESCO, JOANN M. WILFONG, AND
CHARLES WILFONG, PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

ARNONE, HEDIN, CASKER, KENNEDY AND DRAKE ARCHITECTS
AND LANDSCAPE ARCHITECTS, P.C. (HABITERRA ASSOCIATES),
ET AL., DEFENDANTS,
TIEDE-ZOELLER, INC., DEFENDANT-APPELLANT.
(ACTION NO. 1.)
----------------------------------------------------
MARK FOSTER, CHRISTY FRANCISCO, JEFFREY FRANKIEWICZ,
SCOTT FROST, BRANDON HICKS, NICOLE HUNTER, KELLY JEAN
MURPHY, CHRISTOPHER SPENCE, CHRISTINA TERRY, ADAM THORN,
HEIDI MARIE WARD, AND AARON WHITE, PLAINTIFFS-RESPONDENTS,

                    V

JAMESTOWN PUBLIC SCHOOLS, TIEDE-ZOELLER, INC.,
DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.
(ACTION NO. 2.)


HODGSON RUSS LLP, BUFFALO (JASON E. MARKEL OF COUNSEL), FOR
DEFENDANT-APPELLANT JAMESTOWN PUBLIC SCHOOLS.

THE DEAN LAW FIRM, P.C., GRAND ISLAND (ROBERT A. DEAN OF COUNSEL), FOR
DEFENDANT-APPELLANT TIEDE-ZOELLER, INC.

LEWIS & LEWIS, P.C., BUFFALO (ALLAN M. LEWIS OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


      Appeals from an order of Supreme Court, Chautauqua County
(Gerace, J.), entered May 10, 2002, which, inter alia, denied the
motions of defendant Tiede-Zoeller, Inc. and the cross motion of
defendant Jamestown Public Schools to dismiss the complaints against
them.
                                 -34-                          528
                                                         CA 02-01679

     It is hereby ORDERED that the order so appealed from be and the
same hereby is reversed on the law without costs, the motions and the
cross motion are granted and the complaints against defendants Tiede-
Zoeller, Inc. and Jamestown Public Schools are dismissed.

     Memorandum: Plaintiffs, various teachers and former students at
the Jefferson Middle School in Jamestown, allegedly were exposed to
toxic materials that caused various health problems when the school
was renovated in 1992, and subsequently commenced actions to recover
damages. The defendants in those actions moved for an order
precluding plaintiffs from introducing certain evidence and testimony
at trial for failure to respond to outstanding discovery demands. By
order dated February 9, 1996, Supreme Court denied the preclusion
motion and cross motions but ordered plaintiffs to provide responses
to all outstanding discovery demands within 30 days. By order dated
February 13, 1997, the court scheduled depositions and ordered
plaintiffs to serve amended complaints and bills of particulars and
provide supplemental interrogatory responses within 30 days after the
depositions. By order dated December 10, 1998, the court denied a
further motion by defendants to dismiss the complaints for failure to
comply with discovery orders and demands, but the order expressly
provided that the court would reconsider dismissal of the complaints
if plaintiffs failed within 60 days to establish a prima facie case by
submitting evidence of each plaintiff's exposure, injury, causation of
injury, and damages. The court further ordered plaintiffs to provide
answers to interrogatories within 30 days and to confer with
defendants' counsel to set a schedule for the completion of discovery
and the filing of a note of issue no later than July 15, 1999. The
court also scheduled a hearing to be held on February 8, 1999, to
determine whether counsel fees, costs and sanctions should be assessed
against plaintiffs' attorneys.

     By order dated January 11, 1999, the court denied a further
motion by defendants for an order striking the complaints and
dismissing the actions. The court reiterated that a hearing on
counsel fees, costs and sanctions would be held on February 8, 1999,
and that it "may dismiss" the complaints if plaintiffs failed to
establish a prima facie case by that time. The court also ordered
plaintiffs to answer "all outstanding and previously unanswered"
interrogatories within 30 days, and the court reiterated that
discovery should be completed and a note of issue filed by July 15,
1999. The deadline of February 8, 1999 for the submission of evidence
of a prima facie case and answers to interrogatories was extended to
April 3, 1999. On that date, instead of complying with the previous
discovery deadlines and furnishing evidence of a prima facie case,
plaintiffs moved for an extension of time.

     By order dated July 12, 1999, the court conditionally dismissed
the complaints unless plaintiffs complied with all discovery orders
and demands by August 15, 1999. The court further ordered plaintiffs'
attorneys to pay defendants' counsel fees and costs as a sanction for
frivolous conduct "undertaken primarily to delay or prolong resolution
of this litigation." By order dated May 19, 2000, the court dismissed
the complaints based on its conclusion that plaintiffs had failed to
                                 -35-                          528
                                                         CA 02-01679

comply with the earlier discovery orders and demands. The court
stated that it had "no other option" but to dismiss the case and that
it was doing so "with great reluctance." While the appeals from that
order were pending, plaintiffs hired new attorneys and moved for
renewal or reargument. The court granted reargument on a ground not
raised by plaintiffs and reinstated the complaints against three of
the defendants. In the interim, we affirmed the original order
dismissing the complaints (Andrea v E.I. DuPont DeNemours & Co., 284
AD2d 921) and, upon the subsequent appeals of those three defendants
from the order granting reargument, we reversed that order and
reinstated the final order of dismissal with respect to them (Andrea v
E.I. DuPont DeNemours & Co., 289 AD2d 1039, lv denied 97 NY2d 749).

     While the appeals from the order granting reargument were
pending, plaintiffs commenced new actions pursuant to CPLR 205 (a),
and defendant Tiede-Zoeller, Inc. (Tiede-Zoeller) moved and defendant
Jamestown Public Schools (Jamestown) cross-moved to dismiss the
complaints against them. Those defendants contended, inter alia, that
the new actions were time-barred. The court again required plaintiffs
to tender evidence of a prima facie case, inasmuch as plaintiffs had
not previously provided such evidence. Upon determining that
plaintiffs had tendered such evidence, the court denied the motions
and cross motion and concluded that plaintiffs were entitled to
commence the actions pursuant to CPLR 205 (a). The court determined
that it had dismissed the prior actions only because of the failure of
plaintiffs' former attorneys to comply with discovery orders and
demands, not upon the merits or for plaintiffs' neglect to prosecute.

     We reverse. CPLR 205 (a) does not apply where the former action
was terminated by, inter alia, "a dismissal of the complaint for
neglect to prosecute the action." We conclude, despite the court's
statement to the contrary, that plaintiffs' former actions were
dismissed for neglect to prosecute.

     It is well settled that plaintiffs who have "willful[ly] and
repeated[ly] refus[ed] to obey court-ordered disclosure" are not
entitled to reinstitute their actions pursuant to CPLR 205 (a) because
such refusal constitutes a neglect to prosecute within the meaning of
that section (Carven Assoc. v American Home Assur. Corp., 84 NY2d 927,
930; see Flans v Federal Ins. Co., 43 NY2d 881; MacIntosh v Bronzo,
302 AD2d 434; Alaimo v Velco Enters., 234 AD2d 325). CPLR 205 (a)
"will normally '[apply to] situations in which a suit has been started
but, due to an excusable mistake or a procedural defect or ineptitude
of counsel or inability to obtain needed evidence, or some other cause
that should not be fatal to the claim, the start has been a false
one'" (George v Mt. Sinai Hosp., 47 NY2d 170, 179). Contrary to the
contention of plaintiffs, the failure of their former attorneys to
comply with discovery orders and demands for over four years was not
merely a matter of "ineptitude," nor can it be said that there was a
"false start" in this case. Here, the court issued five orders to
comply with discovery demands over a period of four years,
conditionally dismissed the actions for noncompliance, imposed
monetary sanctions on counsel, and finally dismissed the complaints
only after all of those measures proved unsuccessful in eliciting
                                 -36-                          528
                                                         CA 02-01679

discovery compliance. We conclude that, under the circumstances of
this case, the dismissal was predicated upon a neglect to prosecute,
thus rendering the revival provisions of CPLR 205 (a) inapplicable
(see Carven, 84 NY2d at 930; MacIntosh, 302 AD2d 434; see also Francis
v Elfort Realty Corp., 267 AD2d 120; Williams v Jian Chu Yu, 207 AD2d
442; Kelly v Rosenthal, 176 AD2d 283, lv denied 79 NY2d 751; Benedetto
v Hodes, 112 AD2d 393). We therefore reverse the order, grant the
motions of Tiede-Zoeller and the cross motion of Jamestown and dismiss
the complaints against them.

     In light of our determination, we do not address defendants'
remaining contentions.

     All concur except, PINE, J.P., and GORSKI, J., who dissent in part
and vote to modify in accordance with the following Memorandum: We
respectfully dissent in part, and conclude that Supreme Court properly
denied the motions of defendant Tiede-Zoeller, Inc. and the cross
motion of defendant Jamestown Public Schools to dismiss the complaints
with respect to all plaintiffs except Timothy Moran (hereafter,
plaintiffs). The sole contested issue on this appeal is whether the
court, in dismissing the prior complaints by order dated May 19, 2000,
did so because of plaintiffs' neglect to prosecute the action or
because of the ineptitude of counsel for plaintiffs. In Schuman v
Hertz Corp. (17 NY2d 604), the intent of the trial court in dismissing
the action was the only factor considered by the Court of Appeals.
The Court wrote that "[t]he record before us indicates that the
dismissal of the original suit was not intended by the Justice
presiding to be a dismissal for neglect to prosecute. We call
particular attention to the fact that the same Justice who dismissed
the original action also denied defendant's motion to dismiss this
complaint on the grounds that the original one had not been dismissed
for neglect to prosecute" (id. at 605-606). In this case, the court
specified that it had dismissed the prior complaints because of the
ineptitude of plaintiffs' counsel, and thus we are compelled to
disagree with the statement of the majority that the prior dismissal
"was predicated upon a neglect to prosecute." Indeed, the court
wrote:

          "Any reading of the decisions issued by this Court over
     the history of the prior actions can leave no doubt that it
     was the ineptitude of counsel that prompted the dismissal of
     the actions. It was for that reason that the Court first
     took the step of sanctioning prior plaintiffs' counsel
     before finally dismissing the cases and directed counsel to
     provide copies of the Court's decisions to the innocent
     [plaintiffs] *** so that they would know where the blame
     should lie.

          "There has been nothing at all submitted to suggest
     that the [plaintiffs], as opposed to their former counsel,
     were unwilling to prosecute the actions in a timely fashion.
     This is not a situation in which discovery defaults occurred
     because of a plaintiff's failure to cooperate."
                                 -37-                          528
                                                         CA 02-01679

      The courts of this State have long held that an innocent party
should not be penalized for the neglect of counsel (see e.g. Paoli v
Sullcraft Mfg. Co., 104 AD2d 333, 334; Neyra y Alba v Pelham Foods, 46
AD2d 760, 761; Moran v Rynar, 39 AD2d 718, 718-719). "A proper
exercise of discretion in cases like this requires a balanced
consideration of all relevant factors, including the merit or lack of
merit in the action, seriousness of the injury, extent of the delay,
excuse for the delay, prejudice or lack of prejudice to the defendant,
and the intent or lack of intent to deliberately default or abandon
the action. Also to be weighed in the balance is our strong public
policy that actions be disposed of on the merits ***. *** 'It must be
borne in mind, moreover, that dismissal is a harsh penalty imposed on
a client for his lawyer's failures; justified annoyance by the court
at a lawyer's procrastinations should not be vented on the litigant
with a meritorious claim by closing the courts to him'" (Moran, 39
AD2d at 718-719).

     The majority states that "plaintiffs who have 'willful[ly] and
repeated[ly] refus[ed] to obey court-ordered disclosure' are not
entitled to reinstitute their actions pursuant to CPLR 205 (a),"
quoting Carven Assoc. v American Home Assur. Corp. (84 NY2d 927, 930).
In our view, the majority's reliance on Carven Assoc. is misplaced.
In that case, the Court of Appeals prefaced its decision with the
statement, "In the singular circumstances presented by this appeal
***," thereby narrowly limiting the precedential effect of its
decision therein (id.). Based on the clear expression of the court's
intention when dismissing these complaints prior to re-commencement of
the actions in accordance with CPLR 205 (a), we are compelled to
conclude that the court properly exercised its discretion.

     We note, however, that plaintiff Timothy Moran was not a party to
the original actions prior to their dismissal, and thus we agree with
the majority that the complaint in action No. 1 should have been
dismissed with respect to him.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

531
CA 02-02021
PRESENT: PINE, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


CNA COMMERCIAL INSURANCE AND TRANSCONTINENTAL
INSURANCE COMPANY, PLAINTIFFS-APPELLANTS,

                    V                                            ORDER

TRAVERS, COLLINS & PARTNERS, INC.,
DEFENDANT-RESPONDENT.


O'SHEA, REYNOLDS & CUMMINGS, BUFFALO (MICHELLE PARKER OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

ALLEN & LIPPES, BUFFALO (JAMES F. ALLEN OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of Supreme Court, Erie County (Makowski,
J.), entered November 27, 2001, which, inter alia, denied plaintiffs'
motion for summary judgment.

     Now, upon reading and filing the stipulation to discontinue the
appeal signed by the attorneys for the parties on May 5, 2003,

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs upon stipulation.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

536
CA 02-02598
PRESENT: PIGOTT, JR., P.J., HURLBUTT, SCUDDER, LAWTON, AND HAYES, JJ.


PETER B. HESS AND SEANE BENNETT, PLAINTIFFS-RESPONDENTS,

                    V                                               ORDER

MURNANE BUILDING CONTRACTORS, INC., AND SYRACUSE
UNIVERSITY, DEFENDANTS-APPELLANTS.
(APPEAL NO. 1.)


RIVKIN RADLER LLP, UNIONDALE (HARRIS J. ZAKARIN OF COUNSEL), AND
COLUCCI & GALLAHER, P.C., BUFFALO, FOR DEFENDANTS-APPELLANTS.

RIEHLMAN, SHAFER & SHAFER, TULLY (ROBERT M. SHAFER OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of Supreme Court, Onondaga County (Tormey,
III, J.), entered April 25, 2002, which, inter alia, granted
plaintiffs' motion to set aside that portion of the jury verdict
awarding no damages for loss of consortium and granted a new trial.

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs (see Smith v Catholic Med. Ctr. of
Brooklyn & Queens, 155 AD2d 435; see also CPLR 5501 [a] [1], [2]).




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

537
CA 02-02602
PRESENT: PIGOTT, JR., P.J., HURLBUTT, SCUDDER, LAWTON, AND HAYES, JJ.


PETER B. HESS AND SEANE BENNETT, PLAINTIFFS-RESPONDENTS,

                    V                              MEMORANDUM AND ORDER

MURNANE BUILDING CONTRACTORS, INC., AND SYRACUSE
UNIVERSITY, DEFENDANTS-APPELLANTS.
(APPEAL NO. 2.)


RIVKIN RADLER LLP, UNIONDALE (HARRIS J. ZAKARIN OF COUNSEL), AND
COLUCCI & GALLAHER, P.C., BUFFALO, FOR DEFENDANTS-APPELLANTS.

RIEHLMAN, SHAFER & SHAFER, TULLY (ROBERT M. SHAFER OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from a judgment of Supreme Court, Onondaga County (Tormey,
III, J.), entered June 28, 2002, upon a jury verdict rendered in favor
of plaintiffs.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously reversed on the law without costs and a
new trial is granted.

     Memorandum: Defendants appeal from a judgment entered upon a
jury verdict rendered in favor of plaintiffs. Charles T. Driscoll
Masonry Restoration Company, Inc. (Driscoll Masonry) subcontracted
with defendant Murnane Building Contractors, Inc. to perform masonry
work on a parking garage at defendant Syracuse University
(University). Peter B. Hess (plaintiff), an employee of Driscoll
Masonry, was patching the garage ceiling with a metal trowel when he
fell from scaffolding and injured his back. Plaintiffs allege that
plaintiff fell when his trowel came into contact with an electrically
charged conduit. Plaintiffs commenced this action alleging that
defendants violated numerous provisions of Industrial Code (12 NYCRR)
§ 23-1.13.

     We disagree with defendants that Supreme Court committed
reversible error in precluding the admission in evidence of two "as
built" electrical drawings prepared by a contractor. A party seeking
to admit documents in evidence as business records must satisfy the
three foundational requirements of CPLR 4518 (a) (see People v
Cratsley, 86 NY2d 81, 89). Here, plaintiffs objected to the
introduction of the drawings "on the basis that there has not been a
proper foundation relative to the creation and authenticity of the
documents, that they [do not] meet the test of a business record,
                                 -41-                          537
                                                         CA 02-02602

[and] that [it has not been shown that] all of the notations were made
contemporaneously with the production and filing with the keeper of
the records." The court sustained plaintiffs' objection to the
admission of the drawings solely on the ground that defendants'
witness could not explain the origin of certain handwritten notations
thereon. That was error. The witness's knowledge of the contents of
the drawings goes only to the weight to be given the drawings, not
their admissibility (see CPLR 4518 [a]). However, defendants' witness
also failed to testify that the University routinely relied upon the
business records of the contractor who produced the as-built drawings
in the performance of the University's own business (see West Val.
Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950). Thus,
although the court's rationale for sustaining plaintiffs' objection
was erroneous, the drawings were properly excluded because defendants
failed to establish a sufficient foundation for their admission as
business records.

     We agree with defendants, however, that the court committed
reversible error by granting plaintiffs' request for a missing witness
charge with respect to the University. In seeking that charge,
plaintiffs were required to demonstrate that there was a particular
uncalled and available witness who was knowledgeable about a material
issue and who, by reason of his or her relationship with the
University, would have been expected to provide noncumulative
testimony favorable to the University (see People v Gonzalez, 68 NY2d
424, 427; Dannick v County of Onondaga, 191 AD2d 963, 964). Here,
plaintiffs did not identify a particular uncalled witness who was
knowledgeable about the issue with respect to which the charge was
sought. Thus, the court erred in giving the missing witness charge
(see generally Eagle Pet Serv. Co. v Pacific Empls. Ins. Co., 175 AD2d
471, 473, lv denied 79 NY2d 753). The issue of liability turned
entirely on whether the embedded conduit wires were energized at the
time of plaintiff's injury, which was precisely the subject of the
missing witness charge. Thus, the error is not harmless.
Consequently, we reverse the judgment and grant a new trial on both
liability and damages. In light of our determination, we decline to
address defendants' remaining contentions.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

545
CA 02-02063
PRESENT: PIGOTT, JR., P.J., HURLBUTT, SCUDDER, LAWTON, AND HAYES, JJ.


PATRICIA A. SIMMONS AND CHARLES F. SIMMONS,
PLAINTIFFS-APPELLANTS,

                    V                               MEMORANDUM AND ORDER

OSWEGO COUNTY SAVINGS BANK, DEFENDANT-RESPONDENT.


SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (MICHAEL P. RINGWOOD
OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (DONALD S. DI BENEDETTO OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of Supreme Court, Oswego County (Nicholson,
J.), entered June 10, 2002, which granted defendant's motion for
summary judgment and dismissed the complaint.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously reversed on the law without costs, the
motion is denied and the complaint is reinstated.

     Memorandum: Plaintiffs commenced this action seeking damages for
personal injuries sustained by Patricia A. Simmons (plaintiff) when
she slipped and fell on snow-covered ice, approximately one-third-inch
to one-inch thick, in a parking lot owned by defendant. Defendant
failed to meet its initial burden of establishing its entitlement to
judgment as a matter of law on its motion for summary judgment
dismissing the complaint, and thus Supreme Court erred in granting
defendant's motion (see Zuckerman v City of New York, 49 NY2d 557,
562). Defendant failed to establish that it lacked constructive
notice of the icy condition, i.e., that "the ice formed so close in
time to the accident that [defendant] could not reasonably have been
expected to notice and remedy the condition" (Jordan v Musinger, 197
AD2d 889, 890; see Duman v City of Buffalo, 269 AD2d 848, 849). In
addition, defendant failed to submit evidence to support its
conclusory assertion that plaintiff's injuries were caused by the
light snow falling at the time plaintiff fell rather than "ice that
was present prior to the date on which plaintiff fell" (Stalker v
Crestview Cadillac Corp., 284 AD2d 977, 978). The failure of
defendant to meet its initial burden requires denial of the motion
regardless of the sufficiency of plaintiffs' opposing papers (see
Perrone v Ilion Main St. Corp., 254 AD2d 784, 785; Jordan, 197 AD2d at
889). We therefore reverse the order, deny defendant's motion and
                           -43-                  545
                                           CA 02-02063

reinstate the complaint.




Entered: June 13, 2003            JOANN M. WAHL
                                  Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

553
CA 02-02593
PRESENT: PIGOTT, JR., P.J., HURLBUTT, SCUDDER, LAWTON, AND HAYES, JJ.


LINDA PFISTER, PLAINTIFF-APPELLANT,

                    V                                MEMORANDUM AND ORDER

WATERTOWN CITY SCHOOL DISTRICT AND WARREN FARGO,
SUPERINTENDENT OF SCHOOLS, DEFENDANTS-RESPONDENTS.


SATTER & ANDREWS, LLP, SYRACUSE (MIMI C. SATTER OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

SUGARMAN LAW FIRM, LLP, SYRACUSE (MATTHEW D. GUMAER OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of Supreme Court, Jefferson County (Gilbert,
J.), entered February 26, 2002, which dismissed the complaint after a
nonjury trial.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is affirmed without costs.

     Memorandum: Supreme Court properly dismissed the complaint in
this breach of contract action following a bench trial. Because the
language of the agreements at issue is ambiguous, the court properly
allowed the introduction of parol evidence concerning the true intent
of the parties (see Lamacchia v Blovat, 292 AD2d 789). Plaintiff
failed to meet her burden of establishing that, when defendant
Watertown City School District (District) decided to participate in
the State-authorized early retirement incentive program, it was
required to tailor the eligibility requirements to ensure her
participation. We agree with the District that the provision in one
of the agreements that "the School District will allow the [plaintiff]
to be eligible for and participate in the retirement incentive
program" (emphasis added) was intended to ensure only that plaintiff
would not be precluded from participating in any future early
retirement incentive program by her resignation.

     Contrary to plaintiff's contention, the issue here is not whether
the District could have included plaintiff within the "target group"
of employees who were eligible for the early retirement incentive
program, but whether the District was required to do so under the
agreements. It is not logical to conclude, and plaintiff could not
have reasonably expected, that, in order to settle a grievance, the
District would or even could contract with her to shape the early
retirement program solely for her benefit, to the detriment of other
                                 -45-                          553
                                                         CA 02-02593

employees (see generally Weisberger v Goldstein, 242 AD2d 622, 623).
Had the parties intended that result, the agreements at issue should
have contained more specific language. Consequently, we affirm.

     All concur except PIGOTT, JR., P.J., and SCUDDER, J., who dissent
and vote to reverse in accordance with the following Memorandum: We
respectfully dissent. In our view, Supreme Court erred in dismissing
the complaint in this breach of contract action. Plaintiff had been
an employee of defendant Watertown City School District (District) for
33 years in April 1997 when she entered into two related, but
independent, contracts with the District in settlement of an improper
practice charge that plaintiff had previously filed against the
District. Pursuant to the contract that is the subject of this
dispute, plaintiff agreed to retire from her position with the
District, and in exchange the District agreed to allow plaintiff to
participate in an early retirement incentive program that was then
being considered by the State of New York, in the event that the
District opted to participate in the program. The State thereafter
enacted legislation authorizing the early retirement incentive
program. The enabling legislation required that participants in the
program be at least 50 years of age with 10 years of service, and that
the District save at least 50% of the salaries of the eligible
retirees in the following two years. The District opted to
participate in the program but created a "target group" that did not
include plaintiff.

     "A familiar and eminently sensible proposition of law is that,
when parties set down their agreement in a clear, complete document,
their writing should as a rule be enforced according to its terms.
Evidence outside the four corners of the document as to what was
really intended but unstated or misstated is generally inadmissible to
add to or vary the writing" (W.W.W. Assoc. v Giancontieri, 77 NY2d
157, 162). The contract at issue here expressly provides that the
District "will allow [plaintiff] to be eligible for and participate in
the retirement incentive program." In our view, that contractual
language is clear, complete and unambiguous, and required the District
to permit plaintiff to participate in the 1997 early retirement
incentive program if the District opted to participate therein (cf.
St. Mary v Paul Smith's Coll. of Arts & Sciences, 247 AD2d 859, 860).
Thus we would reverse the order, grant judgment on liability in favor
of plaintiff and grant a new trial on damages only.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

558
KA 00-02213
PRESENT: PIGOTT, JR., P.J., HURLBUTT, SCUDDER, LAWTON, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

PABLO R. GOICO, JR., DEFENDANT-APPELLANT.


JOHN A. HERBOWY, ROME, FOR DEFENDANT-APPELLANT.

JOHN H. CRANDALL, SR., DISTRICT ATTORNEY, HERKIMER (JACQUELYN M. ASNOE
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Herkimer County Court (Kirk, J.),
entered June 1, 2000, convicting defendant after a jury trial of,
inter alia, assault in the second degree (two counts).

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously modified as a matter of discretion in
the interest of justice by vacating the sentence as a persistent
felony offender imposed on the two counts of assault in the second
degree and as modified the judgment is affirmed, and the matter is
remitted to Herkimer County Court for resentencing in accordance with
the following Memorandum: Defendant appeals from a judgment
convicting him after a jury trial of two counts of assault in the
second degree (Penal Law § 120.05 [3]) and one count each of resisting
arrest (§ 205.30) and harassment in the second degree (§ 240.26 [1]).
Contrary to the contention of defendant, that part of the judgment
convicting him of two counts of assault is supported by legally
sufficient evidence. The two State Police officers assaulted by
defendant testified at trial that defendant attempted to flee as they
arrested him, thereby preventing them from performing their lawful
duty (see § 120.05 [3]). Although the injuries to the officers were
not extensive, the evidence is legally sufficient to allow the jury to
determine whether the officers sustained a physical injury within the
meaning of Penal Law § 10.00 (9) (see People v Gray, 189 AD2d 922,
923, lv denied 81 NY2d 886), and the jury was entitled to credit the
testimony of the officers that they suffered "substantial pain" within
the meaning of that section (see generally People v Bleakley, 69 NY2d
490, 495). County Court properly required defendant to be shackled
during trial based on defendant's disruptive behavior (see People v
Houk, 222 AD2d 1074; People v Rivera, 189 AD2d 920, 921, lv denied 81
NY2d 975). The contention that defendant was denied a fair trial
because the trial judge refused to recuse himself is without merit
(see People v Nenni, 269 AD2d 785, 786, lv denied 95 NY2d 801).
Defendant failed to preserve for our review his further contention
                                 -47-                          558
                                                         KA 00-02213

that he was denied a fair trial by alleged prosecutorial misconduct
(see CPL 470.05 [2]). In any event, that contention lacks merit (see
People v Chavez-Flores, 259 AD2d 984, lv denied 94 NY2d 821).

     Finally, we agree with defendant that the circumstances of his
criminal conduct are not such that extended incarceration and lifetime
supervision are warranted to best serve the public interest (see CPL
400.20 [1]). We therefore modify the judgment as a matter of
discretion in the interest of justice by vacating the sentence as a
persistent felony offender imposed on the two counts of assault in the
second degree, and we remit the matter to Herkimer County Court for
resentencing as a nonpersistent felony offender on those counts.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

574
CA 02-02704
PRESENT: PINE, J.P., WISNER, KEHOE, BURNS, AND GORSKI, JJ.


MATTER OF PETER KASANDRINOS, ANDREW CARAFOS,
CAROL RAYMOND, AND WILLIAM BENEDICT, PETITIONERS-APPELLANTS,

                    V                                             ORDER

CITY OF CANANDAIGUA, JUDITH HANLON,
LAURA K. WHARMBY, AND SCOTT C. SMITH, RESPONDENTS-RESPONDENTS.


BEEBE, GROSSMAN & BERGINS, LLP, ROCHESTER (JAMES S. GROSSMAN OF
COUNSEL), FOR PETITIONERS-APPELLANTS.

SCOTT C. SMITH, CORPORATION COUNSEL, CANANDAIGUA, RESPONDENT-
RESPONDENT PRO SE, AND FOR CITY OF CANANDAIGUA AND LAURA K. WHARMBY,
RESPONDENTS-RESPONDENTS, AND DAVID L. HENEHAN, AVON, FOR
RESPONDENT-RESPONDENT JUDITH HANLON.


     Appeal from a judgment of Supreme Court, Ontario County (Doran,
J.) entered March 20, 2002, which denied the CPLR article 78 petition.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

584
CA 02-02480
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, LAWTON, AND HAYES, JJ.


MATTER OF THE ESTATE OF BERNICE M. KIPFER,
DECEASED.
----------------------------------------------                ORDER
JOSEPH D. KIPFER, AS ADMINISTRATOR C.T.A. OF
THE ESTATE OF BERNICE M. KIPFER, DECEASED,
PETITIONER-RESPONDENT;

ROBERT CARTER AND HELEN CARTER,
OBJECTANTS-APPELLANTS.


SHAPIRO, ROSENBAUM, LIEBSCHUTZ & NELSON, LLP, ROCHESTER (SANFORD R.
SHAPIRO OF COUNSEL), FOR OBJECTANTS-APPELLANTS.


     Appeal from an order of Surrogate's Court, Onondaga County
(Wells, S.), entered May 10, 2002, which dismissed the objections to
petitioner's final account.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs for the reasons
stated in decision at Surrogate's Court, Onondaga County, Wells, S.




Entered: June 13, 2003                           JOANN M. WAHL
                                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

587
CA 02-02554
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, LAWTON, AND HAYES, JJ.


TERRY FISHER, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

A.W. MILLER TECHNICAL SALES, INC.,
DEFENDANT-APPELLANT.


LAW OFFICES OF MICHAEL PILARZ, BUFFALO (MICHAEL PILARZ OF COUNSEL),
FOR DEFENDANT-APPELLANT.

PATRICK J. COONEY, CANANDAIGUA, FOR PLAINTIFF-RESPONDENT.


     Appeal from that part of an order of Supreme Court, Ontario
County (Doran, J.), entered July 9, 2002, that denied in part
defendant's motion seeking summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is affirmed without costs.

     Memorandum: Supreme Court properly denied those parts of
defendant’s motion seeking summary judgment dismissing the cause of
action for breach of contract and the cause of action sounding in
quantum meruit or quasi contract. Plaintiff, who was employed by
defendant as a salesman, submitted a letter dated January 26, 2000
stating that he intended to resign effective January 31, 2000. By
another letter dated that same day, plaintiff sought certain
commissions, some of which were paid as requested. Plaintiff also
sought 50% of the commission due on a sale to one customer and
suggested that the commission due on a sale to another customer be
paid to his successor. Those two commissions are the subject of this
action. Under the express terms of the revised contract between
plaintiff and defendant, plaintiff is not entitled to commissions on
sales of equipment not yet shipped as of the date on which plaintiff’s
resignation is accepted by defendant.

     In response to those letters, plaintiff’s supervisor asked
plaintiff to consider alternative compensation packages in an effort
to continue plaintiff’s employment with defendant. Plaintiff at some
point told his supervisor that he would not pursue possible
alternative compensation packages and, as of January 31, 2000,
plaintiff ceased soliciting business for defendant and ceased
receiving benefits from defendant. Plaintiff, who worked out of his
home, began working for another company in February 2000. His
contract with defendant had never been exclusive, however, and his new
                                 -51-                          587
                                                         CA 02-02554

employment did not preclude continued employment by defendant. In
fact, plaintiff continued to receive mailings from defendant and
defendant’s customers.

      The parties did not reach an agreement regarding all commissions
due plaintiff and, by letter dated September 5, 2000, plaintiff sought
the full commissions that are the subject of this action inasmuch as
nothing had been paid with respect to those commissions. When
defendant did not respond, plaintiff commenced this action seeking
payment of those commissions under his employment contract on the
theory that his resignation had still not been accepted because his
accounts had not been reconciled, as well as under the theory of
quantum meruit or quasi contract. Defendant moved for summary
judgment dismissing the complaint. The court granted the motion only
in part, dismissing the cause of action for an accounting. We affirm.

     We conclude that the court properly denied that part of the
motion with respect to the cause of action for breach of contract
because defendant failed to meet its burden of establishing when, if
ever, plaintiff resigned and when, if ever, defendant accepted that
resignation. Thus, defendant failed to meet its burden of
establishing as a matter of law that it did not breach the contract.
In support of its motion, defendant submitted portions of plaintiff’s
deposition testimony in which plaintiff testified that he ceased
soliciting business for defendant as of January 31, 2000. However,
plaintiff also testified therein that he continued to receive mailings
from defendant and defendant’s customers as well as payment of some
commissions. In any event, even assuming, arguendo, that defendant
met its initial burden with respect to the breach of contract cause of
action, we conclude that plaintiff raised an issue of fact by
submitting an affidavit in which he averred that his contracts with
defendant and his new employer were not exclusive and thus he could
work as a salesman for defendant and his new employer at the same
time. Despite defendant’s conclusory assertion that plaintiff’s
resignation was accepted, nothing in defendant’s submissions
establishes that defendant in fact ever accepted the resignation.
Indeed, in plaintiff’s deposition testimony submitted by defendant,
plaintiff testified that his supervisor attempted to negotiate
alternative compensation packages with him. To establish its
entitlement to terminate plaintiff’s right to commissions under the
contract and thus to establish that it did not breach its contract
with plaintiff, defendant had to establish that plaintiff resigned and
that the resignation was accepted before the goods were shipped (see
generally Zuckerman v City of New York, 49 NY2d 557, 562). Contrary
to the characterization of the dissent, we do not conclude that the
terms “resignation” and “acceptance” are ambiguous, but rather, we
conclude that defendant failed to establish if and when the
resignation and acceptance occurred.

     We further conclude that the court properly denied that part of
defendant’s motion seeking summary judgment dismissing the cause of
action sounding in quantum meruit or quasi contract. Although “[t]he
existence of a valid and enforceable written contract governing a
particular subject matter ordinarily precludes recovery in quasi
                                 -52-                           587
                                                          CA 02-02554

contract for events arising out of the same subject matter” (Clark-
Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388; see Randall v
Guido, 238 AD2d 164; Heller v Kurz, 228 AD2d 263, 263-264), it is not
the law in New York “that a claim in contract and one in quasi
contract are mutually exclusive in all events and under all
circumstances” (Joseph Sternberg, Inc. v Walber 36th St. Assoc., 187
AD2d 225, 227-228). Where, as here, there is a bona fide dispute
whether the contract covers the controversy in issue, “a plaintiff may
proceed upon a theory of quantum meruit as well as contract, and will
not be required to elect his or her remedies” (Sforza v Health Ins.
Plan of Greater N.Y., 210 AD2d 214, 215; see Randall, 238 AD2d 164;
Joseph Sternberg, Inc., 187 AD2d at 228; see generally Smith v
Kirkpatrick, 305 NY 66, 73, rearg denied 305 NY 926, overruled in part
on other grounds O’Brien v City of Syracuse, 54 NY2d 353, 358 n 1).

     All concur except HURLBUTT AND LAWTON, JJ., who dissent and vote to
reverse the order insofar as appealed from in accordance with the
following Memorandum: We respectfully dissent. Plaintiff commenced
this action seeking sales commissions he allegedly earned while
employed by defendant, asserting causes of action for breach of
contract, quantum meruit, and an accounting. In our view, Supreme
Court should have granted defendant’s motion seeking summary judgment
in its entirety, thereby dismissing the complaint. The parties’
written contract of employment provides in pertinent part that “[n]o
sales commissions will be paid for orders received that ship on or
after the Salesman’s resignation is accepted by [defendant].” On
January 28, 2000, plaintiff hand-delivered a letter to defendant’s
vice-president stating in pertinent part: “This letter will inform
you of my intention to resign from A.W. Miller Technical Sales
effective January 31, 2000. I have decided to accept a sales
management position with a company outside of the machine tool field.
*** Thank you *** for the opportunity you provided at A.W. Miller. I
wish you and A.W. Miller Technical Sales continued success.” On
February 1, 2000, plaintiff commenced full-time employment with
another company. By a separate letter dated the same day as his
letter of resignation, plaintiff informed defendant’s vice-president
of his claimed entitlement to commissions for past sales, including
two sales on which shipment was not made until after the delivery of
plaintiff’s letter of resignation. Plaintiff commenced this action
when defendant refused to pay him commissions on the sales that
generated the post-resignation shipments, and defendant thereafter
moved for summary judgment dismissing the complaint. Defendant
contended, inter alia, that plaintiff’s claim for commissions on items
shipped after January 31, 2000 was barred by the terms of the
employment contract. In granting only that part of the motion with
respect to the cause of action for an accounting, the court concluded
that there are triable issues of fact “when, and if, plaintiff
actually tendered his resignation” and “when, and if, the defendant
accepted plaintiff’s resignation.” The majority has determined that
the court properly denied that part of the motion with respect to the
causes of action for breach of contract and quantum meruit. We
disagree in both respects.

     Where contract terms are unambiguous, “‘[e]vidence outside the
                                 -53-                          587
                                                         CA 02-02554

four corners of the document *** is generally inadmissible to add to
or vary the writing’” (R/S Assoc. v New York Job Dev. Auth., 98 NY2d
29, 33, rearg denied 98 NY2d 693, quoting W.W.W. Assoc. v
Giancontieri, 77 NY2d 157, 162). Rather, the contract should be
“enforced according to its terms” (W.W.W. Assoc., 77 NY2d at 162) and
“effect must be given to the [parties’] intent as indicated by the
language used without regard to extrinsic evidence” (Schmidt v
Magnetic Head Corp., 97 AD2d 151, 157). Further, “courts may not by
construction add or excise terms, nor distort the meaning of those
used and thereby ‘make a new contract for the parties under the guise
of interpreting the writing’” (Morlee Sales Corp. v Manufacturers
Trust Co., 9 NY2d 16, 19; see Reiss v Financial Performance Corp., 97
NY2d 195, 199). Finally, “whether an ambiguity exists must be
ascertained from the face of the agreement without regard to extrinsic
evidence” (Schmidt, 97 AD2d at 157; see R/S Assoc., 98 NY2d at 33).

     Here, contrary to the majority’s conclusion, there are no triable
issues of fact under the plain language of the parties’ agreement, and
thus the court should have granted that part of defendant’s motion
with respect to the breach of contract cause of action. Plaintiff’s
letter unquestionably and unequivocally constituted a resignation from
employment as of January 31, 2000, and thus there is no issue of fact
in that regard. There is likewise no issue of fact whether
plaintiff’s resignation was “accepted” before shipment of the goods
sold as the result of plaintiff’s efforts. In the context of this
employment agreement, the term “accepted” is unambiguous. “Under its
ordinary usage” (R/S Assoc., 98 NY2d at 33), plaintiff’s resignation
was “accepted” when it was received by defendant’s vice-president (see
e.g. Webster’s Third New International Dictionary 10 [1993] [defining
“accept” as “to receive with consent (something given or offered)”]).
Any doubt concerning whether plaintiff resigned and when defendant
accepted that resignation is necessarily resolved by the parties’
mutual termination of all indicia of an employment relationship when
plaintiff commenced working for a new employer on February 1, 2000.

     The contention of plaintiff that neither his resignation nor
defendant’s acceptance thereof could be effected until his claims for
commissions were resolved is without merit. Such a construction would
add a term to or distort the meaning of the contract language and thus
improperly “‘make a new contract for the parties under the guise of
interpreting the writing’” (Morlee Sales Corp., 9 NY2d at 19; see
Reiss, 97 NY2d at 199). Moreover, even assuming, arguendo, that the
term “accepted” as used in the contract is ambiguous, we conclude that
plaintiff’s subjective understanding is not competent parol evidence
to explain its meaning. “Uncommunicated subjective intent alone
cannot create an issue of fact where otherwise there is none” (Wells v
Shearson Lehman/Am. Express, 72 NY2d 11, 24, rearg denied 72 NY2d
953). Thus, “[i]n the absence of any evidence that the *** views now
advanced were either discussed or considered by the parties during the
process leading up to the execution of the agreement, the words in the
contract must be given the meaning which those to whom they are
addressed would reasonably be expected to perceive” (Hudson-Port Ewen
Assoc. v Chien Kuo, 165 AD2d 301, 305, affd 78 NY2d 944; see Tracey
Rd. Equip. v Village of Johnson City, 174 AD2d 849, 851; cf. Newin
                                 -54-                          587
                                                         CA 02-02554

Corp. v Hartford Acc. & Indem. Co., 62 NY2d 916, 918-919; W.A. Bayer
Realtors v W.E. Pearse, Inc., 256 AD2d 1164). The terms “resignation”
and “accepted” cannot reasonably be construed to require a
reconciliation of the parties’ accounts in order to be effected.

     The court also erred in denying that part of defendant’s motion
with respect to the quantum meruit or quasi contract cause of action.
As the majority correctly notes, “[t]he existence of a valid and
enforceable written contract governing a particular subject matter
ordinarily precludes recovery in quasi contract for events arising out
of the same subject matter” (Clark-Fitzpatrick, Inc. v Long Is. R.R.
Co., 70 NY2d 382, 388; see Signature Realty v Tallman, ___ AD2d ___
[Mar. 21, 2003]; Eagle Comtronics v Pico Prods., 256 AD2d 1202, 1202-
1203). A plaintiff may, however, assert causes of action for both
breach of contract and quantum meruit where there is a bona fide
dispute concerning the existence of a contract or whether the contract
covers the dispute in issue, or where one party has wrongfully
prevented the other from performing under the contract (see Randall v
Guido, 238 AD2d 164; Joseph Sternberg, Inc. v Walber 36th St. Assoc.,
187 AD2d 225, 228). Contrary to the majority’s conclusion, here there
is no dispute whether the contract covers the dispute in issue. If
the items in question were shipped before plaintiff’s resignation was
accepted by defendant, plaintiff is entitled to recover the unpaid
commissions on the cause of action for breach of contract. If the
goods were shipped after acceptance of the resignation, plaintiff
cannot recover. In either event, the issue between the parties is
governed by the contract terms. Thus, “none of [the] exceptions to
the general rule [is] applicable to the instant situation,” and the
cause of action for quantum meruit should have been dismissed
(Randall, 238 AD2d at 164; cf. Joseph Sternberg, Inc., 187 AD2d at
228-229). We therefore would reverse the order insofar as appealed
from, grant defendant’s motion in its entirety and dismiss the
complaint.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

591
CA 02-02561
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, LAWTON, AND HAYES, JJ.


DEBRA LASEK, INDIVIDUALLY AND AS MOTHER AND
NATURAL GUARDIAN OF CORINNE LASEK, AN INFANT,
PLAINTIFF-RESPONDENT,

                        V                         MEMORANDUM AND ORDER

ANGELINE MILLER, EVA WAWRZYNIAK, DEFENDANTS-
APPELLANTS,
ET AL., DEFENDANTS.


BURGIO, KITA & CURVIN, BUFFALO (STEVEN P. CURVIN OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.


     Appeal from an order of Supreme Court, Erie County (Notaro, J.),
entered September 18, 2002, which denied the motion of defendants
Angeline Miller and Eva Wawrzyniak for summary judgment dismissing the
complaint against them.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries sustained by her 9-year-old daughter while using a trampoline
on premises owned by Angeline Miller and Eva Wawrzyniak (defendants).
Plaintiff's daughter was injured while using the trampoline
simultaneously with three other persons, despite labels on the
trampoline warning against use by more than one person at a time.
Supreme Court properly denied the motion of defendants for summary
judgment dismissing the complaint against them. We agree with
defendants that the trampoline was not a dangerous instrument as a
matter of law (see DiChiaro v Gapanoff, 270 AD2d 450, 451) and that
defendants established that they neither had nor undertook any duty to
supervise plaintiff's daughter. We nevertheless conclude, however,
that there is a triable issue of fact whether defendants breached a
duty to control the conduct of those persons using the trampoline at
the time of the accident. Property owners "have a duty to control the
conduct of third persons on their premises when they have the
opportunity to control such persons and are reasonably aware of the
need for such control" (D'Amico v Christie, 71 NY2d 76, 85, citing De
Ryss v New York Cent. R.R. Co., 275 NY 85; see Cavaretta v George, 265
AD2d 801, 802; Mangione v Dimino, 39 AD2d 128, 129-130; see also
Huyler v Rose, 88 AD2d 755, appeal dismissed 57 NY2d 777). Here,
there is an issue of fact whether defendants "'either knew about or
through the use of reasonable care should have known about [the unsafe
                                 -56-                          591
                                                         CA 02-02561

use of the trampoline] and had a reasonable opportunity to prevent or
control it'" (Cavaretta, 265 AD2d at 802, quoting PJI 2:114 [3d ed];
see D'Amico, 71 NY2d at 85; Mangione, 39 AD2d at 129-130).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

592
CA 02-02699
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, LAWTON, AND HAYES, JJ.


DANIELLE STRAY, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

GEORGE LUTZ AND CARMELINA LUTZ, DEFENDANTS-
APPELLANTS.


MELVIN & MELVIN, PLLC, SYRACUSE (DOUGLAS H. YOUNG OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

NICHOLAS, PEROT, STRAUSS & SMITH, LIVERPOOL (ERIC P. SMITH OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of Supreme Court, Onondaga County (Carni,
J.), entered August 5, 2002, which denied defendants' motion to
dismiss the complaint.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is affirmed without costs.

     Memorandum: The narrow issue before us on this appeal is whether
a prior order of dismissal for a discovery default is to be given res
judicata effect when it was not preceded by a preclusion order and
does not specify that the dismissal is on the merits, or whether that
order permits the commencement of another action instituted within the
applicable period of limitations (see Gundershein v Bradley-Mahony
Coal Corp., 295 NY 539, 540-541; Siegel, NY Prac §§ 444-446 [3d ed]).
We conclude that such an order should not be given res judicata
effect. Thus, Supreme Court properly denied defendants’ motion to
dismiss the complaint on that ground.

      Here, plaintiff’s mother had commenced the prior action on
behalf of plaintiff, who was then only nine years old, and defendants
moved for an order of preclusion when the attorney hired by
plaintiff’s mother failed to respond to a letter from defendants’
attorney setting forth a proposed discovery schedule. Although the
court’s order of dismissal recites that defendants’ motion is
“granted,” the court did not issue an order of preclusion and,
instead, recited in the order that the complaint “is hereby dismissed
and the Complaint stricken.” Upon our review of the record, we
conclude that the attorney’s failure to respond to the letter did not
amount to contumacious conduct warranting a dismissal of the complaint
on the merits. Rather, the attorney’s failure to respond was more in
keeping with an intent to abandon the action, which would not preclude
                                 -58-                          592
                                                         CA 02-02699

a refiling of the action within the statute of limitations (see
Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614; Greenberg v De Hart,
4 NY2d 511). Consequently, in the absence of an order of preclusion
preceding the order of dismissal, it cannot be said that the conduct
of plaintiff’s mother and former attorney and the court’s issuance of
an order of dismissal unaccompanied by the words “on the merits”
demonstrate the exceptional circumstances warranting dismissal on the
merits (see Palmer v Fox, 28 AD2d 968, affd 22 NY2d 667). Absent a
dismissal on the merits, plaintiff should not be barred from bringing
the present action. In our view, the dissent’s reliance on Strange v
Montefiore Hosp. & Med. Ctr. (59 NY2d 737) is misplaced because in
that case the defendant's motion for summary judgment was granted
based on a prior preclusion order against the plaintiff. Here, as
previously noted, no preclusion order was issued (see Holley v Mandate
Realty Corp., 121 AD2d 202, 204, affd 69 NY2d 721).

     All concur except PIGOTT, JR., P.J., who dissents and votes to
reverse in accordance with the following Memorandum: I respectfully
dissent. Essentially, I disagree with the majority’s characterization
of the issue in this case. Plaintiff was struck by a vehicle owned by
defendant George Lutz and operated by defendant Carmelina Lutz while
she was crossing a street. Her mother commenced an action against
defendants on her behalf in September 1993, at which time plaintiff
was nine years old. Defendants answered the complaint, and they
served a demand for a bill of particulars and made various other
discovery demands of plaintiff’s mother. Upon the failure of
plaintiff’s mother to respond to those demands despite numerous
requests, defendants moved for an order of preclusion and dismissal of
the complaint. The motion specifically sought to preclude plaintiff’s
mother from proving any facts that were the subject of defendants’
discovery demands based on her failure to comply with those demands.
On March 7,1994, Supreme Court wrote a letter to plaintiff’s mother
adjourning the motion date to March 29th and stating that her failure
to appear would result in sanctions, including striking the complaint.
Plaintiff’s mother failed to appear on March 29th. On March 31, 1994,
the court granted defendants’ motion and ordered the complaint
dismissed. Plaintiff commenced the present action eight years later,
after reaching the age of 18.

     I disagree with the majority’s conclusion that a preclusion order
was never issued. Defendants moved “for Judgment pursuant to Article
30 of the CPLR precluding the Plaintiff” from entering proof with
respect to all items in defendants’ discovery demands and bill of
particulars and further “dismissing the claim of the Plaintiff for
failure to comply with the Discovery Demands and the Demand for Bill
of Particulars.” The order granting the motion provides:

               “ORDERED that the Motion of the Defendants is
          granted and that the Complaint of the Plaintiff
          *** is hereby dismissed and the Complaint
          stricken.”

The record clearly demonstrates that defendants moved for, and the
court granted, an order of preclusion. Indeed, it is the only motion
                                  -59-                          592
                                                          CA 02-02699

in this record.   That order was served on plaintiff’s mother four days
later.

     The present action is identical to the first action in every
respect, and res judicata therefore applies. The purpose of the
doctrine of res judicata is met here – to ensure finality. “The key
is whether the adjudication is ‘sufficiently firm’ ***, and a firm one
should qualify as a ‘final judgment’, whatever its name” (Siegel, NY
Prac § 444, at 718 [3d ed]). The order at issue herein is
sufficiently firm to qualify as final because neither plaintiff, by
her mother, nor defendants took any action for eight years.

     Finally, the dismissal of a pleading on the merits is warranted
when a party frustrates the disclosure scheme set forth in the CPLR
(see Kihl v Pfeffer, 94 NY2d 118, 122; Kimmel v State of New York, 286
AD2d 881, 883), and it is irrelevant whether the order specified that
the pleading was dismissed “on the merits.” Although the prior order
does not specifically recite that it is “on the merits,” that order
should be given res judicata effect to prevent plaintiff from
circumventing the preclusion that resulted from her mother’s failure
to comply with defendants’ discovery demands. CPLR 5013 does not
require that a prior judgment contain the precise words “on the
merits” in order to be given res judicata effect; it suffices that it
appears from the judgment that the dismissal is on the merits (see
Strange v Montefiore Hosp. & Med. Ctr., 59 NY2d 737, 738-739).
Plaintiff’s mother clearly frustrated the disclosure scheme set forth
in the CPLR when she neither responded to any of defendants’ discovery
demands nor appeared when requested. Additionally, she blatantly
disregarded the court’s warning regarding her failure to respond to
defendants’ discovery demands. Thus, for the foregoing reasons, I
would reverse, grant defendants’ motion, and dismiss the complaint.




Entered: June 13, 2003                           JOANN M. WAHL
                                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

620
CA 02-02575
PRESENT: GREEN, J.P., HURLBUTT, SCUDDER, BURNS, AND HAYES, JJ.


RICKI J. HARPER AND PAUL J. HARPER, PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

L.J. CORSARO, JR., NEW YORK TELEPHONE COMPANY,
NYNEX CORPORATION, BELL ATLANTIC CORPORATION,
DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.


PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER LLP, BUFFALO (WILLIAM D.
CHRIST OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

HISCOCK & BARCLAY, LLP, BUFFALO (RODGER P. DOYLE, JR., OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of Supreme Court, Erie County (Rath, Jr.,
J.), entered September 16, 2002, which denied the motion of defendants
L.J. Corsaro, Jr., New York Telephone Company, NYNEX Corporation and
Bell Atlantic Corporation seeking summary judgment dismissing the
complaint against them.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed with costs.

     Memorandum: Supreme Court properly denied the motion of L.J.
Corsaro, Jr., New York Telephone Company, NYNEX Corporation and Bell
Atlantic Corporation (defendants) seeking summary judgment dismissing
the complaint against them. According to defendants, Ricki J. Harper
(plaintiff) was negligent in making a left-hand turn from the center
lane of a one-way street, and her negligence was the sole proximate
cause of the collision between her vehicle and the vehicle driven by
Corsaro. In support of their motion, however, defendants provided the
deposition testimony of plaintiff and her daughter, who was a
passenger in plaintiff's vehicle, both of whom testified that
plaintiff's vehicle was in the left lane when plaintiff made a left-
hand turn. Thus, defendants failed to meet their initial burden of
"tendering sufficient evidence to eliminate any material issues of
fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,
853; see generally Zuckerman v City of New York, 49 NY2d 557, 562).
Although the deposition testimony of plaintiff conflicts with previous
accounts given by her, "[a]ny inconsistencies in *** [her] accounts of
the incident go to the weight of the evidence, not its competence, and
the value to be accorded to the evidence is a matter for resolution by
the trier of fact" (Alvarez v New York City Hous. Auth., 295 AD2d 225,
                                 -61-                          620
                                                         CA 02-02575

226). We further conclude that defendants failed to establish as a
matter of law that NYNEX Corporation and Bell Atlantic Corporation are
improper parties, and thus the court properly refused to dismiss the
complaint against those defendants on that ground (see Zuckerman, 49
NY2d at 562).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

633
CAF 02-02314
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND GORSKI, JJ.


MATTER OF TANYEAJUA R.
----------------------------------------------
ONEIDA COUNTY DEPARTMENT OF SOCIAL SERVICES,                    ORDER
PETITIONER-APPELLANT;

ROCHELLE N., RESPONDENT-RESPONDENT.


JENNIFER D. HURLEY, ROME, FOR PETITIONER-APPELLANT.

PAUL A. NORTON, CLINTON, FOR RESPONDENT-RESPONDENT.

JOHN T. NASCI, LAW GUARDIAN, ROME, FOR TANYEAJUA R.


     Appeal from an order of Family Court, Oneida County (Griffith,
J.), entered December 20, 2001, which dismissed the petition for
termination of parental rights.

     Now, upon reading and filing the stipulation to withdraw and
discontinue the appeal signed by the attorneys for the parties and the
Law Guardian on April 10, 2003,

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs upon stipulation.




Entered: June 13, 2003                           JOANN M. WAHL
                                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

634
CA 02-02471
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND GORSKI, JJ.


PATRICIA HUSTOO, PLAINTIFF-APPELLANT,

                    V                                               ORDER

DOAN LINCOLN-MERCURY/NISSAN LLC, DEFENDANT-RESPONDENT.


SHOOLMAN LAW FIRM, ROCHESTER (CARL SHOOLMAN OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

TREVETT, LENWEAVER & SALZER, P.C., ROCHESTER (RICHARD M. DOYLE OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of Supreme Court, Monroe County (Polito,
J.), entered August 22, 2002, which denied plaintiff's motion for a
default judgment and granted defendant's cross motion to compel
plaintiff to accept the answer.

     Now, upon reading and filing the stipulation discontinuing appeal
signed by the attorneys for the parties on May 11, 2003,

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs upon stipulation.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

641
TP 02-02751
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


MATTER OF PETER A. SCOTT, SR., PETITIONER,

                    V                                               ORDER

GLENN S. GOORD, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, ATTICA (SUSAN K. JONES OF
COUNSEL), FOR PETITIONER.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (NANCY A. SPIEGEL OF COUNSEL),
FOR RESPONDENT.


     CPLR article 78 proceeding transferred to this Court by an order
of Supreme Court, Wyoming County (Dadd, J.), entered December 10,
2002, seeking review of a determination after a Tier III hearing.

     It is hereby ORDERED that the determination be and the same
hereby is unanimously confirmed without costs and the petition is
dismissed.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

642
TP 03-00143
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


MATTER OF SHABAKA SHAKUR, ALSO KNOWN AS
LOUIS HOLMES, PETITIONER,

                    V                                               ORDER

GLENN S. GOORD, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, ATTICA (SUSAN K. JONES OF
COUNSEL), FOR PETITIONER.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF COUNSEL),
FOR RESPONDENT.


     CPLR article 78 proceeding transferred to this Court by an order
of Supreme Court, Wyoming County (Dadd, J.), entered October 29, 2002,
seeking review of a determination after a Tier II hearing.

     It is hereby ORDERED that the determination be and the same
hereby is unanimously confirmed without costs and the amended petition
is dismissed.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

643
TP 02-02742
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


MATTER OF TERRENCE MAYBANKS, PETITIONER,

                    V                              MEMORANDUM AND ORDER

GLENN S. GOORD, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, ATTICA (SUSAN K. JONES OF
COUNSEL), FOR PETITIONER.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (WAYNE L. BENJAMIN OF
COUNSEL), FOR RESPONDENT.


     CPLR article 78 proceeding transferred to this Court by an order
of Supreme Court, Wyoming County (Dadd, J.), entered December 10,
2002, seeking review of a determination after a Tier III hearing.

     It is hereby ORDERED that the determination be and the same
hereby is unanimously modified on the law by granting the petition in
part and annulling that part of the determination finding that
petitioner violated inmate rule 105.12 (7 NYCRR 270.2 [B] [6] [iii])
and as modified the determination is confirmed without costs, and
respondent is directed to expunge from petitioner's institutional
record all references thereto.

     Memorandum: Petitioner contends, and respondent correctly
concedes, that the determination that he violated inmate rule 105.12
(7 NYCRR 270.2 [B] [6] [iii]), prohibiting unauthorized organizational
activities, is not supported by substantial evidence. We conclude
however, that there is substantial evidence to support the
determination that petitioner violated inmate rule 104.11 (7 NYCRR
270.2 [B] [5] [ii]), prohibiting violent conduct or conduct involving
the threat of violence. The misbehavior report, together with a
videotape of an incident showing that petitioner refused to comply
with orders, yelled obscenities and threats at the staff and others,
and pounded his fist against the plexiglass window of a holding room
at the entrance to the Special Housing Unit, constitutes substantial
evidence supporting the determination that petitioner violated that
inmate rule (see People ex rel. Vega v Smith, 66 NY2d 130, 139). We
reject the further contention of petitioner that he was denied his
right to a fair hearing before a neutral and detached hearing officer.
The record establishes that petitioner was permitted to testify at
length with respect to his defense that the allegations in the
misbehavior reports were the result of fabrication and conspiracy on
                                 -67-                          643
                                                         TP 02-02742

the part of correction officers, and the Hearing Officer resolved the
credibility issue in favor of the statements made by the correction
officers in the misbehavior reports (see generally Matter of Foster v
Coughlin, 76 NY2d 964, 966). Thus, we modify the determination by
granting the petition in part and annulling that part of the
determination finding that petitioner violated inmate rule 105.12, and
we direct respondent to expunge from petitioner's institutional record
all references thereto. Because the penalty has been served, there is
no need to remit the matter to respondent for administrative
reconsideration of the penalty imposed (see Matter of Contrera v
Coombe, 236 AD2d 661, 662-663).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

644
TP 03-00127
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


MATTER OF DONTIE S. MITCHELL, PETITIONER,

                    V                                               ORDER

GLENN S. GOORD, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, ATTICA (JERRY M. ADER OF
COUNSEL), FOR PETITIONER.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (WAYNE L. BENJAMIN OF
COUNSEL), FOR RESPONDENT.


     CPLR article 78 proceeding transferred to this Court by an order
of Supreme Court, Wyoming County (Dadd, J.), entered January 13, 2003,
seeking review of a determination after a Tier III hearing.

     It is hereby ORDERED that said proceeding be and the same hereby
is unanimously dismissed without costs as moot (see Matter of Free v
Coombe, 234 AD2d 996).




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

645
KA 02-00610
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                                            ORDER

ROBERT R. NEST, DEFENDANT-APPELLANT.


JOSEPH F. TOWNSEND, PUBLIC DEFENDER, LOCKPORT (LEONARD G. TILNEY, JR.,
OF COUNSEL), FOR DEFENDANT-APPELLANT.

MATTHEW J. MURPHY, III, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Niagara County Court (Broderick, Sr.,
J.), entered February 28, 2002, convicting defendant upon his plea of
guilty of criminal contempt in the first degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed (see People v Hidalgo, 91 NY2d
733, 737).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

646
KA 01-01888
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                                            ORDER

JEFFREY MARTIN, DEFENDANT-APPELLANT.


EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (KATHLEEN P. MC DONOUGH OF
COUNSEL), FOR DEFENDANT-APPELLANT.

HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (WENDY EVANS LEHMANN OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Monroe County Court (Marks, J.),
entered June 6, 2001, which revoked defendant's probation and imposed
a sentence of imprisonment.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

647
KA 01-00915
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                                            ORDER

ERIC EVERETT, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MARY GOOD OF COUNSEL),
FOR DEFENDANT-APPELLANT.

FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DON I. DALLY OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Erie County Court (D'Amico, J.),
entered March 28, 2001, convicting defendant upon his plea of guilty
of attempted rape in the first degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed (see People v Hidalgo, 91 NY2d
733, 737).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

648
KA 03-00181
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                                MEMORANDUM AND ORDER

GENE A. SHEPPARD, DEFENDANT-APPELLANT.


DOUGLAS P. BATES, AUBURN, FOR DEFENDANT-APPELLANT.

JAMES B. VARGASON, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Cayuga County Court (Corning, J.),
entered July 18, 2002, convicting defendant upon his plea of guilty of
sexual abuse in the first degree (two counts).

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of two counts of sexual abuse in the first
degree (Penal Law § 130.65 [3]) and sentencing him to consecutive
terms of five years’ imprisonment. Even assuming, arguendo, that the
contention of defendant that he was denied effective assistance of
counsel because different attorneys represented him at the time of the
plea and at sentencing survives his plea of guilty (see People v
Burke, 256 AD2d 1244, lv denied 93 NY2d 851), we conclude that his
contention is without merit (see People v Camacho, 16 NY2d 1064, 1065;
People v Torrance, 298 AD2d 857, 858, lv denied 99 NY2d 540; cf.
People v Gonzalez, 43 AD2d 914, 915). The further contention of
defendant that he was denied effective assistance of counsel because
defense counsel failed to meet with him before the time of the plea is
based upon matters outside the record. Thus, to the extent that
defendant’s contention survives the plea (see Burke, 256 AD2d 1244),
it is properly addressed in a motion pursuant to CPL 440.10 (see
People v Pike, 254 AD2d 727, 729; People v Speed, 226 AD2d 1090, 1091,
lv denied 88 NY2d 969). The sentence is neither unduly harsh nor
severe.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

649
KA 02-01546
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                                            ORDER

ELAINE A. STOCUM, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


TYSON BLUE, MACEDON, FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (DAVID V. SHAW OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Wayne County Court (Nesbitt, J.),
entered March 26, 2002, convicting defendant upon her plea of guilty
of criminal contempt in the first degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

650
KA 02-02743
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                                            ORDER

ELAINE A. STOCUM, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


TYSON BLUE, MACEDON, FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (DAVID V. SHAW OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Wayne County Court (Nesbitt, J.),
entered March 26, 2002, convicting defendant upon her plea of guilty
of criminal contempt in the first degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

651
KAH 02-00720
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


PEOPLE OF THE STATE OF NEW YORK EX REL. ROBERT
MC CLAIN, PETITIONER-APPELLANT,

                    V                                             ORDER

JOSEPH E. MC COY, SUPERINTENDENT, CAYUGA
CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (MICKELLE A. OLAWOYE OF COUNSEL),
FOR PETITIONER-APPELLANT.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF COUNSEL),
FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment (denominated order) of Supreme Court,
Cayuga County (Corning, J.), entered February 19, 2002, which denied
the petition for a writ of habeas corpus.

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs as moot (see People ex rel.
Kendricks v Smith, 52 AD2d 1090).




Entered: June 13, 2003                           JOANN M. WAHL
                                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

652
CA 02-02136
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


EDWARD C. SLONIGER, ET AL., PLAINTIFFS,

                    V                                MEMORANDUM AND ORDER

NIAGARA MOHAWK POWER CORPORATION, DEFENDANT.
--------------------------------------------------
NIAGARA MOHAWK POWER CORPORATION, THIRD-PARTY
PLAINTIFF,

                    V

NEW YORK TELEPHONE COMPANY, THIRD-PARTY DEFENDANT.
--------------------------------------------------
NEW YORK TELEPHONE COMPANY, DOING BUSINESS AS NYNEX,
FOURTH-PARTY PLAINTIFF-RESPONDENT,

                    V

R.D. WERNER CO., INC., WERNER HOLDING CO., INC.,
AND WERNER COMPANY, FOURTH-PARTY DEFENDANTS-APPELLANTS.
(APPEAL NO. 1.)


DAVID W. KLOSS, BUFFALO, FIEDELMAN & MC GAW, JERICHO (ANDREW ZAJAC OF
COUNSEL), FOR FOURTH-PARTY DEFENDANTS-APPELLANTS.

PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER LLP, BUFFALO (PAUL
MORRISON-TAYLOR OF COUNSEL), FOR FOURTH-PARTY PLAINTIFF-RESPONDENT.


     Appeal from an order of Supreme Court, Niagara County (Joslin,
J.), entered September 21, 1998, which granted the motion of
fourth-party plaintiff for leave to serve a second amended
fourth-party complaint.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously modified on the law by denying the motion
of fourth-party plaintiff for leave to serve a second amended
fourth-party complaint to the extent that fourth-party plaintiff
sought to add a cause of action alleging that fourth-party defendants
breached their contractual obligation to procure insurance coverage
for the benefit of fourth-party plaintiff and as modified the order is
affirmed without costs.

     Memorandum: Supreme Court erred in granting the motion of
fourth-party plaintiff for leave to serve a second amended fourth-
                                 -77-                          652
                                                         CA 02-02136

party complaint to the extent that fourth-party plaintiff sought to
add a cause of action alleging that fourth-party defendants breached
their contractual obligation to procure insurance coverage for the
benefit of fourth–party plaintiff. That cause of action, which
accrued at the time of the alleged breach, is time-barred (see Polat v
Fifty CPW Tenants Corp., 249 AD2d 163, 163-164; Vanarthros v St.
Francis Hosp., 234 AD2d 450, 451; see generally Ely-Cruikshank Co. v
Bank of Montreal, 81 NY2d 399, 402). The court properly granted the
motion, however, to the extent that fourth-party plaintiff sought to
add a cause of action alleging that fourth-party defendants breached
their agreement to indemnify fourth-party plaintiff with respect to
the claims asserted against it in both the main action and the third-
party action. That cause of action, which did not accrue until
fourth-party plaintiff made payment on those claims, is timely (see
Fisher v Preston, 251 AD2d 843, 844; Polat, 249 AD2d at 164).
Finally, the court erred in granting the motion of fourth-party
plaintiff to strike the answer of fourth-party defendants and in
granting judgment in favor of fourth-party plaintiff based upon
fourth-party defendants' delay in complying with discovery demands.
"[T]he harsh remedy of striking an answer should be granted only where
it is conclusively shown that the discovery default was deliberate or
contumacious" (Gadley v U.S. Sugar Co., 259 AD2d 1041, 1042; see
Brothers v Bunkoff Gen. Contrs., 296 AD2d 764, 765). In our view,
fourth-party plaintiff failed to make that conclusive showing.

      In appeal No. 1, we therefore modify the order by denying the
motion of fourth-party plaintiff for leave to serve a second amended
fourth-party complaint to the extent that fourth-party plaintiff
sought to add a cause of action alleging that fourth-party defendants
breached their contractual obligation to procure insurance coverage
for the benefit of fourth-party plaintiff. In appeal No. 2, we
reverse the order, deny the motion of fourth-party plaintiff to strike
fourth-party defendants' answer to the second amended fourth-party
complaint, reinstate that answer and vacate the award of judgment in
favor of fourth-party plaintiff. In view of our determination, the
judgment in appeal No. 3 must be vacated.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

653
CA 02-02228
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


EDWARD C. SLONIGER, ET AL., PLAINTIFFS,

                    V                                MEMORANDUM AND ORDER

NIAGARA MOHAWK POWER CORPORATION, DEFENDANT.
--------------------------------------------------
NIAGARA MOHAWK POWER CORPORATION, THIRD-PARTY
PLAINTIFF,

                    V

NEW YORK TELEPHONE COMPANY, THIRD-PARTY DEFENDANT.
--------------------------------------------------
NEW YORK TELEPHONE COMPANY, DOING BUSINESS AS NYNEX,
FOURTH-PARTY PLAINTIFF-RESPONDENT,

                    V

R.D. WERNER CO., INC., WERNER HOLDING CO., INC.,
AND WERNER COMPANY, FOURTH-PARTY DEFENDANTS-APPELLANTS.
(APPEAL NO. 2.)


DAVID W. KLOSS, BUFFALO, FIEDELMAN & MC GAW, JERICHO (ANDREW ZAJAC OF
COUNSEL), FOR FOURTH-PARTY DEFENDANTS-APPELLANTS.

PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER LLP, BUFFALO (PAUL
MORRISON-TAYLOR OF COUNSEL), FOR FOURTH-PARTY PLAINTIFF-RESPONDENT.


     Appeal from an order of Supreme Court, Niagara County (Fricano,
J.), entered July 15, 2002, which, inter alia, granted the motion of
fourth-party plaintiff to strike the answer of fourth-party
defendants.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously reversed on the law without costs, the
motion is denied, the answer is reinstated and the award of judgment
is vacated.

     Same Memorandum as in Sloniger v Niagara Mohawk Power Corp.
([appeal No. 1] ___ AD2d ___ [June 13, 2003]).


Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

654
CA 02-02229
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


EDWARD C. SLONIGER, ET AL., PLAINTIFFS,

                    V                             MEMORANDUM AND ORDER

NIAGARA MOHAWK POWER CORPORATION, DEFENDANT.
------------------------------------------------------
NIAGARA MOHAWK POWER CORPORATION, THIRD-PARTY
PLAINTIFF,

                    V

NEW YORK TELEPHONE COMPANY, THIRD-PARTY DEFENDANT.
------------------------------------------------------
NEW YORK TELEPHONE COMPANY, DOING BUSINESS AS NYNEX,
FOURTH-PARTY PLAINTIFF-RESPONDENT,

                    V

R.D. WERNER CO., INC., WERNER HOLDING CO., INC.,
AND WERNER COMPANY, FOURTH-PARTY DEFENDANTS-APPELLANTS.
(APPEAL NO. 3.)


DAVID W. KLOSS, BUFFALO, FIEDELMAN & MC GAW, JERICHO (ANDREW ZAJAC OF
COUNSEL), FOR FOURTH-PARTY DEFENDANTS-APPELLANTS.

PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER LLP, BUFFALO (PAUL
MORRISON-TAYLOR OF COUNSEL), FOR FOURTH-PARTY PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Supreme Court, Niagara County (Fricano,
J.), entered August 15, 2002, upon a decision in favor of fourth-party
plaintiff.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously vacated without costs.

     Same Memorandum as in Sloniger v Niagara Mohawk Power Corp.
([appeal No. 1] ___ AD2d ___ [June 13, 2003]).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

655
CA 02-01871
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


MONICA L. TEXIDO, INDIVIDUALLY AND AS ADMINISTRATOR
OF THE ESTATE OF VINCENT A. WEISER, DECEASED,
PLAINTIFF-APPELLANT,

                    V                                            ORDER

THE WATERS OF ORCHARD PARK, ET AL., DEFENDANTS,
THE PARK ASSOCIATES, INC., ARMOR ROAD PROPERTIES, LLC,
AND NEIL M. CHUR, DEFENDANTS-RESPONDENTS.


BROWN CHIARI, LLP, DEPEW (THERESA M. WALSH OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

CONNORS & VILARDO, LLP, BUFFALO (VINCENT E. DOYLE, III, OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of Supreme Court, Erie County (Michalek,
J.), entered April 9, 2002, which granted the motion of defendants The
Park Associates, Inc., Armor Road Properties, LLC, and Neil M. Chur to
dismiss the complaint against them without prejudice.

     Now, upon reading and filing the stipulation of discontinuance
signed by the attorneys for the parties on May 13, 2003,

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs upon stipulation.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

656
CA 02-02785
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


EDWARD J. SIKORSKI AND PENNY SIKORSKI,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

BURROUGHS DRIVE APARTMENTS, INC., DEFENDANT-
APPELLANT.
---------------------------------------------
BURROUGHS DRIVE APARTMENTS, INC., THIRD-PARTY
PLAINTIFF-RESPONDENT,

                    V

PENNY SIKORSKI, DOING BUSINESS AS AMERI-TEC
ASSOCIATES, THIRD-PARTY DEFENDANT-APPELLANT.


LAW OFFICES OF JOHN QUACKENBUSH, BUFFALO (H. WARD HAMLIN, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-
RESPONDENT.

WALSH & WILKINS, BUFFALO (CARLTON K. BROWNELL, III, OF COUNSEL), FOR
THIRD-PARTY DEFENDANT-APPELLANT.

LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY & CAMBRIA LLP, BUFFALO
(JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeals from an order of Supreme Court, Erie County (Michalek,
J.), entered July 16, 2002, which denied the motions of defendant and
third-party defendant for summary judgment.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously modified on the law by granting in part
defendant's motion and dismissing the common-law negligence cause of
action and the claims under Labor Law §§ 200 and 241 (6), and by
granting the motion of third-party defendant and dismissing the
third-party complaint and as modified the order is affirmed without
costs.

     Memorandum: Plaintiffs commenced this action to recover damages
for injuries sustained by Edward J. Sikorski (plaintiff) while
installing drywall in a garage that was being constructed by his wife,
third-party defendant, Penny Sikorski, doing business as Ameri-Tec
Associates (Ameri-Tec), on property owned by defendant-third-party
plaintiff (defendant). Plaintiff was standing on a 20-foot-long
                                 -82-                          656
                                                         CA 02-02785

aluminum pick walk board (pick) that was approximately 2 to 2½ feet
off the ground. While he was holding a four foot by eight foot sheet
of drywall with one hand and reaching for a hammer with the other, a
gust of wind caught the drywall, causing plaintiff to lose his balance
and either step or fall off the pick in what plaintiff described as a
"twisting" motion. The sheet of drywall struck plaintiff on the head,
and he sustained injuries to the cervical and lumbosacral spine.


     Supreme Court erred in denying that part of defendant's motion
seeking summary judgment dismissing the Labor Law § 200 claim and the
common-law negligence cause of action. Defendant established that any
dangerous condition arose not from the condition of the premises
themselves, but "from the contractor's methods," i.e. plaintiff's own
actions, and that it did not exercise "supervisory control over the
operation" (Comes v New York State Elec. & Gas Corp., 82 NY2d 876,
877; see Skudlarek v Bethlehem Steel Corp., 251 AD2d 974, 975; cf.
Sponholz v Benderson Prop. Dev., 273 AD2d 791, 792-793). Thus,
defendant established its entitlement to judgment as a matter of law,
and plaintiffs failed to raise an issue of fact.

     The court also erred in denying that part of defendant's motion
seeking summary judgment dismissing the Labor Law § 241 (6) claim. As
limited by their brief, plaintiffs contend that defendant violated 12
NYCRR 23-1.8 (c), which requires, inter alia, that workers be provided
with hard hats when working in an area "where there is a danger of
being struck by falling objects or materials ***." Although the
regulation is sufficiently specific (see generally McCune v Black Riv.
Constructors, 225 AD2d 1078, 1078-1079), we conclude that it is not
applicable here because plaintiff was not working below the area from
which the drywall fell.

     The court, however, properly denied that part of defendant's
motion seeking summary judgment dismissing the Labor Law § 240 (1)
claim. Even assuming, arguendo, that defendant met its initial burden
of establishing its entitlement to judgment by demonstrating that
plaintiff was provided with proper protection as contemplated by
section 240 (1) (see generally Rocovich v Consolidated Edison Co., 78
NY2d 509, 514-515), we conclude that plaintiff raised an issue of fact
whether he was a falling worker within the contemplation of the
statute. Although the height differential here was only 2 to 2½ feet,
"the determination whether Labor Law § 240 (1) applies does not depend
upon the distance that a worker falls. '[T]he extent of the elevation
differential may not necessarily determine the existence of an
elevation-related risk'" (Norton v Bell & Sons, 237 AD2d 928, 929).
Defendant established, however, that the drywall was not a falling
object as contemplated by section 240 (1) because it was at the same
level as plaintiff's work area when it fell (see Puckett v County of
Erie, 262 AD2d 964, 965; see also Ross v Curtis-Palmer Hydro-Elec.
Co., 81 NY2d 494, 500-501) and plaintiff failed to raise an issue of
fact. Nevertheless, we note that, in the event defendant is found
liable under section 240 (1), defendant will be liable for any
injuries "proximately caused" by plaintiff's fall, including injuries
sustained as a result of the drywall striking plaintiff after the fall
                                 -83-                          656
                                                         CA 02-02785

(Gordon v Eastern Ry. Supply, 82 NY2d 555, 561-562).

     Finally, we conclude that the court erred in denying Ameri-Tec's
motion seeking summary judgment dismissing the third-party complaint.
We agree with the court that plaintiff did not sustain a grave injury
but, contrary to the court's determination, we conclude that plaintiff
is an employee of Ameri-Tec, and thus Ameri-Tec is not liable for
common-law contribution or indemnity (see Worker's Compensation Law §
11). While the determination whether a worker is an employee or an
independent contractor "usually presents questions of fact sufficient
to preclude summary judgment, where evidence is undisputed, and the
facts are compellingly clear, the issue may be determined as a matter
of law" (Greene v Osterhoudt, 251 AD2d 786, 787). Ameri-Tec
established that plaintiff was paid weekly with a check signed by his
wife as president of Ameri-Tec; that he collected Worker's
Compensation benefits as an employee of Ameri-Tec; and that he acted
on behalf of Ameri–Tec when entering into contracts and purchasing
materials and tools. In response, defendant relied primarily on the
deposition testimony of plaintiffs characterizing plaintiff as an
independent contractor, and the interrogatory of plaintiff wherein he
referred to himself as a subcontractor of Ameri-Tec. We note,
however, that plaintiffs also testified that plaintiff was an employee
of Ameri-Tec. In any event, we conclude that where, as here, the
undisputed facts establish an employment relationship between Ameri-
Tec and plaintiff (cf. Crowell v Larkins, 300 AD2d 1044) merely
characterizing plaintiff as an independent contractor or a
subcontractor is not sufficient to raise an issue of fact; the
"conclusory statement[s] by *** lay[persons] on such a question is not
entitled to substantial weight" (Mietlinski v Hickman, 285 App Div
306, 310).

     We therefore modify the order by granting in part defendant's
motion and dismissing the common-law negligence cause of action and
the claims under Labor Law §§ 200 and 241 (6), and by granting Ameri-
Tec's motion and dismissing the third-party complaint.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

657
CA 03-00096
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


ALBERT M. ZACK, RONA ZACK, AND ELLEN GAFFNEY,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

3000 EAST AVENUE CONDOMINIUM ASSOCIATION,
DEFENDANT-RESPONDENT.


HARRIS BEACH LLP, PITTSFORD (DOUGLAS A. FOSS OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

HARTER, SECREST & EMERY LLP, ROCHESTER (LEONARD A. ROSNER OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment (denominated order and judgment) of
Supreme Court, Monroe County (Polito, J.), entered July 25, 2002,
which, inter alia, denied plaintiffs' motion for partial summary
judgment.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously modified on the law by denying
defendant's cross motion for partial summary judgment, granting
plaintiffs' motion for partial summary judgment in part, granting
judgment as follows:

               It is ADJUDGED and DECLARED that the December 1995
          change in the method of allocating common expenses is
          unlawful under Real Property Law § 339-m,

and enjoining defendant from continuing to employ that method as a
basis for assessing common expenses against plaintiffs.

     Memorandum: Plaintiffs Albert M. Zack and Rona Zack are the
owners of one unit and plaintiff Ellen Gaffney is the owner of another
unit in a nine-unit residential condominium. They commenced this
action against defendant condominium association seeking declaratory,
injunctive and, in the case of plaintiffs Albert M. Zack and Rona
Zack, monetary relief. Plaintiffs allege that the December 1995
change in the method of assessing or allocating common expenses
against them is invalid under Real Property Law § 339-m. Plaintiffs
further challenge the manner in which defendant adopted its December
1995 resolution amending the method of assessing common expenses.

      Supreme Court properly denied that part of plaintiffs' motion
                                 -85-                          657
                                                         CA 03-00096

seeking partial summary judgment on the claim challenging the manner
in which the resolution was adopted and to the extent that the Zacks
sought monetary, or retrospective, relief. The court properly
concluded that the Zacks are estopped from challenging the resolution
based on their affirmative vote in favor of the resolution and,
further, based on their payment without protest of common expenses
assessed in accordance with the amended method for the years 1996
through 2000. Such actions by the Zacks induced reasonable reliance
on the part of defendant that resulted in a detrimental change of
position on its part (see Nassau Trust Co. v Montrose Concrete Prods.
Corp., 56 NY2d 175, 184, rearg denied 57 NY2d 674; cf. Village of
Waterford v Reliance Ins. Co., 226 AD2d 887, 891). We further agree
with the court's conclusion that plaintiff Ellen Gaffney, who did not
acquire her unit until May 2000, lacks standing to contest the manner
in which defendant adopted the resolution in December 1995.

      We conclude, however, that the court erred in denying that part
of plaintiffs' motion for partial summary judgment seeking declaratory
and injunctive, or prospective, relief invalidating the December 1995
change in the method of assessing common expenses as contrary to the
provisions of Real Property Law § 339-m. Pursuant to section 339-m,
the "common profits of the property shall be distributed among, and
the common expenses shall be charged to, the unit owners according to
their respective common interests ***. *** In the case of units in
any building, residential or non-residential, or a combination
thereof, profits and expenses may be specially allocated and
apportioned based on special or exclusive use or availability or
exclusive control of particular units or common areas by particular
unit owners, if so authorized by the declaration and bylaws, in a
manner different from common profits and expenses."

     Here, plaintiffs challenge defendant's implementation of a
"split" or "hybrid" method of allocating common expenses to the
various units. Under the current method of assessment, one half of
common expenses are allocated against each owner in accordance with
his or her "Percentage of Interest in Common Elements," as set forth
in the Declaration, which percentage is based on a proration of floor
area (see Real Property Law § 339-i [1] [ii]). However, the remaining
common expenses are allocated on a per unit basis, i.e., one
eighteenth (one ninth of one half) against each owner. The express
intent of the resolution was to shift a portion of the financial
burden from the owners of the larger units to the owners of the
smaller units on the theory that it was "unfair" to the owners of the
larger units to bear common expenses in strict proportion to the
square footage of their units. Insofar as this record reveals, the
considerations identified in the last sentence of section 339-m played
no part in defendant's adoption of the resolution amending the method
of allocating common expenses. We therefore conclude that the
December 1995 change in the method of allocating common expenses is
not, as required by section 339-m, "based on special or exclusive use
or availability or exclusive control of particular units or common
areas by particular unit owners."

      We therefore modify the judgment by denying defendant's cross
                                 -86-                          657
                                                         CA 03-00096

motion for partial summary judgment, granting plaintiffs' motion for
partial summary judgment in part, declaring the December 1995 change
in the method of allocating common expenses unlawful under Real
Property Law § 339-m, and enjoining defendant from continuing to
employ that method as a basis for assessing common expenses against
plaintiffs.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

658
CA 02-02024
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


JUNE GOULD, PLAINTIFF-RESPONDENT,

                    V                                               ORDER

JAMES A. GOULD, AS EXECUTOR OF THE ESTATE OF
EDWARD GOULD, DECEASED, DEFENDANT-APPELLANT.


SCHAACK WHIPPLE CLARK NELSON, PC, FREDONIA (RICHARD F. WHIPPLE, JR.,
OF COUNSEL), FOR DEFENDANT-APPELLANT.

MISERENDINO, CELNIKER, SEEGERT & ESTOFF, P.C., BUFFALO (ANDREW D.
KEHRER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Supreme Court, Chautauqua County
(Martoche, J.), entered May 17, 2002, which, inter alia, equitably
distributed the marital property.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs for reasons
stated in decision at Supreme Court, Chautauqua County, Martoche, J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

659
CA 03-00118
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


IRENE C. KNIGHT AND WILLIAM R. KNIGHT,
PLAINTIFFS-RESPONDENTS,

                    V                                MEMORANDUM AND ORDER

LAWRENCE SAWYER, DEFENDANT-APPELLANT.
--------------------------------------------------
LAWRENCE SAWYER, THIRD-PARTY PLAINTIFF-APPELLANT,

                    V

CRAIG MOYLAN, THIRD-PARTY DEFENDANT-RESPONDENT.


O'SHEA, REYNOLDS & CUMMINGS, BUFFALO (KIMBERLY D. GENSLER OF COUNSEL),
FOR DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-APPELLANT.

PHILLIP A. THIELMAN, BUFFALO, FOR PLAINTIFFS-RESPONDENTS AND THIRD-
PARTY DEFENDANT-RESPONDENT.


     Appeal from an order of Supreme Court, Erie County (Lane, J.),
entered June 6, 2002, which, inter alia, denied defendant's motion
seeking summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed with costs.

     Memorandum: Plaintiffs commenced this action to recover damages
for injuries sustained by Irene C. Knight (plaintiff) when she slipped
and fell on the stairway of a two-family residence owned by defendant-
third-party plaintiff (defendant). Plaintiff's daughter and son-in-
law, third-party defendant, rented the upper apartment. Supreme Court
properly denied defendant's motion seeking summary judgment dismissing
the complaint or, in the alternative, for an order granting
indemnification from third-party defendant. With respect to that part
of the motion seeking summary judgment dismissing the complaint, even
assuming, arguendo, that defendant met his initial burden by
submitting evidence establishing that it was snowing at the time of
the accident (see Siegel v Molino, 236 AD2d 879), we conclude that
plaintiffs and third-party defendant raised a triable issue of fact by
presenting "evidence that an ongoing and recurring dangerous condition
existed in the area of the accident which was routinely left
unaddressed by the landlord" (O'Connor-Miele v Barhite & Holzinger,
234 AD2d 106, 106-107). Specifically, plaintiffs and third-party
defendant submitted evidence that ice regularly formed on the stairway
                                 -89-                          659
                                                         CA 03-00118

as the result of a leak in the roof and the absence of gutters in the
front of the house, and that defendant had actual knowledge of that
condition but took no steps to remedy it. With respect to the
alternative request for an order granting indemnification, defendant
failed to meet his initial burden of establishing that third-party
defendant had undertaken the responsibility for snow and ice removal
at the residence (see Cooper v Bogel, 246 AD2d 760, 761; cf. Doyle v
B3 Deli, 224 AD2d 478, 479).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

660
CA 02-02835
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


LOUIS KINGSBURY AND JO ANN KINGSBURY, INDIVIDUALLY
AND AS ADMINISTRATORS OF THE ESTATE OF JOSEPH L.
KINGSBURY, DECEASED, PLAINTIFFS-APPELLANTS,

                    V                                MEMORANDUM AND ORDER

LESLIE WELCH, ET AL., DEFENDANTS,
VILLAGE OF AVON, VILLAGE OF AVON POLICE DEPARTMENT,
AND AVON POLICE OFFICER MICHAEL MILLER, DEFENDANTS-
RESPONDENTS.


GALLO & IACOVANGELO, LLP, ROCHESTER (JOSEPH B. RIZZO OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

PETRONE & PETRONE, P.C., UTICA (DAVID A. BAGLEY OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of Supreme Court, Livingston County
(Cornelius, J.), entered June 7, 2002, which granted the motion of
defendants Village of Avon, the Village of Avon Police Department, and
Avon Police Officer Michael Miller seeking summary judgment dismissing
plaintiffs' remaining claim against them.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Supreme Court properly granted the motion of the
Village of Avon, the Village of Avon Police Department and Avon Police
Officer Michael Miller (defendants) seeking summary judgment
dismissing plaintiffs' remaining claim against them (cf. Parvi v City
of Kingston, 41 NY2d 553, 559-560; Walsh v Town of Cheektowaga, 237
AD2d 947, lv denied 90 NY2d 889). Plaintiffs commenced this action
seeking to recover damages arising from the death of Joseph L.
Kingsbury (decedent) from acute alcohol intoxication after he fell
asleep in the garage of a residence in Avon. Prior to the death of
decedent, Miller encountered him while investigating a party at that
residence and, before leaving, warned the homeowner of the dangers
associated with decedent's intoxication. Plaintiffs contend that
defendants are liable under general negligence principles because
Miller left decedent there in a highly intoxicated condition. In
moving for summary judgment, however, defendants established that
Miller did not take charge of decedent. Indeed, they established that
the homeowner assumed his care. Even assuming, arguendo, that
plaintiffs raised an issue of fact whether Miller was aware of the
                                 -91-                          660
                                                         CA 02-02835

helpless condition of decedent, we conclude that they failed to raise
the requisite triable issue of fact whether Miller took charge of him
(cf. Walsh, 237 AD2d at 947-948). The court therefore properly
granted defendants' motion.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

661
CA 02-02794
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


MATTER OF GRAHAM CORPORATION, FORMERLY KNOWN AS
GRAHAM MANUFACTURING CO., INC., PETITIONER-
RESPONDENT,

                    V                                              ORDER

WILLIAM SIVECZ, ASSESSOR, AND BOARD OF ASSESSMENT
REVIEW OF CITY OF BATAVIA, RESPONDENTS-APPELLANTS.


HANCOCK & ESTABROOK, LLP, SYRACUSE (DEBRA CHINI SULLIVAN OF COUNSEL),
FOR RESPONDENTS-APPELLANTS.

UNDERBERG & KESSLER LLP, ROCHESTER (PAUL F. KENEALLY OF COUNSEL), AND
BLY, SHEFFIELD, BARGAR & PILLITIERI, JAMESTOWN, FOR
PETITIONER-RESPONDENT.


     Appeal from an order of Supreme Court, Genesee County (Noonan,
J.), entered October 1, 2002, which granted petitioner's motion to
file a supplemental appraisal report and denied respondents' cross
motion to strike petitioner's appraisal report.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                            JOANN M. WAHL
                                                  Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

662
CA 02-01461
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


RITA GAUTHIER, PLAINTIFF-APPELLANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

SUPER HAIR AND JOHN SIMMONETTI, DOING BUSINESS
AS YORKSHIRE REALTY, DEFENDANTS-RESPONDENTS-APPELLANTS.


FITZSIMMONS, NUNN & FITZSIMMONS, LLP, ROCHESTER (RICHARD A. PLUKAS OF
COUNSEL), FOR PLAINTIFF-APPELLANT-RESPONDENT.

OSBORN, REED & BURKE, LLP, ROCHESTER (CHRISTIAN C. CASINI OF COUNSEL),
FOR DEFENDANT-RESPONDENT-APPELLANT SUPER HAIR.

FELDMAN, KIEFFER & HERMAN, LLP, BUFFALO (GERARD A. STRAUSS OF
COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT JOHN SIMMONETTI, DOING
BUSINESS AS YORKSHIRE REALTY.


     Appeals and cross appeal from an order of Supreme Court, Monroe
County (Galloway, J.), entered October 3, 2001, which, inter alia,
granted the motion of defendant Super Hair for summary judgment
dismissing the complaint against it.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously modified on the law by denying the motion
of defendant Super Hair in part and reinstating the complaint against
it insofar as it is premised on a claim of breach of an assumed duty
and as modified the order is affirmed with costs to plaintiff.

     Memorandum: Plaintiff commenced this action to recover damages
for injuries sustained when she fell into a hole or depression in the
driveway/parking lot of premises owned by defendant John Simmonetti,
doing business as Yorkshire Realty. The first floor of the building
on the premises was leased to the proprietor of defendant Super Hair,
and plaintiff had just left Super Hair when the accident occurred.
Supreme Court properly granted that part of the motion of Super Hair
for summary judgment dismissing the premises liability claim against
it. Super Hair established its entitlement to judgment as a matter of
law on that claim by proving that the driveway/parking lot was not
part of the leased premises and that the maintenance of that common
area was under the control of Simmonetti, not Super Hair, and
plaintiff failed to raise a triable issue of fact on the claim of
premises liability (see Geloso v Castle Enters., 266 AD2d 849, 850;
Stevens v Northern Lights Assoc., 229 AD2d 1001, 1002; Dunn v Reardon,
184 AD2d 1064). The court erred, however, in granting that part of
                                 -94-                          662
                                                         CA 02-01461

the motion of Super Hair for summary judgment dismissing the remainder
of the complaint against it. There are triable issues of fact whether
the proprietor of Super Hair directed plaintiff to exit the leasehold
premises through the side door and, if so, whether such conduct
exacerbated the risk to plaintiff (see Seudath v Mott, 266 AD2d 450;
Thrane v Haney, 264 AD2d 926, 927; Martin v Gallagher Truck Ctr., 244
AD2d 534; Levine v Zarabi, 243 AD2d 448; Cohen v Heritage Motor Tours,
205 AD2d 105, 107-108). One who voluntarily assumes a duty to act
with reasonable care toward others may be held liable for breach of
that duty if the plaintiff relied on that undertaking and the act or
failure to act placed the plaintiff in a more vulnerable position than
if the obligation had not been assumed (see Heard v City of New York,
82 NY2d 66, 72, rearg denied 82 NY2d 889; Nallan v Helmsley-Spear,
Inc., 50 NY2d 507, 522; Van Hove v Baker Commodities, 288 AD2d 927).
One voluntarily assuming the performance of a duty "is required to
perform it carefully, not omitting to do what an ordinarily prudent
person would do in accomplishing the task" (Wolf v City of New York,
39 NY2d 568, 573; see Florence v Goldberg, 44 NY2d 189, 196-197; Parvi
v City of Kingston, 41 NY2d 553, 559; Van Hove, 288 AD2d at 927).
Here, there is a triable issue of fact whether the alleged conduct of
Super Hair's proprietor "enhanced the risk [that plaintiff] faced,
created a new risk [or] induced [plaintiff] to forego some opportunity
to avoid risk" (Heard, 82 NY2d at 73, citing Restatement [Second] of
Torts § 323, Comment c; see Van Hove, 288 AD2d at 927). We thus
modify the order by denying the motion of Super Hair in part and
reinstating the complaint against it insofar as it is premised on a
claim of breach of an assumed duty.

     We have considered the contentions raised by Super Hair on its
appeal and Simmonetti on his cross appeal and conclude that they are
without merit.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

663
CA 03-00202
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


MARIO TINERVIA AND LUCIA TINERVIA,
PLAINTIFFS-APPELLANTS,

                    V                                            ORDER

MVP HEALTH PLAN, INC., DEFENDANT-RESPONDENT.


KOWALCZYK, TOLLES, DEERY & JOHNSTON, LLP, UTICA, D.J. & J.A. CIRANDO,
ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR PLAINTIFFS-
APPELLANTS.

COUCH WHITE, LLP, ALBANY (TRICIA A. ASARO OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of Supreme Court, Herkimer County (Daley,
J.), entered March 22, 2002, which granted defendant's motion for
summary judgment dismissing the amended complaint and granting
defendant's counterclaim for the sum of $654.28 with interest.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs for reasons stated
in decision at Supreme Court, Herkimer County, Daley, J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

664
CA 03-00190
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


ASTON B. WILLIAMS, M.D., PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JOSEPH MADDI, OLIVIA BLACKWELL, THOMAS A.
HASSENFRATZ, JOSEPH SERGHANY, SHEEHAN MEMORIAL
HOSPITAL, DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.


ZDARSKY, SAWICKI & AGOSTINELLI, BUFFALO (GERALD T. WALSH OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

DAMON & MOREY LLP, BUFFALO (JUDY S. HERNANDEZ OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS JOSEPH MADDI, OLIVIA BLACKWELL, AND SHEEHAN
MEMORIAL HOSPITAL.

FELDMAN, KIEFFER & HERMAN, LLP, BUFFALO (MICHELE K. SNYDER OF
COUNSEL), FOR DEFENDANT-RESPONDENT THOMAS A. HASSENFRATZ.

WEBSTER SZANYI LLP, BUFFALO (DAVID P. MARCUS OF COUNSEL), FOR
DEFENDANT-RESPONDENT JOSEPH SERGHANY.


     Appeal from an order of Supreme Court, Erie County (NeMoyer, J.),
entered October 16, 2002, which, inter alia, granted the motions of
defendants Joseph Maddi, Olivia Blackwell, Thomas A. Hassenfratz,
Joseph Serghany, and Sheehan Memorial Hospital and dismissed the
complaint against them.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Supreme Court properly granted the motions of
defendants Thomas A. Hassenfratz and Joseph Serghany for summary
judgment dismissing the complaint against them, and the motion of
defendants Joseph Maddi, Olivia Blackwell and Sheehan Memorial
Hospital (Sheehan) to dismiss the complaint pursuant to CPLR 3211 (a)
(7) or, alternatively, for summary judgement dismissing the complaint
against them. The individual defendants, physicians employed by
Sheehan, established that their conduct is not “fairly attributable”
to the state (American Mfrs. Mut. Ins. Co. v Sullivan, 526 US 40, 50),
and “the fact that [Sheehan] [is] regulated by the state and
receive[s] substantial public funding is, without more, woefully
insufficient to impute state action to the conduct of the [moving]
defendants” (Alcena v Raine, 692 F Supp 261, 266). Thus, the moving
                                 -97-                          664
                                                         CA 03-00190

defendants established that they were not acting under color of state
law for purposes of the cause of action alleging a violation of
plaintiff’s civil rights under 42 USC § 1983, and plaintiff failed to
raise a triable issue of fact. Further, the “conclusory, vague and
general allegations of a conspiracy to deprive [plaintiff] of
constitutional rights” are insufficient to support plaintiff’s claim
under 42 USC § 1985 (3) (Kubik v New York State Dept. of Social
Servs., 244 AD2d 606, 610). With respect to the third cause of
action, alleging defamation against Maddi, we conclude that Maddi,
Blackwell and Sheehan submitted proof establishing that the allegedly
defamatory statement was not made, and plaintiff failed to raise a
triable issue of fact (see Schwartz v Society of N.Y. Hosp., 232 AD2d
212, 213). We have considered plaintiff’s remaining contentions and
conclude that they are lacking in merit.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

665
CA 03-00223
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


KELLY A. WINSLOW AND ROBERT A. WINSLOW,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

TIMOTHY E. CALLAGHAN, DEFENDANT-APPELLANT.


BURGIO, KITA & CURVIN, BUFFALO (HILARY C. BANKER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY & CAMBRIA LLP, BUFFALO
(JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of Supreme Court, Niagara County (Sconiers,
J.), entered August 13, 2002, which denied defendant's motion seeking
summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously modified on the law by granting defendant's
motion in part and dismissing those parts of the complaint as
amplified by the bill of particulars alleging that plaintiff Kelly A.
Winslow sustained a serious injury under the permanent consequential
limitation of use and significant limitation of use categories of
Insurance Law § 5102 (d) and as modified the order is affirmed without
costs.

      Memorandum: Supreme Court properly denied that part of
defendant’s motion seeking summary judgment dismissing the complaint
as amplified by the bill of particulars insofar as it alleges that
Kelly A. Winslow (plaintiff) sustained a serious injury under the
90/180-day category set forth in Insurance Law § 5102 (d). Contrary
to the contention of defendant, he did not meet his initial burden of
establishing his entitlement to judgment as a matter of law with
respect to that category of serious injury (see Temple v Doherty, 301
AD2d 979, 982-983). Indeed, defendant’s submissions in support of the
motion establish that plaintiff sustained a qualifying injury to her
neck (see generally Nitti v Clerrico, 98 NY2d 345, 357) and the
deposition testimony fails to establish as a matter of law that
plaintiff was not “‘curtailed from performing [her] usual activities
to a great extent rather than some slight curtailment’” (O’Neal v
Cancilla, 294 AD2d 921, 922, quoting Licari v Elliott, 57 NY2d 230,
236).

     The court erred, however, in denying that part of defendant’s
                                 -99-                          665
                                                         CA 03-00223

motion seeking summary judgment dismissing the complaint as amplified
by the bill of particulars insofar as it alleges that plaintiff
sustained a serious injury under the permanent consequential
limitation of use and significant limitation of use categories of
Insurance Law § 5102 (d). Contrary to plaintiffs' contention,
defendant established his entitlement to judgment as a matter of law
with respect to those categories. Defendant submitted the affidavit
of an expert who found no loss of range of motion due to the accident
and a second expert’s affidavit referring to plaintiff’s limited
rotation and flexion as nothing more than a “self-limiting entity.”
In response, plaintiffs failed to raise a triable issue of fact.
Plaintiffs' expert diagnosed only a “mildly restricted” range of
motion, which is insufficient to raise an issue of fact with respect
to either relevant category of serious injury (see Gaddy v Eyler, 79
NY2d 955, 957; Calucci v Baker, 299 AD2d 897; Mikl v Shufelt, 285 AD2d
949, 950). Moreover, plaintiffs' expert failed to make a “qualitative
assessment of plaintiff’s condition” (Toure v Avis Rent A Car Sys., 98
NY2d 345, 350-351). We thus modify the order by granting defendant’s
motion in part and dismissing those parts of the complaint as
amplified by the bill of particulars alleging that plaintiff sustained
a serious injury under the permanent consequential limitation of use
and significant limitation of use categories of Insurance Law § 5102
(d).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

666
CA 03-00080
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


CITIBANK (NEW YORK STATE), PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DIANE M. TEBSHERANY, DEFENDANT,
COMMUNITY BANK, N.A. FBO, ROBERT D. BEDELL IRA/SEP,
CITY OF UTICA, JOAN L. SCALISE, AS COMPTROLLER OF
CITY OF UTICA, BRANJEN HOLDINGS, INC., DIANE
QUADRARO-KAIN, SHAWN M. KAIN, AND VENDERBILT MORTGAGE
AND FINANCE, INC., DEFENDANTS-RESPONDENTS.


HISCOCK & BARCLAY, LLP, SYRACUSE (CHRISTOPHER J. HARRIGAN OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

TIMOTHY W. MC LERON, ALBANY, FOR DEFENDANTS-RESPONDENTS COMMUNITY
BANK, N.A. FBO, ROBERT D. BEDELL IRA/SEP, BRANJEN HOLDINGS, INC.,
DIANE QUADRARO-KAIN, SHAWN M. KAIN, AND VENDERBILT MORTGAGE
AND FINANCE, INC.

JOHN W. DILLON, CORPORATION COUNSEL, UTICA (CHARLES N. BROWN OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS CITY OF UTICA AND JOAN L.
SCALISE, AS COMPTROLLER OF CITY OF UTICA.


     Appeal from those parts of an order of Supreme Court, Oneida
County (Ringrose, J.), entered July 24, 2002, that, inter alia, denied
plaintiff's motion for summary judgment.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Plaintiff commenced an action pursuant to article 15
of the Real Property Actions and Proceedings Law seeking to compel the
determination of its claim to a parcel of real property. Plaintiff
held a purchase money mortgage encumbering property purchased by
defendant Diane M. Tebsherany and another individual in 1988. It is
undisputed that the mortgage was duly recorded in the Oneida County
Clerk’s Office. Plaintiff, however, was not listed as a mortgagee on
the tax assessment rolls for defendant City of Utica (City). The City
sold the property at a tax lien foreclosure sale on March 31, 1999 for
nonpayment of taxes for the 1998-1999 tax year. Plaintiff was not
given notice of the sale. Thereafter, the certificate of sale was
assigned to defendant Community Bank, N.A. FBO Robert D. Bedell
IRA/SEP (Bedell). On April 6, 2000, Bedell mailed a notice to redeem
the property to plaintiff at the Syracuse address listed on the
                                -101-                          666
                                                         CA 03-00080

recorded mortgage. The notice to redeem advised plaintiff that July
7, 2000 was the last day on which to redeem the property. The notice
was returned to Bedell on April 11, 2000 as “undeliverable” because
plaintiff no longer had a place of business at that address. Bedell
thereafter mailed a notice to plaintiff’s address in St. Louis,
Missouri, but plaintiff contends that it did not receive the notice.
Upon application of Bedell, the City deeded the property to defendant
Branjen Holdings, Inc. on July 11, 2000. Plaintiff, which had
commenced a foreclosure action in April 2000, did not learn until
August 2000 that the property had been sold at a tax lien foreclosure
sale in March 1999.

     Supreme Court properly denied the motion of plaintiff seeking,
inter alia, summary judgment vacating the tax lien foreclosure and the
tax sale deeds and granted the cross motion of Bedell, Branjen
Holdings, Inc., Diane Quadraro-Kain, Shawn M. Kain and Venderbilt
Mortgage and Finance, Inc. (defendants) seeking summary judgment
confirming the validity of the tax lien foreclosure and tax sale deeds
and dismissing the complaint. Contrary to the contention of
plaintiff, it was not denied due process because the City did not
provide it with notice of the tax lien foreclosure sale. Pursuant to
Utica City Code § 8.031 (c), notice of a tax foreclosure sale must be
“sent by first class mail to the names and addresses of the owners and
mortgagees, as shown on the [tax] assessment roll, of each parcel to
be sold” (emphasis added). Plaintiff failed to exercise its right to
file a declaration of interest with the City (see RPTL 1126) and thus
was not shown on the tax assessment roll of the subject parcel.
Where, as here, the Utica City Code has a specific notice provision,
that provision supersedes the notice requirement set forth in RPTL
1125 (1), requiring the taxing authority to provide notice of the
pending tax lien foreclosure sale to, inter alia, a mortgagee whose
right, title or interest in the property is a matter of public record
(see Matter of McCann v Scaduto, 71 NY2d 164, 171 n 2; see also RPTL
2006; Weigner v City of New York, 852 F2d 646, 651-652, cert denied
488 US 1005; cf. Mennonite Bd. of Missions v Adams, 462 US 791, 798).
We conclude that the City complied with due process requirements by
providing notice to interested parties of the pending sale pursuant to
its City Code.

      Contrary to the further contention of plaintiff, its alleged
failure to receive the notice of redemption does not amount to a
denial of due process. By submitting the affidavits of service of
Bedell stating that he mailed the notice of redemption to plaintiff at
two addresses, defendants established that the notice of redemption
was sent to plaintiff in compliance with defendants’ due process
obligations (see generally Kennedy v Mossafa, 100 NY2d 1, ___; Matter
of Foreclosure of Tax Liens, 278 AD2d 814, 815). “[P]laintiff’s
denial of receipt of the notice, standing alone, is insufficient to
rebut the presumption that the notice was received by plaintiff” (Best
v City of Rochester, 195 AD2d 1073, 1074; see RPTL 1136 [3]; Sendel v
Diskin, 277 AD2d 757, 758-759, lv denied 96 NY2d 707). We have
reviewed plaintiff’s remaining contention and conclude
                            -102-                  666
                                             CA 03-00080

that it is without merit.




Entered: June 13, 2003              JOANN M. WAHL
                                    Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

667
CA 03-00130
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


BUFFALO WIRE WORKS COMPANY, INC., PLAINTIFF-
APPELLANT,

                    V                             MEMORANDUM AND ORDER

GREAT NORTHERN INSURANCE COMPANY, DEFENDANT-
RESPONDENT.


BROWN & KELLY, LLP, BUFFALO (LISA T. SOFFERIN OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

CONNORS & CORCORAN, LLP, ROCHESTER (EILEEN E. BUHOLTZ OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from a judgment (denominated order) of Supreme Court, Erie
County (Makowski, J.), entered September 3, 2002, which denied
plaintiff's motion for summary judgment and granted defendant's cross
motion for summary judgment declaring that defendant had no duty to
defend or indemnify plaintiff in the underlying action.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed with costs.

     Memorandum: Plaintiff is the insured under a comprehensive
general liability policy issued by defendant. After being sued in an
underlying action brought by three former employees, plaintiff
commenced this action alleging that defendant wrongfully disclaimed
coverage under the policy and seeking, inter alia, a declaration that
defendant was obligated to defend and must indemnify plaintiff in the
underlying action. Supreme Court properly denied plaintiff's motion
for summary judgment and properly granted defendant's cross motion for
summary judgment declaring that defendant had no duty to defend or
indemnify plaintiff in the underlying action (see generally Town of
Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435, 443-
444). With the exception of the fifth cause of action, the
allegations of the underlying complaint fall outside the coverage
provisions of the insurance policy. The first through fourth and
sixth causes of action of the underlying complaint do not arise out of
an "accident[al]" "occurrence" as defined by the policy. Further, the
first through fourth causes of action of the underlying complaint do
not concern claims of "bodily injury," "personal injury," or "property
damage," as required by the coverage provisions of the policy. In
particular, we reject plaintiff's contention that the underlying
complaint may be read to allege claims of unintentional discrimination
                                -104-                          667
                                                         CA 03-00130

and slander falling within the coverage of the policy. In any event,
we conclude that all six causes of action of the underlying complaint
raise claims that come within one or both of two policy exclusions
properly invoked by defendant. One of those exclusions is for claims
of "bodily injury or property damage, expected or intended from the
standpoint of the insured," and the other is for claims of "bodily
injury to *** an employee of the insured arising out of and in the
course of employment by the insured."




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

668
CA 02-02401
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND BURNS, JJ.


BUFFALO AND ERIE COUNTY REGIONAL DEVELOPMENT
CORPORATION, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

WORLD AUTO PARTS, INC., ET AL., DEFENDANTS,
AND MARTA CHAIKOVSKA, DEFENDANT-APPELLANT.


BLAIR & ROACH, LLP, TONAWANDA (LARRY KERMAN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

HURWITZ & FINE, P.C., BUFFALO (ANDREA SCHILLACI OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of Supreme Court, Erie County (Makowski,
J.), entered June 7, 2002, which granted the motion of plaintiff for
summary judgment against defendants.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

      Memorandum: Plaintiff made a $450,000 loan to defendant World
Auto Parts, Inc. (World Auto Parts) that was guaranteed by defendants
Marta Chaikovska and Bighorn Core, Ltd. (Bighorn Core). The loan was
evidenced by a note dated June 17, 1998. At the time of the loan,
Chaikovska was the chief executive officer of World Auto Parts and
president of Bighorn Core. The loan was secured by certain property
that had already been pledged as security for a separate loan to World
Auto Parts by Chase Manhattan Bank (Chase). Prior to entering into
the June 17, 1998 loan with World Auto Parts, plaintiff entered into
an Intercreditor Agreement with Chase, specifying that plaintiff's
interest in the collateral was subordinate to that of Chase.
Subsequently, World Auto Parts defaulted on both loans and Chase sold
the collateral. The proceeds generated by the sale, however, were
insufficient to cover the balance remaining on the loan from Chase and
thus insufficient to cover any of the balance remaining on plaintiff's
note. As a result, plaintiff commenced this action to recover on the
note and guaranties. Supreme Court granted plaintiff's motion for
summary judgment against all defendants, and only Chaikovska appeals.

     We agree with the court that plaintiff established its
entitlement to summary judgment against Chaikovska by submitting the
unconditional guaranty signed by her, proof of the underlying debt and
proof of Chaikovska's failure to perform under the guaranty (see City
                                -106-                          668
                                                         CA 02-02401

of New York v Clarose Cinema Corp., 256 AD2d 69, 71; see also Chrysler
Credit Corp. v Mitchell, 94 AD2d 971). The burden then shifted to
Chaikovska to raise a material issue of fact precluding summary
judgment (see Streng Oldsmobile v Fleet Bank of N.Y., 245 AD2d 1032,
1033-1034). We reject Chaikovska's contention that there is an issue
of fact with respect to the amount recoverable under the guaranty.
That contention is premised on the assertion that the Intercreditor
Agreement established an agency relationship between plaintiff and
Chase that would somehow bar plaintiff's recovery to the extent that
Chase failed to act in a commercially reasonable manner in the sale of
the collateral. However, "[a]gency is a fiduciary relationship"
(Broyles & Broyles v Rainbow Sq., 125 AD2d 933, 934), and, contrary to
Chaikovska's contention, "[t]he legal relationship between [plaintiff
and Chase] is a contractual one," which established merely the
priority of the security interests, "and not a fiduciary relationship"
(Marine Midland Bank v Yoruk, 242 AD2d 932, 933). Absent a fiduciary
relationship, Chaikovska's contention regarding plaintiff's duty under
article 3 of the Uniform Commercial Code also lacks merit. Thus,
Chaikovska failed to raise a triable issue of fact, and the court
properly granted plaintiff's motion for summary judgment.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

669
TP 02-02843
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


MATTER OF ELIAS BERMUDEZ-TORO, PETITIONER,

                    V                                               ORDER

GLENN S. GOORD, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, ATTICA (JERRY M. ADER OF
COUNSEL), FOR PETITIONER.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (PATRICK BARNETT-MULLIGAN OF
COUNSEL), FOR RESPONDENT.


     CPLR article 78 proceeding transferred to this Court by an order
of Supreme Court, Wyoming County (Dadd, J.), entered December 19,
2002, seeking review of a determination after a Tier II hearing.

     It is hereby ORDERED that the determination be and the same
hereby is unanimously confirmed without costs and the petition is
dismissed.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

670
TP 03-00124
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


MATTER OF THOMAS BUTTI, PETITIONER,

                    V                                               ORDER

GLENN S. GOORD, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, ATTICA (SUSAN K. JONES OF
COUNSEL), FOR PETITIONER.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (NANCY A. SPIEGEL OF COUNSEL),
FOR RESPONDENT.


     CPLR article 78 proceeding transferred to this Court by an order
of Supreme Court, Wyoming County (Dadd, J.), entered January 13, 2003,
seeking review of a determination after a Tier III hearing.

     It is hereby ORDERED that the determination be and the same
hereby is unanimously confirmed without costs and the petition is
dismissed.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

671
KA 01-00151
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                                              ORDER

ROBERT YOUNG, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (LAURIE M. ISRAEL OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Erie County Court (DiTullio, J.),
entered December 19, 2000, convicting defendant upon his plea of
guilty of, inter alia, scheme to defraud in the first degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed (see People v Hidalgo, 91 NY2d
733, 737).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

672
KA 02-01266
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TOBY S. SMITH, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (SUSAN R. RIDER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

EDWARD M. SHARKEY, DISTRICT ATTORNEY, LITTLE VALLEY, FOR PLAINTIFF-
RESPONDENT.


     Appeal from a judgment of Cattaraugus County Court (Himelein,
J.), entered April 8, 2002, convicting defendant after a jury trial
of, inter alia, felony driving while intoxicated.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed, and the matter is remitted to
the Cattaraugus County Court for proceedings pursuant to CPL 460.50
(5).

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of, inter alia, felony driving while
intoxicated ([DWI] Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c]
[i]), and aggravated unlicensed operation of a motor vehicle in the
first degree (§ 511 [3] [a]). By failing to raise a timely challenge
to the seating of a juror, defendant waived the challenge (see CPL
270.15 [4]). In any event, even if the juror had knowledge of
defendant’s work history, such knowledge was irrelevant to the crimes
charged and did not bear on the juror’s qualifications to serve (see
generally 270.20).

     Defendant failed to preserve for our review his contention that
County Court erred in permitting the arresting officer to testify
regarding defendant’s desire not to speak after the officer
administered Miranda warnings, and we decline to exercise our power to
review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). Defendant also failed to preserve
for our review his further contention that the evidence is legally
insufficient to support the DWI conviction (see People v Gray, 86 NY2d
10, 19). In any event, the evidence of DWI is legally sufficient to
support that conviction.
                                -111-                          672
                                                         KA 02-01266

     Defendant further contends that the court violated CPL 320.10 by
accepting the stipulation to the conviction of felony aggravated
unlicensed operation of a motor vehicle without obtaining the waiver
of a jury trial in writing in open court. “The record establishes
that defendant freely and voluntarily entered into the stipulation as
part of a strategy to keep the jury from learning of his prior DWI
conviction and that his license was suspended or revoked at the time
of his arrest” (People v Tatro, 245 AD2d 1040), and thus defendant
waived that contention (see People v Donhauser, 255 AD2d 933, 934).

     Defendant also waived his contention that the court erred in
submitting copies of the DWI and driving while ability impaired
(Vehicle and Traffic Law § 1192 [1]) statutes to the jury during
deliberations. Defendant consented to the submission thereof, and CPL
310.30 permits the court to submit the text of a statute, with the
consent of the parties, when, as here, the jury requests further
instruction with respect to the law.

     We further conclude that defendant received effective assistance
of counsel. The record establishes that, after defense counsel
advised the court that he had represented the arresting officer on
unrelated civil matters, the court engaged defendant in a Gomberg
inquiry (see People v Gomberg, 38 NY2d 307) and advised defendant of
the potential risks of continuing representation by defense counsel,
and defendant chose to have defense counsel continue to represent him.
Thus, it cannot be said that defendant was denied effective assistance
of counsel (see People v Miller, 187 AD2d 930, 930-931; cf. People v
Wandell, 75 NY2d 951, 952). Finally, the sentence is not unduly harsh
or severe.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

673
KA 00-00833
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ROBERT J. BRANDEL, DEFENDANT-APPELLANT.


ANNA M. ZEPHRO JOST, TONAWANDA, FOR DEFENDANT-APPELLANT.

MATTHEW J. MURPHY, III, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Niagara County Court (Fricano, J.),
entered March 3, 2000, convicting defendant after a jury trial of,
inter alia, sexual abuse in the first degree (eight counts).

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of eight counts of sexual abuse in the first degree
(Penal Law § 130.65 [2]) and three counts of aggravated sexual abuse
in the third degree (§ 130.66 [1] [b]). Defendant failed to preserve
for our review his contention that the indictment is multiplicitous
(see People v D’Eredita, 302 AD2d 925). In any event, that contention
is without merit. An indictment is multiplicitous when “two separate
counts of the indictment charge the same crime” (People v Kindlon, 217
AD2d 793, 795, lv denied 86 NY2d 844; see People v Aarons, 296 AD2d
508, lv denied 99 NY2d 532). While counts 1 through 8 of the
indictment all charge defendant with sexual abuse in the first degree,
and counts 9 through 11 of the indictment all charge aggravated sexual
abuse in the third degree, each count of each respective crime relates
to a separate act, as depicted in photographs that were introduced in
evidence at trial. Because each abusive act constitutes a separate
and distinct offense, the indictment is not multiplicitous (see People
v Grosso, 281 AD2d 986, 988, lv denied 96 NY2d 800; People v Nailor,
268 AD2d 695, 696). Even assuming, arguendo, that counts 10 and 11 of
the indictment relate to the same abusive act, we would dismiss only
count 11. However, inasmuch as defendant received concurrent
sentences, and there would therefore be no difference in the quantum
of punishment imposed, we decline to reach the issue as a matter of
discretion in the interest of justice (see People v Morey, 224 AD2d
730, 731, lv denied 87 NY2d 1022).
                                -113-                          673
                                                         KA 00-00833

     Defendant also failed to preserve for our review his contention
that the evidence that the victim was physically helpless is legally
insufficient to support the conviction (see Penal Law § 130.65 [2]; §
130.66 [1] [b]). In any event, that contention is without merit. The
evidence, viewed in the light most favorable to the People (see People
v Contes, 60 NY2d 620, 621), establishes that the victim was incapable
of consent because she was unconscious at the time defendant committed
the acts of sexual abuse (see § 130.00 [7]). The verdict is not
against the weight of the evidence (see People v Bleakley, 69 NY2d
490, 495). Defendant failed to preserve for our review his further
contention that reversal is required based on the People’s failure to
allow defense counsel to make copies of photographs sought in
defendant’s discovery demand and introduced at trial (see CPL 470.05
[2]), and we decline to exercise our power to review it as a matter of
discretion in the interest of justice (see 470.15 [6] [a]). In any
event, the court was authorized to limit discovery (see CPL 240.50
[1]). We have considered the remaining contentions of defendant,
including his contention regarding the severity of the sentence, and
conclude that they are without merit.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

674
KA 00-02664
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

WILLIAM A. SMITH, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM A. SMITH, DEFENDANT-APPELLANT PRO SE.

FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Supreme Court, Erie County (Tills, J.),
entered February 24, 1997, convicting defendant after a jury trial of
assault in the first degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Following a jury trial, defendant was convicted of
assault in the first degree (Penal Law § 120.10 [1]) for slitting the
victim’s throat with a knife. The sole issue at trial was the
identification of defendant as the perpetrator of the crime. Contrary
to defendant’s contention, the verdict is not against the weight of
the evidence (see generally People v Bleakley, 69 NY2d 490, 495). The
victim testified at trial that she knew defendant from her
neighborhood and had met him on several prior occasions. Defendant
further contends that the victim’s in-court identification of him
should have been suppressed because the photo array shown to the
victim one month after the attack was unduly suggestive. We disagree,
and conclude that “the viewer’s attention is not drawn to defendant’s
photo in such a way as to indicate that the police were urging a
particular selection” (People v Rogers, 245 AD2d 1041, 1041; see
People v Merriweather, 298 AD2d 950, lv denied 99 NY2d 561; People v
Martinez, 298 AD2d 897, 897-898, lv denied 98 NY2d 769, cert denied
___ US ___ [Apr. 7, 2003]).

     Although a piece of paper with the name “Billy” and a phone
number on it was found at the scene of the crime, that piece of paper
could not be located and was not produced at trial. Upon being
informed of the loss of the evidence, defendant raised a Brady
                                -115-                          674
                                                         KA 00-02664

objection and sought dismissal of the indictment, a mistrial or an
adverse inference charge. Supreme Court granted defendant’s request
for an instruction, but gave an instruction that did not include the
language requested by defendant. Following defendant’s objection, the
court gave a supplemental instruction, to which defendant did not
object. By failing to object to the supplemental charge, defendant is
deemed to have been satisfied by the relief afforded (see People v
Whalen, 59 NY2d 273, 280; see also People v McNear, 265 AD2d 810, 811,
lv denied 94 NY2d 864; People v Jakes, 181 AD2d 913, 914, lv denied 80
NY2d 832). In any event, “[t]he exculpatory potential of this
evidence being purely speculative, its destruction by the police does
not violate the Brady rule” (People v LaBounty, 127 AD2d 989, 989, lv
denied 69 NY2d 1005; see People v Briggs, 81 AD2d 1017).

     Defendant has failed to preserve for our review his contention
that the loss or destruction of the piece of paper constitutes a
Rosario violation (see People v Dickson, 260 AD2d 931, 932-933, lv
denied 93 NY2d 1017; see also People v Rogelio, 79 NY2d 843, 844). In
any event, the court did not abuse its discretion in fashioning an
appropriate sanction for the loss of that evidence (see People v
Martinez, 71 NY2d 937, 940).

     Defendant also failed to preserve for our review his contention
that the court violated CPL 310.30 in responding to the jury’s request
for a copy of the indictment. “The court read the note[] in open
court before responding to [it], and ‘[d]efendant did not lodge any
objection to the manner of proceeding or the substance of the court’s
response[]’” (People v Howard, 267 AD2d 1006, 1007, lv denied 95 NY2d
835, cert denied 532 US 999, quoting People v Starling, 85 NY2d 509,
514; see People v Brundidge, 231 AD2d 847, lv denied 89 NY2d 920; cf.
People v DeRosario, 81 NY2d 801, 803). We decline to exercise our
power to review that contention as a matter of discretion in the
interest of justice (see 470.15 [6] [a]).

     Viewing the evidence, the law and the circumstances of this case,
in totality and as of the time of the representation, we conclude that
defendant received meaningful representation (see People v Baldi, 54
NY2d 137, 147). We further conclude that defendant was not denied a
fair trial by prosecutorial misconduct on summation. Defendant failed
to object to all but one of the alleged improper statements and thus
failed to preserve for our review his challenges to those statements
(see People v Perez, 298 AD2d 935, 937, lv denied 99 NY2d 562). The
statement to which defendant objected concerned specific testimony,
and the court properly instructed the jurors that it was their role to
determine what the testimony had been. In any event, “the comments
made by the prosecutor were not so inflammatory or egregious as to
amount to a denial of due process” (People v Alshoaibi, 273 AD2d 871,
873, lv denied 95 NY2d 960).

     Although the CPL 400.16 predicate felony statement failed to
include the term of incarceration for one of defendant’s prior violent
felony convictions, defendant failed to raise any objection to that
defect and thus failed to preserve for our review his contention that
the court illegally sentenced him as a persistent violent felony
                                -116-                         674
                                                        KA 00-02664

offender (see People v Polite, 223 AD2d 564, 564-565, lv denied 88
NY2d 852; see also People v Proctor, 79 NY2d 992, 993). In any event,
the court supplied the missing dates to defendant, who admitted the
convictions. Thus, “to remit this matter for ‘resentencing would be
futile and pointless’” (People v Ford, 262 AD2d 1052, 1053, lv denied
93 NY2d 1044, quoting People v Bouyea, 64 NY2d 1140, 1142).




Entered: June 13, 2003                         JOANN M. WAHL
                                               Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

675
KA 01-01315
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

WILLIAM MATTHEWS, DEFENDANT-APPELLANT.


MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a resentence of Supreme Court, Erie County (Forma,
J.), entered May 24, 2001, upon defendant's plea of guilty of assault
in the second degree.

     It is hereby ORDERED that the resentence so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Defendant appeals from a resentence upon his
conviction following his plea of guilty of assault in the second
degree (Penal Law § 120.05 [2]). Supreme Court denied the motion of
defendant at sentencing to withdraw his plea and originally sentenced
defendant as a second felony offender to a determinate term of
imprisonment of five years followed by two years of postrelease
supervision. The People subsequently moved to vacate the sentence on
the ground that it was illegal and sought to have defendant
resentenced to five years of imprisonment followed by five years of
postrelease supervision. The court granted the People’s motion over
defendant’s opposition, denied defendant’s subsequent motion to
withdraw his plea, and resentenced defendant.

     Contrary to defendant’s contention, the court properly granted
the People’s motion to vacate the sentence. The original sentence was
illegal because Penal Law § 70.45 (2) mandates that a determinate
sentence imposed upon conviction of a class D felony include five
years of postrelease supervision (see CPL 440.40 [1]; see also People
v Holley, 168 AD2d 992, 993).

     Defendant contends for the first time on appeal that he should
have been permitted to withdraw his plea or vacate the conviction
because the court violated the original sentencing promise by
resentencing him to five years of postrelease supervision, and thus
                                -118-                          675
                                                         KA 01-01315

that contention is not preserved for our review (see People v Larweth,
___ AD2d ___ [Mar. 21, 2003]; see also People v DeValle, 94 NY2d 870,
871-872). In any event, the record establishes that the court stated
during the plea proceeding that defendant would receive a greater
period of postrelease supervision if required by law, and thus, “there
could be no expectation of finality on [defendant’s] part with respect
to the lesser and illegal” period of postrelease supervision (People v
Williams, 87 NY2d 1014, 1015).

     The contentions of defendant that the court abused its discretion
in denying his initial motion to withdraw his plea during the original
sentencing proceeding and that a second felony offender statement was
not filed therein are not reviewable on appeal from the resentence
(see CPL 450.30 [3]; see also People v Ferrin, 197 AD2d 882, lv denied
82 NY2d 849).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

676
KAH 01-01253
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK EX REL.
SAMUEL BELL PERSON, PETITIONER-APPELLANT,

                    V                               MEMORANDUM AND ORDER

THOMAS A. BEILEIN, NIAGARA COUNTY SHERIFF, AND
MATTHEW J. MURPHY, III, NIAGARA COUNTY DISTRICT
ATTORNEY, RESPONDENTS-RESPONDENTS.


MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR PETITIONER-APPELLANT.

MATTHEW J. MURPHY, III, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT
OF COUNSEL), RESPONDENT-RESPONDENT PRO SE, AND FOR THOMAS A. BEILEIN,
NIAGARA COUNTY SHERIFF, RESPONDENT-RESPONDENT.


     Appeal from a judgment (denominated order) of Niagara County
Court (Sperrazza, J.), entered May 11, 2001, which denied the petition
seeking a writ of habeas corpus.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.

     Memorandum: Petitioner commenced this proceeding seeking a writ
of habeas corpus on the ground that he allegedly was prejudiced by the
absence of counsel at arraignment on a felony complaint. Petitioner
was subsequently indicted, tried, and found guilty on all counts
submitted to the jury. County Court properly denied the petition.
Even assuming, arguendo, that petitioner was not afforded counsel at
arraignment, we conclude that he nevertheless would not be entitled to
immediate release, and thus habeas corpus relief is not available (see
People ex rel. Beam v Hodges, 286 AD2d 936). In any event, we note
that the record on appeal is insufficient to enable this Court to
determine whether petitioner was not in fact afforded counsel at
arraignment. Petitioner therefore has failed to present "a sufficient
record to allow appellate review of this issue" (People v Barney, 99
NY2d 367, 374, citing People v Kinchen, 60 NY2d 772, 773-774).




Entered: June 13, 2003                            JOANN M. WAHL
                                                  Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

677
CA 03-00219
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


JAMES CHIN AND PEGGY CHIN, PLAINTIFFS-RESPONDENTS,

                    V                                              ORDER

WENDY R. KAPLAN, ET AL., DEFENDANTS.
----------------------------------------------------
JAMES L. ALEXANDER, APPELLANT.


JAMES L. ALEXANDER, SYRACUSE (TIMOTHY R. MANDRONICO OF COUNSEL),
APPELLANT PRO SE.

LYNN LAW FIRM, SYRACUSE (PATRICIA A. LYNN-FORD OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of Supreme Court, Onondaga County (Murphy,
J.), entered May 15, 2002, which denied the motion of, inter alia,
James L. Alexander, Esq., for an order directing a hearing to
determine an equitable distribution of attorney's fees between
plaintiffs' former attorneys.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs for the reasons
stated in decision at Supreme Court, Onondaga County, Murphy, J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

678
CA 02-02846
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


MATTER OF WILLIAM H. WILLIAMS, III, PETITIONER-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

COUNTY OF GENESEE, RESPONDENT-APPELLANT.
(ACTION NO. 1.)
-----------------------------------------------
WILLIAM H. WILLIAMS, III, PLAINTIFF-APPELLANT,

                    V

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC.,
ET AL., DEFENDANTS,
MARTHA STANDISH, VERONICA FROST, MARY A. HAITZ,
KATHY L. HARTWIG, SUZANNE C. PALONE, DAWN M.
WATERS, CHARLES VENDITTE, AND JEAN WIATER,
DEFENDANTS-RESPONDENTS.
(ACTION NO. 2.)


SULLIVAN OLIVERIO & GIOIA LLP, BUFFALO (RICHARD T. SULLIVAN OF
COUNSEL), FOR PLAINTIFF-APPELLANT AND PETITIONER-RESPONDENT.

PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER LLP, BUFFALO (PAUL K.
STECKER OF COUNSEL), FOR RESPONDENT-APPELLANT AND DEFENDANTS-
RESPONDENTS.


     Appeal and cross appeal from an order of Supreme Court, Genesee
County (Rath, Jr., J.), entered February 27, 2002, which, inter alia,
granted the motion of defendants County of Genesee, Martha Standish,
Veronica Frost, Mary A. Haitz, Kathy L. Hartwig, Suzanne C. Palone,
Dawn M. Waters, Charles Venditte, and Jean Wiater for summary
judgment.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Plaintiff commenced these actions seeking damages
stemming from the alleged wrongful termination of his employment with
the County of Genesee (County), the defendant in action No. 1.
Defendants Martha Standish, Veronica Frost, Mary A. Haitz, Kathy L.
Hartwig, Suzanne C. Palone, Dawn M. Waters, Charles Venditte, and Jean
Wiater in action No. 2 (individual defendants) are current or former
employees of the County. Those defendants moved together with the
                                -122-                          678
                                                         CA 02-02846

County in action No. 1 for summary judgment dismissing the remaining
claims in the complaint against the County and the causes of action in
the complaint against the individual defendants.

     Supreme Court properly denied that part of the motion seeking
summary judgment dismissing the remaining claims in action No. 1
against the County. The claims in that action are based on the
County’s alleged breach of an agreement between plaintiff and the
County requiring that certain procedural due process rights be
afforded plaintiff. In support of the motion, the County established
that the agreement arises from letters sent by County representatives
to plaintiff in which the County representatives set forth that
plaintiff would be provided with an opportunity to respond to the
allegations against him. The County met its initial burden on the
motion by establishing that it afforded plaintiff the opportunity to
discuss the charges with the County Manager and to submit a written
statement to the County Legislature. Plaintiff, however, raised a
triable issue of fact whether the County breached the agreement.
Plaintiff asserted in an opposing affidavit that he refrained from
discussing his suspension with members of the County Legislature and
other County employees as instructed by the County Manager and the
attorney for the County. Plaintiff further asserted that he was not
informed of all the charges against him and was not given an
opportunity to respond to the charges.

     The court properly granted that part of the motion seeking
summary judgment dismissing the causes of action against the
individual defendants in action No. 2. In the slander cause of
action, plaintiff alleged that Frost, Venditte, and Wiater made
various statements about him on February 7, 1997 during a meeting with
the County Manager and the Personnel Officer for the County. With
respect to Venditte and Wiater, we agree with the County and the
individual defendants that the slander cause of action was time-barred
by the applicable one-year statute of limitations (see CPLR 215 [3]).
Plaintiff commenced action No. 2 on January 21, 1998 by filing a
summons with notice and paying the filing fee. The action, however,
“remain[ed] inchoate until follow-up service [was] effected and proof
of service filed” (Matter of Gershel v Porr, 89 NY2d 327, 331; see
CPLR 306-b; Louden v Rockefeller Ctr. N., 249 AD2d 25, 26). Plaintiff
never served that summons on any of the defendants in action No. 2.
The summons listed Frost as a defendant, but not Venditte or Wiater.
On March 19, 1998, plaintiff filed an “amended summons with notice”
against the same defendants as those named in the original summons
using the same index number as that used for the original summons, but
plaintiff also added Venditte and Wiater as defendants. The “amended
summons with notice” was served on the individual defendants between
May 13 and May 15, 1998.

      The “amended summons” in this case was actually a supplemental
summons because plaintiff added new parties to the action (see Connell
v Hayden, 83 AD2d 30, 37; Miller v Farina, 58 AD2d 731, 731-732). The
action was timely commenced with respect to Frost, who was named in
the original summons. With respect to Venditte and Wiater, however,
the statute of limitations continued to run until plaintiff filed the
                                -123-                          678
                                                         CA 02-02846

supplemental summons. The slander cause of action against those
defendants may not be said to relate back to the slander cause of
action against Frost because those defendants were not “united in
interest” (CPLR 203 [c]; see Brownlee v Guarino, 261 AD2d 832, 832-
833; see generally Buran v Coupal, 87 NY2d 173, 177-178).

     We further conclude that Frost, Venditte, and Wiater were
entitled to summary judgment dismissing the slander cause of action
against them because the County and the individual defendants
established that the statements of those three defendants were
protected by a qualified privilege (see Foster v Churchill, 87 NY2d
744, 751; Liberman v Gelstein, 80 NY2d 429, 437; Shapiro v Health Ins.
Plan of Greater N.Y., 7 NY2d 56, 60-61), and plaintiff failed to raise
an issue of fact whether the statements were motivated by the
requisite actual malice, i.e., ill will, personal spite, culpable
recklessness or negligence, to defeat the privilege (see Stillman v
Ford, 22 NY2d 48, 53; Clark v Somers, 162 AD2d 982, 983; Murphy v
Herfort, 140 AD2d 415, 416-417, lv denied 73 NY2d 701, rearg denied 73
NY2d 872; see also Foster, 87 NY2d at 751-752; Anas v Brown, 269 AD2d
761). The slander cause of action is based on statements made by
Frost, Venditte, and Wiater during an employee meeting convened by the
County Manager and Personnel Officer for the County to discuss
concerns that the County employees had with respect to plaintiff’s job
performance. Frost, Venditte, and Wiater, as employees of the County,
had not only an interest in expressing those concerns but also a duty
to do so, and the County Manager and Personnel Officer had a
corresponding interest and duty. Thus, a qualified privilege exists
because the statements were “made to persons who have some common
interest in the subject matter” (Frost, 87 NY2d at 751; see Sanderson
v Bellevue Maternity Hosp., 259 AD2d 888, 889-891; Boyle v Stiefel
Labs., 204 AD2d 872, 875, lv denied 84 NY2d 803; Clark, 162 AD2d at
982-983). “Suspicion, surmise and accusation are not enough” to
defeat the qualified privilege (Shapiro, 7 NY2d at 64; see Clark, 162
AD2d at 983), and “[e]arlier disputes are not evidence of malice”
(McGovern v Hayes, 135 AD2d 125, 128, lv denied 72 NY2d 803; see
Shapiro, 7 NY2d at 64).

     We further agree with the County and the individual defendants
that the court properly granted those parts of the motion seeking
summary judgment dismissing the third cause of action against those
defendants against whom the cause of action was asserted, alleging
“intentional interference with employment/business relationship,” and
the fifth cause of action against Standish alleging “intentional
interference with contract and business relationship.” Plaintiff has
not alleged that he had an employment contract with the County, and
thus the third and fifth causes of action are merely an improper
attempt by plaintiff to circumvent the at-will employment rule.
Because no employment contract existed, plaintiff cannot maintain a
cause of action for tortious interference with contract against those
individual defendants (see Ameral v Johnson, 194 AD2d 976, 976-977).
Plaintiff’s employment was terminable at will, and thus the third and
fifth causes of action actually allege tortious interference with
employment. However, “plaintiff here cannot be allowed to evade the
employment at-will rule and relationship by recasting his cause[s] of
                                -124-                          678
                                                         CA 02-02846

action in the garb of a tortious interference with his employment”
(Ingle v Glamore Motor Sales, 73 NY2d 183, 189; see Thawley v Turtell,
289 AD2d 169; Miller v Richman, 184 AD2d 191, 194).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
         SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department

681
CA 02-01812
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


MID CITY DODGE, INC., PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

UNIVERSAL UNDERWRITERS INSURANCE COMPANY,
DEFENDANT-RESPONDENT.


ROY R. CESAR, BUFFALO, FOR PLAINTIFF-APPELLANT.

WALSH & WILKINS, BUFFALO (MATTHEW J. DUGGAN OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of Supreme Court, Erie County (Michalek,
J.), entered May 21, 2002, which granted defendant's motion for
summary judgment dismissing the amended complaint and denied
plaintiff's cross motion for summary judgment.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously reversed on the law without costs, the
motion is denied, the amended complaint is reinstated, the cross
motion is granted in part, and the matter is remitted to Supreme
Court, Erie County, for further proceedings in accordance with the
following Memorandum: Supreme Court erred in granting defendant’s
motion for summary judgment dismissing the amended complaint and
instead should have granted that part of plaintiff’s cross motion
seeking summary judgment on liability. We conclude that defendant met
its initial burden on the motion by establishing that plaintiff failed
to provide it with timely notice of the underlying action in
accordance with terms of the insurance policy issued to plaintiff.
Plaintiff, however, established that defendant had already disclaimed
coverage when it first received notice of the underlying claim, and we
conclude that plaintiff thereby established as a matter of law that
forwarding the legal papers in the underlying action to defendant
“would have been a ‘useless act’” (Moye v Thomas, 153 AD2d 673, 674,
quoting De Forte v Allstate Ins. Co., 81 AD2d 465, 471, appeal
dismissed 54 NY2d 1027; see also 70A NY Jur 2d, Insurance § 1968).
Thus, plaintiff’s submissions defeated defendant’s motion and, indeed,
established plaintiff’s entitlement to judgment on liability (see
generally Zuckerman v City of New York, 49 NY2d 557, 562). We
therefore reverse the order, deny defendant’s motion, reinstate the
amended complaint, and grant plaintiff’s cross motion in part,
granting judgment in favor of plaintiff on liability, and we remit
this matter to Supreme Court, Erie County, to determine the damages on
plaintiff's claims for indemnification under the policy and for
                                 -126-                         681
                                                         CA 02-01812

plaintiff's attorney’s fees, costs, and disbursements associated with
the defense of the underlying action.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

682
CA 02-02231
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


ELIZABETH A. EVERHARDT AND JOHN C. EVERHARDT,
INDIVIDUALLY AND AS HUSBAND AND WIFE,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

PETER M. KLOTZBACH, DEFENDANT,
AND MARILYN E. INTENGAN, DEFENDANT-RESPONDENT.


SIEGEL, KELLEHER & KAHN, BUFFALO (TIMOTHY G. O'CONNELL OF COUNSEL),
FOR PLAINTIFFS-APPELLANTS.

NAPIER, FITZGERALD & KIRBY, BUFFALO (KENNETH R. KIRBY OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of Supreme Court, Erie County (Kane,
J.H.O.), entered November 28, 2001, which granted the motion of
defendant Marilyn E. Intengan for permission to conduct a physical
examination of plaintiff Elizabeth A. Everhardt.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Supreme Court properly granted the motion of Marilyn
E. Intengan (defendant) for permission to conduct a physical
examination of Elizabeth A. Everhardt (plaintiff) after the note of
issue and certificate of readiness for trial had been filed.
Plaintiff underwent spinal surgery following the automobile accident
at issue herein and, after plaintiffs filed the note of issue and
certificate of readiness, plaintiff underwent a second spinal surgery
following an alleged fall in the shower. Although 13 months passed
between the second surgery and defendant’s motion for a physical
examination, a trial on liability was held during that time period,
and the jury returned a verdict finding that defendant was 80% liable
and that defendant Peter M. Klotzbach was 20% liable. Also within
that 13-month period, defendant appealed from the judgment entered
upon the jury verdict on liability, contending that the court erred in
denying her motion to set aside the verdict as against the weight of
the evidence, and we affirmed (Everhardt v Klotzbach, 302 AD2d 880).
“Where unusual or unanticipated circumstances develop subsequent to
the filing of a note of issue and certificate of readiness which
require additional pretrial proceedings to prevent substantial
prejudice, the court, upon motion supported by affidavit, may grant
permission to conduct such necessary proceedings” (22 NYCRR 202.21
                                -128-                         682
                                                        CA 02-02231

[d]). “Where, as here, a serious, permanent injury is alleged, and a
substantial change of circumstances has occurred, a re-examination
should be permitted ***. [P]laintiff[s’] *** filing of a note of
issue and [certificate] of readiness is not a bar to re-examination
because the additional surgery, under these circumstances, is a
sufficient ‘special, unusual, or extraordinary circumstance ***
spelled out factually’ to justify the relief requested” (Buerger v
County of Erie, 101 AD2d 1025, 1025).




Entered: June 13, 2003                         JOANN M. WAHL
                                               Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

683
CA 02-02791
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


CB RICHARD ELLIS, BUFFALO, NY, LLC, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JLC HOLDINGS, LLC, DEFENDANT-APPELLANT.


LAW OFFICE OF ROBERT E. ANTONACCI, II, EAST SYRACUSE (ROBERT E.
ANTONACCI, II, OF COUNSEL), FOR DEFENDANT-APPELLANT.

LEWANDOWSKI & ASSOCIATES, WEST SENECA (ROBERT R. GOODS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of Supreme Court, Erie County (Glownia, J.),
entered March 8, 2002, which denied the motion of defendant to vacate
the default judgment entered against it.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Supreme Court did not abuse its discretion in
denying the motion of defendant to vacate the default judgment entered
against it. Defendant contends that its default was excusable because
it reasonably relied on Executive Orders issued by Governor George E.
Pataki in failing to answer the complaint. Those Orders, issued in
the aftermath of the September 11, 2001 terrorist attacks, declared a
disaster emergency in the State of New York and implemented various
forms of relief (see Executive Order [Pataki] No. 113 et seq. [9 NYCRR
5.113 et seq.). The Executive Orders allegedly relied upon by
defendant, however, are plainly inapplicable. Executive Order
(Pataki) No. 113.7 (9 NYCRR 5.113.7) suspended, inter alia, certain
laws "establishing limitations of time for the filing or service of
any legal action, notice or other process," but the suspension applied
only to those statutes that a court could not extend in the exercise
of its discretion. Executive Order (Pataki) No. 113.28 (9 NYCRR
5.113.28), as relevant here, merely extended the suspension afforded
by Executive Order No. 113.7. Because the time to file an answer may
be extended in the exercise of a court's discretion (see CPLR 3012
[d]), neither Executive Order provides defendant with a reasonable
excuse for failing to timely serve an answer.

     Defendant further contends that it was not aware that it had to
answer the complaint because the summons and complaint were not
personally served. However, service was properly effected pursuant to
                                 -130-                         683
                                                         CA 02-02791

Limited Liability Company Law § 303, and the summons stated that
defendant had 30 days in which to answer the complaint or a judgment
would be taken against it. In addition, any claim of surprise or
mistake is belied by the fact that defendant had been involved in pre-
litigation discussions with plaintiff's counsel wherein counsel
informed defendant that, if the matter was not settled, an action
would be commenced. Consequently, defendant did not establish a
reasonable excuse for the delay (see Johnson v McFadden Ford, 278 AD2d
907). Moreover, defendant's proposed answer contained mere conclusory
denials and defendant failed to demonstrate a meritorious defense (see
Matter of Jefferson County, 295 AD2d 934).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

685
CA 02-02759
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


ROBERT H. DWYER, PLAINTIFF-APPELLANT,

                    V                                             ORDER

JOAN M. DWYER, DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


PATRICK CONNELLY, SYRACUSE, D.J. & J.A. CIRANDO, ESQS. (JOHN A.
CIRANDO OF COUNSEL), FOR PLAINTIFF-APPELLANT.

LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment (denominated order and judgment) of
Supreme Court, Onondaga County (DeJoseph, J.), entered March 7, 2002,
which, inter alia, granted defendant's motion for summary judgment and
granted defendant's counterclaim for a conversion divorce.

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs (see Matter of Eric D. [appeal No.
1], 162 AD2d 1051).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

686
CA 02-02760
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


ROBERT H. DWYER, PLAINTIFF-APPELLANT,

                    V                                             ORDER

JOAN M. DWYER, DEFENDANT-RESPONDENT.
(APPEAL NO. 2.)


PATRICK CONNELLY, SYRACUSE, D.J. & J.A. CIRANDO, ESQS. (JOHN A.
CIRANDO OF COUNSEL), FOR PLAINTIFF-APPELLANT.

LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-RESPONDENT.


     Appeal from an amended judgment (denominated amended order and
judgment) of Supreme Court, Onondaga County (DeJoseph, J.), entered
March 7, 2002, which, inter alia, granted defendant's motion for
summary judgment and granted defendant's counterclaim for a conversion
divorce.

     It is hereby ORDERED that the amended judgment so appealed from
be and the same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

688
CA 03-00025
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


MARK C. SMELTS, PLAINTIFF-APPELLANT,

                    V                                               ORDER

ANDREW MELONI, SHERIFF OF MONROE COUNTY, COUNTY
OF MONROE, DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.
(APPEAL NO. 1.)


FARACI & LANGE, LLP, ROCHESTER (PAUL K. LANGE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

CHARLES S. TURNER, COUNTY ATTORNEY, ROCHESTER (HOWARD A. STARK OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of Supreme Court, Monroe County (Cornelius,
J.), entered March 5, 2002, which granted the motion of defendants
Andrew Meloni, Sheriff of Monroe County, and County of Monroe seeking
summary judgment dismissing the second amended complaint against them.

      It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs with respect to defendant Andrew
Meloni, Sheriff of Monroe County (see Matter of Eric D. [appeal No.
1], 162 AD2d 1051) and with respect to defendant County of Monroe (see
Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988; Chase Manhattan
Bank v Roberts & Roberts, 63 AD2d 566, 567; see also CPLR 5501 [a]
[1]).




Entered: June 13, 2003                            JOANN M. WAHL
                                                  Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

689
CA 03-00177
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


MARK C. SMELTS, PLAINTIFF-APPELLANT,

                    V                                               ORDER

ANDREW MELONI, SHERIFF OF MONROE COUNTY, COUNTY
OF MONROE, DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.
(APPEAL NO. 2.)


FARACI & LANGE, LLP, ROCHESTER (PAUL K. LANGE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

CHARLES S. TURNER, COUNTY ATTORNEY, ROCHESTER (HOWARD A. STARK OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of Supreme Court, Monroe County
(Cornelius, J.), entered March 19, 2002, which granted the motion of
defendants Andrew Meloni, Sheriff of Monroe County, and County of
Monroe for summary judgment dismissing the second amended complaint
against them.

     It is hereby ORDERED that the judgment insofar as it concerns
defendant Andrew Meloni, Sheriff of Monroe County, be and the same
hereby is unanimously vacated and the judgment is otherwise affirmed
without costs (see Smelts v Meloni [appeal No. 3], ___ AD2d ___ [June
13, 2003]).




Entered: June 13, 2003                            JOANN M. WAHL
                                                  Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

690
CA 03-00179
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


MARK C. SMELTS, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ANDREW MELONI, SHERIFF OF MONROE COUNTY, COUNTY
OF MONROE, DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.
(APPEAL NO. 3.)


FARACI & LANGE, LLP, ROCHESTER (PAUL K. LANGE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

CHARLES S. TURNER, COUNTY ATTORNEY, ROCHESTER (HOWARD A. STARK OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of Supreme Court, Monroe County (Cornelius,
J.), entered October 29, 2002, which, upon the court's own motion,
amended the order entered March 5, 2002 (appeal No. 1), by reinstating
the causes of action against defendant Andrew Meloni, Sheriff of
Monroe County, as alleged in paragraphs 33F, G, H, R, and S in the
second amended complaint.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Supreme Court properly granted the motion of
defendants Andrew Meloni, Sheriff, Monroe County (Sheriff), and the
County of Monroe (County) seeking summary judgment dismissing the
second amended complaint against the County and seeking partial
summary judgment dismissing the second amended complaint against the
Sheriff insofar as it alleges that he is liable for the acts of
defendant Deputy Monroe County Sheriff Bridget O’Hara under the theory
of respondeat superior. It is undisputed that, on June 16, 2000,
plaintiff was entering an intersection in the City of Rochester when
his vehicle was broadsided by a speeding vehicle driven by defendant
Roy Terry, who was being pursued by O’Hara.

     With respect to the County, we conclude that the second amended
complaint was properly dismissed against it because the County did not
assume liability for the acts of the Sheriff or his deputies, and
plaintiff has alleged no other theory of liability against the County
(see Schulik v County of Monroe, 202 AD2d 960, 961). Section 39-10
(B) of the Monroe County Code provides that Sheriff’s deputies are
“included under the term ‘employee’ for convenience of reference
                                 -136-                         690
                                                         CA 03-00179

within this chapter only,” and that section further provides that:
     “[t]he provisions of this chapter shall not be construed as
     establishing an employment or respondent [sic] superior
     relationship between the County of Monroe and the Sheriff of the
     County of Monroe, the Undersheriff of the County of Monroe or any
     person appointed by the Sheriff of the County of Monroe,
     including but not limited to Sheriff’s deputies. The provisions
     of this chapter shall not be construed as an assumption by the
     County of Monroe, of responsibility or liability for the
     negligence or tortious conduct of the Sheriff of the County of
     Monroe, the Undersheriff of the County of Monroe or any person
     appointed by the Sheriff of the County of Monroe, including but
     not limited to Sheriff’s deputies.”

     Plaintiff contends that section 50-j (1) of the General Municipal
Law renders the County liable for the actions of a deputy sheriff.
Pursuant to that section, a municipality is liable for the actions of
“any duly appointed police officer of such municipality *** for any
negligent act or tort, provided such police officer, at the time of
the negligent act or tort complained of, was acting in the performance
of his duties and within the scope of his employment.” Plaintiff
cites no authority for his contention that section 50-j (1) applies to
Sheriff's deputies, and we decline to interpret section 50-j (1) in
that manner.

     With respect to the Sheriff, we conclude that the second amended
complaint was properly dismissed against him to the extent that it is
based on the theory of respondeat superior. It is well settled that
“the Sheriff cannot be held personally liable on the basis of
respondeat superior for the alleged negligent acts of his deputies”
(Schulick, 202 AD2d at 961; see also Barr v County of Albany, 50 NY2d
247, 257).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

691
CA 02-02824
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


JOAN H. FERLITO, INDIVIDUALLY AND AS ADMINISTRATRIX
OF THE ESTATE OF JAMES J. FERLITO, JR., DECEASED,
PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

TANVIR M. DARA, M.D., ET AL., DEFENDANTS,
AND JOHN D. URSCHEL, M.D., DEFENDANT-APPELLANT.


ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (MICHAEL S. BUSKUS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

BROWN CHIARI, LLP, DEPEW (MICHAEL R. DRUMM OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from that part of an order of Supreme Court, Erie County
(Martoche, J.), entered August 2, 2002, that denied the motion of
defendant John D. Urschel, M.D. seeking summary judgment dismissing
the amended complaint against him.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed with costs.

     Memorandum: Supreme Court properly denied the motion of John D.
Urschel, M.D. (defendant) seeking summary judgment dismissing the
amended complaint against him. The conflicting opinions of the
experts for plaintiff and defendant with respect to causation and
defendant’s alleged deviation from the accepted standard of medical
care present credibility issues that cannot be resolved on a motion
for summary judgment (see Gedon v Bry-Lin Hosps., 286 AD2d 892, 894,
lv denied 98 NY2d 601).




Entered: June 13, 2003                            JOANN M. WAHL
                                                  Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

692
CA 03-00199
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


MANUEL VETTI, JR., PLAINTIFF-RESPONDENT,

                    V                                               ORDER

AUBIN CONTRACTING & RENOVATION, ET AL., DEFENDANTS,
AND HUNT BROS. CONTRACTORS, INC., DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


MENTER, RUDIN & TRIVELPIECE, P.C., SYRACUSE (JULIAN B. MODESTI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

ALI, PAPPAS & COX, P.C., SYRACUSE (P. DOUGLAS DODD OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from that part of an order of Supreme Court, Herkimer
County (Daley, J.), entered July 31, 2002, that granted plaintiff
judgment against defendant Hunt Bros. Contractors, Inc. upon a
decision of the court.

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs (see Hughes v Nussbaumer, Clarke &
Velzy, 140 AD2d 988; Chase Manhattan Bank v Roberts & Roberts, 63 AD2d
566, 567; see also CPLR 5501 [a] [1]).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

693
CA 03-00203
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.


MANUEL VETTI, JR., PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

AUBIN CONTRACTING & RENOVATION, ET AL., DEFENDANTS,
AND HUNT BROS. CONTRACTORS, INC., DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


MENTER, RUDIN & TRIVELPIECE, P.C., SYRACUSE (JULIAN B. MODESTI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

ALI, PAPPAS & COX, P.C., SYRACUSE (P. DOUGLAS DODD OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Supreme Court, Herkimer County (Daley,
J.), entered July 31, 2002, which awarded plaintiff a money judgment
against defendant Hunt Bros. Contractors, Inc. upon a decision of the
court.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously reversed on the law without costs and a
new trial is granted.

     Memorandum: On appeal from a judgment entered in favor of
plaintiff against Hunt Bros. Contractors, Inc. (defendant) following a
bench trial, defendant contends that Supreme Court erred in admitting
in evidence the petrographic analysis and accompanying test results.
We agree. That document was hearsay, and plaintiff made no showing
that the document was subject to an exception to the hearsay rule (see
Wagman v Bradshaw, 292 AD2d 84, 87-88; Serra v City of New York, 215
AD2d 643, 644). The error cannot be deemed harmless because
plaintiff's expert relied upon that document in forming his opinion,
and the court rendered its verdict based upon the information
contained in that document and based upon the expert's opinion (cf.
CPLR 2002). We therefore reverse the judgment and grant a new trial.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

694
CA 03-00211
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


438 MAIN STREET, INC., PLAINTIFF-RESPONDENT,

                    V                                            ORDER

VANDOR, INC., VANDOR REALTY CORPORATION,
DEFENDANTS-APPELLANTS,
ET AL., DEFENDANT.


LAW OFFICES OF JOHN P. BARTOLOMEI & ASSOCIATES, NIAGARA FALLS (JOHN P.
BARTOLOMEI OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

HODGSON RUSS LLP, BUFFALO (KEVIN M. KEARNEY OF COUNSEL), AND NESPER,
FERBER & DI GIACOMO, LLP, AMHERST, FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Erie County Court (Drury, J.), entered
October 23, 2002, upon a decision of the court in favor of plaintiff.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs for the reasons
stated in decision at Erie County Court, Drury, J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

695
CA 03-00222
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


MARILYN CRONCE, ET AL., PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

STEUBEN FOODS, INC., DEFENDANT-APPELLANT.


HODGSON RUSS LLP, BUFFALO (ROBERT B. CONKLIN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

RICHARD H. WYSSLING, BUFFALO, FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of Supreme Court, Erie County (Makowski,
J.), entered May 2, 2002, which denied defendant's motion seeking
dismissal of the amended complaint.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously reversed on the law without costs, the
motion is granted and the amended complaint is dismissed. Memorandum:
Supreme Court erred in denying defendant's motion seeking dismissal of
the amended complaint for, inter alia, failure to state a cause of
action (see CPLR 3211 [a] [7]). Plaintiffs, former employees of
defendant, allege that they were terminated without regard to
seniority in violation of certain provisions in defendant's employee
manual. Contrary to the court's determination, those provisions do
not constitute an express written limitation on defendant's right to
discharge plaintiffs at will. Critically, the employee manual warns
that "there are no guarantees that [the seniority policy will be
followed] in each and every layoff situation" and refers to the
seniority policy as merely an "objective anytime a layoff occurs."
Because these provisions provide no assurance that layoffs will be
based on seniority only (see Fieldhouse v Stamford Hosp. Socy., 233
AD2d 540, 541), they cannot serve as the basis for a "binding
employment agreement[]" (Lobosco v New York Tel. Co./NYNEX, 96 NY2d
312, 317; see Manning v Norton Co., 189 AD2d 971, 972; Brown v General
Elec. Co., 144 AD2d 746, 748).

     In any event, the "[m]ere existence of a written policy, without
the additional elements identified in Weiner [v McGraw-Hill, Inc., 57
NY2d 458], does not limit an employer's right to discharge an at-will
employee or give rise to a legally enforceable claim by the employee
against the employer" (Matter of DePetris v Union Settlement Assn., 86
NY2d 406, 410). Even assuming, arguendo, that the employee manual
created an express limitation on defendant's right of discharge, we
conclude that the amended complaint fails to allege "the type of
                                 -142-                         695
                                                         CA 03-00222

detrimental reliance required by Weiner" (Manning, 189 AD2d at 972;
see Ferring v Merrill Lynch & Co., 244 AD2d 204). Plaintiffs thus
failed to sustain their "'explicit and difficult pleading burden'"
necessary to overcome the at-will employment presumption (Matter of
LaDuke v Hepburn Med. Ctr., 239 AD2d 750, 753, lv denied 91 NY2d 802,
quoting Sabetay v Sterling Drug, 69 NY2d 329, 334-335; see Fieldhouse,
233 AD2d at 541).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

696
CA 02-02394
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


MATTER OF THE ESTATE OF JOHN R. WICKS, JR.,
DECEASED.
---------------------------------------------                   ORDER
PAULINE MATTINA, PETITIONER-APPELLANT;

EDWARD G. WICKS, AS EXECUTOR OF THE ESTATE OF
JOHN R. WICKS, JR., DECEASED, DOUGLAS WICKS,
SCOTT WICKS, GARY WICKS, BRIAN WICKS, AND
CRAIG WICKS, RESPONDENTS-RESPONDENTS.


MC KELVEY, SIMS, DAVIS & LAZROE, LLP, BUFFALO (BARBARA M. SIMS OF
COUNSEL), FOR PETITIONER-APPELLANT.

JAECKLE FLEISCHMANN & MUGEL, LLP, BUFFALO (HEATH J. SZYMCZAK OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS DOUGLAS WICKS, SCOTT WICKS, GARY
WICKS, BRIAN WICKS, AND CRAIG WICKS, AND RICHARD I. LEFF, FOR
RESPONDENT-RESPONDENT EDWARD G. WICKS, AS EXECUTOR OF THE ESTATE OF
JOHN R. WICKS, JR., DECEASED.


     Appeal from those parts of an order of Surrogate's Court, Erie
County (Mattina, S.), entered January 28, 2002, that, inter alia,
dismissed the petition of Pauline Mattina to impose a constructive
trust.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

698
CA 02-02134
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


ROBERT J. VENO, AS FATHER AND NATURAL GUARDIAN OF
JOSEPH VENO, AN INFANT, PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

WALEED A. SALEH, M.D., DEFENDANT.
------------------------------------------------
CATTARAUGUS COUNTY DEPARTMENT OF SOCIAL SERVICES,
APPELLANT.


STEVEN D. MILLER, OLEAN, FOR APPELLANT.

PAUL WILLIAM BELTZ, P.C., BUFFALO (ROSANNE M. GUGINO OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of Supreme Court, Cattaraugus County
(NeMoyer, J.), entered October 5, 2001, which reduced the lien of the
Cattaraugus County Department of Social Services on the proceeds of a
medical malpractice settlement between plaintiff and defendant.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously reversed on the law without costs and the
original lien is reinstated.

     Memorandum: The Cattaraugus County Department of Social Services
(DSS) appeals from an order reducing its medical assistance lien on
the proceeds of a medical malpractice settlement between plaintiff and
defendant doctor. Plaintiff commenced a medical malpractice action
against defendant on behalf of his infant son. During trial, the
parties agreed to settle the action for $465,000. DSS held a lien for
$116,000 in Medicaid benefits that had been paid on behalf of the
infant, which it refused to compromise. Plaintiff moved for a hearing
before Supreme Court to allocate the settlement amount, and the court
reduced the lien to $11,600.

     We agree with DSS that the court exceeded its authority in
reducing the lien. The Court of Appeals has held that all settlement
proceeds are available to satisfy a Medicaid lien (see Gold v United
Health Servs. Hosps., 95 NY2d 683, 690-692; Calvanese v Calvanese, 93
NY2d 111, 116-119). "Once a Medicaid lien is in effect, only the
local public welfare official may release and discharge it, and 'no
release, payment, discharge or satisfaction of any *** claim, demand,
right of action, suit or counterclaim shall be valid or effective
against such lien' (Social Services Law § 104-b [7])" (id. at 119).
                                 -145-                         698
                                                         CA 02-02134

Consequently, we reverse the order and reinstate the original lien.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

699
CA 03-00343
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


UTICA MUTUAL INSURANCE COMPANY, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

GULF INSURANCE COMPANY, DEFENDANT-APPELLANT.


EDWARDS & ANGELL, LLP, NEW YORK (HUHNSIK CHUNG OF COUNSEL), AND
MICHAEL A. CASTLE, HERKIMER, FOR DEFENDANT-APPELLANT.

SHAW PITTMAN, LLP, MC LEAN, VIRGINIA (WALTER J. ANDREWS OF THE
DISTRICT OF COLUMBIA AND VIRGINIA BARS, ADMITTED PRO HAC VICE, OF
COUNSEL), AND FELT EVANS, LLP, CLINTON, FOR PLAINTIFF-RESPONDENT.


     Appeal from that part of an order of Supreme Court, Oneida County
(Julian, J.), entered October 30, 2002, that denied defendant's motion
to stay this action in favor of arbitration.

     It is hereby ORDERED that the order insofar as appealed from be
and the same hereby is unanimously reversed on the law without costs
and defendant's motion is granted.

     Memorandum: This action arises out of a reinsurance agreement
(Agreement) executed in November 1997 by plaintiff, Utica Mutual
Insurance Company (Utica), and defendant, Gulf Insurance Company
(Gulf). According to the terms of the Agreement, Utica would reinsure
Gulf for $5 million of its $6 million share on an underlying
comprehensive crime policy that Gulf, as well as Lloyds of London
syndicate members, issued to Credit Bancorp., Ltd. (Credit Bancorp),
whose principal address was Curacao, Netherlands Antilles. The
Agreement contained a broad arbitration clause, requiring the parties
to arbitrate "[a]ny dispute arising out of or related in any way" to
the Agreement or the transactions thereunder, whether such dispute
"arises before or after termination" of the Agreement. The forum for
any arbitration proceeding commenced under the Agreement was set forth
as Hartford, Connecticut.

     In late 1998 authorities suspected that Credit Bancorp was
operating a fraudulent scheme and, ultimately, the Securities and
Exchange Commission brought an action in 1999 against Credit Bancorp
and its principals in federal court (Securities & Exch. Commn. v
Credit Bancorp, 147 F Supp 2d 238, recons denied 2001 WL 1135652 [SD
NY, Sept. 26, 2001]). That action was settled in January 2002, as a
result of which Gulf paid $6 million on its policy covering Credit
                                 -147-                         699
                                                         CA 03-00343

Bancorp. Gulf immediately provided notice of the claim involving
Credit Bancorp to Utica under the terms of the Agreement.

     Utica disclaimed coverage and brought this action against Gulf
seeking, inter alia, rescission of the Agreement. The gravamen of
Utica's contention is that Gulf was aware of the fraudulent nature of
Credit Bancorp's activities when it entered into the Agreement in
November 1997, and thus such fraud permeated the entire agreement and
rendered invalid all contractual provisions, including the arbitration
provision.

     Shortly thereafter, Gulf sent Utica a demand for arbitration,
which Utica rejected. Gulf then filed an application to compel
arbitration in Connecticut state court and moved to stay this action
in favor of arbitration, arguing that the Agreement contains a clause
providing for arbitration. Utica moved to stay the arbitration
proceeding and vacate Gulf's demand for arbitration, and also moved
for summary judgment. Supreme Court denied the three motions before
it. The court determined that Utica presented a prima facie case of
fraud that permeated the Agreement and ordered a hearing pursuant to
CPLR 2218 to determine the validity of the Agreement.

     Gulf contends that the court erred in failing to apply the
Federal Arbitration Act (FAA) (9 USC § 1 et seq.), which preempts New
York State law and requires arbitration of this dispute. In addition,
Gulf contends that the court further erred in determining that Utica
made a prima facie showing that fraud permeated the entire reinsurance
agreement, including the arbitration provision. We agree, and thus
conclude that the court should have granted Gulf's motion to stay this
action in favor of arbitration.

     The FAA, which establishes a strong policy in favor of
arbitration, applies to any contract involving interstate commerce
(see 9 USC § 2; Matter of Smith Barney, Harris Upham & Co. v Luckie,
85 NY2d 193, 200-201, rearg denied 85 NY2d 1033, cert denied sub nom.
Manhard v Merrill Lynch, Pierce, Fenner & Smith, 516 US 811). Because
insurance transactions constitute commerce within the meaning of the
Commerce Clause (see United States v South-Eastern Underwriters Assn.,
322 US 533, 553, reh denied 323 US 811), it is beyond dispute that the
Agreement at issue is a contract involving interstate and, indeed,
international commerce. The Agreement involves the reinsurance of a
London-based insurance contract that covers a company located in
Curacao and involves claims that could arise anywhere in the world.

     The FAA preempts state law "only to the extent that the State law
stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress" (Smith Barney, Harris Upham &
Co., 85 NY2d at 204 [internal quotation marks omitted]). Thus, the
dispositive issue before us is whether application of New York
arbitration law undermines the goals and policies of the FAA. We
conclude that it does.

     This Court has previously stated:
                                 -148-                         699
                                                         CA 03-00343

          "It is well established under both CPLR 7503 and 9
          USC § 4 that a party may resist enforcement of an
          agreement to arbitrate on any basis that could
          provide a defense to or grounds for the revocation
          of any contract, including fraud,
          unconscionability, duress, overreaching conduct,
          violation of public policy, or lack of contractual
          capacity ***. Nonetheless, although the statutes
          use similar language concerning the making of an
          arbitration agreement and the duty of the court to
          try any issue of contractual validity, there
          appears to be some difference in the manner in
which the statutes have been interpreted. *** Under Federal law, if
the challenge is aimed at the making of the contract as a whole, that
challenge is for the arbitrator, not the court, to determine ***.
Conversely, where the challenge is to the making of the arbitration
clause itself, or to its inclusion in the contract, the challenge is
for the court to decide" (Matter of Teleserve Sys. [MCI Telecom.
Corp.], 230 AD2d 585, 592).

     As with federal law, a broad arbitration clause in New York is
separable from the substantive provisions of an agreement and, even if
there is fraud in the inducement of the substantive provisions, all
issues, including the claim of fraud, are to be determined by the
arbitrators (see Matter of Silverman [Benmor Coats], 61 NY2d 299, 308;
Matter of Weinrott [Carp], 32 NY2d 190, 198; Oberlander v Fine Care,
108 AD2d 798, 798-799). Under New York law, however, the court not
only "must decide the challenge where it is to the validity of the
arbitration clause itself," which is consistent with federal law, but
also "where the alleged illegality permeates the [agreement] as a
whole" (Teleserve Sys., 230 AD2d at 592; see Weinrott, 32 NY2d at 197;
see also Silverman, 61 NY2d at 307-308; Matter of Prinze [Jonas], 38
NY2d 570, 577; Housekeeper v Lourie, 39 AD2d 280, 283-285, appeal
dismissed 32 NY2d 832; Dolomite, S.p.A. v Beconta, Inc., 129 Misc 2d
857, 859). Therefore, New York law not only differs from the FAA, but
also constrains the broad purposes underlying the FAA - a liberal
federal policy favoring arbitration (see Moses H. Cone Mem. Hosp. v
Mercury Constr. Corp., 460 US 1, 24-25) - by channeling cases raising
the issue whether fraud permeates an agreement into court, rather than
arbitration. Thus, the FAA preempts New York State law with respect
to the issue before us.

     We further conclude that the parties agreed to arbitrate this
dispute and that the dispute at issue comes within the scope of the
arbitration agreement (see Ace Capital Re Overseas v Central United
Life Ins. Co., 307 F3d 24, 29-30 [2d Cir 2002]; Hartford Acc. & Indem.
Co. v Swiss Reins. Am. Corp., 246 F3d 219, 226-228 [2d Cir 2001]).

     In any event, even under New York law, this dispute is
arbitrable. It is well settled that, in order to demonstrate that
fraud permeated an agreement, a party must show that the agreement was
not "the result of 'arm's length negotiation' *** or that the
arbitration clause was inserted into the [agreement] in order to
effect the fraudulent scheme" (Information Sciences v Mohawk Data
                                 -149-                         699
                                                         CA 03-00343

Science Corp., 56 AD2d 706, 706, affd 43 NY2d 918). Here, Utica
failed to make a prima facie showing that Gulf knew of Credit
Bancorp's fraudulent nature when it entered into the Agreement in
November 1997. Utica's "bare conclusory assertions are insufficient
to demonstrate that 'the alleged fraud was part of a grand scheme that
permeated the entire [agreement] including the arbitration provision'"
(Cologne Reins. Co. of Am. v Southern Underwriters, 218 AD2d 680, 681,
quoting Weinrott, 32 NY2d at 197). Thus, we reverse the order insofar
as appealed from and grant Gulf's motion.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

700
CA 02-02755
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


MATTER OF FRANCIS DEVELOPMENT AND MANAGEMENT
CO., INC., AND WALTER J. FLOSS, PETITIONERS-
APPELLANTS,

                    V                             MEMORANDUM AND ORDER

TOWN OF CLARENCE AND KATHLEEN E. HALLOCK, IAN
MC PHERSON, BARBARA GUIDA, THOMAS SWEENEY, AND
SCOTT BYLEWSKI, CONSTITUTING TOWN BOARD OF TOWN
OF CLARENCE, RESPONDENTS-RESPONDENTS.


KNOER & CRAWFORD, LLP, BUFFALO (ROBERT E. KNOER OF COUNSEL), FOR
PETITIONERS-APPELLANTS.

BENNETT, DI FILIPPO & KURTZHALTS, HOLLAND (RONALD P. BENNETT OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS.


     Appeal from a judgment (denominated order) of Supreme Court, Erie
County (Michalek, J.), entered August 27, 2002, which dismissed the
CPLR article 78 petition.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.

     Memorandum: Petitioners commenced this CPLR article 78
proceeding seeking to annul the determination of the Town Board of
respondent Town of Clarence (Town), denying petitioners’ application
for a special exception use permit and to compel the issuance of such
a permit. Supreme Court properly dismissed the petition. Petitioners
applied for the permit in order to build a mini-storage facility on
land that is zoned major arterial to a depth of 300 feet and
commercial from then on. The Town Board denied the application based
upon the finding of the Town Planning Board that such a facility is
not “an allowed use in major arterial or commercial [zoning]
districts” and is “inconsistent with the intent and vision of the
master plan for this area.”

     We agree with petitioners that the mini-storage facility is a
“commercial or business enterprise[]” within the meaning of sections
30-43 (B) (7) and 30-49.1 (A) (4) of the Town Zoning Ordinance of
Clarence (Zoning Ordinance) and thus it is a use permitted in a major
arterial district and, subject to a special exception use permit, in a
commercial district. Although a planning board’s interpretation of a
zoning ordinance is generally entitled to great deference (see Matter
                                 -151-                         700
                                                         CA 02-02755

of Oliveri v Planning Bd. of Town of Greenburgh, 229 AD2d 584), there
is a “well-established but countervailing precept that zoning
restrictions are in derogation of the common law and, as such, must be
strictly construed against the municipality which enacted and seeks to
enforce them, and that any ambiguity in the language employed must be
resolved in favor of the property owner” (Matter of Bonded Concrete v
Zoning Bd. of Appeals of Town of Saugerties, 268 AD2d 771, 773, lv
denied 94 NY2d 764). The record establishes that the Planning Board
has been inconsistent in interpreting the operative language here in
connection with other similar applications, thereby confirming the
patent ambiguity of that language. Thus, the subject provisions
should be construed against respondents and in favor of petitioners.

     Nevertheless, we agree with respondents that the mini-storage
facility conflicts with the Town’s recently adopted Master Plan 2015
(Master Plan), and thus the Town Board properly denied the application
for a special exception use permit (see generally Matter of Retail
Prop. Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d
190, 195). Section 30-71 (A) (7) of the Zoning Ordinance establishes
as a condition for the issuance of a special exception use permit that
“[s]uch use shall not conflict with the direction of building
development in accordance with any Master Plan or portion thereof
which has been adopted by the Planning Board.” Compliance with that
condition “must be shown before any exception can be secured” (Matter
of Tandem Holding Corp. v Board of Zoning Appeals of Town of
Hempstead, 43 NY2d 801, 802). Although we agree with petitioners that
the Master Plan envisions commercial development on the subject
property, it also indicates that this type of commercial development
should be restricted to newly created business park districts in order
to avoid “negative impact upon existing residential areas” (Master
Plan, at 22). The subject property is bordered by an existing
residential area, and thus the court properly concluded that the
determination of the Town Board is not arbitrary and capricious.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

701
CA 03-00195
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


GERALDINE MARACLE AND JOHN MARACLE,
PLAINTIFFS-RESPONDENTS-APPELLANTS,

                    V                                            ORDER

ROBERT J. KOHNKE, D.D.S., AND PETER K. DOYLE,
D.D.S., DEFENDANTS-APPELLANTS-RESPONDENTS.


LAW OFFICE OF WALTER R. PACER, JR., BUFFALO (WALTER R. PACER, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT ROBERT J. KOHNKE, D.D.S.

KENNEY, KANALEY, SHELTON & LIPTAK, L.L.P., BUFFALO (JOANNEKE K.M.
BRENTJENS OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT PETER K.
DOYLE, D.D.S.

HAGERTY & BRADY, BUFFALO (THOMAS V. HAGERTY OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS-APPELLANTS.


     Appeals and cross appeal from an order of Supreme Court, Niagara
County (Lane, J.), entered March 27, 2002, which denied in part and
granted in part the motion of defendant Peter K. Doyle, D.D.S. for
summary judgment and denied the cross motion of defendant Robert J.
Kohnke, D.D.S. for summary judgment.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs for the reasons
stated in decision at Supreme Court, Niagara County, Lane, J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

703
CA 03-00188
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


DALE J. LYMAN, PLAINTIFF-RESPONDENT,

                    V                                            ORDER

RAYMOND SMITH, DEFENDANT-APPELLANT.


WALSH, ROBERTS & GRACE, BUFFALO (MARK P. DELLA POSTA OF COUNSEL), FOR
DEFENDANT-APPELLANT.

MISERENDINO, CELNIKER, SEEGERT & ESTOFF, P.C., BUFFALO (JONATHAN D.
ESTOFF OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from that part of an order of Supreme Court, Erie County
(Cosgrove, J.), entered May 9, 2002, that denied that part of
defendant's motion for summary judgment dismissing the Labor Law § 241
(6) claim.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed with costs for the reasons stated
in decision at Supreme Court, Erie County, Cosgrove, J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

704
CA 02-02641
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


MAURICE MC NAB AND DINA MC NAB, INDIVIDUALLY
AND AS PARENTS AND NATURAL GUARDIANS OF CAMEREN
MC NAB, AN INFANT, PLAINTIFFS-RESPONDENTS,

                    V                                               ORDER

SISTERS OF CHARITY HOSPITAL OF BUFFALO,
ET AL., DEFENDANTS,
AND CORINNE L. LEACH, M.D., DEFENDANT-APPELLANT.


BLOCK, COLUCCI, NOTARO & LAING, P.C., BUFFALO (CHARLES R. NOTARO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY & CAMBRIA LLP, BUFFALO
(GREGORY P. KRULL OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of Supreme Court, Erie County (Fahey, J.),
entered August 16, 2002, which denied the motion of defendant Corinne
L. Leach, M.D. for summary judgment dismissing the complaint and cross
claims against her.

     Now, upon reading and filing the stipulation of discontinuance
signed by the attorneys for the parties on April 7, 2003,

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs upon stipulation.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

705
CA 02-00260
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


LUCY YONDT, ET AL., PLAINTIFFS,

                    V                                MEMORANDUM AND ORDER

BOULEVARD MALL CO., A NEW YORK GENERAL PARTNERSHIP,
ET AL., DEFENDANTS.
-----------------------------------------------------
BOULEVARD MALL CO., A NEW YORK GENERAL PARTNERSHIP,
THIRD-PARTY PLAINTIFF-APPELLANT,

                    V

MALLARE ENTERPRISES, INC., DOING BUSINESS AS E & R
WILLIAMS, THIRD-PARTY DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


HURWITZ & FINE, P.C., BUFFALO (HARRY F. MOONEY OF COUNSEL), FOR
THIRD-PARTY PLAINTIFF-APPELLANT.

KAMYSZ, O'NEILL, CANTWELL & FEELEY, BUFFALO (MICHAEL T. FEELEY OF
COUNSEL), FOR THIRD-PARTY DEFENDANT-RESPONDENT.


     Appeal from an order of Supreme Court, Erie County (Joslin, J.),
entered December 19, 2001, which, inter alia, granted the cross motion
of defendant-third-party defendant seeking summary judgment dismissing
the claims of defendant-third-party plaintiff and defendant Forest
City Management, Inc.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Supreme Court properly granted that part of the
cross motion of defendant-third-party defendant, Mallare Enterprises,
Inc., doing business as E & R Williams (Mallare), seeking summary
judgment dismissing the claims of defendant-third-party plaintiff,
Boulevard Mall Co., and defendant Forest City Management, Inc.
(collectively, defendants Boulevard Mall), for contractual
indemnification and breach of contract. Plaintiffs commenced this
action to recover damages for injuries sustained by Lucy Yondt
(plaintiff) when she slipped and fell on a patch of black ice in the
parking lot of the Boulevard Mall in Amherst. The claims against
Mallare are based upon its contract with defendants Boulevard Mall to
provide certain snow removal services when requested. Mallare
established its entitlement to judgment as a matter of law dismissing
                                 -156-                         705
                                                         CA 02-00260

the claims for contractual indemnification by establishing that it was
not in breach of that contract and that the accident was due solely to
a condition for which defendants Boulevard Mall alone were responsible
(cf. Margolin v New York Life Ins. Co., 32 NY2d 149, 154). The burden
thus shifted to defendants Boulevard Mall to "produce evidentiary
proof in admissible form sufficient to require a trial of material
questions of fact *** or *** demonstrate [an] acceptable excuse for
[their] failure to meet the requirement of tender in admissible form"
(Zuckerman v City of New York, 49 NY2d 557, 562). They did not meet
that burden, and thus the court properly granted that part of the
cross motion seeking summary judgment dismissing the claims for
contractual indemnification (see id. at 563-564).

     The claims for breach of contract are based upon the allegation
that Mallare failed to maintain insurance naming defendants Boulevard
Mall as additional insureds. Mallare, however, established that
plaintiff's injuries did not result from its work, but resulted solely
from the acts or omissions of defendants Boulevard Mall (cf. N.
Kruger, Inc. v CNA Ins. Co., 242 AD2d 566, 567). Because Mallare
established that the accident did not arise out of activities under
its contract and defendants Boulevard Mall did not raise a triable
issue of fact in that regard, the court properly granted that part of
the cross motion seeking summary judgment dismissing the claims for
breach of contract (see Ceron v Rector, Church Wardens & Vestry
Members of Trinity Church, 224 AD2d 475, 476).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

706
CA 02-00261
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


LUCY YONDT AND SHERIDAN YONDT,
PLAINTIFFS-RESPONDENTS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

BOULEVARD MALL CO., A NEW YORK GENERAL PARTNERSHIP,
AND FOREST CITY MANAGEMENT, INC.,
DEFENDANTS-APPELLANTS-RESPONDENTS.
(APPEAL NO. 2.)


HURWITZ & FINE, P.C., BUFFALO (HARRY F. MOONEY OF COUNSEL), FOR
DEFENDANTS-APPELLANTS-RESPONDENTS.

LAW OFFICES OF EUGENE C. TENNEY, BUFFALO (COURTNEY C. GENCO OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of Supreme Court, Erie
County (Joslin, J.), entered November 21, 2001, which, inter alia,
granted that part of plaintiffs' motion brought pursuant to CPLR 4404
(a) seeking to set aside the verdict insofar as it apportioned
liability and directed defendants to pay the entire award of damages
of $10,000.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously modified on the law by denying plaintiffs'
motion in its entirety and as modified the order is affirmed without
costs.

     Memorandum: In this personal injury action, defendants appeal,
and plaintiffs cross-appeal, from an order granting that part of
plaintiffs' motion brought pursuant to CPLR 4404 (a) seeking to set
aside the verdict insofar as it apportioned liability and directed
defendants to pay the entire award of damages of $10,000 for the past
pain and suffering of Lucy Yondt (plaintiff), and denying that part of
plaintiffs' motion seeking additional damages. We agree with
defendants that Supreme Court should have denied plaintiffs' motion in
its entirety. The jury evidently concluded that, had plaintiff been
looking where she was walking, she would have seen the icy patch where
she slipped and fell and thus would have avoided the accident. Such a
conclusion is not "utterly irrational" (Cohen v Hallmark Cards, 45
NY2d 493, 499), in light of the photographs of the scene that were
taken 45 minutes after the accident. Furthermore, there was
meteorological evidence that it was misty and below freezing all
morning before the accident and, indeed, that it was misty and 27
                                 -158-                         706
                                                         CA 02-00261

degrees at the time of the accident. The jury could have rationally
concluded that plaintiff, a life-long resident of western New York,
should have been aware of the icy conditions. "[W]hether a plaintiff
is comparatively negligent is almost invariably a question of fact and
is for the jury to determine in all but the clearest cases" (Shea v
New York City Tr. Auth., 289 AD2d 558, 559). "'The jury, which saw
and heard the witnesses, was in the best position to evaluate the
circumstances and the nature of [the parties'] conduct, and there is
no basis for usurping the jury's function'" (Paterson v Ellis, 284
AD2d 981, 981-982, quoting Barresi v Kapr, 226 AD2d 1074, appeal
dismissed 88 NY2d 1005).

     We further conclude that the court did not abuse its discretion
in denying that part of plaintiffs' motion seeking additional damages
(see generally Cooke v Meltzer, 235 AD2d 517, 518; O'Brien v Covert,
187 AD2d 419, 420). Plaintiff was 75 years old at the time of trial
and sustained non-displaced fractures of the left humerus and left
knee that did not require casting or surgery. She was not
hospitalized and quickly returned to her normal routine. She was last
treated for her injuries two months after the accident and at that
time was doing reasonably well. We agree with defendants that the
award of damages for past pain and suffering does not deviate
materially from what would be reasonable compensation (see CPLR 5501
[c]) and that the jury's failure to award damages for future pain and
suffering is supported by a fair interpretation of the evidence (see
Feneck v First Union Real Estate Equity & Mortgage Invs., 266 AD2d
916, 917). We also agree with defendants that the jury's failure to
award damages on the derivative claim is supported by a fair
interpretation of the evidence. We therefore modify the order by
denying plaintiffs' motion in its entirety.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

707
KAH 02-01260
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK EX REL.
ROBERT CAMARANO, PETITIONER-APPELLANT,

                    V                               MEMORANDUM AND ORDER

JOSEPH COSTELLO, SUPERINTENDENT, MID-STATE
CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.


DAVID M. GIGLIO, UTICA, FOR PETITIONER-APPELLANT.


     Appeal from a judgment (denominated order) of Supreme Court,
Oneida County (Shaheen, J.), entered April 16, 2002, which, inter
alia, dismissed the petition seeking a writ of habeas corpus.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.

     Memorandum: Supreme Court properly dismissed the petition
seeking a writ of habeas corpus. In November 1999, while released on
parole supervision on a sentence of 15 years to life, petitioner was
charged with several offenses and pleaded guilty to, inter alia, a
felony in satisfaction of those charges. On November 9, 2000,
petitioner was sentenced on the new conviction to an aggregate term of
imprisonment of 1½ to 3 years. Because petitioner was convicted of
offenses committed while on parole supervision, his parole was revoked
by operation of law (see Executive Law § 259-i [3] [d] [iii]). Thus,
contrary to the contention of petitioner, he was not entitled to a
final revocation hearing (see People ex rel. Melendez v Bennett, 291
AD2d 590, 591, lv denied 98 NY2d 602; Matter of Cruz v New York State
Dept. of Correctional Servs., 288 AD2d 572, 573, appeal dismissed 97
NY2d 725; Matter of Warley v Rodriguez, 145 AD2d 901). Contrary to
his further contention, we conclude that petitioner was not held
illegally past his conditional release date on the new conviction.
The original sentence was interrupted by the declaration of
delinquency (see Penal Law § 70.40 [3] [a]; Cruz, 288 AD2d at 573) and
the sentence on the new conviction runs consecutively to the sentence
on the original conviction (see § 70.25 [2-a]). We have considered
petitioner’s remaining contention and conclude that it is without
merit.



Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

708
KA 00-02668
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JAMES WHITE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL C. WALSH OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Supreme Court, Erie County (Tills, J.),
entered May 19, 2000, convicting defendant after a jury trial of rape
in the first degree (two counts).

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of two counts of rape in the first degree (Penal
Law § 130.35 [3]) and one count each of sexual abuse in the first
degree (§ 130.65 [3]) and endangering the welfare of a child (§ 260.10
[1]). We reject defendant's contention that Supreme Court erred in
admitting the medical records of the victim containing her statements
concerning the incidents and the testimony of a pediatrician and a
nurse who reported what the victim had said about the incidents.
Contrary to defendant's contention, those medical records and that
testimony did not impermissibly bolster the victim's testimony. A
patient's statements made to medical personnel that are relevant to
diagnosis and treatment are admissible as an exception to the hearsay
rule (see People v Dennee, 291 AD2d 888, 889, lv denied 98 NY2d 650)
and do not constitute impermissible bolstering (see People v Harris,
151 AD2d 981, lv denied 74 NY2d 810). The sentence is neither unduly
harsh nor severe.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

709
KA 02-00895
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

WILLIE ROYAL, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIE ROYAL, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Onondaga County Court (Fahey, J.),
entered May 10, 2001, convicting defendant upon his plea of guilty of
burglary in the third degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of burglary in the third degree (Penal Law §
140.20). Because defendant failed to move to withdraw his guilty plea
or to vacate the judgment of conviction, his contention that the plea
was not knowingly, intelligently and voluntarily entered is not
preserved for our review (see People v Lopez, 71 NY2d 662, 665; People
v Jackson, 278 AD2d 875, lv denied 96 NY2d 759). This case does not
fall within the narrow exception to the preservation doctrine set
forth in Lopez (71 NY2d at 666), because defendant's plea colloquy did
not negate an essential element of burglary in the third degree. In
any event, the record establishes that defendant's plea was knowingly,
intelligently and voluntarily entered. The further contention of
defendant that he was denied effective assistance of counsel involves
matters outside the record on appeal and therefore must be raised by
way of a motion pursuant to CPL 440.10 (see People v Skye, 298 AD2d
889, 890). Finally, the record establishes that defendant's waiver of
the right to appeal was knowing, intelligent and voluntary (see People
v Hidalgo, 91 NY2d 733, 736; People v Burse, 295 AD2d 968, 969, lv
denied 98 NY2d 709), and that waiver encompasses the remaining
contentions raised in defendant's pro se supplemental brief. In any
                                 -162-                         709
                                                         KA 02-00895

event, we conclude that those contentions lack merit.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

710
KA 01-01049
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                                             ORDER

ANTHONY THOMAS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (JOSEPH KILBRIDGE OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Erie County Court (Drury, J.), entered
April 25, 2001, convicting defendant upon his plea of guilty of, inter
alia, criminal possession of stolen property in the fourth degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed (see People v Hidalgo, 91 NY2d
733, 737).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

711
KA 01-01271
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DONALD TAYLOR, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Supreme Court, Erie County (Pietruszka,
J.), entered April 30, 2001, convicting defendant after a nonjury
trial of, inter alia, criminal sale of a controlled substance in the
third degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Contrary to the contention of defendant, Supreme
Court did not abuse its discretion in denying his motion to dismiss
the indictment in furtherance of justice pursuant to CPL 210.40 (1)
based on his medical condition. "[T]erminal illness, even in cases
where the diagnosis [is] far more certain and far more dire than the
speculative prognosis here, will [not] per se permit a defendant to
evade the consequences of his criminal behavior" (People v Baghai-
Kermani, 221 AD2d 219, 221; see People v McAlister, 280 AD2d 556, lv
denied 96 NY2d 803).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

712
KA 01-00584
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                                            ORDER

LI PING, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (MARCY H. HAGEN OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Supreme Court, Erie County (Tills, J.),
entered February 9, 2001, convicting defendant upon his plea of guilty
of burglary in the first degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed (see People v Kemp, 94 NY2d
831, 832-833).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

713
TP 02-02837
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


MATTER OF ANGEL CLAUDIO, PETITIONER,

                    V                                               ORDER

DONALD SELSKY, DIRECTOR, SPECIAL HOUSING/INMATE
DISCIPLINARY PROGRAMS, RESPONDENT.
(APPEAL NO. 1.)


ANGEL CLAUDIO, PETITIONER PRO SE.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (PATRICK BARNETT-MULLIGAN OF
COUNSEL), FOR RESPONDENT.


     CPLR article 78 transfer proceeding transferred to this Court by
an order of Supreme Court, Oneida County (Shaheen, J.), entered
October 30, 2002, seeking review of a determination after a Tier III
hearing.

     It is hereby ORDERED that the determination be and the same
hereby is unanimously confirmed without costs and the petition is
dismissed.




Entered: June 13, 2003                            JOANN M. WAHL
                                                  Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

714
TP 02-02838
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.


MATTER OF ANGEL CLAUDIO, PETITIONER,

                    V                                               ORDER

DONALD SELSKY, DIRECTOR, SPECIAL HOUSING/INMATE
DISCIPLINARY PROGRAMS, RESPONDENT.
(APPEAL NO. 2.)


ANGEL CLAUDIO, PETITIONER PRO SE.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (PATRICK BARNETT-MULLIGAN OF
COUNSEL), FOR RESPONDENT.


     CPLR article 78 proceeding transferred to this Court by an order
of Supreme Court, Oneida County (Shaheen, J.), entered October 30,
2002, seeking review of a determination after a Tier III hearing.

     It is hereby ORDERED that the determination be and the same
hereby is unanimously confirmed without costs and the petition is
dismissed.




Entered: June 13, 2003                            JOANN M. WAHL
                                                  Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

715
TP 03-00125
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


MATTER OF LEONIDAS SIERRA, PETITIONER,

                    V                                               ORDER

GLENN S. GOORD, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, ATTICA (JERRY M. ADER OF
COUNSEL), FOR PETITIONER.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF COUNSEL),
FOR RESPONDENT.


     CPLR article 78 proceeding transferred to this Court by an order
of Supreme Court, Wyoming County (Dadd, J.), entered January 13, 2003,
seeking review of a determination after a Tier III hearing.

     It is hereby ORDERED that the determination be and the same
hereby is unanimously confirmed without costs and the amended petition
is dismissed.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

716
TP 02-02750
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


MATTER OF ALFRED BLANCHE, PETITIONER,

                    V                                MEMORANDUM AND ORDER

BRION D. TRAVIS, CHAIRMAN, NEW YORK STATE DIVISION
OF PAROLE, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, ATTICA (SUSAN K. JONES OF
COUNSEL), FOR PETITIONER.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR
RESPONDENT.


     CPLR article 78 proceeding transferred to this Court by an order
of Supreme Court, Wyoming County (Dadd, J.), entered December 10,
2002, seeking review of the rescission of petitioner's open parole
release date.

     It is hereby ORDERED that the determination be and the same
hereby is unanimously annulled on the law without costs, the petition
is granted, and the matter is remitted to respondent for further
proceedings in accordance with the following Memorandum: Respondent
correctly concedes in this CPLR article 78 proceeding that the Board
of Parole (Board) erred in rescinding petitioner's open parole release
date in reliance upon findings of guilt with respect to two charges in
a prison disciplinary proceeding that were reversed and expunged on
administrative review. "The Board is empowered to rescind a decision
granting an open parole release date when there is substantial
evidence that an inmate has committed 'significant misbehavior[,]'
including the violation of a prison disciplinary rule" (Matter of
Bishop v Smith, 299 AD2d 777, 778). Here, although there was
substantial evidence supporting the finding of guilt on one of the
three charges (see e.g. Matter of McHaney v Albaugh, 280 AD2d 963, lv
denied 96 NY2d 716), the Board should not have considered the findings
of guilt on the two remaining charges that were subsequently reversed
and expunged, or the conduct underlying such charges (see Matter of
Garrett v Coughlin, 128 AD2d 210, 212-213). As respondent further
correctly concedes, it is impossible to ascertain whether the Board
would have reached the same determination had it not considered the
charges that were reversed and expunged. We therefore annul the
determination, grant the petition, and remit the matter to respondent
for a de novo hearing before a different panel of the Board, which
will consider only the sustained charge in determining whether to
rescind petitioner's open parole release date (see Matter of
                                 -170-                         716
                                                         TP 02-02750

Quartararo v New York State Div. of Parole, 224 AD2d 266, lv denied 88
NY2d 805; see also Matter of King v New York State Div. of Parole, 190
AD2d 423, 434-435, affd 83 NY2d 788; Matter of Rentz v Herbert, 206
AD2d 944, 945, lv denied 84 NY2d 810).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

717
KA 01-00130
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MARLEK HOLMES, DEFENDANT-APPELLANT.


GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Genesee County Court (Noonan, J.),
entered October 6, 2000, convicting defendant upon his plea of guilty
of attempted assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from be and the
same hereby is unanimously affirmed.

     Memorandum: Defendant did not object to the enhancement of his
sentence, nor did he move to withdraw his plea of guilty or vacate the
judgment of conviction. Defendant therefore failed to preserve for our
review his contention that County Court erred in enhancing his sentence
based upon his failure to cooperate with the presentence investigation
(see People v Baxter, 302 AD2d 950, 951; People v Copeland, 288 AD2d
906, 906-907, lv denied 97 NY2d 703). In any event, we conclude that
the court properly enhanced defendant’s sentence (see Baxter, 302 AD2d
at 951; People v Perkins, 291 AD2d 925, 926, lv denied 98 NY2d 654).
The general waiver by defendant of the right to appeal encompasses his
challenge to the severity of the enhanced sentence (see People v
Melendez, 291 AD2d 887, lv denied 98 NY2d 639; People v Colley, 289
AD2d 1021, lv denied 98 NY2d 650; see generally People v Hidalgo, 91
NY2d 733, 737).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
-172-         717
        KA 01-00130
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

718
KA 02-00120
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STEVEN T. PETRUSCH, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

DENNIS N. HAWTHORNE, SR., DISTRICT ATTORNEY, OSWEGO (GREGORY S. OAKES
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Oswego County Court (Hafner, Jr., J.),
entered March 2, 2001, convicting defendant upon his plea of guilty of
rape in the third degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously modified on the law by vacating the
order of protection and as modified the judgment is affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of rape in the third degree (Penal Law § 130.25 [2])
arising from his sexual relations with a 16-year-old girl, defendant
contends that County Court erred in granting an order of protection in
favor of defendant's wife inasmuch as defendant was not "convict[ed]
of any crime or violation between spouses, parent and child, or
between members of the same family or household" (CPL 530.12 [5]). We
agree. We therefore modify the judgment by vacating the order of
protection.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

719
KA 01-00098
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                                             ORDER

JASON BILLINS, DEFENDANT-APPELLANT.


FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (DEANNA R. LAMB OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL A. ARCURI, DISTRICT ATTORNEY, UTICA (CARL J. BOYKIN OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Oneida County Court (Donalty, J.),
entered August 30, 2000, convicting defendant upon his plea of guilty
of, inter alia, attempted murder in the second degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

720
KA 02-00263
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

FRANK D'ANTUONO, DEFENDANT-APPELLANT.


FRANK D'ANTUONO, DEFENDANT-APPELLANT PRO SE.

MATTHEW J. MURPHY, III, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Niagara County Court (Noonan, J.),
entered March 28, 2000, convicting defendant after a jury trial of,
inter alia, robbery in the first degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of one count of robbery in the first degree
(Penal Law § 160.15 [4]) and two counts of escape in the first degree
(§ 205.15 [2]). County Court properly denied defendant's motion to
suppress items of physical evidence seized by police officers during a
warrantless search of the hotel room that defendant had occupied the
previous night. The record supports the court's determination that
the rental period for the hotel room had expired prior to the search.
Thus, defendant lost his reasonable expectation of privacy in the
hotel room and its contents, and the general manager of the hotel had
the authority to consent to the search (see People v Rodriguez, 104
AD2d 832, 833-834; People v Lerhinan, 90 AD2d 74, 78-79). Based upon
the results of that search, the police had probable cause to arrest
defendant for robbery in the first degree, and he was thus in custody
for purposes of the charge of escape in the first degree under count
seven of the indictment (see People v Maldonado, 86 NY2d 631, 634).
Finally, the court properly admitted the testimony of a witness who
had testified at defendant's first trial but was unavailable to
testify at the second trial as the result of serious injuries
sustained by that witness in an accident subsequent to the first trial
(see CPL 670.10 [1]; People v Carracedo, 228 AD2d 199, affd 89 NY2d
1059; People v Allah, 47 AD2d 738).

Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

721
KA 01-02080
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                                            ORDER

LARRY A. COLE, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

DENNIS N. HAWTHORNE, SR., DISTRICT ATTORNEY, OSWEGO (DONALD E. TODD OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Oswego County Court (Hafner, Jr., J.),
entered March 8, 2001, revoking defendant's probation and imposing a
sentence of imprisonment.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

722
KAH 02-02414
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK EX REL.
DAVID J. RENNER, PETITIONER-APPELLANT,

                    V                                            ORDER

TIMOTHY J. MURRAY, SUPERINTENDENT, GROVELAND
CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.


ZIMMERMAN & TYO, SHORTSVILLE (JOHN E. TYO OF COUNSEL), FOR
PETITIONER-APPELLANT.


     Appeal from a judgment (denominated order) of Supreme Court,
Livingston County (Cicoria, J.), entered July 31, 2002, which, inter
alia, denied the petition for a writ of habeas corpus and converted
the petition to a CPLR article 78 proceeding.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

723
CA 00-01874
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


DONNA M. PASCARELLA, AS ADMINISTRATOR OF THE
ESTATE OF JEAN M. HUDSON, DECEASED, PLAINTIFF-
RESPONDENT,

                    V                                               ORDER

MICHAEL J. CARLOTTA, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


MICHAEL J. CROSBY, ROCHESTER, FOR DEFENDANT-APPELLANT.

TREVETT, LENWEAVER & SALZER, P.C., ROCHESTER (JAMES A. VALENTI OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Supreme Court, Monroe County (Lunn,
J.), entered July 10, 2000, granting a divorce upon a decision of the
court.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                           JOANN M. WAHL
                                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

724
CA 01-02523
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


DONNA M. PASCARELLA, AS ADMINISTRATOR OF THE
ESTATE OF JEAN M. HUDSON, DECEASED, PLAINTIFF-
RESPONDENT,

                      V                                             ORDER

MICHAEL J. CARLOTTA, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


MICHAEL J. CROSBY, ROCHESTER, FOR DEFENDANT-APPELLANT.

TREVETT, LENWEAVER & SALZER, P.C., ROCHESTER (JAMES A. VALENTI OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from   an order of Supreme Court, Monroe County (Lunn, J.),
entered November   21, 2001, which, inter alia, denied defendant's
motion to vacate   portions of the judgment of divorce entered July 10,
2000 (appeal No.   1).

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                            JOANN M. WAHL
                                                  Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

725
CA 03-00187
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


MATTER OF JOHN MARCHIONI, PETITIONER-RESPONDENT,

                    V                                               ORDER

ZONING BOARD OF APPEALS OF TOWN OF PARMA,
RESPONDENT-APPELLANT.


LACY, KATZEN, RYEN & MITTLEMAN, LLP, ROCHESTER (PETER T. RODGERS OF
COUNSEL), FOR RESPONDENT-APPELLANT.

DANIEL J. MASTRELLA, ROCHESTER, FOR PETITIONER-RESPONDENT.


     Appeal from a judgment (denominated order) of Supreme Court,
Monroe County (Lunn, J.), entered April 19, 2002, which, inter alia,
directed respondent to issue a building permit for petitioner's
structure, as built.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
         SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department

726
CA 03-00075
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


JOHN F. KEELER, PLAINTIFF-APPELLANT,

                    V                                MEMORANDUM AND ORDER

TWYLA M. KEELER, DEFENDANT-RESPONDENT.


DAVID M. PARKS, ITHACA, FOR PLAINTIFF-APPELLANT.


      Appeal from those parts of a judgment of Supreme Court, Seneca
County (Falvey, J.), entered June 28, 2002, that established
plaintiff's child support obligation and directed plaintiff to make
child support payments through the Seneca County Support Collection
Unit.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.

     Memorandum: Plaintiff appeals from those parts of the judgment
entered in this matrimonial action establishing his child support
obligation pursuant to the Child Support Standards Act (Domestic
Relations Law § 240 [1-b]) and directing him to make child support
payments through the Seneca County Support Collection Unit (SCU).
Plaintiff contends that Supreme Court erred in identifying him as the
noncustodial parent for the purpose of awarding child support. It is
impossible to determine from the stipulated custodial arrangement set
forth in the record, however, which party has physical custody of the
child for the majority of the time (cf. Bast v Rossoff, 91 NY2d 723,
728). We therefore are unable to pass upon the merits of that
contention (see Kahn v City of New York, 37 AD2d 520, 521, affd 30
NY2d 690). Contrary to plaintiff's further contention, the record
establishes that defendant requested that support payments be made
through the SCU, and the court did not err in granting that request
(see § 240 [1] [a]; Social Services Law § 111-g).




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

727
CA 03-00138
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


SUSAN WIEBEN, PLAINTIFF-RESPONDENT,

                    V                                            ORDER

JOSEPH A. JURCSAK AND CARLA A. BEAVER,
DEFENDANTS-APPELLANTS.


HISCOCK & BARCLAY, LLP, ROCHESTER (JOSEPH A. WILSON OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

BRYON W. GROSS, ONTARIO, FOR PLAINTIFF-RESPONDENT.


     Appeal from that part of an order of Supreme Court, Wayne County
(Nesbitt, J.), entered April 11, 2002, that granted those parts of
plaintiff's motion seeking summary judgment on liability for the
happening of the accident only and an order striking defendants'
second affirmative defense.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs for reasons stated
in decision at Supreme Court, Wayne County, Nesbitt, J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

728
CA 03-00192
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


MATTER OF KATHLEEN WASHINGTON, PETITIONER-
RESPONDENT,

                    V                                               ORDER

JOHN HAIRE, AS DIRECTOR OF ROCHESTER HOUSING
AUTHORITY, SECTION 8 OFFICE OF LEASED HOUSING
OPERATIONS, RESPONDENT-APPELLANT.


ADAIR, KAUL, MURPHY, AXELROD & SANTORO, LLP, ROCHESTER (ERNEST D.
SANTORO OF COUNSEL), FOR RESPONDENT-APPELLANT.

MICHELLE DE MAREO, ROCHESTER, FOR PETITIONER-RESPONDENT.


     Appeal from a judgment (denominated order) of Supreme Court,
Monroe County (Siracuse, J.), entered April 17, 2002, which, inter
alia, annulled respondent's determination terminating petitioner's
benefits under the Federal Section 8 Housing Assistance Program (42
USC § 1437f).

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

729
CA 03-00108
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


HAROLD F. HOWE, JR., PLAINTIFF-APPELLANT,

                    V                              MEMORANDUM AND ORDER

SYRACUSE UNIVERSITY, SYRACUSE UNIVERSITY COLLEGE
OF LAW, AND HUEBER-BREUER CONSTRUCTION COMPANY,
INC., DEFENDANTS-RESPONDENTS.


MICHAELS AND MICHAELS, SYRACUSE (BEVERLY A. MICHAELS OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (DANIEL P. FLETCHER OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from that part of an order of Supreme Court, Onondaga
County (Paris, J.), entered August 1, 2002, that denied plaintiff's
motion for partial summary judgment on the issue of liability under
Labor Law § 240 (1).

     It is hereby ORDERED that the order insofar as appealed from be
and the same hereby is unanimously reversed on the law without costs
and the motion is granted.

     Memorandum: Plaintiff commenced this action to recover damages
for injuries he sustained while demolishing a 15-foot cinder block
wall. In the course of the work, the wall collapsed, crushing the
six-foot scaffolding on which plaintiff was standing and causing him
to fall or jump to the ground. The scaffold did not have safety
railings, and plaintiff was not using safety or tie lines at the time
of the accident. Supreme Court erred in denying plaintiff's motion
for partial summary judgment on the issue of liability under Labor Law
§ 240 (1). Plaintiff met his initial burden of establishing that he
was not furnished with appropriate safety devices within the meaning
of the statute and that the absence of any such devices was a
proximate cause of his injuries (see Felker v Corning, Inc., 90 NY2d
219, 224). Defendants contend that they raised a triable issue of
fact whether the actions of plaintiff were the sole proximate cause of
his injuries by submitting proof establishing that, instead of
approaching the demolition from the top of the 15-foot wall, plaintiff
attempted to demolish it from a point well below the top. We reject
that contention (cf. Weininger v Hagedorn & Co., 91 NY2d 958, 960,
rearg denied 92 NY2d 875).

     Contrary to the further contention of defendants, they did not
                                 -185-                         729
                                                         CA 03-00108

raise an issue of fact whether plaintiff was a recalcitrant worker.
The recalcitrant worker defense "requires a showing that the injured
worker refused to use the safety devices that were provided by the
owner or employer" (Gordon v Eastern Ry. Supply, 82 NY2d 555, 563; see
Stolt v General Foods Corp., 81 NY2d 918, 920). The defense has no
application where, as here, safety devices were merely present
elsewhere at the work site (see Salotti v Wellco, 273 AD2d 862).
Defendants failed to submit proof in support of their contention that
plaintiff was told to use a specific safety device and refused to do
so (see Hagins v State of New York, 81 NY2d 921, 922-923; Savigny v
Marrano/Marc Equity Corp., 221 AD2d 942; Young v Syroco, Inc., 217
AD2d 1011, 1012).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

730
CA 02-02390
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


IRL HASTY, JR., PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

SOLVAY MILL LIMITED PARTNERSHIP, MILL MANAGEMENT
CORPORATION, SOUTHERN CONTAINER-SYRACUSE, INC.,
DOING BUSINESS AS SOLVAY MILLS RECYCLING, AND ECI
EICHLEAY, INC., DEFENDANTS-RESPONDENTS.


COTE & LIMPERT, SYRACUSE (THEODORE H. LIMPERT OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (DONALD S. DI BENEDETTO OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from that part of an order of Supreme Court, Onondaga
County (Carni, J.), entered July 10, 2002, that granted defendants'
motion for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for back injuries he sustained while
carrying steel purlins, to be used in the construction of the roof of
a building. The purlins were approximately 20 feet long and weighed a
minimum of 50 to 75 pounds. On the day before plaintiff’s accident,
the purlins were stacked onto the I-beams of the roof by the use of a
crane, but the crane was no longer at the job site on the day of the
accident. Plaintiff’s back “popped” while plaintiff and his coworker
were manually placing the purlins into position. Defendants moved for
summary judgment dismissing the complaint, and plaintiff opposed the
motion only with respect to the claims pursuant to Labor Law § 240 (1)
and § 241 (6), conceding that defendants are not liable under Labor
Law § 200 or for common-law negligence. Thus, we address only the
propriety of Supreme Court’s dismissal of the claims pursuant to Labor
Law § 240 (1) and § 241 (6).

     Contrary to plaintiff’s contention, Labor Law § 240 (1) is not
applicable to the facts of this case. That section applies to falling
worker or falling object cases (see Narducci v Manhasset Bay Assoc.,
96 NY2d 259, 267-268), and here plaintiff did not fall, nor did an
object fall on him. The fact that plaintiff was injured while working
at an elevation is not determinative (see Schwab v A.J. Martini,
                                 -187-                         730
                                                         CA 02-02390

Inc., 288 AD2d 654, 655, lv denied 97 NY2d 609). “[E]ven if
plaintiff’s injuries were caused by the absence of a hoist or other
safety device, they were not the result of the limited type of
elevation-related hazards encompassed by Labor Law § 240 (1), and
there is no basis for liability under that statute” (id. at 655-656).
Plaintiff was exposed to the usual and ordinary dangers of a
construction site and not the extraordinary elevation risks envisioned
by Labor Law § 240 (1) (see Rodriguez v Tietz Ctr. for Nursing
Care, 84 NY2d 841, 843), and thus the court properly granted that part
of defendants’ motion with respect to that claim.

     The court also properly granted that part of defendants' motion
with respect to the Labor Law § 241 (6) claim. Contrary to the
contention of plaintiff, he has not alleged the violation of a
specific regulation requiring the use of a mechanical device for
moving the steel purlins to support the Labor Law § 241 (6) claim (see
Comes v New York State Elec. & Gas Corp., 189 AD2d 945, 946-947, affd
82 NY2d 876). In support of that claim, plaintiff alleges the
violation of 12 NYCRR 23-1.2 (e), 23-1.5, 23-2.3, and subparts 23-6
and 23-8. Section 23-1.2 (e) is not sufficiently specific to support
a Labor Law § 241 (6) claim (see Schwab, 288 AD2d at 656; McGrath v
Lake Tree Vil. Assoc., 216 AD2d 877, 878; Biszick v Ninnie Constr.
Corp., 209 AD2d 661; Narrow v Crane-Hogan Structural Sys., 202 AD2d
841, 842-843). Similarly, section 23-1.5 sets forth only a general
safety standard, which is insufficient to support a Labor Law § 241
(6) claim (see Danchick v Contegra Servs., 299 AD2d 923, 924; Schwab,
288 AD2d at 656; Sihly v New York City Tr. Auth., 282 AD2d 337, lv
dismissed 96 NY2d 897; Thompson v Marotta, 256 AD2d 1124, 1125;
McGrath, 216 AD2d at 878).

     We agree with plaintiff that 12 NYCRR 23-2.3 (a) (1) is
sufficiently specific to support a Labor Law § 241 (6) claim (see
Young v Buffalo Color Corp., 255 AD2d 920), but we conclude that the
regulation is inapplicable to the facts of this case. Section 23-2.3
(a) (1) provides in relevant part that, “[d]uring the final placing of
structural steel members, loads shall not be released from hoisting
ropes until such members are securely fastened in place.” Even
assuming, arguendo, that purlins are “structural steel members,” we
conclude that the regulation does not require that hoisting ropes be
used for the placing of structural steel members. Rather, the
regulation applies only when hoisting ropes are actually used for the
placing of structural steel members. Thus, because no hoisting ropes
were used by plaintiff, the regulation is inapplicable.

     Finally, even assuming, arguendo, that subparts 23-6 and 23-8 are
sufficiently specific to support the Labor Law § 241 (6) claim, we
conclude that those subparts are inapplicable to the facts of this
case. Although both subparts set forth standards for the use of
hoisting devices, they do not specify when the use of such devices is
required. Because no hoisting devices were used in this case, the
regulations under subparts 23-6 and 23-8 do not apply (see Flihan v
Cornell Univ., 280 AD2d 994; Hawkins v City of New York, 275 AD2d 634,
635; Smith v Homart Dev. Co., 237 AD2d 77, 79-80; Lysiak v Murray
                                  -188-                  730
                                                   CA 02-02390

Realty Co., 227 AD2d 746, 750).




Entered: June 13, 2003                    JOANN M. WAHL
                                          Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

731
CA 03-00200
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


OSMAN M. YOUSUF, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ELIZABETH L. NOWAK, DEFENDANT-APPELLANT.
______________________________________________________________________

SUGARMAN LAW FIRM, LLP, SYRACUSE (KEITH D. MILLER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (SAMUEL C. YOUNG OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from that part of an order of Supreme Court, Onondaga
County (Murphy, J.), entered April 26, 2002, that denied defendant's
motion for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed with costs.

     Memorandum: Plaintiff, a parking attendant, commenced this
action to recover damages for injuries he sustained when he lost
control of defendant’s automobile and drove it into a wall at the
garage where he was employed. Plaintiff alleges that the accident was
the result of defendant’s negligence in failing to warn him that the
automobile was equipped with hand controls for acceleration and
deceleration. Supreme Court properly denied defendant’s motion for
summary judgment dismissing the complaint. “Under general tort rules,
a person may be negligent because *** she fails to warn another of
known dangers or, in some cases, of those dangers which [s]he had
reason to know” (Schumacher v Richards Shear Co., 59 NY2d 239, 246;
see Brzostowski v Coca-Cola Bottling Co., 16 AD2d 196, 202; 8B NYJur
2d, Automobiles § 1006). Defendant failed to establish as a matter of
law that she was not negligent in failing to warn plaintiff of the
presence of the hand controls or instruct him in their safe operation.
Nor did defendant establish that her alleged negligence was not a
proximate cause of plaintiff’s injuries. Defendant cannot meet her
initial burden on the motion by relying on alleged deficiencies in
plaintiff’s proof (see Demilia v DeMico Bros., 294 AD2d 264).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

732
CA 02-02172
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


CATHERINE FRITZ, ALISON FRITZ, DOING BUSINESS AS
CUPIDS CORNER FOR BRIDES, AND KRISTINE A.
JOHNSTON, DOING BUSINESS AS KRISTINE'S HAIR STUDIO,
PLAINTIFFS-RESPONDENTS,

                    V                                              ORDER

WHITE CONSOLIDATED INDUSTRIES, INC., DEFENDANT-
APPELLANT.
(APPEAL NO. 1.)


HISCOCK & BARCLAY, LLP, SYRACUSE (ALAN R. PETERMAN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

STEPHEN J. RANSFORD, SYRACUSE, FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of Supreme Court, Oneida County (Siegel,
J.), entered June 5, 2002, which denied defendant's motion to set
aside the verdict and, alternatively, for a new trial.

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs (see Smith v Catholic Med. Ctr. of
Brooklyn & Queens, 155 AD2d 435; see also CPLR 5501 [a] [1], [2]).




Entered: June 13, 2003                            JOANN M. WAHL
                                                  Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

733
CA 02-02173
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


CATHERINE FRITZ, ALISON FRITZ, DOING BUSINESS AS
CUPIDS CORNER FOR BRIDES, AND KRISTINE A.
JOHNSTON, DOING BUSINESS AS KRISTINE'S HAIR STUDIO,
PLAINTIFFS-RESPONDENTS,

                    V                                              ORDER

WHITE CONSOLIDATED INDUSTRIES, INC., DEFENDANT-
APPELLANT.
(APPEAL NO. 2.)


HISCOCK & BARCLAY, LLP, SYRACUSE (ALAN R. PETERMAN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

STEPHEN J. RANSFORD, SYRACUSE, FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of Supreme Court, Oneida County (Siegel,
J.), entered May 30, 2002, which awarded judgment in favor of
plaintiffs and against defendant in the amounts of $4,347.92 and
$62,309.91.

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs (see Hughes v Nussbaumer, Clarke &
Velzy, 140 AD2d 988; Chase Manhattan Bank v Roberts & Roberts, 63 AD2d
566, 567; see also CPLR 5501 [a] [1]).




Entered: June 13, 2003                            JOANN M. WAHL
                                                  Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

734
CA 02-02174
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


CATHERINE FRITZ, ALISON FRITZ, DOING BUSINESS AS
CUPIDS CORNER FOR BRIDES, AND KRISTINE A.
JOHNSTON, DOING BUSINESS AS KRISTINE'S HAIR STUDIO,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

WHITE CONSOLIDATED INDUSTRIES, INC., DEFENDANT-
APPELLANT.
(APPEAL NO. 3.)


HISCOCK & BARCLAY, LLP, SYRACUSE (ALAN R. PETERMAN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

STEPHEN J. RANSFORD, SYRACUSE, FOR PLAINTIFFS-RESPONDENTS.


     Appeal from a judgment of Supreme Court, Oneida County (Siegel,
J.), entered June 14, 2002, upon a jury verdict rendered in favor of
plaintiffs.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously reversed on the law without costs, the
motion is granted and a new trial is granted.

     Memorandum: Plaintiffs commenced this action to recover for
property damage arising from a fire that occurred on November 18,
1991. The fire allegedly started in a dehumidifier manufactured by
defendant. Although four causes of action were asserted in the
complaint, only the causes of action for strict products liability and
breach of implied warranty were submitted to the jury, and Supreme
Court properly instructed the jury with respect to those causes of
action. With respect to the strict products liability cause of
action, the jury rendered a verdict finding, inter alia, that the
dehumidifier was defective when it left defendant’s control and
finding plaintiff Catherine Fritz 40% at fault and defendant 60% at
fault for plaintiffs’ property damage. With respect to the breach of
implied warranty cause of action, the jury rendered a verdict in favor
of defendant, finding that the dehumidifier was fit to be used for its
ordinary purposes. Defendant’s attorney objected to the verdict on
the ground that it was inherently inconsistent for the jury to find
that the dehumidifier was both defective and fit to be used for its
ordinary purposes. Upon questioning the jury to clarify the verdict,
the court determined that the inconsistency could be resolved by
asking the jury to find whether the dehumidifier was fit to be used
                                 -193-                         734
                                                         CA 02-02174

for its ordinary purposes on the date of the fire, rather than on the
date on which it left defendant’s control. Defendant’s attorney
objected to that revised question on the ground that it did not set
forth the appropriate standard for determining whether there was a
breach of implied warranty. The court overruled the objection, and
the jury returned a verdict finding that the dehumidifier was not
reasonably fit to be used for its ordinary purposes on the date of the
fire and that the dehumidifier was a substantial factor in causing the
fire. Defendant moved for judgment notwithstanding the verdict,
contending that the evidence established that the dehumidifier was not
defective when it was sold and, alternatively, defendant sought a new
trial based on the inconsistent verdict. The court denied defendant’s
motion, and this appeal ensued.

     Contrary to defendant’s contention, the court properly refused to
grant defendant judgment notwithstanding the verdict. Plaintiffs
presented testimony with respect to both causes of action that the
design of the dehumidifier was defective because it failed to
incorporate secondary protection to the overload mechanism. Thus,
viewing the evidence in the light most favorable to plaintiffs, we
conclude that there is a valid line of reasoning and permissible
inferences that could lead rational persons to conclude that the
dehumidifier was defective (see generally Cohen v Hallmark Cards, 45
NY2d 493, 499; Cramer v Benedictine Hosp., 301 AD2d 924, 928-929; see
also CPLR 4404 [a]). Defendant further contends that plaintiffs
failed to prove that the dehumidifier was operating at the time of the
fire and that the verdict is therefore against the weight of the
evidence with respect to both causes of action, requiring a new trial.
Contrary to defendant’s contention, plaintiffs did not fail to
establish that the dehumidifier was operating at the time of the fire.
Although none of plaintiffs’ witnesses was able to state conclusively
that the dehumidifier was operating at the time the fire started, an
examination of burn patterns and other evidence led three of
plaintiffs’ witnesses to opine that the dehumidifier was the source of
the fire. Thus, it cannot be said that the verdict could not have
been reached upon any fair interpretation of the evidence (see Levin v
Carbone, 277 AD2d 951).

     We agree with defendant, however, that a new trial is required
because the initial verdict was inconsistent and the jury’s subsequent
verdict resulted from the court’s erroneous revised question in
changing the relevant date of inquiry for the breach of implied
warranty cause of action to the date of the fire. We note at the
outset that causes of action for strict products liability and breach
of implied warranty are not identical because “the negligence-like
risk *** approach [to strict products liability] is foreign to the
realm of contract law” approach to breach of implied warranty (Denny v
Ford Motor Co., 87 NY2d 248, 262, rearg denied 87 NY2d 969).
Nonetheless, “[a]s a practical matter, the distinction between the
defect concepts in tort law and in implied warranty theory may have
little or no effect in most cases,” depending on the nature of the
proof and the way in which issues of fact were litigated (id.). In
the instant case, there was no differentiation in the evidence between
the concept of defect in terms of strict products liability and that
                                 -194-                         734
                                                         CA 02-02174

of defect in terms of breach of implied warranty (see generally Voss v
Black & Decker Mfg. Co., 59 NY2d 102, 106). Thus, we conclude that
the jury’s initial verdict was inconsistent, i.e., it was inconsistent
to find that the dehumidifier was defective when it left defendant’s
control but that it was reasonably fit to be used for its ordinary
purposes at that time. We further conclude that the court erred in
attempting to cure the inconsistency by asking the jury to find with
respect to the breach of implied warranty cause of action whether the
dehumidifier was not reasonably fit to be used for its ordinary
purposes on the date of the fire. It is well settled that, “whether
[an] action is pleaded in strict products liability, breach of
warranty or negligence, it is a consumer's burden to show that a
defect in the product was a substantial factor in causing the injury
and, of greatest significance here, that the defect complained of
existed at the time the product left the manufacturer or entity in the
line of distribution being sued” (Tardella v RJR Nabisco, 178 AD2d
737, 737). Thus, the inconsistency in the verdict remained, and the
appropriate remedy is a new trial (see DePasquale v Morbark Indus.,
254 AD2d 450; Lundgren v McColgin, 96 AD2d 706; see also Scarsella v
Harjes, 234 AD2d 874, 876).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

735
CA 03-00086
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


MATTER OF REVEIRA WILCOVE, PETITIONER-APPELLANT,

                    V                              MEMORANDUM AND ORDER

TOWN OF PITTSFORD ZONING BOARD OF APPEALS AND
GLEASON ESTATES ASSOCIATES, LP, RESPONDENTS-
RESPONDENTS.
(APPEAL NO. 1.)


BANSBACH, ZOGHLIN & WAHL, P.C., ROCHESTER (MINDY L. ZOGHLIN OF
COUNSEL), FOR PETITIONER-APPELLANT.

JEFFREY L. TURNER, TOWN ATTORNEY, PITTSFORD (RICHARD T. WILLIAMS, II,
OF COUNSEL), FOR RESPONDENT-RESPONDENT TOWN OF PITTSFORD ZONING BOARD
OF APPEALS.

KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR
RESPONDENT-RESPONDENT GLEASON ESTATES ASSOCIATES, LP.


     Appeal from a judgment (denominated order and judgment) of
Supreme Court, Monroe County (Lunn, J.), entered July 8, 2002, which
dismissed the CPLR article 78 petition.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.

     Memorandum: The petitioner in both proceedings underlying these
appeals is the owner of two residential properties located near a 300-
unit housing complex owned by Gleason Estates Associates, LP
(Gleason), a respondent in both appeals. Thirty-two units in the
complex have been leased to St. John Fisher College (Fisher), a
respondent in appeal No. 2, for student housing. Petitioner commenced
separate CPLR article 78 proceedings seeking to annul two separate
determinations of the Town of Pittsford Zoning Board of Appeals (ZBA),
a respondent in both appeals. The first determination granted
Gleason's application for an area variance, thus permitting Gleason to
exceed the otherwise allowable impervious surface ratio on its
property by construction of 115 new parking spaces. The second
determination denied petitioner's appeal of a ruling by the Town of
Pittsford's code enforcement officer that the leasing of 32 units in
the complex to Fisher for occupancy by college students did not
constitute an impermissible change in the use of the property from
"apartment" to "college" or "dormitory."
                                 -196-                         735
                                                         CA 03-00086

     Initially, we reject Supreme Court's conclusion that petitioner
lacked standing to bring these proceedings (see Matter of Michalak v
Zoning Bd. of Appeals of Town of Pomfret, 286 AD2d 906, 906-907;
Matter of McGrath v Town Bd. of Town of N. Greenbush, 254 AD2d 614,
616). With regard to appeal No. 1, we conclude that the ZBA's
issuance of a negative declaration of environmental significance
underlying the granting of the area variance was not in violation of
lawful procedure, affected by an error of law, arbitrary and
capricious, or an abuse of discretion (see Matter of Gernatt Asphalt
Prods. v Town of Sardinia, 87 NY2d 668, 688; Akpan v Koch, 75 NY2d
561, 570). The ZBA "identified the relevant areas of environmental
concern, took a 'hard look' at them, and made a 'reasoned elaboration'
of the basis for its determination" (Gernatt Asphalt Prods., 87 NY2d
at 688, quoting Matter of Jackson v New York State Urban Dev. Corp.,
67 NY2d 400, 417; cf. Matter of Kahn v Pasnick, 90 NY2d 569, 574).

     We similarly reject petitioner's challenge to the granting of the
area variance. In considering an application for an area variance, a
zoning board must weigh the benefit to the applicant of granting the
variance against any detriment to the health, safety and welfare of
the neighborhood or community affected thereby, taking into account
the five factors listed in Town Law § 267-b (3) (b) (see Matter of
Ifrah v Utschig, 98 NY2d 304, 307-308; Matter of Sasso v Osgood, 86
NY2d 374, 382; Matter of Homeyer v Town of Skaneateles Zoning Bd. of
Appeals, 302 AD2d 941). A zoning board has "broad discretion" in
determining whether to grant the requested variance (Ifrah, 98 NY2d at
308), and judicial review is limited to whether the determination was
illegal, arbitrary or an abuse of discretion (see id., citing Matter
of Fuhst v Foley, 45 NY2d 441, 444; see also Sasso, 86 NY2d at 386).
A reviewing court may not substitute its judgment for that of the
zoning board (see Homeyer, 302 AD2d at 942). We conclude that the ZBA
made its determination after considering the appropriate factors and
properly weighing the benefit to Gleason against the detriment to the
health, safety and welfare of the neighborhood or community if the
variance were granted (see Town Law § 267-b [3] [b]; Homeyer, 302 AD2d
at 942). We further conclude that the determination of the ZBA has a
rational basis, is supported by substantial evidence in the record,
and is not illegal (see Ifrah, 98 NY2d at 308-309; Matter of Orchard
Michael, Inc. v Falcon, 65 NY2d 1007, 1009; Homeyer, 302 AD2d at 942).

     With regard to appeal No. 2, we conclude that the ZBA's
determination that there was no illegal change in the use of the
property as a result of the influx of college students was not
arbitrary and capricious or unlawful. Nor is the ZBA's interpretation
of the term "family" in the zoning ordinance to include small groups
of students living together "arbitrary, unreasonable, irrational, or
made in bad faith" (Matter of Olivieri v Planning Bd. of Town of
Greenburgh, 229 AD2d 584; see Matter of Laporte v City of New
Rochelle, 2 AD2d 710, 710-711, affd 2 NY2d 921; see also Matter of
Gabriel v New Rochelle Bd. of Appeals on Zoning, 139 AD2d 740, 741;
Keim v City of Syracuse, 125 Misc 2d 616, 618; see generally Matter of
Oates v Village of Watkins Glen, 290 AD2d 758, 762-763).

     In view of our determination, it is unnecessary to address
                                 -197-                  735
                                                  CA 03-00086

petitioner's remaining contentions.




Entered: June 13, 2003                   JOANN M. WAHL
                                         Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

736
CA 03-00085
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


MATTER OF REVEIRA WILCOVE, PETITIONER-APPELLANT,

                    V                                MEMORANDUM AND ORDER

TOWN OF PITTSFORD ZONING BOARD OF APPEALS, GLEASON
ESTATES ASSOCIATES, LP, AND ST. JOHN FISHER COLLEGE,
RESPONDENTS-RESPONDENTS.
(APPEAL NO. 2.)


BANSBACH, ZOGHLIN & WAHL, P.C., ROCHESTER (MINDY L. ZOGHLIN OF
COUNSEL), FOR PETITIONER-APPELLANT.

JEFFREY L. TURNER, TOWN ATTORNEY, PITTSFORD (RICHARD T. WILLIAMS, II,
OF COUNSEL), FOR RESPONDENT-RESPONDENT TOWN OF PITTSFORD ZONING BOARD
OF APPEALS.

KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR RESPONDENT-
RESPONDENT GLEASON ESTATES ASSOCIATES, LP.

NIXON PEABODY LLP, ROCHESTER (THOMAS C. GREINER, JR., OF COUNSEL), FOR
RESPONDENT-RESPONDENT ST. JOHN FISHER COLLEGE.


     Appeal from a judgment (denominated order and judgment) of
Supreme Court, Monroe County (Lunn, J.), entered July 8, 2002, which
dismissed the CPLR article 78 petition.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.

     Same Memorandum as in Matter of Wilcove v Town of Pittsford
Zoning Bd. of Appeals ([appeal No. 1] ___ AD2d ___ [June 13, 2003]).




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

737
CA 03-00218
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


MATTER OF KENNETH STEEN, PETITIONER-APPELLANT,

                    V                                               ORDER

JAMES OLVERD, SUPERVISOR OF TOWN OF MT. MORRIS,
KENNETH TROGLAUER, HIGHWAY SUPERINTENDENT OF TOWN
OF MT. MORRIS, AND TOWN BOARD OF TOWN OF MT. MORRIS,
RESPONDENTS-RESPONDENTS.


LACY, KATZEN, RYEN & MITTLEMAN, LLP, ROCHESTER (LARA R. BADAIN OF
COUNSEL), FOR PETITIONER-APPELLANT.

UNDERBERG & KESSLER LLP, ROCHESTER (SHARON P. STILLER OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS.


     Appeal from a judgment (denominated order) of Supreme Court,
Livingston County (Alonzo, J.), entered September 9, 2002, which
dismissed the CPLR article 78 petition.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs for reasons
stated in decision at Supreme Court, Livingston County, Alonzo, J.




Entered: June 13, 2003                           JOANN M. WAHL
                                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

738
CA 02-02611
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.


TRANSCONTINENTAL INSURANCE COMPANY, PLAINTIFF-
APPELLANT,

                    V                                               ORDER

THE NEW YORK STATE ROOFING AND CONTRACTORS
COMPENSATION TRUST, THOMAS DEMLEIN, AS TRUSTEE,
PETER GRIFFITHS, AS TRUSTEE, THOMAS E. HAMILTON, AS
TRUSTEE, STUART KATZ, AS TRUSTEE, MICHAEL PETERSON,
AS TRUSTEE, JOHN PLOTKE, AS TRUSTEE, AND LOUIS SILVER,
AS TRUSTEE, DEFENDANTS-RESPONDENTS.


SUGARMAN LAW FIRM, LLP, SYRACUSE (MATTHEW D. GUMAER OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (DONALD S. DI BENEDETTO OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from a judgment (denominated order and judgment) of
Supreme Court, Onondaga County (Centra, J.), entered August 7, 2002,
which, inter alia, granted defendants' motion for summary judgment.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs for reasons
stated in decision at Supreme Court, Onondaga County, Centra, J.




Entered: June 13, 2003                           JOANN M. WAHL
                                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

739
CA 02-02689
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


MATTER OF EAA CHAPTER 486, INC., PETITIONER-
RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ASSESSOR OF TOWN OF VOLNEY AND TOWN OF VOLNEY,
RESPONDENTS-APPELLANTS.


MELVIN & MELVIN, PLLC, SYRACUSE (RONALD S. CARR OF COUNSEL), FOR
RESPONDENTS-APPELLANTS.

COULTER, VENTRE & MC CARTHY, LLC, SYRACUSE (ROBERT F. COULTER OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of Supreme Court, Oswego County (Elliott,
J.), entered September 5, 2002, which, inter alia, determined that
petitioner is entitled to an exemption from real property taxes
pursuant to RPTL 420-a (1) (a).

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Petitioner commenced this proceeding to challenge
respondents' assessments of its airplane hangar, located in respondent
Town of Volney, for the tax years 1999-2000 through 2002-2003.
Supreme Court properly determined that petitioner is entitled to an
exemption from real property taxes pursuant to RPTL 420-a (1) (a).
Petitioner met its burden of demonstrating its entitlement to that
exemption by establishing that it is organized and conducted
exclusively for educational purposes and that the property is used
exclusively for those purposes (see 420-a [1] [a]; Matter of Symphony
Space v Tishelman, 60 NY2d 33, 36-39; see generally Matter of New York
Botanical Garden v Assessors of Town of Washington, 55 NY2d 328, 334).




Entered: June 13, 2003                           JOANN M. WAHL
                                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

740
CA 02-02855
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


DOMINIC R. DI CHIARA, AN INFANT, BY HIS PARENTS
AND NATURAL GUARDIANS, RALPH DI CHIARA AND
SHERRI A. DI CHIARA, AND RALPH DI CHIARA AND
SHERRI A. DI CHIARA, INDIVIDUALLY, PLAINTIFFS-
APPELLANTS,

                    V                              MEMORANDUM AND ORDER

KALEIDA HEALTH, ELLEN B. STERMAN, M.D., LORIANN
FRAAS, M.D., AUDOBON WOMEN'S MEDICAL ASSOCIATES,
P.C., KIM MECCA, C.N.M., DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANT.


CELLINO & BARNES, P.C., BUFFALO (GERALD W. SCHAFFER, JR., OF COUNSEL),
AND LAWRENCE A. SCHULZ, ORCHARD PARK, FOR PLAINTIFFS-APPELLANTS.

DAMON & MOREY LLP, BUFFALO (AMY ARCHER FLAHERTY OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS KALEIDA HEALTH AND KIM MECCA, C.N.M.


     Appeal from an order of Supreme Court, Erie County (Mintz, J.),
entered March 27, 2002, which denied the motion of plaintiffs to
compel nonparty employees of defendant Kaleida Health to submit to
further depositions and answer questions regarding statements made at
a quality assurance review meeting.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed with costs.

     Memorandum: The order denying plaintiffs’ motion to compel
nonparty employees of defendant Kaleida Health (Kaleida) to submit to
further depositions and answer questions regarding statements made at
Kaleida’s quality assurance review meeting is not appealable as of
right (see King v Salvation Army, 240 AD2d 473; Andersen v Cornell
Univ., 225 AD2d 946). In the exercise of our discretion, we treat the
notice of appeal as an application for permission to appeal and grant
such permission (see CPLR 5701 [c]; Roggow v Walker, ___ AD2d ___
[Mar. 21, 2003]). Supreme Court properly denied plaintiffs’ motion.
Statements made by nonparty Kaleida employees at Kaleida’s quality
assurance review meeting are protected from disclosure pursuant to
Education Law § 6527 (3) (see Lakshmanan v North Shore Univ. Hosp.,
202 AD2d 398, 399; Lenard v New York Univ. Med. Ctr., 83 AD2d 860,
                         -203-                  740
                                          CA 02-02855

860-861).




Entered: June 13, 2003           JOANN M. WAHL
                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

741
CA 02-02267
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


DE VERE BLISS, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

VILLAGE OF ARCADE, DEFENDANT-RESPONDENT.


MICHAEL O. MORSE, BUFFALO, FOR PLAINTIFF-APPELLANT.

SMITH, MURPHY & SCHOEPPERLE, LLP, BUFFALO (STEPHEN P. BROOKS OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of Supreme Court, Wyoming County (O'Donnell,
J.) entered June 13, 2002, which granted defendant's motion to dismiss
claims for punitive damages and for compensatory damages arising more
than 90 days before service of the notice of claim, and denied
plaintiff's cross motion for leave to serve a late amended notice of
claim and a second amended complaint.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Plaintiff, a dairy farmer who purchases electricity
from defendant, commenced this action alleging that his dairy herd has
been damaged by stray electricity negligently disseminated by
defendant. He appeals from an order granting defendant's motion to
dismiss claims for punitive damages and for compensatory damages
arising more than 90 days before service of the notice of claim (see
General Municipal Law §§ 50-e, 50-i) and denying plaintiff's cross
motion for leave to serve a late amended notice of claim and a second
amended complaint.

     We reject plaintiff's contention that, because the sale of
electricity is a proprietary function, defendant is subject to
punitive damages and may be sued without serving a notice of claim.
Even when the alleged negligence arises from the performance of a
proprietary function, "the goals of punishment and deterrence are not
served when punitive damages are imposed against [a municipality], for
in such circumstances, it ultimately is [still] the innocent taxpayer
who is punished" (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d
382, 386; see Sharapata v Town of Islip, 56 NY2d 332, 338).
Furthermore, a timely notice of claim is a condition precedent to any
"action or special proceeding *** against a *** village *** for
personal injury, wrongful death or damage to real or personal property
alleged to have been sustained by reason of the negligence or wrongful
                                 -205-                         741
                                                         CA 02-02267

act of such *** village" (General Municipal Law § 50-i [1]),
regardless of whether the village is alleged to have acted in a
proprietary capacity.

     We also reject plaintiff's contention that defendant is estopped
from asserting a statute of limitations defense. "[T]here is nothing
in the record to indicate that [defendant] in any way prevented
plaintiff from commencing a timely action against [it]" (Filigree
Films, Inc., Pension Plan v CBC Realty Corp., 229 AD2d 862, 863).

     Finally, while not dispositive of the issues raised herein, we
note our disagreement with Supreme Court's conclusion that, because
defendant was not making a profit, it was not performing a proprietary
function when it sold electricity. The determination whether a
municipality was acting in a proprietary capacity does not turn on
whether the municipality profited from its actions. Purely
governmental functions are "undertaken for the protection and safety
of the public pursuant to the general police powers" (Balsam v Delma
Eng'g Corp., 90 NY2d 966, 968). "On the opposite periphery lie
proprietary functions in which governmental activities essentially
substitute for or supplement 'traditionally private enterprises'"
(Sebastian v State of New York, 93 NY2d 790, 793, quoting Riss v City
of New York, 22 NY2d 579, 581). "To pinpoint a spot along the
continuum where a complained-of act should be categorized to decide a
case and to maintain principled consistency, courts must examine '"the
specific act or omission out of which the injury is claimed to have
arisen and the capacity in which that act or failure to act
occurred"'" (Sebastian, 93 NY2d at 794, quoting Miller v State of New
York, 62 NY2d 506, 513). Plaintiff claims that he suffered damages
arising from the negligent maintenance or repair of defendant's power
lines. That activity was not undertaken for the protection or safety
of the public and therefore must be considered proprietary (see
Johnson City Cent. School Dist. v Fidelity & Deposit Co. of Maryland,
272 AD2d 818, 821).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

742
CA 03-00206
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


MATTER OF ARBITRATION BETWEEN LIBERTY MUTUAL INSURANCE
COMPANY, PETITIONER-APPELLANT,

                         AND                        OPINION AND ORDER

HANOVER INSURANCE COMPANY, RESPONDENT-RESPONDENT.


LAW OFFICES OF LAWRENCE M. RUBIN, BUFFALO (DESTIN SANTACROSE OF
COUNSEL), FOR PETITIONER-APPELLANT.

D'AMBROSIO & D'AMBROSIO, P.C., IRVINGTON (JOHN P. D'AMBROSIO OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from an order of Supreme Court, Erie County (Marshall,
J.), entered November 6, 2002, which denied the petition seeking a
permanent stay of arbitration.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Opinion by BURNS, J.: The primary issue before us on this appeal
concerns the date on which the statute of limitations on a loss-
transfer claim between insurance carriers begins to run. According to
petitioner, a loss-transfer claim is governed by CPLR 214 (5), and the
statute of limitations begins to run from the date of the underlying
accident or, alternatively, from the date of the first payment of no-
fault benefits to the injured party. According to respondent, a loss-
transfer claim is governed by CPLR 214 (2), and such a claim is timely
with respect to any payment of no-fault benefits for which
reimbursement is sought provided that the payment was made within
three years of the demand for arbitration of the loss-transfer claim.
We agree with respondent that a loss-transfer claim is statutorily
created and that this case therefore is governed by CPLR 214 (2),
which provides for a three-year statute of limitations for actions to
recover upon liability created or imposed by statute. We further
agree with respondent that its loss-transfer claim is timely because
it seeks reimbursement for payments made within three years of its
demand for arbitration of the loss-transfer claim. Thus, we conclude
that the order denying the petition for a permanent stay of
arbitration should be affirmed.

     The underlying facts are simply stated. In November 1994, a
United Parcel Service (UPS) vehicle insured by petitioner struck the
rear of a vehicle owned by John and Linda Stanek and insured by
                                 -207-                         742
                                                         CA 03-00206

respondent. Linda Stanek was injured in the accident and received no-
fault benefits from respondent until February 1996. Respondent sought
reimbursement for those benefits from petitioner pursuant to the loss-
transfer provisions of the No-Fault Law (Insurance Law art 51), based
on the fact that the UPS vehicle weighed more than 6,500 pounds (see §
5105 [a]). Petitioner voluntarily reimbursed respondent for those no-
fault benefits, and thus arbitration was unnecessary at that time. It
was not until the year 2001 that Linda Stanek sought arbitration of
the issue of respondent's refusal to continue payment of no-fault
benefits. On June 20, 2001, an arbitration decision in favor of Linda
Stanek awarding her additional benefits from respondent was mailed.
Respondent paid the full amount of that award on July 17, 2001 and
sought reimbursement from petitioner for that amount in December 2001.
Upon petitioner's refusal to reimburse respondent for the July 17,
2001 payment to Linda Stanek, respondent filed a demand for
arbitration pursuant to the loss-transfer provisions of the No-Fault
Law that permit one insurer to recover from another where one of the
vehicles involved in an accident weighs over 6,500 pounds "unloaded"
(id.). Petitioner then commenced this proceeding seeking a permanent
stay of arbitration.

     We address first the applicability of CPLR 214 (2). As the Court
of Appeals noted in Matter of Motor Veh. Acc. Indem. Corp. v Aetna
Cas. & Sur. Co. (89 NY2d 214, 220-221), there is a distinction between
"claims which, although provided for in a statute, merely codify or
implement an existing common-law liability, which are not governed by
CPLR 214 (2) but by the Statute of Limitations applicable to their
common-law sources[,] *** [and] claims which, although akin to common-
law causes, would not exist but for the statute ***, in which case
CPLR 214 (2) applies." As the Court wrote in Aetna Life & Cas. Co. v
Nelson (67 NY2d 169, 175), "the No-Fault Law does not codify common-
law principles; it creates new and independent statutory rights and
obligations in order to provide a more efficient means for adjusting
financial responsibilities arising out of automobile accidents ***."
Thus, contrary to petitioner's contention, we conclude that a loss-
transfer claim between insurance carriers is statutorily created under
the no-fault statutory and regulatory scheme and thus is governed by
CPLR 214 (2) (see generally Motor Veh. Acc. Indem. Corp., 89 NY2d at
220-221).

     Turning to the issue of accrual, we conclude that a loss-transfer
claim by an insurance carrier generally accrues on the date of payment
of no-fault benefits to the claimant, because by then "'all of the
facts necessary to the cause of action have occurred so that the party
would be entitled to obtain relief in court'" (id. at 221, quoting
Aetna Life & Cas. Co., 67 NY2d at 175). We disavow our prior
statement in Matter of Allstate Ins. Co. (Clarendon Natl. Ins. Co.)
(259 AD2d 971, 972) that "loss-transfer arbitration claims between
private insurers accrue on the date of the underlying injury ***."

     In addition, we conclude that, where several payments are made to
the claimant over a period of time, the timeliness of loss-transfer
claims for such payments is individually measured from the date of
each payment to the date of the demand for arbitration of the loss-
                                 -208-                         742
                                                         CA 03-00206

transfer claim. In other words, a loss-transfer claim is timely if
the demand for arbitration of such claim is made within three years of
the payment for which reimbursement is sought. Thus, all claims for
payments made "'more than three years before the date of the demand'"
are time-barred, while those made within three years of the demand are
timely asserted (Matter of Budget Rent-A-Car [State Ins. Fund], 237
AD2d 153, 153, quoting Motor Veh. Acc. Indem. Corp., 89 NY2d at 222;
see Matter of Progressive Ins. Co. v Motor Veh. Acc. Indem. Corp., 248
AD2d 390; see also Matter of State Ins. Fund [Country-Wide Ins. Co.],
276 AD2d 432).

     Here, respondent's payment to Linda Stanek as a result of the
arbitration sought by her was made on July 17, 2001, and respondent
filed its demand for arbitration on August 2, 2002, well within the
three-year period. Respondent's loss-transfer claim therefore is not
time-barred.

     Accordingly, we conclude that the order should be affirmed.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

743
CA 02-02427
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


MARY MICELI, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
DEFENDANT-APPELLANT.


HAGELIN & BISCHOF, LLC, BUFFALO, RIVKIN RADLER LLP, UNIONDALE (STUART
M. BODOFF OF COUNSEL), FOR DEFENDANT-APPELLANT.

BARTH, SULLIVAN & BEHR, LLP, BUFFALO (LAURENCE D. BEHR OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment (denominated order and judgment) of
Supreme Court, Erie County (Sedita, Jr., J.), entered July 8, 2002,
which granted plaintiff's motion for summary judgment.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking a
declaration that defendant, State Farm Mutual Automobile Insurance
Company (State Farm), is obligated to defend and indemnify its
insured, Paul Bresciani, in an underlying personal injury action.
Plaintiff was injured when a vehicle driven by Bresciani, allegedly
without the owner's permission, collided with the vehicle in which
plaintiff was a passenger. At the time of the accident, Bresciani was
engaged in a high speed chase by police. State Farm admits that it
did not notify plaintiff of its disclaimer of coverage in accordance
with Insurance Law § 3420 (d), but contends that such notice was not
required because the accident falls outside the scope of its policy,
not within an exclusion from coverage. We disagree.

     Supreme Court properly granted plaintiff's motion for summary
judgment. "Disclaimer pursuant to section 3420 (d) is unnecessary
when a claim falls outside the scope of the policy's coverage portion"
because, "[u]nder those circumstances, the insurance policy does not
contemplate coverage in the first instance, and requiring payment of a
claim upon failure to timely disclaim would create coverage where it
never existed" (Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d
185, 188). By contrast, disclaimer is required "when denial of
coverage is based on a policy exclusion without which the claim would
be covered" and thus "[f]ailure to comply with section 3420 (d)
precludes denial of coverage based on a policy exclusion" (id. at
                                 -210-                         743
                                                         CA 02-02427

189). The specific denomination of a policy provision as an exclusion
is not necessarily dispositive of whether that provision is indeed an
exclusion (see Planet Ins. Co. v Bright Bay Classic Vehs., 75 NY2d
394, 400; Greater N.Y. Mut. Ins. Co. v Clark, 205 AD2d 857, 858, lv
denied 84 NY2d 807).

     Here, the subject policy provides that "[t]he liability coverage
extends to the use, by an insured, of a newly acquired car, a
temporary substitute car or a non-owned car." Although the policy
also provides that "THERE IS NO COVERAGE FOR NON-OWNED CARS," that
provision is qualified by the two provisions that follow, i.e., "1.
IF THE DECLARATIONS STATE THE 'USE' OF YOUR CAR IS OTHER THAN
'PLEASURE AND BUSINESS'; OR 2. WHILE: a. BEING REPAIRED, SERVICED
OR USED BY ANY PERSON WHILE THAT PERSON IS WORKING IN ANY CAR
BUSINESS; OR b. USED IN ANY OTHER BUSINESS OR OCCUPATION. This does
not apply to a private passenger car driven or occupied by the first
person named in the declarations, his or her spouse or their
relatives." We agree with plaintiff that those provisions do not
merely define the scope of coverage, but rather are in the nature of
exclusions. Thus, State Farm was required to give notice of
disclaimer pursuant to Insurance Law § 3420 (d) in order to disclaim
on the basis that the vehicle driven by Bresciani was not a covered
vehicle. Likewise, State Farm's assertion that there is no coverage
because the use of the vehicle by Bresciani was non-permissive is also
based on a policy exclusion (see Greater N.Y. Mut. Ins. Co., 205 AD2d
at 858). We have reviewed State Farm's remaining contentions and
conclude that they are without merit.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

744
CA 02-02831
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


GREGORY B. OLMA, PLAINTIFF-APPELLANT,

                    V                              MEMORANDUM AND ORDER

DAVID DALE AND LAURENCE ADAMCZYK AND RALPH MOHR, AS
COMMISSIONERS OF ELECTIONS AND CONSTITUTING ERIE COUNTY
BOARD OF ELECTIONS, DEFENDANTS-RESPONDENTS.


MICHAEL KUZMA, BUFFALO, FOR PLAINTIFF-APPELLANT.

FREDERICK A. WOLF, COUNTY ATTORNEY, BUFFALO (ANDREW B. ISENBERG OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS LAURENCE ADAMCZYK AND RALPH MOHR,
AS COMMISSIONERS OF ELECTIONS AND CONSTITUTING ERIE COUNTY BOARD OF
ELECTIONS.

PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER LLP, BUFFALO (JOHN M.
CURRAN OF COUNSEL), FOR DEFENDANT-RESPONDENT DAVID DALE.


     Appeal from an order and judgment (one document) of Supreme
Court, Erie County (Sconiers, J.), entered March 4, 2002, which, inter
alia, granted the cross motion of defendant David Dale in part and
dismissed the action as untimely.

     It is hereby ORDERED that the order and judgment so appealed from
be and the same hereby is unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this declaratory judgment action
in an attempt to prohibit defendant Commissioners of Elections and
named officials of the Erie County Board of Elections from placing
defendant David Dale's name on the ballot as the Democratic,
Independence and Green Party candidate for the Erie County
Legislature, Fifth Legislative District, in the November 2001 general
election. The action was commenced on October 30, 2001, approximately
five weeks after the primary election in which Dale was nominated by
those Parties as their candidate. Dale cross-moved, inter alia, to
dismiss the action as untimely, and Supreme Court, inter alia, granted
the cross motion in part, determining that the action was subject to
the 14-day statute of limitations provided by Election Law § 16-102
(2) and § 16-104 (3). Plaintiff now contends that the court erred in
failing to declare the rights of the parties when it rendered its
decision. We disagree.

     "In order to determine *** whether there is *** a limitation
prescribed by law for a particular declaratory judgment action it is
                                 -212-                         744
                                                         CA 02-02831

necessary to examine the substance of that action to identify the
relationship out of which the claim arises and the relief sought"
(Solnick v Whalen, 49 NY2d 224, 229). Irrespective of how plaintiff
frames his claim, his attempt to have Dale's name removed from the
ballot constitutes a contest to the designation or nomination of a
candidate for public office pursuant to Election Law § 16-102 and a
challenge to ballot content pursuant to Election Law § 16-104 (see
Matter of Scaringe v Ackerman, 119 AD2d 327, 328-329, affd 68 NY2d
885). Election Law § 16-102 (2) and § 16-104 (3) provide strict
deadlines for any legal proceeding that challenges designating
petitions or ballot content. Plaintiff cannot avoid the time
limitations of those statutes by initiating this declaratory judgment
action that has no statutory basis (see Scaringe, 119 AD2d at 329; see
generally Solnick, 49 NY2d at 229-230).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

745
CA 02-02752
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


PENNSYLVANIA GENERAL INSURANCE COMPANY, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

AETNA CASUALTY & SURETY COMPANY, DEFENDANT-APPELLANT.


LUSTIG & BROWN, LLP, BUFFALO (RANDOLPH E. SARNACKI OF COUNSEL), FOR
DEFENDANT-APPELLANT.

GIBSON, MC ASKILL & CROSBY, LLP, BUFFALO (PAULETTE E. ROSS OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment (denominated order) of Supreme Court, Erie
County (Makowski, J.), entered August 5, 2002, which, inter alia,
granted plaintiff's cross motion for summary judgment.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously modified on the law by denying the
cross motion in part and granting judgment as follows:

          IT IS ADJUDGED AND DECLARED that, after primary
     coverage under each party's policy is exhausted, the balance
     is to be paid out of the excess coverage on an equal basis

and as modified the judgment is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking judgment
declaring that defendant, as coinsurer, is obligated to reimburse
plaintiff for defendant's share of the defense and indemnification
costs incurred by plaintiff on behalf of Bell Contractors, Inc.
(Bell), in the underlying personal injury action. Supreme Court
denied the motion of defendant for summary judgment, declaring that it
was not obligated to reimburse plaintiff, and granted plaintiff's
cross motion for summary judgment for the relief demanded in the
complaint. We conclude that the court properly determined that the
parties are coinsurers because "they provided coverage to the same
insured for the same interest and against the same risk" (B.K. Gen.
Contrs. v Michigan Mut. Ins. Co., 204 AD2d 584, 584). The court
erred, however, in determining that, after primary coverage under each
party's policy is exhausted, the balance should be paid out of the
excess coverage on a pro rata basis. Under the "other insurance"
provisions of each policy, the parties are obligated to share equally
in the defense and indemnification of Bell (see Merchants & Bus. Men's
Mut. Ins. v Savemart, Inc., 213 AD2d 607, 610; see also J.P. Realty
                                -214-                         745
                                                        CA 02-02752

Trust v Public Serv. Mut. Ins. Co., 102 AD2d 68, 72-73, affd 64 NY2d
945). We therefore modify the judgment by denying the cross motion in
part and granting judgment declaring that, after primary coverage
under each party's policy is exhausted, the balance is to be paid out
of the excess coverage on an equal basis.




Entered: June 13, 2003                         JOANN M. WAHL
                                               Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

746
CA 02-02625
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


RICHARD TOMASZEWSKI AND TRACY TOMASZEWSKI, INDIVIDUALLY AND
AS NATURAL GUARDIANS OF RACHEL TOMASZEWSKI, AN INFANT,
PLAINTIFFS-RESPONDENTS,

                    V                                MEMORANDUM AND ORDER

CHARLES SEEWALDT, VELMA SEEWALDT, JOANNE SEEWALDT,
DEFENDANTS-APPELLANTS,
ET AL., DEFENDANT.


BURKE, ALBRIGHT, HARTER & REDDY, LLP, ROCHESTER (MICHAEL A. REDDY OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

CHRISTOPHER A. SPENCE, P.C., BUFFALO (CHRISTOPHER A. SPENCE OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from that part of an order of Supreme Court, Erie County
(Cosgrove, J.), entered September 4, 2002, that denied in part
defendants' motion for summary judgment.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Supreme Court did not err in denying that part of
defendants' motion seeking summary judgment dismissing the complaint
against Charles Seewaldt, Velma Seewaldt and Joanne Seewaldt
(defendants). Plaintiffs commenced this action individually and on
behalf of their eight-year-old daughter to recover damages for
injuries sustained by their daughter when a dog owned by defendants
bit her upper lip. Defendants met their initial burden by
establishing that "they did not have actual or constructive notice of
their dog's vicious propensities" (Rogers v Travis, 229 AD2d 879, 879;
see Beck v Morse, 271 AD2d 916, 916-917). In response, however,
plaintiffs submitted evidence raising an issue of fact whether
defendants intentionally destroyed relevant evidence by having the dog
killed before it could be examined. The court therefore properly
denied the motion with respect to defendants inasmuch as it is well
settled that, "[i]f a party by his own tortious act withhold[s] the
evidence by which the nature of the case would be made manifest, a
presumption to his disadvantage may be indulged by the jury" (Bleecker
v Johnston, 69 NY 309, 311; see Armour v Gaffey, 30 App Div 121, affd
165 NY 630; see also Fisch, New York Evidence § 1127, at 639 [2d ed];
Prince, Richardson on Evidence, § 3-141, at 94 [Farrell 11th ed]; 1A
                         -216-                  746
                                          CA 02-02625

NY PJI3d 120 [2003]).




Entered: June 13, 2003           JOANN M. WAHL
                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

747
CA 02-02391
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


EVELYN PRATCHER, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DALENE K. HOADLEY AND ASIA K. CLYBURN,
DEFENDANTS-RESPONDENTS.


ALTREUTER HABERMEHL, BUFFALO (WILLIAM C. ALTREUTER OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

RUPP, BAASE, PFALZGRAF & CUNNINGHAM LLC, BUFFALO (JENNIFER A.
GILLILAND OF COUNSEL), AND LAW OFFICE OF MARY A. BJORK, FOR
DEFENDANT-RESPONDENT DALENE K. HOADLEY.

LAW OFFICE OF ROY A. MURA, BUFFALO (JENNIFER J. SNYDER OF COUNSEL),
FOR DEFENDANT-RESPONDENT ASIA K. CLYBURN.


     Appeal from an order of Supreme Court, Erie County (Mintz, J.),
entered April 19, 2002, which failed to grant plaintiff's motion for
leave to renew and vacatur of a prior order.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously reversed on the law without costs, the
motion is granted in part and the matter is remitted to Supreme Court,
Erie County, for further proceedings in accordance with the following
Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained in a motor vehicle accident.
Defendant Asia K. Clyburn thereafter moved and defendant Dalene K.
Hoadley cross-moved for summary judgment dismissing the complaint on
the ground that plaintiff did not sustain a serious injury within the
meaning of Insurance Law § 5102 (d). Supreme Court granted the motion
and cross motion, and plaintiff moved for leave to renew and vacatur
of the prior order, contending, inter alia, that defendants withheld
the reports of a chiropractor and a physician who conducted physical
examinations of plaintiff. According to plaintiff, the chiropractor
and physician were defendants' agents, and defendants failed to
provide those reports until the day after oral argument of their
motion and cross motion. The court erred in failing to grant that
part of the motion seeking leave to renew and thus erred in refusing
to consider the reports. "On a motion to renew, the moving party must
articulate the specific reasons why the new evidence it seeks to
introduce was not previously presented and could not have been
discovered at the time of the original motion" (Binghamton Plaza v
Fashion Bug #2470 of Binghamton, 252 AD2d 870, 870; see Shouse v
                                 -218-                         747
                                                         CA 02-02391

Lyons, 265 AD2d 901, 902). Here, although plaintiff and her attorney
were aware of the existence of those reports at the time of the
original motion, they could not have known the contents of the reports
until they were provided by defendants' counsel. We therefore
conclude that plaintiff met her burden of establishing her entitlement
to renewal. Thus, we grant that part of plaintiff's motion seeking
leave to renew, and we remit the matter to Supreme Court, Erie County,
to determine whether to vacate its prior order in light of the new
evidence submitted by plaintiff upon renewal (see Rotondi v Horning,
168 AD2d 944).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

748
CA 02-02768
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


BRENDA L. SMITH, PLAINTIFF-RESPONDENT-APPELLANT,

                    V                                MEMORANDUM AND ORDER

FRANK T. SMITH, DEFENDANT-APPELLANT-RESPONDENT.


MORIARTY & DEE, BUFFALO (ROBERT B. MORIARTY OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.

DAVID J. SEEGER, BUFFALO, FOR PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from a judgment of divorce of Supreme
Court, Erie County (Sedita, J.H.O.), entered February 14, 2002.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously modified on the law in accordance with
the Memorandum herein and as modified the judgment is affirmed without
costs, and the matter is remitted to Supreme Court, Erie County, for
further proceedings in accordance with the following Memorandum: We
reject defendant's contention that Supreme Court erred in awarding
plaintiff maintenance for a period of eight years, commencing from the
date of the judgment. "As a general rule, the amount and duration of
maintenance are matters committed to the sound discretion of the trial
court" (Boughton v Boughton, 239 AD2d 935, 935; see also Shew v Shew,
193 AD2d 1142, 1143), and we perceive no abuse of discretion in this
case. We agree with defendant, however, that the court erred in
failing to determine the amount of child support arrears, if any, that
he owes to plaintiff for the entire period, up to and including the
date of judgment. We therefore modify the judgment accordingly, and
we remit the matter to Supreme Court, Erie County, to determine the
amount of child support arrears, if any, owed by him subsequent to
July 13, 2000 (see Fogarty v Fogarty, 284 AD2d 300, 301).




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

749
CAF 02-00411
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


MATTER OF SHAWN E. HILL, PETITIONER-RESPONDENT-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

CARLA LA PAGLIA, RESPONDENT-PETITIONER-APPELLANT.


KATHLEEN E. CASEY, MIDDLEPORT, FOR RESPONDENT-PETITIONER-APPELLANT.

BEVERLY D. UNGERER, LAKEWOOD, FOR PETITIONER-RESPONDENT-RESPONDENT.

RICHARD L. SOTIR, JR., LAW GUARDIAN, JAMESTOWN, FOR ADAM H. AND TAYLOR
H.


     Appeal from an order of Family Court, Chautauqua County (Claire,
J.), entered September 24, 2001, which, inter alia, granted the
petition filed by the father and awarded sole custody of the parties'
children to him.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: The parties were awarded joint custody of their
minor children with shared physical residence pursuant to a custody
order entered upon their consent in September 2000. Subsequently, the
parties filed separate petitions seeking an award of sole custody of
the children. Family Court did not err in granting the petition filed
by the father. The court properly determined that the parties are
unable to act together for the benefit of their children (see Matter
of Quarantillo v Grainge, 272 AD2d 994). Furthermore, the court
weighed the appropriate factors and properly determined that the best
interests of the children are served by awarding sole custody to
petitioner (see generally Friederwitzer v Friederwitzer, 55 NY2d 89,
95).

     Contrary to the further contention of respondent, the court did
not abuse its discretion in denying her request that the court conduct
an in-camera interview with one of the children (see Matter of McGrath
v Collins, 202 AD2d 719, 720-721). The Law Guardian opposed the
request, and the record establishes that the court carefully
considered the request before denying it.


Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

750
CAF 02-00176
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


MATTER OF DANIEL M. KLESTINEC, PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

KELLY RAE SMOLINSKI, RESPONDENT-APPELLANT.


CHRISTINE M. COOK, LYONS, FOR RESPONDENT-APPELLANT.

SCHUYLER T. VAN HORN, GENEVA, FOR PETITIONER-RESPONDENT.

ROBERT L. GOSPER, LAW GUARDIAN, PHELPS, FOR MATTHEW K.


     Appeal from an order of Family Court, Ontario County (Harvey,
J.), entered December 14, 2001, which granted the petition and
modified the existing custody arrangement by awarding sole custody of
the parties' child to petitioner.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Family Court properly granted the petition and
modified the existing custody arrangement by awarding sole custody of
the parties' child to petitioner. "The relationship of the parties
had deteriorated to such an extent that joint custody was no longer
feasible and thus [petitioner] established a 'change in circumstances
[that] reflects a real need for change to ensure the best interest[s]
of the child'" (Matter of Thayer v Ennis, 292 AD2d 824, 825, quoting
Matter of Irwin v Neyland, 213 AD2d 773). Further, the record
supports the court's determination that the child's best interests
will be served by awarding primary placement to petitioner (see Matter
of Schimmel v Schimmel, 262 AD2d 990, 990-991, lv denied 93 NY2d 817).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

751
CAF 02-02045
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


MATTER OF HASSAN J. AND HASNA J.
-----------------------------------------------------
ONONDAGA COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
                                                                    ORDER
ANGELA W., RESPONDENT-APPELLANT,
ET AL., RESPONDENT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ROBERT P. RICKERT OF
COUNSEL), FOR RESPONDENT-APPELLANT.

ANTHONY P. RIVIZZIGNO, COUNTY ATTORNEY, SYRACUSE (MICHAEL J. GAUZZA OF
COUNSEL), FOR PETITIONER-RESPONDENT.

LAWRENCE J. YOUNG, LAW GUARDIAN, SYRACUSE, FOR HASSAN J. AND HASNA J.


     Appeal from an order of Family Court, Onondaga County (Klim, J.),
entered September 4, 2002, which revoked a suspended judgment and
terminated the parental rights of respondent Angela W.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

752
KAH 02-01092
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


PEOPLE OF THE STATE OF NEW YORK EX REL.
PETER GRAZIANO, PETITIONER-APPELLANT,

                    V                                               ORDER

JOSEPH COSTELLO, SUPERINTENDENT, MID-STATE
CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.


DAVID M. GIGLIO, UTICA, FOR PETITIONER-APPELLANT.


     Appeal from a judgment (denominated order) of Supreme Court,
Oneida County (Julian, J.), entered March 25, 2002, which denied the
petition for a writ of habeas corpus.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

753
KA 01-02563
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT JACKSON, DEFENDANT-APPELLANT.


DAVID M. PARKS, ITHACA, FOR DEFENDANT-APPELLANT.

ROBERT JACKSON, DEFENDANT-APPELLANT PRO SE.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (JACQUELINE MC CORMICK OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Wayne County Court (Kehoe, J.), entered
December 19, 2000, convicting defendant after a jury trial of, inter
alia, criminal sale of a controlled substance in the third degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of criminal sale of a controlled substance in the
third degree (Penal Law § 220.39 [1]), criminal possession of a
controlled substance in the third degree (§ 220.16 [1]), and criminal
possession of a controlled substance in the fourth degree (§ 220.09
[1]). We reject defendant’s contention that County Court erred in
admitting the cocaine in evidence because there was a deficiency in
the chain of custody. “Deficiencies in the chain of custody of
property go to the weight rather than the admissibility of that
evidence, as long as the requirements of proof of identity and
unchanged condition are met” (People v Burgos, 291 AD2d 907, 908, lv
denied 97 NY2d 751). The trial testimony of various witnesses
established that the cocaine was taken from the undercover officer by
a second officer, who packaged and tagged it and then heat-sealed the
package and attached identification numbers to it. The package
arrived for testing at the crime lab sealed and unopened in the
package bearing the identification numbers. Although there was no
testimony concerning the precise manner in which the package was
delivered to the crime lab, the forensic chemist who tested the drugs
testified that the package and the cocaine were in an unaltered
condition before she slit open the heat-sealed package. That
testimony provided reasonable assurances of identity and thus
established an adequate foundation for admission of the cocaine in
evidence (see People v Julian, 41 NY2d 340, 343).
                                 -225-                         753
                                                         KA 01-02563

     We also reject the contention of defendant that he was deprived
of his right to be tried by an unbiased jury by the court’s denial of
his request to ask the prospective jurors, “[I]n a proper case, do you
serve our system of justice when you bring back a not guilty
verdict?”. “‘The Judge presiding necessarily has broad discretion to
control and restrict the scope of the voir dire examination’” (People
v Horning, 284 AD2d 916, 917, lv denied 97 NY2d 705). On this record,
defendant has not established that the court abused its discretion in
denying his request (see People v Walston, 277 AD2d 593, 594, lv
denied 96 NY2d 754). Contrary to defendant’s further contention, the
verdict is not against the weight of the evidence. Prosecution
witnesses identified defendant as the seller of drugs in a controlled
undercover purchase facilitated by an informant. The testimony of
defendant that he was in a different city at the time of the purchase
merely created a credibility issue that the jury was entitled to
resolve in favor of the People (see People v Williams, 291 AD2d 897,
898, lv denied 97 NY2d 763; People v Cobian, 185 AD2d 452, lv denied
81 NY2d 838).

     The sentence is not unduly harsh or severe. We have considered
the remaining contentions of defendant, including those contained in
his pro se supplemental brief, and conclude that they are without
merit.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

756
KA 01-00655
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ADAM BENNEFIELD, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (MARCY H. HAGEN OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Supreme Court, Erie County (Rossetti,
J.), entered November 17, 2000, convicting defendant upon his plea of
guilty of attempted kidnapping in the second degree (two counts).

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: The record establishes that defendant voluntarily,
knowingly and intelligently waived his right to appeal (see People v
Hidalgo, 91 NY2d 733, 736; People v DeJesus, 248 AD2d 1023, lv denied
92 NY2d 878). That waiver encompasses defendant’s contention that the
sentences imposed on the convictions in both appeals are unduly harsh
and severe (see People v Lococo, 92 NY2d 825, 827). The further
contention of defendant that the guilty pleas were involuntarily
entered survives his waivers of the right to appeal, but defendant
failed to preserve that contention for our review by moving to
withdraw the pleas or to vacate the judgments of conviction (see
People v Faison, 270 AD2d 717; DeJesus, 248 AD2d 1023). Defendant
contends that Supreme Court erred in denying defense counsel’s request
to obtain expert psychiatric services pursuant to County Law § 722-c
with respect to a possible insanity defense. Even assuming, arguendo,
that defendant’s contention survives the guilty pleas (see generally
People v Di Donato, 87 NY2d 992, 993), we conclude that it lacks merit
(see People v Carpenter, 240 AD2d 863, 864, lv denied 90 NY2d 902).
Finally, although issues relating to defendant’s competency survive
both the waivers of the right to appeal and the guilty pleas
themselves (see People v Callahan, 80 NY2d 273, 280; People v Armlin,
37 NY2d 167, 172), defendant was examined and found to be competent on
two occasions, including two days before the plea proceedings, and
nothing in the record casts doubt upon his fitness to proceed. Thus,
the court did not abuse its discretion in declining to order a further
                                 -227-                         756
                                                         KA 01-00655

competency examination (see People v Morgan, 87 NY2d 878, 879-880).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

757
KA 01-00656
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ADAM BENNEFIELD, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (MARCY H. HAGEN OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Supreme Court, Erie County (Rossetti,
J.), entered November 17, 2000, convicting defendant upon his plea of
guilty of escape in the first degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Same Memorandum as in People v Bennefield ([appeal No. 1] ___
AD2d ___ [June 13, 2003]).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

758
KA 01-02205
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JASON CATO, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


DAVID M. PARKS, ITHACA, FOR DEFENDANT-APPELLANT.

JASON CATO, DEFENDANT-APPELLANT PRO SE.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Ontario County Court (Doran, J.),
entered October 9, 2001, convicting defendant after a jury trial of,
inter alia, criminal sale of a controlled substance in the third
degree (four counts).

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Defendant appeals from a judgment entered upon a
jury verdict convicting him of crimes arising from his sale of cocaine
on four separate occasions. Contrary to the contention of defendant,
County Court properly denied his challenge for cause to prospective
jurors Nos. 6 and 7. The totality of their responses establishes that
both jurors gave unequivocal assurances of impartiality (see People v
Chambers, 97 NY2d 417, 419; People v Parker, ___ AD2d ___ [Feb. 7,
2003]).

     Defendant also contends that the court erred in failing to give a
missing witness charge. Even assuming, arguendo, that the court erred
in failing to give the charge, we conclude that the error is harmless
inasmuch as “[t]he proof of guilt is overwhelming, and there is no
significant probability that defendant would have been acquitted but
for the error” (People v Martinez, 294 AD2d 933, 935, lv denied 98
NY2d 678; see People v Guarino, 298 AD2d 937, 938, lv denied 98 NY2d
768; People v Williams, 286 AD2d 918, 919, lv denied 97 NY2d 763).

     Contrary to the further contention of defendant, the court
properly precluded his wife from testifying concerning “collateral
matters intended merely to impeach the *** credibility [of a
prosecution witness]” (People v Chesson, ___ AD2d ___ [Mar. 3, 2003]).
                                 -230-                         758
                                                         KA 01-02205

Defendant’s additional contention that the testimony was admissible on
the issue of bias is not preserved for our review (see id.), and we
decline to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).

     Defendant also contends that he is entitled to a new trial
because he was not permitted to ask a prosecution witness on cross-
examination whether she was still a police informant at the time of
trial. We disagree. While proof of bias is not collateral, a court
may limit such cross-examination in the exercise of discretion (see
People v Cullen, 236 AD2d 808, lv denied 89 NY2d 1010). We perceive
no abuse of discretion where, as here, defendant had a full
opportunity to cross-examine the witness on her status as a police
informant at the time she witnessed one of the alleged drug sales (see
People v Riggins, 298 AD2d 192, lv denied 99 NY2d 563; see also People
v Messa, 299 AD2d 495, 496). Even assuming, arguendo, that the
court’s ruling was an abuse of discretion, we conclude that the error
is harmless (see People v Lewis, 168 AD2d 637, lv denied 77 NY2d 997).

     We have reviewed defendant’s remaining contentions and conclude
that they are without merit.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

759
KA 01-02204
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

JASON CATO, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


DAVID M. PARKS, ITHACA, FOR DEFENDANT-APPELLANT.

JASON CATO, DEFENDANT-APPELLANT PRO SE.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Ontario County Court (Doran, J.),
entered October 19, 2001, convicting defendant upon his guilty plea
of, inter alia, criminal sale of a controlled substance in the third
degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: The sentence imposed upon defendant's guilty plea is
not unduly harsh or severe. We further reject the contention of
defendant in his pro se supplemental brief that County Court abused
its discretion in denying his pro se motion to withdraw his guilty
plea. Defendant's allegations of coercion "were belied by
[defendant's] statements during the plea colloquy" (People v Rickard,
262 AD2d 1073, lv denied 94 NY2d 828; see People v Dean, 302 AD2d
951). Defendant also contends in his pro se supplemental brief that
the court erred in denying his pro se motion to dismiss the indictment
on constitutional double jeopardy grounds. We disagree. Defendant's
constitutional claim arises from the dismissal of the original
indictment on the ground that the evidence before the Grand Jury was
not legally sufficient (see CPL 210.20 [1] [b]). Double jeopardy did
not attach to that dismissal, however, because it occurred before
trial or entry of a guilty plea (see Serfass v United States, 420 US
377, 388-389; see also 40.30 [1]). Finally, in light of our decision
in People v Cato ([appeal No. 1] ___ AD2d ___ [June 13, 2003]), we
reject defendant's contention that the plea must be vacated pursuant
to People v Fuggazzatto (62 NY2d 862, 863).

Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

760
TP 02-02842
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


MATTER OF BRIANT HOWARD, PETITIONER,

                    V                                               ORDER

GLENN S. GOORD, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, ATTICA (JERRY M. ADER OF
COUNSEL), FOR PETITIONER.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (WAYNE L. BENJAMIN OF
COUNSEL), FOR RESPONDENT.


     CPLR article 78 proceeding transferred to this Court by an order
of Supreme Court, Wyoming County (Dadd, J.), entered December 19,
2002, seeking review of a determination after a Tier III hearing.

     It is hereby ORDERED that the determination be and the same
hereby is unanimously confirmed without costs and the petition is
dismissed.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

761
TP 03-00135
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.


MATTER OF MARIO STACCHINI, PETITIONER,

                    V                             MEMORANDUM AND ORDER

GARY FILION, SUPERINTENDENT, MARCY CORRECTIONAL FACILITY,
RESPONDENT.


MARIO STACCHINI, PETITIONER PRO SE.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (WAYNE L. BENJAMIN OF
COUNSEL), FOR RESPONDENT.


     CPLR article 78 proceeding transferred to this Court by an order
of Supreme Court, Oneida County (Siegel, J.), entered January 8, 2003,
seeking review of a determination after a Tier III hearing.

     It is hereby ORDERED that the determination be and the same
hereby is unanimously modified on the law by granting the petition in
part and annulling that part of the determination finding that
petitioner violated inmate rule 180.17 (7 NYCRR 270.2 [B] [26] [vii])
and as modified the determination is confirmed without costs, and
respondent is directed to expunge from petitioner's institutional
record all references thereto.

     Memorandum: Respondent concedes that the determination that
petitioner violated inmate rule 180.17 (7 NYCRR 270.2 [B] [26] [vii]
[providing legal assistance to another inmate without prior approval])
is not supported by substantial evidence. However, petitioner
admitted that he violated inmate rule 113.16 (7 NYCRR 270.2 [B] [14]
[vii] [possessing money and unauthorized valuables]) and thus his
present challenge to the sufficiency of the evidence of guilt
supporting that charge is precluded (see Matter of Fuller v Goord, 299
AD2d 849). We therefore modify the determination by granting the
petition in part and annulling that part of the determination finding
that petitioner violated inmate rule 180.17, and we direct respondent
to expunge from petitioner's institutional record all references
thereto. Because the penalty has already been served, there is no
need to remit the matter to respondent for administrative
reconsideration of the penalty imposed (see Matter of Maybanks v
Goord, ___ AD2d ___ [June 13, 2003]; Matter of Contrera v Coombe, 236
AD2d 661, 662-663).

Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

762
TP 03-00126
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.


MATTER OF FRANK KING, PETITIONER,

                    V                                               ORDER

GLENN S. GOORD, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, ATTICA (SUSAN K. JONES OF
COUNSEL), FOR PETITIONER.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (WAYNE L. BENJAMIN OF
COUNSEL), FOR RESPONDENT.


     CPLR article 78 proceeding transferred to this Court by an order
of Supreme Court, Wyoming County (Dadd, J.), entered January 13, 2003,
seeking review of a determination after a Tier II hearing.

     It is hereby ORDERED that the determination be and the same
hereby is unanimously confirmed without costs and the petition is
dismissed.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

763
KA 02-01135
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

BRYAN K. VAN CISE, DEFENDANT-APPELLANT.


SALVATORE C. ADAMO, BUFFALO, FOR DEFENDANT-APPELLANT.

JOHN C. TUNNEY, DISTRICT ATTORNEY, BATH, FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Steuben County Court (Bradstreet, J.),
entered March 11, 2002, convicting defendant upon his plea of guilty
of attempted burglary in the second degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted burglary in the second degree
(Penal Law §§ 110.00, 140.25 [2]). Defendant contends that his plea
was not knowingly, voluntarily, and intelligently entered because
County Court failed to advise him prior to entry of the plea that he
would be subject to a period of postrelease supervision. Because
defendant failed to move to withdraw his plea or to vacate the
judgment of conviction on that ground, he has not preserved his
contention for our review (see CPL 470.05 [2]; People v Perillo, 300
AD2d 1097; People v Kazmirski, 299 AD2d 826, lv denied 99 NY2d 583).
Defendant's motion to set aside the postrelease supervision component
of the sentence pursuant to CPL 440.20 did not preserve that
contention for our review inasmuch as the motion addressed only the
validity of the sentence imposed (see People v Larweth, ___ AD2d ___
[Mar. 21, 2003]). We decline to exercise our power to review
defendant's contention as a matter of discretion in the interest of
justice (see 470.15 [6] [a]). The further contention of defendant
that he was denied effective assistance of counsel because defense
counsel allegedly failed to advise him of the mandatory period of
postrelease supervision "involves matters outside the record and
therefore must be pursued by way of a CPL 440.10 motion" (Kazmirski,
299 AD2d at 827). Finally, defendant's sentence is legal (see People
v Crump, 302 AD2d 901) and is neither unduly harsh nor severe.


Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

764
KA 02-01488
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DANIEL L. CHRISPEN, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (MICKELLE A. OLAWOYE OF COUNSEL),
FOR DEFENDANT-APPELLANT.

EDWARD M. SHARKEY, DISTRICT ATTORNEY, LITTLE VALLEY, FOR PLAINTIFF-
RESPONDENT.


     Appeal from a judgment of Cattaraugus County Court (Himelein,
J.), entered April 15, 2002, convicting defendant upon his plea of
guilty of, inter alia, sodomy in the third degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of rape in the third degree (Penal Law §
130.25 [2]) and sodomy in the third degree (§ 130.40 [2]). The waiver
by defendant of the right to appeal was knowing and voluntary and
encompasses his challenges to the factual sufficiency of the plea (see
People v Harris, 269 AD2d 839; People v DeJesus, 248 AD2d 1023, lv
denied 92 NY2d 878) and the severity of the sentence (see People v
Lococo, 92 NY2d 825, 827; Harris, 269 AD2d at 839). While defendant's
contention that the plea was not knowing and voluntary survives the
waiver of the right to appeal, by failing to move to withdraw the plea
or to vacate the judgment, defendant failed to preserve that
contention for our review (see Harris, 269 AD2d at 839-840). "This is
not one of those rare cases in which the statements of defendant
engender significant doubt with respect to his guilt or otherwise call
into question the voluntariness of the plea" (id. at 840).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

766
KA 01-01272
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

WILLIAM J. PLUME, ALSO KNOWN AS WILLIAM J. AGUIRRE, ALSO
KNOWN AS WILLIAM J. AQUIRE, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (SUSAN R. RIDER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

EDWARD M. SHARKEY, DISTRICT ATTORNEY, LITTLE VALLEY, FOR PLAINTIFF-
RESPONDENT.


     Appeal from a judgment of Cattaraugus County Court (Himelein,
J.), entered September 12, 2000, convicting defendant after a jury
trial of, inter alia, burglary in the first degree (two counts).

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of two counts each of burglary in the first degree
(Penal Law § 140.30 [2], [3]), assault in the first degree (§ 120.10
[1], [4]) and assault in the second degree (§ 120.05 [1], [6]), one
count of reckless endangerment in the first degree (§ 120.25), and
three counts of criminal possession of a weapon in the third degree (§
265.02 [1]). Defendant has failed to preserve for our review his
contention that the police should have repeated the Miranda warnings
previously issued because he was not in continuous police custody (see
People v Kemp, 266 AD2d 887, lv denied 94 NY2d 921). In any event,
that contention is without merit. "[W]here a person in police custody
has been issued Miranda warnings and voluntarily and intelligently
waives those rights, it is not necessary to repeat the warnings prior
to subsequent questioning within a reasonable time thereafter, so long
as the custody has remained continuous," and here, contrary to
defendant's contention, the custody was continuous (People v Glinsman,
107 AD2d 710, 710, lv denied 64 NY2d 889, cert denied 472 US 1021; see
People v Leflore, ___ AD2d ___ [Mar. 21, 2003]; People v Chatman, 281
AD2d 964, 965-966, lv denied 96 NY2d 899; People v Fontanez, 278 AD2d
933, 934, lv denied 96 NY2d 862). Defendant similarly has failed to
preserve for our review his contention that County Court abused its
discretion in permitting the People to present the testimony of a
witness who was not on their witness list (see People v McCray, 227
AD2d 900, lv denied 89 NY2d 866; see also People v Tevaha, 84 NY2d
                                 -238-                         766
                                                         KA 01-01272

879). In any event, that contention is lacking in merit under the
circumstances of this case (see People v Shabazz, 246 AD2d 831, 832,
lv denied 91 NY2d 945, 92 NY2d 905; People v Williams, 243 AD2d 833,
837, lv denied 91 NY2d 926, 931).

     Defendant has failed to preserve for our review his challenges to
the legal sufficiency of the evidence to support his conviction of
various counts (see People v Finger, 95 NY2d 894, 895; People v Gray,
86 NY2d 10, 19). In any event, those challenges are lacking in merit.
The evidence is legally sufficient to establish that defendant
knowingly entered the victim's home unlawfully and with criminal
intent and thus is legally sufficient to support the conviction of two
counts of burglary in the first degree (see People v Horn, 302 AD2d
975; People v Prober, 298 AD2d 966, lv denied 99 NY2d 538). The
evidence also is legally sufficient to establish, in support of the
conviction of two counts of assault in the first degree, that
defendant intended to cause serious physical injury to the victim (see
Penal Law § 120.10 [1]; People v Askerneese, 256 AD2d 34, 34-35, affd
93 NY2d 884; People v Campbell, 300 AD2d 501, 502) and inflicted such
injury during his commission of a burglary (see § 120.10 [4]; People v
Griffin, 300 AD2d 743, 743-744). With respect to the challenge of
defendant to the conviction of two counts of assault in the second
degree involving a different victim, we similarly conclude that the
evidence is legally sufficient to establish his intent to inflict
physical injury upon the victim (see § 120.05 [1]) and that he
inflicted such injury during the commission of a burglary (see §
120.05 [6]). We further conclude that the evidence is legally
sufficient to establish, in support of the conviction of reckless
endangerment in the first degree, that defendant, "under circumstances
evincing a depraved indifference to human life," recklessly engaged in
conduct that created "a grave risk of death to another person" (§
120.25; see People v Lynch, 95 NY2d 243, 247-248; People v Chrysler,
85 NY2d 413, 415).

     We have examined defendant's remaining contentions and conclude
that they are lacking in merit.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

767
KA 02-00115
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                                            ORDER

BARRY BERMAN, DEFENDANT-APPELLANT.


EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Monroe County Court (Marks, J.),
entered November 7, 2001, convicting defendant upon his plea of guilty
of burglary in the second degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

768
KA 02-01345
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                                            ORDER

TERRANCE SINKLER, DEFENDANT-APPELLANT.


EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (KATHLEEN P. MC DONOUGH OF
COUNSEL), FOR DEFENDANT-APPELLANT.

HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (PATRICK H. FIERRO OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a resentence of Supreme Court, Monroe County
(Galloway, J.), entered May 1, 2002, following this Court's vacatur of
the sentence imposed on the count of kidnapping in the second degree
(People v Sinkler, 288 AD2d 844, lv denied 97 NY2d 761).

     It is hereby ORDERED that the resentence so appealed from be and
the same hereby is unanimously affirmed.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

769
KAH 01-02096
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK EX REL.
EDWARD NELSON, PETITIONER-APPELLANT,

                    V                                             ORDER

JAMES BERBARY, SUPERINTENDENT, COLLINS CORRECTIONAL
FACILITY, AND BRION D. TRAVIS, CHAIRMAN, NEW YORK STATE
DIVISION OF PAROLE, RESPONDENTS-RESPONDENTS.


SALVATORE C. ADAMO, BUFFALO, FOR PETITIONER-APPELLANT.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (EVELYN M. TENENBAUM OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS.


     Appeal from a judgment (denominated order) of Supreme Court, Erie
County (D'Amico, J.), entered August 14, 2001, which denied the
petition for a writ of habeas corpus.

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs as moot (see People ex rel. Wilder
v Markley, 26 NY2d 648, rearg denied 27 NY2d 737).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

770
CAF 01-01342
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.


MATTER OF KARA D., RESPONDENT-APPELLANT.
----------------------------------------------   MEMORANDUM AND ORDER
MONROE COUNTY ATTORNEY, PETITIONER-RESPONDENT.


JOSEPH P. CRIMI, LAW GUARDIAN, ROCHESTER, FOR RESPONDENT-APPELLANT.

CHARLES S. TURNER, COUNTY ATTORNEY, ROCHESTER (SCOTT WILLIAM
WESTERVELT OF COUNSEL), PETITIONER-RESPONDENT PRO SE.


     Appeal from an order of Family Court, Monroe County (Rivoli, J.),
entered April 17, 2001, which, inter alia, adjudicated respondent a
juvenile delinquent.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Contrary to respondent's contention, the finding of
Family Court that respondent committed acts that if committed by an
adult would constitute the crimes of menacing in the second degree
(Penal Law § 120.14 [1]) and criminal possession of a weapon in the
fourth degree (§ 265.01 [2]) is not against the weight of the
evidence. In reaching its finding, the court considered, inter alia,
the testimony of respondent's stepsister that respondent chased her
with a kitchen knife and the testimony of respondent denying that she
did so. Although a different result would not have been unreasonable,
we conclude that the court did not fail "to give the evidence the
weight it should be accorded" (People v Bleakley, 69 NY2d 490, 495),
and we decline to disturb the court's credibility determination.




Entered: June 13, 2003                           JOANN M. WAHL
                                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

771
CAF 03-00335
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.


MATTER OF MELISSA G.
-----------------------------------------------   MEMORANDUM AND ORDER
MONROE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-APPELLANT;

TINA G., RESPONDENT-RESPONDENT.


CHARLES S. TURNER, COUNTY ATTORNEY, ROCHESTER (RONALD A. CASE OF
COUNSEL), FOR PETITIONER-APPELLANT.

ARDETH L. HOUDE, LAW GUARDIAN, ROCHESTER, FOR MELISSA G.


     Appeal from an order of Family Court, Monroe County (Kohout, J.),
entered April 25, 2002, which dismissed a petition seeking to
terminate the parental rights of respondent.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Petitioner appeals from an order of Family Court
dismissing a petition seeking to terminate the parental rights of
respondent on the ground that she had violated the terms of a
suspended judgment (see generally Family Ct Act §§ 631, 633; 22 NYCRR
205.50). The court properly concluded that petitioner had failed to
establish by a preponderance of the evidence that respondent had
violated the terms of the suspended judgment (see Matter of Nicole Lee
B., 256 AD2d 1103, 1103-1104; see generally Matter of Krystal M., 299
AD2d 965, 966; Matter of Rebecca F., 286 AD2d 985, 986; Matter of
Gerald M., 112 AD2d 6). The suspended judgment recites that
respondent would "have monitored visitation *** arranged ***
consistent with the terms of" an order of extension previously entered
in an underlying neglect proceeding. We conclude that the reference
to the terms of the underlying order of extension did not effectively
incorporate that prior order's prohibition on the presence of
unapproved adult males during visits. Therefore, we agree with the
court's conclusion that respondent did not violate the terms of the
suspended judgment by allowing unapproved adult males to be present
during visits with her child (see Nicole Lee B., 256 AD2d at 1103-
1104).

     Under the circumstances, we reject petitioner's contention that
the court abused its discretion in denying petitioner's motion seeking
leave to serve a supplemental petition setting forth additional
allegations that respondent violated the terms of the suspended
                         -244-                  771
                                          CAF 03-00335



judgment.




Entered: June 13, 2003           JOANN M. WAHL
                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

772
CAF 02-02142
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.


MATTER OF ADA M.R., LUIANTONIO A.R.,
JUSTIN A.O., ANGEL J.O., AND DANIELA R.
---------------------------------------------    MEMORANDUM AND ORDER
MONROE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;

MARISOL R., RESPONDENT-APPELLANT.


EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (KATHLEEN P. MC DONOUGH OF
COUNSEL), FOR RESPONDENT-APPELLANT.

CHARLES S. TURNER, COUNTY ATTORNEY, ROCHESTER (PAUL N. HUMPHREY OF
COUNSEL), FOR PETITIONER-RESPONDENT.

ARDETH L. HOUDE, LAW GUARDIAN, ROCHESTER, FOR ADA M.R., LUIANTONIO
A.R., JUSTIN A.O., ANGEL J.O., AND DANIELA R.


     Appeal from an order of Family Court, Monroe County (Donofrio,
J.), entered August 2, 2002, which terminated respondent's parental
rights.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Petitioner commenced this proceeding seeking to
terminate the parental rights of respondent with respect to her five
oldest children on the ground of permanent neglect. After fact-
finding and dispositional hearings, Family Court granted the petition.
Contrary to respondent's contention, a suspended judgment, "which is a
brief grace period designed to prepare the parent to be reunited with
the child (Family Ct Act § 633)," was not appropriate in this case
(Matter of Michael B., 80 NY2d 299, 311). Prior to the filing of the
permanent neglect petition, the court had ordered respondent to
complete substance abuse treatment, attend parenting classes, and
participate in domestic violence and mental health counseling.
Respondent entered the substance abuse treatment program eight days
after commencement of the fact-finding hearing on the petition herein,
which was over two years after the court had ordered her to do so. By
the time of the conclusion of the dispositional hearing, respondent
was not scheduled to complete the substance abuse treatment program
for several more months and, upon completing that program, she had to
address the other matters outlined in the service plan, including
attending parenting classes and participating in domestic violence and
mental health counseling. At that time, the five children who are the
                                 -246-                         772
                                                         CAF 02-02142

subject of this proceeding could be returned to her, but only one at a
time and in two- to four-month increments. Thus, even assuming,
arguendo, that respondent maintained her sobriety, we conclude that
more than a year would pass before all the children could be returned
to her. The children had been living with their foster parents for
over two years and had bonded with them, and the foster parents wished
to adopt all five children. Thus, the court properly concluded that a
suspended judgment would not be in the best interests of the children
(see Matter of Sonny H.B., 249 AD2d 940).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

773
CA 02-02494
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, AND KEHOE, JJ.


NORMAN ROTH, UNIVERSITY HILL REALTY, LTD, STAMPEDE,
LLC, STAMPEDE II, LLC, AND STAMPEDE III, LLC,
PLAINTIFFS-APPELLANTS,

                    V                                               ORDER

SYRACUSE HOUSING AUTHORITY, FREDERICK R. MURPHY,
INDIVIDUALLY AND IN HIS PROFESSIONAL CAPACITY AS DIRECTOR
OF SYRACUSE HOUSING AUTHORITY, TERRY KRESSER, INDIVIDUALLY
AND IN HIS PROFESSIONAL CAPACITY AS SUPERVISOR OF SYRACUSE
HOUSING AUTHORITY'S SECTION 8 PROGRAM, AND VITO SCISCIOLI,
INDIVIDUALLY AND IN HIS PROFESSIONAL CAPACITY AS A MEMBER
OF BOARD OF DIRECTORS OF SYRACUSE HOUSING AUTHORITY,
DEFENDANTS-RESPONDENTS.


HANCOCK & ESTABROOK, LLP, SYRACUSE (ALAN J. PIERCE OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (ROBERT KIRCHNER OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order and judgment (one document) of Supreme
Court, Onondaga County (Paris, J.), entered August 7, 2002, which
granted defendants' motion for summary judgment dismissing the
complaint and denied plaintiffs' cross motion for partial summary
judgment and for leave to serve an amended complaint.

     It is hereby ORDERED that the order and judgment so appealed from
be and the same hereby is unanimously affirmed with costs for reasons
stated in decision at Supreme Court, Onondaga County, Paris, J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

776
CA 02-02234
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.


BRIAN L. BEAUMONT, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MICHAEL P. SMYTH, FEDERAL EXPRESS CORPORATION,
DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.


THE CAMBS LAW FIRM, LLP, CAMILLUS (MARY C. JOHN OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

ALEXANDER & CATALANO, LLC, SYRACUSE (JAMES L. ALEXANDER OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of Supreme Court, Onondaga County (Carni,
J.), entered September 12, 2002, which granted plaintiff's motion
seeking to compel disclosure.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously modified on the law by denying that part of
plaintiff's motion seeking to compel disclosure of the Lester report
and as modified the order is affirmed without costs.

     Memorandum: Supreme Court properly granted that part of
plaintiff's motion seeking to compel Michael P. Smyth and Federal
Express Corporation (Fed Ex) (defendants) to disclose unredacted
copies of two documents prepared by Fed Ex, i.e., the "View Employee
Accident Report" and the "Vehicle Accident Report." "[T]here must be
full disclosure of accident reports prepared in the ordinary course of
business that were motivated at least in part by a business concern
other than preparation for litigation" (Calkins v Perry, 168 AD2d 999;
see Tenebruso v Toys "R" Us – NYTEX, Inc., 256 AD2d 1236, 1237-1238;
Blakesley v State of New York, 244 AD2d 947; Wylie v Consol. Rail
Corp., 198 AD2d 884, 885; see also CPLR 3101 [g]). The exception to
that rule, authorizing redaction of reports to prevent disclosure of
the "mental impressions, conclusions, opinions or legal theories of an
attorney or other representative of a party concerning the
litigation," (Blakesley, 244 AD2d at 947) is inapplicable here. The
information redacted by defendants included factual material, and any
conclusions or opinions therein did not concern the litigation
(Blakesley, 244 AD2d at 947, quoting Wylie, 198 AD2d at 885).

     We conclude, however, that the court erred in granting that part
of plaintiff's motion seeking to compel disclosure of the "Lester
                                 -249-                         776
                                                         CA 02-02234

report." Upon our in camera review of that report, we conclude that
it was not "prepared in the regular course of business operations or
practices of" Fed Ex (CPLR 3101 [g]), but rather was "prepared in
anticipation of litigation or for trial" (3101 [d] [2]). Materials
"produced solely in connection with the report of an accident to a
liability insurance carrier or to an attorney with respect to
plaintiff's claim" are not discoverable under CPLR 3101 (g), but
rather are conditionally immunized from discovery under CPLR 3101 (d)
(2) (Recant v Harwood, 222 AD2d 372, 373-374; see Hannold v First
Baptist Church, 254 AD2d 746, 747; Sullivan v Smith, 198 AD2d 749;
Vernet v Gilbert, 90 AD2d 846, 846-847). We note, however, that the
photographs reproduced in the Lester report are discoverable in their
original form.

     We therefore modify the order by denying that part of plaintiff's
motion seeking to compel disclosure of the Lester report, and
otherwise affirm.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

780
CA 03-00220
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.


LORI WEIDNER AND ROBERT GROSS, PLAINTIFFS-RESPONDENTS,

                    V                                               ORDER

JANET H. SUNG, M.D., JAMES C. PHANG, M.D., AND
WINDSONG RADIOLOGY, P.C., DEFENDANTS-APPELLANTS.


ROACH, BROWN, MC CARTHY & GRUBER, P.C., BUFFALO (J. MARK GRUBER OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY & CAMBRIA LLP, BUFFALO
(JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from that part of an order of Supreme Court, Erie County
(Glownia, J.), entered September 10, 2002, that denied in part
defendants' motion for summary judgment dismissing the complaint.

     Now, upon reading and filing the stipulation of discontinuance
signed by the attorneys for the parties on April 1, 2003,

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs upon stipulation.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

781
CA 02-02547
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.


JOHN C. LONIS AND DANELLE MILLER,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

NORMAN'S ROOFING AND SIDING CO., INC.,
AND TIMOTHY O'BRIEN, DEFENDANTS-RESPONDENTS.
--------------------------------------------
TIMOTHY O'BRIEN, THIRD-PARTY PLAINTIFF,

                    V

HASTINGS-FISHER FUEL CO., INC., THIRD-PARTY
DEFENDANT-RESPONDENT.


DANELLE MILLER AND JOHN C. LONIS, PLAINTIFFS-APPELLANTS PRO SE.

HISCOCK & BARCLAY, LLP, SYRACUSE (ALAN R. PETERMAN OF COUNSEL), FOR
DEFENDANT-RESPONDENT TIMOTHY O'BRIEN.

O'SHEA, MC DONALD, PANZONE & STEVENS, LLP, ROME (ROBERT J. LUTZ OF
COUNSEL), FOR DEFENDANT-RESPONDENT NORMAN'S ROOFING AND SIDING CO.,
INC.


     Appeal from an order of Supreme Court, Oneida County (Parker,
J.), entered December 31, 2001, which granted the motion of defendant
Timothy O'Brien and the cross motion of defendant Norman's Roofing and
Siding Co., Inc. to dismiss the second amended complaint.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action in May 1994 seeking
damages for injuries sustained by John C. Lonis (plaintiff) resulting
from emissions from a furnace installed in plaintiffs' home. Supreme
Court properly granted the motion of defendant Timothy O'Brien and the
cross motion of defendant Norman's Roofing and Siding Co., Inc. to
dismiss the second amended complaint on the ground that the action is
time-barred. Defendants established that plaintiffs failed to meet
the criteria set forth in CPLR 214-c (4) to entitle them to an
extension of the three-year statute of limitations for commencing an
action arising from injuries allegedly caused by the latent effects of
exposure to a substance or combination of substances (see 214-c [2]).
Defendants demonstrated that plaintiffs discovered the injuries in the
                                 -252-                         781
                                                         CA 02-02547

spring of 1990, when plaintiff began to have symptoms (see Matter of
New York County DES Litig., 89 NY2d 506, 514); that plaintiffs
discovered the cause of the injuries in April 1993 or, at the latest,
by May 12, 1993, when they learned that the furnace had not been
properly installed when the house was built in 1988 and that toxic
emissions therefore were present in the house; and that "technical,
scientific [and] medical knowledge and information sufficient to
ascertain the cause of [plaintiff's] injur[ies] had *** been
discovered, identified or determined prior to the expiration of the
period within which the action *** would have been authorized" (214-c
[4]). Even assuming, arguendo, that plaintiffs raised an issue of
fact whether they learned about the cause of plaintiff's injuries in
October 1993 rather than in April or May 1993, we conclude that the
extension of the three-year statute of limitations is not available to
plaintiffs. The curriculum vitae of plaintiff's treating physician
demonstrates that technical, scientific and medical knowledge and
information was available within the scientific and medical
communities with respect to the diagnosis of multiple chemical
sensitivities as early as 1987 (see New York County DES Litig., 89
NY2d at 514-515). In light of our determination, we do not address
plaintiffs' remaining contentions.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

782
CA 03-00171
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.


MARK BETHMANN, PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

THE WIDEWATERS GROUP, INC., DEFENDANT-APPELLANT.


COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (ROBERT J. SMITH OF
COUNSEL), FOR DEFENDANT-APPELLANT.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (DONALD S. DI BENEDETTO OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order and judgment (one document) of Supreme
Court, Onondaga County (Paris, J.), entered April 9, 2002, which
awarded plaintiff compensatory damages upon a jury verdict.

     It is hereby ORDERED that the order and judgment so appealed from
be and the same hereby is unanimously affirmed with costs.

     Memorandum: Plaintiff, a licensed real estate salesman,
commenced this action against defendant, his former employer, alleging
breach of an oral agreement and seeking to recover unpaid leasing
commissions and wages. On appeal from an order and judgment awarding
plaintiff compensatory damages, defendant contends that a new trial
should be granted based upon the prejudice accruing to it as a result
of Supreme Court’s evidentiary ruling allowing evidence of the non-
licensure of two of defendant’s other leasing agents who received the
commissions claimed by plaintiff. Although the court reversed that
evidentiary ruling following the close of proof and gave a curative
instruction to the jury, defendant contends that the curative
instruction was insufficient to alleviate the prejudice resulting from
that evidentiary ruling.

     Even assuming, arguendo, that the court erroneously resolved the
evidentiary issue at the outset of the case, we conclude that any
error in admitting the evidence of non-licensure did not prejudice
defendant under the circumstances of this case. In any event, we
further conclude that the court’s curative instruction was sufficient
to alleviate any prejudice that may have resulted from the proof of
non-licensure (see Genco v Millard Fillmore Suburban Hosp. [appeal No.
2], 275 AD2d 920, 921, citing Mena v New York City Tr. Auth., 238 AD2d
159, 160). The court clearly and unequivocally instructed the jurors
that the non-licensure issue was “not relevant or germane” to the case
and should not be considered in their deliberations, essentially as
                                 -254-                         782
                                                         CA 03-00171

requested by defendant in its written request to charge, and the jury
is presumed to have followed the court’s instructions (see Martelly v
New York City Health & Hosps. Corp., 276 AD2d 373; DiRende v
Cipollaro, 234 AD2d 78, 78-79, lv denied 90 NY2d 806).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

783
CA 02-02608
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.


KATHY E. KEPHART, PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

GARY P. BURKE AND THOMAS CHIAVETTA,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 1.)


GROSSMAN, LEVINE & CIVILETTO, NIAGARA FALLS (ERIC B. GROSSMAN OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

SLIWA & LANE, BUFFALO (ADAM C. FERRANDINO OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from that part of   an order of Supreme Court, Niagara
County (Fricano, J.), entered   August 16, 2002, which granted the
motion of defendants to quash   nonparty subpoenas duces tecum issued by
plaintiff to, inter alia, Dr.   Anthony M. Leone and Mark D. Becker.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained in an automobile accident. We conclude that
Supreme Court properly granted defendants' motion to quash nonparty
subpoenas duces tecum issued by plaintiff to Dr. Anthony M. Leone, a
consulting physician, and Mark D. Becker, general manager of a firm
that provides independent medical evaluations. Initially, we reject
plaintiff's contention that defendants lack standing to contest the
subpoenas (see e.g. King v State Farm Mut. Auto. Ins. Co., 198 AD2d
748). Unlike the cases upon which plaintiff relies, defendants here
have a proprietary interest in the materials sought, and, in addition,
those materials may contain privileged information (cf. Matter of
Oncor Communications v State of New York, 218 AD2d 60, 62; 38-14
Realty Corp. v New York City Dept. of Consumer Affairs, 103 AD2d 804).

     Turning to the merits of defendant's motion to quash, a trial
court has broad discretion in supervising disclosure, and absent an
abuse of that discretion, the court's exercise of such authority will
not be disturbed (see Gadley v U.S. Sugar Co., 259 AD2d 1041, 1042;
see also MS Partnership v Wal-Mart Stores, 273 AD2d 858). Moreover,
where, as here, additional discovery is sought after plaintiff has
filed a note of issue, the party seeking additional discovery must
demonstrate that "unusual or unanticipated circumstances develop[ed]
                                 -256-                         783
                                                         CA 02-02608

subsequent to the filing *** which require additional pretrial
proceedings to prevent substantial prejudice" (22 NYCRR 202.21 [d];
see Di Matteo v Grey, 280 AD2d 929, 930). Particularly in light of
defendant's affirmative showing to the contrary, plaintiff failed to
demonstrate that Becker may have information that is "material and
necessary" to the prosecution of this action (CPLR 3101 [a] [1], [4];
see e.g. Maxwell v Snapper, Inc., 249 AD2d 374; King, 198 AD2d at
748).

     With respect to Dr. Leone, his report constitutes material
prepared in anticipation of litigation and is therefore conditionally
privileged (see CPLR 3101 [d] [2]; Renucci v Mercy Hosp., 124 AD2d
796, 797). Plaintiff failed to show that she has a substantial need
for that report or that she could not obtain the substantial
equivalent of that report by other means (see Santariga v McCann, 161
AD2d 320, 322; see also Barrowman v Niagara Mohawk Power Corp., 252
AD2d 946, lv denied 92 NY2d 817; Massachusetts Bay Ins. Co. v Stamm,
228 AD2d 321, 322).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

784
CA 02-02609
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.


KATHY E. KEPHART, PLAINTIFF-APPELLANT,

                    V                                              ORDER

GARY P. BURKE AND THOMAS CHIAVETTA,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 2.)


GROSSMAN, LEVINE & CIVILETTO, NIAGARA FALLS (ERIC B. GROSSMAN OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

SLIWA & LANE, BUFFALO (ADAM C. FERRANDINO OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of Supreme Court, Niagara County (Fricano,
J.), entered October 17, 2002, which denied the motion of plaintiff to
compel discovery or, alternatively, to preclude the testimony of a
medical expert.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

785
CA 02-01814
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.


MATTER OF EARL BUSSEY, PETITIONER-APPELLANT,

                    V                                              ORDER

GLENN S. GOORD, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES,
RESPONDENT-RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, ATTICA (JERRY M. ADER OF
COUNSEL), FOR PETITIONER-APPELLANT.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF COUNSEL),
FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment of Supreme Court, Wyoming County (Dadd,
J.), entered December 7, 2001, which dismissed the CPLR article 78
petition.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

786
CA 02-02807
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.


LE ROY RUSSELL, SR., CLAIMANT-APPELLANT,

                    V                                              ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 102802.)


LAW OFFICE OF JACOB P. WELCH, CORNING (JACOB P. WELCH OF COUNSEL), FOR
CLAIMANT-APPELLANT.

LAW OFFICES OF LAURIE G. OGDEN, SYRACUSE (P. DAVID TWICHELL OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Court of Claims (Lebous, J.), entered
September 11, 2002, which, inter alia, granted defendant's motion for
summary judgment and dismissed the claim.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs for reasons stated
in decision at the Court of Claims, Lebous, J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

787
CA 03-00036
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.


MATTER OF KENNETH C. GILBERT AND SUSAN GILBERT,
CLAIMANTS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

EDEN CENTRAL SCHOOL DISTRICT, EDEN CENTRAL SCHOOL
DISTRICT BOARD OF EDUCATION, RESPONDENTS-APPELLANTS,
ET AL., RESPONDENT.


GOLDBERG SEGALLA LLP, BUFFALO (PATRICK B. NAYLON OF COUNSEL), FOR
RESPONDENTS-APPELLANTS.

LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY & CAMBRIA LLP, BUFFALO
(JOHN A. COLLINS OF COUNSEL), FOR CLAIMANTS-RESPONDENTS.


     Appeal from an order of Supreme Court, Erie County (Notaro, J.),
entered September 17, 2002, which granted claimants' application
seeking leave to serve a late notice of claim on respondents Eden
Central School District and Eden Central School District Board of
Education.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Supreme Court did not abuse its discretion in
granting claimants' application seeking leave to serve a late notice
of claim on Eden Central School District and Eden Central School
District Board of Education (respondents) pursuant to Education Law §
3813 (2-a) (see General Municipal Law § 50-e [5]). Even assuming,
arguendo, that claimants failed to provide a reasonable excuse for
their delay, we conclude that their failure to do so "'is not fatal
where, as here, actual notice was had and there is no compelling
showing of prejudice' to respondent[s]" (Matter of Blair v County of
Onondaga, 295 AD2d 933, 934; see Marchetti v East Rochester Cent.
School Dist., 302 AD2d 930; Nationwide Ins. Co. v Village of
Alexandria Bay, 299 AD2d 855).

     Claimants established that the motor vehicle accident underlying
their claim involved respondents' employees, one of whom provided
medical assistance to Kenneth C. Gilbert (claimant) at the scene.
Upon arriving at the scene, other employees of respondents observed
the damage to the vehicles and were aware that claimant was
transported from the scene by ambulance. Additionally, respondents
were aware that claimant filed a worker's compensation claim when
                                 -261-                         787
                                                         CA 03-00036

claimant's employer sought subrogation for that claim from
respondents. The insurance company insuring the vehicle operated by
claimant also filed a property damage claim against respondents before
the expiration of the three-month period in which to serve a notice of
claim pursuant to Education Law § 3813 (1). Respondents investigated
the accident, although only in terms of property damage at that time.
Thus, respondents were aware of the essential facts constituting the
claim within the statutory time period (see e.g. Matter of Continental
Ins. Co. v City of Rye, 257 AD2d 573; Matter of McAdams v Police Dept.
of Town of Clarkstown, 184 AD2d 847; Plass v Town of Poughkeepsie, 102
AD2d 819). There was a connection between the injuries and the
alleged negligence of respondents, and respondents were aware of that
connection (cf. Rabanar v City of Yonkers, 290 AD2d 428, 429).

     Respondents failed to substantiate their conclusory assertions
that they were substantially prejudiced by the approximately two-month
delay in serving the notice of claim (see Matter of Bollerman v New
York City School Constr. Auth., 247 AD2d 469, 470; Matter of Alvarenga
v Finlay, 225 AD2d 617). There is no evidence in the record that the
witnesses who were not interviewed at the time of the accident are
presently unavailable or that those witnesses are now unable to recall
the events (see Matter of Mahan v Board of Educ. of Syracuse City
School Dist., 269 AD2d 834, 835).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

789
CA 02-02137
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.


GERTRUDE H. SCOTT, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MARCUS WHITMAN CENTRAL SCHOOL DISTRICT,
DEFENDANT-RESPONDENT.


STEPHEN D. ARONSON, CANANDAIGUA, FOR PLAINTIFF-APPELLANT.

OSBORN, REED & BURKE, LLP, ROCHESTER (AIMEE LA FEVER KOCH OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of Supreme Court, Ontario County (Doran,
J.), entered June 14, 2002, which granted defendant's motion for
summary judgment dismissing the amended complaint.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

      Memorandum: Supreme Court properly granted defendant's motion
for summary judgment dismissing the amended complaint. Plaintiff
commenced this action to recover damages for injuries she sustained
when she allegedly slipped and fell on a puddle of water in the
doorway of an elementary school owned by defendant and under its
control. Defendant met its initial burden by establishing that it did
not create the allegedly dangerous condition and that it had neither
actual nor constructive notice of that condition (see Gordon v
American Museum of Natural History, 67 NY2d 836, 837-838; Collins v
Grand Union Co., 201 AD2d 852), and plaintiff failed to raise an issue
of fact (see generally Zuckerman v City of New York, 49 NY2d 557,
562).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

791
CA 03-00103
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.


MATTER OF SALVATORE A. SCAROZZA, PLAINTIFF-
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TUDOR PLAZA, INC., AND TUDOR GARAGE, INC.,
DEFENDANTS-RESPONDENTS-RESPONDENTS.


ABRAMOWITZ & LO TEMPIO, BUFFALO (PHILIP B. ABRAMOWITZ OF COUNSEL), FOR
PLAINTIFF-PETITIONER-APPELLANT.

SIEGEL, KELLEHER & KAHN, BUFFALO (STEVEN G. WISEMAN OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS-RESPONDENTS.


     Appeal from an order and judgment (one document) of Supreme
Court, Erie County (Glownia, J.), entered October 15, 2002, which
granted defendants-respondents' motion and dismissed the complaint and
petition at the close of plaintiff-petitioner's case.

     It is hereby ORDERED that the order and judgment so appealed from
be and the same hereby is unanimously reversed on the law without
costs, the motion is denied, the complaint and the petition are
reinstated, and a new trial is granted in accordance with the
following Memorandum: Plaintiff-petitioner (plaintiff) commenced this
combined action/CPLR article 78 proceeding alleging that defendants-
respondents (defendants) unlawfully discriminated against him on the
basis of age when they denied his application to purchase shares of
stock in their cooperative corporations. At the time of his
application, plaintiff was 81 years old. Supreme Court erred in
granting defendants' motion for judgment as a matter of law pursuant
to CPLR 4401 at the close of plaintiff's case. "[S]uch a motion
should not be granted where the facts are in dispute or where
different inferences might reasonably be drawn from undisputed facts,
or where the issue depends upon the credibility of witnesses (Sadowski
v. Long Is. R.R. Co., 292 N.Y. 448, 454-455). The court cannot
properly undertake to weigh the evidence, but must take that view of
it most favorable to the nonmoving party (Wessel v. Krop, 30 AD2d
764). The test is whether the trial court could find 'that by no
rational process could the trier of the facts base a finding in favor
of the [non-moving party] upon the evidence here presented' (Blum v.
Fresh Grown Preserve Corp., 292 N.Y. 241, 245)" (Bartkowiak v St.
Adalbert's R.C. Church Socy., 40 AD2d 306, 309; see Szczerbiak v
Pilat, 90 NY2d 553, 556). Viewed in accordance with that standard,
the evidence presented by plaintiff with respect to statements made by
                                 -264-                         791
                                                         CA 03-00103

members of defendants' Board of Directors regarding his application is
sufficient to survive the CPLR 4401 motion. Thus, we reverse the
order and judgment, deny defendants' motion, reinstate the complaint
and the petition, and grant a new trial before a different justice.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

792
CA 03-00189
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.


CLIFFORD GERMEO AND DORIS GERMEO, PLAINTIFFS-
APPELLANTS,

                    V                             MEMORANDUM AND ORDER

VILLAGE OF ALBION, DEFENDANT-RESPONDENT,
ET AL., DEFENDANTS.


FRANK A. ALOI, ROCHESTER, FOR PLAINTIFFS-APPELLANTS.

VOLGENAU & BOSSE, LLP, BUFFALO (PAULA M. EADE NEWCOMB OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from a judgment (denominated order) of Supreme Court,
Orleans County (Punch, J.), entered April 16, 2002, which denied
plaintiffs' motion for summary judgment and granted the cross motion
of defendant Village of Albion for summary judgment.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously modified on the law by granting
judgment in favor of defendant Village of Albion as follows:

          IT IS ADJUDGED AND DECLARED that the definitions of
     mobile home, mobile/manufactured home and modular home
     contained in Village of Albion Code § 179-4 (B) and § 290-12
     are neither unconstitutional nor unenforceable

and as modified the judgment is affirmed without costs.

     Memorandum: Plaintiffs commenced this declaratory judgment
action seeking, inter alia, judgment declaring portions of the Village
of Albion Code (Code) unconstitutional and unenforceable. We agree
with Supreme Court, for the reasons stated in its decision denying
plaintiffs' motion for summary judgment and granting the cross motion
of the Village of Albion (defendant) for summary judgment, that the
challenged portions of the Code are not vague or ambiguous and are
neither internally inconsistent nor inconsistent with state or federal
law. We add only that the judgment must be modified to declare the
rights of the parties. We therefore modify the judgment by granting
judgment in favor of defendant declaring that the definitions of
mobile home, mobile/manufactured home and modular home contained in
Code § 179-4 (B) and § 290-12 are neither unconstitutional nor
                         -266-                  792
                                          CA 03-00189

unenforceable.




Entered: June 13, 2003           JOANN M. WAHL
                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

793
CA 03-00028
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.


BETSY BOWEN, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

THOMAS C. DUNN, ELIZABETH DUNN, DEFENDANTS-
APPELLANTS,
ET AL., DEFENDANT.


TREVETT, LENWEAVER & SALZER, P.C., ROCHESTER (CYNTHIA A. CONSTANTINO
GLEASON OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

JOSEPH J. TERRANOVA, HAMBURG, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of Supreme Court, Wyoming County (Dadd, J.),
entered March 20, 2002, which denied the motion of defendants Thomas
C. Dunn and Elizabeth Dunn seeking summary judgment dismissing the
complaint.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously modified on the law by granting the motion
of defendants Thomas C. Dunn and Elizabeth Dunn in part and dismissing
the claim of serious injury under the significant limitation of use of
a body function or system category under Insurance Law § 5102 (d)
against them and as modified the order is affirmed without costs.

     Memorandum: Although Supreme Court properly denied that part of
the motion of Thomas C. Dunn and Elizabeth Dunn (defendants) seeking
summary judgment dismissing the claim under the 90/180-day category of
serious injury, it erred in denying that part of the motion seeking
summary judgment dismissing the claim under the significant limitation
of use of a body function or system category (see Insurance Law § 5102
[d]). With respect to plaintiff's claim of serious injury under the
90/180-day category, "the complaint as amplified by the bill of
particulars" (Balnys v Town of New Baltimore, 160 AD2d 1136, 1136)
alleges a qualifying injury consisting of a "whiplash injury to
[plaintiff's] cervical spine and [a] lumbosacral sprain/strain."
Defendants' expert did not refute that allegation. Indeed, the only
opinion expressed by defendants' expert relevant to the 90/180-day
category indicates that the symptoms resulting from the accident may
have taken as long as three months to resolve. As proponents of a
motion seeking summary judgment, defendants bore the initial burden of
"mak[ing] a prima facie showing of entitlement to judgment as a matter
of law, tendering sufficient evidence to eliminate any material issues
of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d
                                 -268-                         793
                                                         CA 03-00028

851, 853). Defendants failed to meet that burden here with respect to
the 90/180-day category of serious injury, and thus the court properly
denied that part of their motion seeking summary judgment dismissing
that claim, "regardless of the sufficiency of the opposing papers"
(id.). Defendants' contention that plaintiff was not sufficiently
curtailed from performing her usual activities for the minimum
statutorily prescribed period is raised for the first time on appeal
and thus is not properly before us (see Wojtowicz v Dexter Terrace
Elementary Schools [BOCES], 288 AD2d 915, 916; Ciesinski v Town of
Aurora, 202 AD2d 984, 985). In any event, the medical records
submitted by defendants on their motion indicate that plaintiff was
unable to return to work for more than 90 days after the accident, and
thus that contention lacks merit.

     With respect to plaintiff's claim of serious injury under the
significant limitation of use category, however, defendants' proof was
sufficient to shift the burden to plaintiff to submit "'competent
medical evidence based upon objective medical findings and diagnostic
tests to support [her] claim'" (Tankersley v Szesnat, 235 AD2d 1010,
1012, quoting Eisen v Walter & Samuels, 215 AD2d 149, 150). Plaintiff
failed to meet that burden and thus the court erred in failing to
grant that part of defendants' motion seeking summary judgment
dismissing that claim (see Winslow v Callaghan, ___ AD2d ___ [June 13,
2003]). We thus modify the order by granting defendants' motion in
part and dismissing the claim of serious injury under the significant
limitation of use of a body function or system category under
Insurance Law § 5102 (d) against them.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

794
CAF 00-02790
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.


MATTER OF DOMINIQUE L.B., NIGIL DA VONTAE B.,
TALMAGE B., III, REGINALD O.B., II, AND
BABY GIRL M., ALSO KNOWN AS ASHLEY B.
-----------------------------------------------                    ORDER
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;

MONIQUE M., RESPONDENT-APPELLANT.


ALAN BIRNHOLZ, AMHERST, FOR RESPONDENT-APPELLANT.

GARY J. WOJTAN, BUFFALO, FOR PETITIONER-RESPONDENT.

DAVID C. SCHOPP, LAW GUARDIAN, THE LEGAL AID BUREAU OF BUFFALO, INC.,
BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR DOMINIQUE L.B., NIGEL
DA VONTAE B., TALMAGE B., III, REGINALD O.B., II, AND BABY GIRL M.,
ALSO KNOWN AS ASHLEY B.


     Appeal from an order of Family Court, Erie County (Mix, J.),
entered September 1, 1998, which terminated respondent's parental
rights.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                            JOANN M. WAHL
                                                  Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

796
CAF 02-00545
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.


MATTER OF LIVINGSTON COUNTY CHILD SUPPORT
COLLECTION UNIT, ON BEHALF OF CHERYL LINSNER,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

SHAUN A. GRIMMELT, RESPONDENT-APPELLANT.


WENDY S. SISSON, LAKEVILLE, FOR RESPONDENT-APPELLANT.

MICHAEL T. ALLEN, MT. MORRIS, FOR PETITIONER-RESPONDENT.


     Appeal from an order of Family Court, Livingston County (Cicoria,
J.), entered February 28, 2002, which committed respondent to jail.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: We reject the contention of respondent that Family
Court erred in committing him to jail pursuant to Family Ct Act § 454
(3) (a) based upon his willful violation of a child support order.
The record supports the court's determination that respondent failed
to present credible evidence that he was financially unable to comply
with the order (see Matter of Powers v Powers, 86 NY2d 63, 70; Matter
of Commissioner of Social Servs. v Rosen, 289 AD2d 487, 488).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

797
CAF 02-00410
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.


MATTER OF LIVINGSTON COUNTY CHILD SUPPORT
COLLECTION UNIT, ON BEHALF OF JOHN S. COLLISTER,
PETITIONER-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

TAMMY SCHNEIDER, RESPONDENT-APPELLANT.


WENDY S. SISSON, LAKEVILLE, FOR RESPONDENT-APPELLANT.

MICHAEL T. ALLEN, MT. MORRIS, FOR PETITIONER-RESPONDENT.


     Appeal from an order of Family Court, Livingston County (Cicoria,
J.), entered February 4, 2002, which vacated the order suspending
commitment and committed respondent to the custody of the Livingston
County Sheriff.

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs.

     Memorandum: The appeal from the order entered February 4, 2002
is dismissed because that order was superseded by an order entered
February 22, 2002 (see Matter of Eric D. [appeal No. 1], 162 AD2d
1051). No appeal lies from an order that has been superseded by an
amended order (see id.).




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

798
KAH 02-00943
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK EX REL. JAMES
SCHULTZ, PETITIONER-APPELLANT,

                    V                                              ORDER

JAMES L. BERBARY, SUPERINTENDENT, COLLINS
CORRECTIONAL FACILITY, AND BRION D. TRAVIS,
CHAIRMAN, NEW YORK STATE DIVISION OF PAROLE,
RESPONDENTS-RESPONDENTS.


SALVATORE C. ADAMO, BUFFALO, FOR PETITIONER-APPELLANT.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS.


     Appeal from a judgment (denominated order) of Supreme Court, Erie
County (Rath, Jr., J.), entered March 22, 2002, which denied the
petition for a writ of habeas corpus.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

800
KA 02-00519
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                                              ORDER

JASON HOLLOWAY, DEFENDANT-APPELLANT.


JOSEPH F. TOWNSEND, PUBLIC DEFENDER, LOCKPORT (LEONARD G. TILNEY, JR.,
OF COUNSEL), FOR DEFENDANT-APPELLANT.

MATTHEW J. MURPHY, III, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Niagara County Court (Broderick, Sr.,
J.), entered February 8, 2002, revoking defendant's probation and
imposing a sentence of imprisonment.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

801
KA 99-05626
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ROLAND MC FARLAND, DEFENDANT-APPELLANT.


JOHN BEDASKA, WILLIAMSVILLE, FOR DEFENDANT-APPELLANT.

FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Supreme Court, Erie County (Burns, J.),
entered December 23, 1997, convicting defendant upon his plea of
guilty of sexual abuse in the first degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously modified on the law by reducing the
minimum period of imprisonment to 2a years and as modified the
judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of sexual abuse in the first degree, a class D
violent felony, and sentencing him to an indeterminate term of
imprisonment of 3½ to 7 years. As the People correctly concede, the
sentence is illegal, and the minimum period of imprisonment should be
reduced to 2a years. At the time the offense was committed in 1993,
Penal Law § 70.02 (former [4]) required that the minimum period of
imprisonment be fixed at one third of the maximum term imposed (see
People v Trimm, 252 AD2d 673, 675, lv denied 92 NY2d 931). We
therefore modify the judgment by reducing the minimum period of
imprisonment to 2a years.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

803
KA 01-01973
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DAVID T. LEWIS, DEFENDANT-APPELLANT.


EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL),
FOR DEFENDANT-APPELLANT.

HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Monroe County Court (Marks, J.),
entered August 27, 2001, convicting defendant after a jury trial of
robbery in the first degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: County Court properly denied defendant's motion
seeking to suppress the showup identification by the victim. We
reject the contention of defendant that, because the police had
probable cause to arrest him on other charges and were not going to
release him, the showup was unnecessary and thus impermissible. We
conclude that, because the showup was "conducted in close geographic
and temporal proximity to the crime," it was permissible even in the
absence of exigent circumstances (People v Brisco, 99 NY2d 596, 597).
Contrary to the further contention of defendant, "[t]he circumstances
that defendant was handcuffed behind his back and in the presence of
police officers, and that the complainant was told that [she] would be
viewing a suspect, did not render the procedure unduly suggestive"
(People v Edwards, 259 AD2d 343, 344, lv denied 93 NY2d 969; see
People v Smith, 289 AD2d 1056, 1057, lv denied 98 NY2d 641). The
sentence is not unduly harsh or severe.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

804
TP 03-00142
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.


MATTER OF AMEER LAWSON, PETITIONER,

                    V                                               ORDER

GLENN S. GOORD, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, ATTICA (SUSAN K. JONES OF
COUNSEL), FOR PETITIONER.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF COUNSEL),
FOR RESPONDENT.


     CPLR article 78 proceeding transferred to this Court by an order
of Supreme Court, Wyoming County (Dadd, J.), entered October 29, 2002,
seeking review of a determination after a Tier III hearing.

     It is hereby ORDERED that the determination be and the same
hereby is unanimously confirmed without costs and the petition is
dismissed.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

805
CA 03-00119
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, BURNS, AND LAWTON, JJ.


JOSEPH M. MELIA, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


CONNORS & VILARDO, LLP, BUFFALO (VINCENT E. DOYLE, III, OF COUNSEL),
FOR DEFENDANT-APPELLANT.

FLAHERTY & SHEA, BUFFALO (JAMES P. SHEA OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of Supreme Court, Erie County (Glownia, J.),
entered March 4, 2002, which, inter alia, awarded plaintiff damages in
the amount of $126,982.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously vacated without costs.

     Same Memorandum as in Melia v City of Buffalo ([appeal No. 2] ___
AD2d ___ [June 13, 2003]).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

806.1
CA 02-01147
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, BURNS, AND LAWTON, JJ.


THE ESTATE OF THOMAS J. KALIS, DECEASED,
BY JANE KALIS, EXECUTRIX, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO, DEFENDANT-APPELLANT.


CONNORS & VILARDO, LLP, BUFFALO (VINCENT E. DOYLE, III, OF COUNSEL),
FOR DEFENDANT-APPELLANT.

FLAHERTY & SHEA, BUFFALO (JAMES P. SHEA OF COUNSEL), FOR PLAINTIFF-
RESPONDENT.


     Appeal from an order and judgment of Supreme Court, Erie County
(Glownia, J.), entered March 4, 2002, which awarded plaintiff money
damages of $140,959 plus costs.

     It is hereby ORDERED that the order and judgment so appealed from
be and the same hereby are unanimously reversed on the law without
costs, the motion is denied and the complaint is dismissed.

     Memorandum: In 1971 plaintiff's decedent, Thomas J. Kalis, was
appointed to a civil service position as a motor equipment mechanic
for defendant, City of Buffalo (City). He was a member of the
American Federation of State, County, and Municipal Employees AFL-CIO
Local 264 (Local 264). On May 22, 1992, Kalis sustained injuries
during the course of his employment and received workers' compensation
benefits until May 1993, when he was medically cleared to return to
work. He worked in the same capacity until June 10, 1995, when he
again was injured, this time sustaining severe injuries that
permanently prevented his return to work. Kalis remained on the
City's payroll until September 11, 1995, at which time he received
workers' compensation benefits. He retired from the City one year
later, on September 11, 1996, and received a pension from the City.

     Pursuant to Article XIII of the collective bargaining agreement
(CBA) with Local 264, which went into effect on July 1, 1995, Kalis
received a wage differential for a six-month period equal to the
difference between his wages and his workers' compensation benefits
received while he was unable to work because of his injuries. Kalis,
however, demanded that the City continue to pay him the wage
differential during the entire period of his disability from work, in
compliance with section 35-22 of the City Code, which has no time
limitation on payment of the wage differential.
                                 -279-                         806.1
                                                         CA 02-01147

     The City refused, and Kalis served a notice of claim on the City
on July 9, 1998, more than 2½ years after receiving workers'
compensation benefits for his June 1995 injury and more than six years
after receiving such benefits for his May 1992 injury. The notice of
claim sought the wage differential following his 1995 injury only. He
then filed a summons and complaint against the City on September 29,
1998, seeking the wage differential for both his May 1992 and June
1995 injuries. The City served an answer containing several
affirmative defenses, including failure to commence the action within
the applicable statute of limitations and failure to comply with the
notice requirements of General Municipal Law § 50-e. Kalis then moved
for summary judgment dismissing the City's affirmative defenses. In
addition, he sought an order directing the City to comply with the
Code by continuing to pay him the wage differential, and he sought a
hearing to determine the amount of arrears owed to him. By order
entered February 12, 1999, Supreme Court granted that part of Kalis's
motion seeking an order directing payment of the wage differential.
The City filed a notice of appeal from that order five days later but
did not perfect the appeal. On March 18, 1999, the City moved for
renewal and reargument, and the court denied that motion by order
entered July 27, 1999. The City filed a notice of appeal from that
order on January 4, 2001 but never perfected the appeal.

     Kalis moved for a money judgment and hearing to determine the
amounts payable to him by the City. He sought wage differentials for
the time periods after his May 1992 and June 1995 accidents, as well
as a future wage differential from the date of the motion until
December 15, 2008, when he would turn 65 years old. The court granted
Kalis's motion by order entered January 31, 2001. The City filed a
notice of appeal from that order but did not perfect the appeal.

     Kalis died in December 2001 and his estate was substituted as
plaintiff on March 11, 2002. A hearing on damages was held before a
judicial hearing officer, who determined that plaintiff was entitled
to wage differentials for 1992 and from 1995 through 2001. The court
adopted that determination and granted an order upon which judgment
was entered March 4, 2002 awarding plaintiff $140,959 plus costs.
This appeal ensued.

     The City contends on appeal that the court erred in granting that
part of Kalis's motion seeking an order directing payment of the wage
differential. Although the City abandoned its appeal from that order
and thus this appeal is subject to dismissal (see Rubeo v National
Grange Mut. Ins. Co., 93 NY2d 750, 754-756; Bray v Cox, 38 NY2d 350,
353), we nevertheless exercise our discretion to consider the appeal
(see Bogenrieder v Crippen Heating & Air Conditioning, 266 AD2d 885;
see also Faricelli v TSS Seedman's, 94 NY2d 772, 774).

     The City contends that this action sounds in tort and that the
notice of claim requirements set forth in General Municipal Law §§ 50-
e and 50-i therefore apply. We agree. This action seeks money
damages allegedly caused by the failure of the City to discharge a
duty imposed upon it by law, i.e., to provide the wage differential.
Thus, this action sounds in tort, and a notice of claim therefore was
                                -280-                         806.1
                                                        CA 02-01147

required to be served upon the City within 90 days after the claim
arose, pursuant to General Municipal Law § 50-e (see Phelps Steel v
City of Glens Falls, 89 AD2d 652; see also Melia v City of Buffalo
[appeal No. 2], ___ AD2d ___ [June 13, 2003]). It is undisputed that
Kalis did not serve a notice of claim until July 9, 1998, which was
well outside both the notice of claim period of 90 days and the
statute of limitations period of one year and 90 days (see General
Municipal Law §§ 50-e, 50-i). Thus, we conclude that this action must
be dismissed.




Entered: June 13, 2003                         JOANN M. WAHL
                                               Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

806
CA 02-02375
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, BURNS, AND LAWTON, JJ.


JOSEPH M. MELIA, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


CONNORS & VILARDO, LLP, BUFFALO (VINCENT E. DOYLE, III, OF COUNSEL),
FOR DEFENDANT-APPELLANT.

FLAHERTY & SHEA, BUFFALO (JAMES P. SHEA OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of Supreme Court, Erie County (Glownia, J.),
entered January 31, 2001, which, inter alia, granted plaintiff's
motion for summary judgment.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously reversed on the law without costs, the
motion is denied, the cross motion is granted and the complaint is
dismissed.

     Memorandum: In 1974 plaintiff was appointed to a civil service
position as a motor equipment operator for defendant, City of Buffalo
(City). He was a member of the American Federation of State, County,
and Municipal Employees AFL-CIO Local 264 (Local 264). On June 27,
1994, plaintiff was injured in the course of his employment. He was
unable to return to work due to the extent of his injuries and
received workers' compensation benefits until his retirement.

     Pursuant to Article XIII of the collective bargaining agreement
(CBA) with Local 264, which went into effect July 1, 1995, plaintiff
was entitled to receive a wage differential equal to the difference
between his wages and his workers' compensation benefits for up to six
months while he was unable to return to work due to his injuries.
Plaintiff, however, commenced this action seeking the wage
differential from the date of his injury through the commencement of
the action and continuing indefinitely into the future pursuant to
section 35-22 of the City Code. That section allows an eligible
employee to receive the pay differential for an unlimited period of
time. The City answered and raised several affirmative defenses,
including the statute of limitations and failure to comply with the
notice of claim requirements of General Municipal Law § 50-e.
Plaintiff moved for, inter alia, summary judgment on liability for the
                                 -282-                         806
                                                         CA 02-02375

wage differential payments, and the City cross-moved to dismiss the
complaint for failure to comply with General Municipal Law § 50-e.

     By its order in appeal No. 2, Supreme Court granted plaintiff's
motion for summary judgment, denied the City's cross motion to dismiss
and ordered a hearing to determine the amount of the wage differential
owed to plaintiff. By its order in appeal No. 1, the court awarded
plaintiff $126,982 in damages. In these appeals, the City contends
that plaintiff's action sounds in tort and that the notice of claim
provisions of General Municipal Law §§ 50-e and 50-i therefore apply
to bar this action. We agree. The complaint seeks money damages for
an alleged failure by the City to discharge a duty imposed upon it by
law, i.e., to provide the wage differential to plaintiff. Such an
action sounds in tort and consequently plaintiff was required,
pursuant to General Municipal Law § 50-e, to serve a notice of claim
upon the City within 90 days after the claim arose (see Phelps Steel v
City of Glens Falls, 89 AD2d 652; see also Estate of Kalis v City of
Buffalo, ___ AD2d ___ [June 13, 2003]). It is undisputed that
plaintiff neither served a notice of claim nor applied for leave to
serve a late notice of claim. Thus, we reverse the order in appeal
No. 2, deny plaintiff's motion for summary judgment, grant the City's
cross motion and dismiss the complaint, and we vacate the order in
appeal No. 1.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

810
CA 02-02773
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, BURNS, AND LAWTON, JJ.


MARTIN C. KAPLAN, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

SHARON L. SANFRATELLO, DOING BUSINESS AS
SLS ENTERPRISES, DEFENDANT-RESPONDENT.


MARTIN C. KAPLAN, PLAINTIFF-APPELLANT PRO SE.

GORDON AND SCHAAL, LLP, ROCHESTER (DEBORAH KALL SCHAAL OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from that part of an order of Monroe County Court
(Connell, J.), entered September 25, 2002, that modified a judgment
(denominated order and judgment) of Rochester City Court (Byrnes, J.)
in favor of defendant.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Plaintiff appeals from that part of an order of
Monroe County Court that modified a judgment (denominated order and
judgment) of Rochester City Court in favor of defendant in this small
claims action by vacating the award of costs to defendant. Because it
cannot be said that substantial justice between the parties was not
done here, we affirm (see generally Coppola v Kandey Co., 236 AD2d
871, 872).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

814
CA 02-01226
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, BURNS, AND LAWTON, JJ.


DAVID WOJDAN, PLAINTIFF-APPELLANT-RESPONDENT,

                    V                                            ORDER

COUNTY OF ERIE, ET AL., DEFENDANTS,
AMHERST UROLOGY, P.C., NOW KNOWN AS WESTERN
NEW YORK UROLOGY ASSOCIATES, LLC, AND CHRISTOPHER
J. SKOMRA, M.D., DEFENDANTS-RESPONDENTS-APPELLANTS.


RICHARD O. ROBINSON, P.C., BUFFALO (MICHAEL ANTHONY ROSSI OF COUNSEL),
FOR PLAINTIFF-APPELLANT-RESPONDENT.

ROACH, BROWN, MC CARTHY & GRUBER, P.C., BUFFALO (J. MARK GRUBER OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of Supreme Court, Erie
County (Sedita, Jr., J.), entered March 27, 2002 which, inter alia,
granted in part the summary judgment motion of defendants Amherst
Urology, P.C., now known as Western New York Urology Associates, LLC,
and Christopher J. Skomra, M.D.

     It is hereby ORDERED that said cross appeal be and the same
hereby is unanimously dismissed as moot and the order is affirmed
without costs for reasons stated in decision at Supreme Court, Erie
County, Sedita, Jr., J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

819
CAF 02-00753
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, BURNS, AND LAWTON, JJ.


MATTER OF ADOPTION OF JULIA P.
---------------------------------------------
TINA B. AND ERIK B., PETITIONERS-RESPONDENTS;    MEMORANDUM AND ORDER

ROBERT P., RESPONDENT-APPELLANT.


LIONEL HECTOR, WATERTOWN, FOR RESPONDENT-APPELLANT.

SWARTZ LAW FIRM, P.C., WATERTOWN (SUSAN A. SOVIE OF COUNSEL), FOR
PETITIONERS-RESPONDENTS.

EUGENE J. LANGONE, JR., LAW GUARDIAN, WATERTOWN, FOR JULIA P.


     Appeal from an order of Family Court, Jefferson County (Hunt,
J.), entered March 5, 2002, which dispensed with the consent of
respondent to the adoption of his daughter.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Family Court properly dispensed with the consent of
respondent, the birth father, to the adoption of his daughter Julia P.
on the ground of abandonment (see Domestic Relations Law § 111 [2]
[a]) and granted the petition allowing Julia's stepfather to adopt
Julia. The proof establishes that Julia's mother is respondent's
adopted daughter and that Julia was conceived in an act of incestuous
rape when her mother was 15 years old. Several years after Julia was
born, her mother disclosed the criminal acts of respondent, as a
result of which he was convicted in criminal court of sexual abuse in
the first degree (Penal Law § 130.65) and sentenced to a period of
incarceration. In a related child protective proceeding, Family Court
found, inter alia, that respondent raped Julia's mother and
derivatively neglected Julia. Orders of protection were issued by
both courts prohibiting any contact between respondent and either
Julia or her mother.

     More than six months after respondent was incarcerated,
petitioners, Julia's mother and stepfather, commenced this proceeding
to allow the stepfather to adopt Julia. In support of their
contention that the consent of the birth father is not required
because of abandonment, petitioners established that, in the six
months preceding the petition, respondent had not provided financial
support for Julia and had not communicated with Julia or her mother.
Respondent contends that his failure to communicate with Julia or her
                                 -286-                         819
                                                         CAF 02-00753

mother cannot constitute abandonment because the orders of protection
precluded such contact. We reject that contention. Neither the
orders of protection prohibiting contact with Julia or her mother nor
his incarceration prevented respondent from contacting the Jefferson
County Department of Social Services, the agency supervising Julia's
care pursuant to the order of fact-finding and disposition in the
child protective proceeding (see Matter of Krysheena, 265 AD2d 816;
see also Matter of Jasmin E.R., ___ AD2d ___ [Mar. 21, 2003]). The
vague and conclusory testimony of respondent that, at some time during
his incarceration, he wrote to the Department of Social Services is
insufficient to establish that he did so within the six months
preceding the filing of the petition and that he did so with the
intent to communicate with Julia.

     More importantly, where, as here, "the biological parent's
inability to visit with the child[] results from his own deliberate
acts, the underlying circumstances need not preclude a finding of a
lack of contact with the child[] evincing an intent to abandon [her]"
(Matter of Joshua II, 296 AD2d 646, 648, lv denied 98 NY2d 613). In
this case, there is no doubt that the inability of respondent to visit
with Julia is a direct result of his own deliberate criminal acts.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

820
CAF 02-00946
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, BURNS, AND LAWTON, JJ.


MATTER OF MICHAEL D., BRANDON D., KEIANA D.,
DOMINICK D., AND AMANDA D.
----------------------------------------------    MEMORANDUM AND ORDER
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;

MELVIN D., SR., RESPONDENT-APPELLANT.


GWENNOR LLOYD CARR, BUFFALO, FOR RESPONDENT-APPELLANT.

GARY J. WOJTAN, BUFFALO, FOR PETITIONER-RESPONDENT.

DAVID C. SCHOPP, LAW GUARDIAN, THE LEGAL AID BUREAU OF BUFFALO, INC.,
BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR MICHAEL D., BRANDON D.,
KEIANA D., DOMINICK D., AND AMANDA D.


     Appeal from an order of Family Court, Erie County (Rosa, J.),
entered April 10, 2002, which terminated respondent's parental rights.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Family Court properly granted the petition seeking
termination of respondent's parental rights. Petitioner met its
burden of establishing by clear and convincing evidence that
respondent is presently and for the foreseeable future unable to
provide proper and adequate care for his children by reason of mental
illness or mental retardation (see Social Services Law § 384-b [4]
[c]; [6] [a], [b]; Matter of Dylan K., 269 AD2d 826, lv denied 95 NY2d
766; Matter of Casey J., 251 AD2d 1002). Contrary to respondent's
contention, petitioner was not required to establish that it made
reasonable or diligent efforts to strengthen and encourage the
parental relationship where, as here, the termination of parental
rights is sought based on mental illness or mental retardation (see
Matter of Harry K., 270 AD2d 928).




Entered: June 13, 2003                           JOANN M. WAHL
                                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

821
CAF 03-00409
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, BURNS, AND LAWTON, JJ.


MATTER OF TROY G.
----------------------------------------------
MONROE COUNTY DEPARTMENT OF SOCIAL SERVICES,                       ORDER
PETITIONER-APPELLANT;

RAYMOND G., RESPONDENT-RESPONDENT.


CHARLES S. TURNER, COUNTY ATTORNEY, ROCHESTER (RONALD A. CASE OF
COUNSEL), FOR PETITIONER-APPELLANT.

KATHERINE GLADSTONE, ROCHESTER, FOR RESPONDENT-RESPONDENT.

EDWIN S.C. OBIORAH, LAW GUARDIAN, ROCHESTER, FOR TROY G.


     Appeal from an order of Family Court, Monroe County (Kohout, J.),
entered May 21, 2002, which, inter alia, extended and modified the
suspended judgment for a period of 12 months.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                           JOANN M. WAHL
                                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

822
KAH 02-00079
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, BURNS, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK EX REL.
RAYMOND HARRIS, ALSO KNOWN AS CHAUNCEY HARRIS,
PETITIONER-APPELLANT,

                    V                              MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF PAROLE, AND ANTHONY ZON,
SUPERINTENDENT, CAPE VINCENT CORRECTIONAL FACILITY,
RESPONDENTS-RESPONDENTS.


STEPHEN LANCE CIMINO, SYRACUSE, FOR PETITIONER-APPELLANT.

RAYMOND HARRIS, ALSO KNOWN AS CHAUNCEY HARRIS, PETITIONER-APPELLANT
PRO SE.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS.


     Appeal from a judgment of Supreme Court, Jefferson County
(Gilbert, J.), entered September 7, 2001, which, inter alia, dismissed
the petition seeking a writ of habeas corpus.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.

     Memorandum: Supreme Court properly dismissed the petition
seeking a writ of habeas corpus. Because "'parole decisions are
discretionary and prisoners have no right to be released prior to the
expiration of their sentences,'" petitioner is not entitled to habeas
corpus relief (People ex rel. Daniels v Beaver, ___ AD2d ___ [Mar. 21,
2003], quoting People ex rel. Sansalone v Schriver, 252 AD2d 605,
605). Although this Court has the power to convert a petition for a
writ of habeas corpus into a CPLR article 78 petition, we decline to
do so based on the failure of petitioner to exhaust his administrative
remedies (see People ex rel. Christy v Goord, 291 AD2d 835, lv denied
98 NY2d 601). We have considered the remaining contentions raised by
petitioner in his pro se supplemental brief and conclude that they
lack merit.




Entered: June 13, 2003                           JOANN M. WAHL
                                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

823
KA 02-00701
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, BURNS, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                                               ORDER

JOSEPH W. PITTMAN, DEFENDANT-APPELLANT.


DAVID M. PARKS, ITHACA, FOR DEFENDANT-APPELLANT.

EDWARD M. SHARKEY, DISTRICT ATTORNEY, LITTLE VALLEY, FOR PLAINTIFF-
RESPONDENT.


     Appeal from a judgment of Cattaraugus County Court (Himelein,
J.), entered January 7, 2002, convicting defendant upon his plea of
guilty of, inter alia, sexual abuse in the first degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed (see People v Hidalgo, 91 NY2d
733, 737).




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

824
KA 01-02098
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, BURNS, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MICHAEL JOHNSON, DEFENDANT-APPELLANT.


EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Monroe County Court (Kohout, J.),
entered July 16, 2001, convicting defendant upon his plea of guilty
of, inter alia, burglary in the second degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of burglary in the second degree (Penal Law § 140.25
[2]) and petit larceny (§ 155.25), defendant contends that the People
failed to establish that the police officer who stopped and detained
him had the requisite level of knowledge to support the stop and
detention. Defendant argued before the suppression court only that he
had been arrested without probable cause (see People v Brown, 275 AD2d
328, lv denied 95 NY2d 961; Matter of Jason F., 243 AD2d 391; People v
Sanders, 224 AD2d 956, lv denied 88 NY2d 885), and thus his present
contention "was not raised at a time when the People had an
evidentiary opportunity to counter [it]" (People v Rodriguez, 188 AD2d
564, 564, lv denied 81 NY2d 892). Defendant's contention therefore is
unpreserved for our review (see CPL 470.05 [2]), and we decline to
exercise our power to review it as a matter of discretion in the
interest of justice (see 470.15 [6] [a]).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

825
KA 02-00383
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, BURNS, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                                              ORDER

ARMANDO ARAUJO, DEFENDANT-APPELLANT.


EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (ELIZABETH CLARKE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Monroe County Court (Geraci, Jr., J.),
entered December 12, 2001, convicting defendant upon his plea of
guilty of attempted burglary in the second degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

826
KA 00-00903
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, BURNS, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

FRANKLIN LEONARD, DEFENDANT-APPELLANT.


FRANKLIN LEONARD, DEFENDANT-APPELLANT PRO SE.

HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Supreme Court, Monroe County (Mark,
J.), entered January 26, 1999, convicting defendant upon his plea of
guilty of criminal possession of stolen property in the third degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of stolen property in the third
degree (Penal Law § 165.50), defendant contends that Supreme Court
erred in denying his motion to withdraw his plea. We reject that
contention. The decision whether to allow a defendant to withdraw a
guilty plea is within the sound discretion of the court (see CPL
220.60 [3]; People v Selikoff, 35 NY2d 227, 241, cert denied 419 US
1122). Contrary to the contention of defendant, the colloquy did not
cast doubt on defendant's guilt or the voluntary nature of the plea
(see People v Lopez, 71 NY2d 662, 666), and the unsupported
allegations of defendant that he is innocent and that defense counsel
pressured him to accept the plea bargain are insufficient to warrant
vacatur of the plea (see People v Telfair, 299 AD2d 429, lv denied 99
NY2d 620; People v Patterson, 295 AD2d 966, lv denied 99 NY2d 538).
Because defendant failed to object to the enhanced sentence or move to
withdraw his plea on that ground, his contention that the sentence was
improperly enhanced is not preserved for our review (see 470.05 [2];
People v Michael S., 273 AD2d 804, 805). In any event, the court
instructed defendant at the time of the plea that, if he failed to
appear for sentencing or was arrested for another crime prior to
                                 -294-                         826
                                                         KA 00-00903

 sentencing, the court would not be bound by its original sentencing
commitment, and thus defendant's contention lacks merit.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

827
KA 01-01544
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, BURNS, AND LAWTON, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DONNELL L. PINKARD, DEFENDANT-APPELLANT.


EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Supreme Court, Monroe County (Fisher,
J.), entered May 7, 2001, convicting defendant after a jury trial, of
inter alia, burglary in the third degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

      Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of one count each of burglary in the third degree
(Penal Law § 140.20), attempted burglary in the third degree (§§
110.00, 140.20) and attempted petit larceny (§§ 110.00, 155.25) and
two counts of criminal mischief in the fourth degree (§ 145.00).
Defendant failed to preserve his present contentions for our review
(see People v Dickens, 88 NY2d 1031, 1032-1033; People v Honeycutt,
267 AD2d 1007), and we decline to exercise our power to review them as
a matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

828
TP 02-00553
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.


MATTER OF JOHN VELEZ, PETITIONER,

                    V                                               ORDER

EDWARD R. DONNELLY, SUPERINTENDENT, WENDE
CORRECTIONAL FACILITY, AND DONALD SELSKY, DIRECTOR,
SPECIAL HOUSING/INMATE DISCIPLINARY PROGRAMS,
RESPONDENTS.


JOHN VELEZ, PETITIONER PRO SE.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (NANCY A. SPIEGEL OF COUNSEL),
FOR RESPONDENTS.


     CPLR article 78 proceeding transferred to this Court by an order
of Supreme Court, Erie County (Fahey, J.), entered March 7, 2002,
seeking review of a determination after a Tier III hearing.

     It is hereby ORDERED that the determination be and the same
hereby is unanimously confirmed without costs and the petition is
dismissed.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

829
TP 02-02836
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.


MATTER OF MARK M. ROBINSON, PETITIONER,

                    V                                               ORDER

GLENN S. GOORD, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, ATTICA (JERRY M. ADER OF
COUNSEL), FOR PETITIONER.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (ANDREA OSER OF COUNSEL), FOR
RESPONDENT.


     CPLR article 78 proceeding transferred to this Court by an order
of Supreme Court, Wyoming County (Dadd, J.), entered December 19,
2002, seeking review of a determination after a Tier II hearing.

     It is hereby ORDERED that the determination be and the same
hereby is unanimously confirmed without costs and the petition is
dismissed.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

830
KA 02-00550
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DEMETRIUS COLEMAN, DEFENDANT-APPELLANT.


J. MICHAEL FORSYTH, FAYETTEVILLE, FOR DEFENDANT-APPELLANT.

DEMETRIUS COLEMAN, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Supreme Court, Onondaga County
(Brunetti, J.), entered September 10, 2001, convicting defendant after
a jury trial of, inter alia, attempted murder in the second degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of attempted murder in the second degree (Penal Law
§§ 110.00, 125.25 [1]), criminal use of a firearm in the first degree
(§ 265.09), and criminal possession of a weapon in the second degree
(§ 265.03 [2]), all arising out of a shooting. We conclude that
Supreme Court properly denied the motion of defendant to suppress his
statements to police. Great weight must be accorded to the
determination of the suppression court because of its ability to
observe and assess the credibility of the witnesses, and its findings
should not be disturbed unless clearly erroneous or unsupported by the
hearing evidence (see People v Prochilo, 41 NY2d 759, 761; People v
Moore, 295 AD2d 969, lv denied 98 NY2d 770; People v May, 263 AD2d
215, 219, lv denied 94 NY2d 950). Here, the testimony of the
interrogating officers, whom the court credited, established that
defendant knowingly, intelligently, and voluntarily waived his Miranda
rights and agreed to speak without an attorney. Further, the
officers' testimony established that defendant's confession was not
coerced (see People v Mitchell, 289 AD2d 776, 778-779, lv denied 98
NY2d 653; People v Whorley, 286 AD2d 858, lv denied 97 NY2d 689; cf.
People v Anderson, 42 NY2d 35, 38-41). Defendant's testimony to the
contrary merely raised an issue of credibility that the court was
entitled to resolve in favor of the People (see People v Acosta, 241
AD2d 385, 386, lv denied 92 NY2d 846).
                                 -299-                         830
                                                         KA 02-00550

     The court properly denied defendant's request to admit the grand
jury testimony of the victim, who did not testify at trial. Defendant
failed to make the requisite showing that the victim's grand jury
testimony bore sufficient indicia of reliability (cf. People v
Robinson, 89 NY2d 648, 655-656). In particular, there was no
demonstration that the victim was subjected to vigorous examination
before the grand jury or that his account was otherwise tested for
credibility (cf. id. at 656-657; see generally People v Rosa, 302 AD2d
231; People v Richardson, 297 AD2d 611, 612, lv granted 99 NY2d 563).
In any event, any error in the court's refusal to admit the grand jury
testimony is harmless beyond a reasonable doubt (see People v
Crimmins, 36 NY2d 230, 237). Defendant was permitted to present the
testimony of investigating officers to whom the victim had given his
initial statements exculpating defendant. That testimony placed
before the jury the same facts that would have been conveyed by the
victim's grand jury testimony, thus rendering the grand jury testimony
cumulative of other evidence.

     The People demonstrated a sufficient connection between
defendant, the shooting, and the gun to warrant the admission of the
gun in evidence (see People v McClean, 122 AD2d 379, 381-382, affd 69
NY2d 426; People v Miller, 116 AD2d 596, lv denied 67 NY2d 947). The
gun admitted in evidence was consistent with the witnesses'
descriptions of that used by the shooter, and the number of spent
shells recovered with it matched the number of shots fired in the
assault. More important, the gun was located by police through the
efforts of intermediaries enlisted by defendant.

     The court did not err in denying defendant's request for a
missing witness charge with respect to the victim and another witness.
Defendant's request was untimely (see generally People v Gonzalez, 68
NY2d 424, 427-428; see People v McKinney, 302 AD2d 993; People v
Hayes, 261 AD2d 872, 873, lv denied 93 NY2d 1019, 1021). In any
event, the record demonstrates that the victim was neither available
to the People (see People v Legrand, 275 AD2d 932, lv denied 95 NY2d
906; People v Vigliotti, 270 AD2d 904, 905, lv denied 95 NY2d 839),
nor under their control (see id.; see also People v Johnson, 289 AD2d
1024, lv denied 98 NY2d 638; People v Lovall, 286 AD2d 863, 864, lv
denied 97 NY2d 684). Similarly, the record demonstrates that the
other potential witness was not under the control of the People (see
Johnson, 289 AD2d at 1024; Lovall, 286 AD2d at 864). In any event,
the evidence of defendant's guilt is overwhelming, and there is no
significant probability that defendant otherwise would have been
acquitted. Thus, any error by the court in failing to give a missing
witness instruction is harmless (see People v Guarino, 298 AD2d 937,
938, lv denied 98 NY2d 768; People v Williams, 286 AD2d 918, 919, lv
denied 97 NY2d 763).
                                 -300-                         830
                                                         KA 02-00550

     We have considered the contentions raised in defendant's pro se
supplemental brief and conclude that they are without merit.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

831
KA 02-01037
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ROGER STEIN, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ROBERT P. RICKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Onondaga County Court (Aloi, J.),
entered April 17, 2002, convicting defendant after a jury trial of
murder in the second degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him of
murder in the second degree (Penal Law § 125.25 [2]) in connection
with the beating death of an 84-year-old man. We reject the
contention of defendant that the indictment was obtained in violation
of his right to testify before the grand jury. Because defendant
failed to comply with the notice requirements of CPL 190.50 (5) (a),
his right to testify before the grand jury never accrued (see People v
Green, 187 AD2d 528, lv denied 81 NY2d 840). County Court properly
denied the motion of defendant to suppress the boots he was wearing
when he was detained and interviewed by the police. Police officers
may properly seize an item in plain view without a warrant if: "(1)
the police are lawfully in the position from which the object is
viewed; (2) the police have lawful access to the object; and (3) the
object's incriminating nature is immediately apparent" (People v Diaz,
81 NY2d 106, 110). Here, the dark boots worn by defendant were in
plain view when the police detained him on a street corner and brought
him to the police station for questioning. The boots fit the general
description given by a witness of the dark boots defendant had been
wearing before and after the crime, and they had what appeared to be
blood spatters on them, similar to blood spatters observed at the
crime scene. Under the circumstances, the officers had the authority,
under the plain view doctrine, to seize defendant's boots.

     Defendant also contends that the conviction is not supported by
                                 -302-                         831
                                                         KA 02-01037

legally sufficient evidence. We disagree (see People v Bleakley, 69
NY2d 490, 495). A person commits murder in the second degree when,
"[u]nder circumstances evincing a depraved indifference to human life,
he recklessly engages in conduct which creates a grave risk of death
to another person, and thereby causes the death of another person"
(Penal Law § 125.25 [2]). The People presented evidence that the 84-
year-old victim was beaten repeatedly about the head, resulting in a
fracture of the face, multiple lacerations, and multiple brain
contusions. The victim was left in a pool of his own blood, lapsed
into a coma, and ultimately died. The People's experts testified that
the beating set in motion a chain of events that ultimately led to the
victim's death several months later. Defendant was the last known
person to have seen the victim, and he initially lied to the police
about being in the vicinity of the crime on the night the victim was
beaten. The blood spatters on defendant's boots were similar to those
found at the crime scene. Medical testimony established that the
beating caused the victim's death. We conclude that the evidence is
legally sufficient to support the conviction.

     Likewise, the verdict is not against the weight of the evidence.
Although defendant presented expert testimony tending to show that the
victim's trauma may have been caused by a fall, the jury was entitled
to credit the testimony of the People's expert over that of
defendant's expert (see People v Miller, 91 NY2d 372, 380). Moreover,
the dark, blood-spattered boots worn by defendant when he was arrested
were highly incriminating. While defendant claimed that he "found"
the boots and put them on his feet just minutes before the police
stopped and detained him, the woman with whom defendant spent the
night and who was with him both before and after the murder testified
that he wore "dark boots," throughout the period they were together.
Thus, although defendant offered an explanation for his possession of
the boots, it was within the province of the jury to determine whether
to credit his testimony in that regard (see People v Shedrick, 66 NY2d
1015, 1018, rearg denied 67 NY2d 758; People v Early, 261 AD2d 967).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

832
KA 02-00428
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

KENNETH F. MALLETTE, DEFENDANT-APPELLANT.


JANE G. LA ROCK, WATERTOWN, FOR DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (ANA PEÑA-WALLACE OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Jefferson County Court (Martusewicz,
J.), entered September 24, 2001, convicting defendant upon his plea of
guilty of burglary in the third degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of burglary in the third degree (Penal Law §
140.20). By pleading guilty, defendant forfeited his claim that he
was denied his statutory right to a speedy trial (see CPL 30.30;
People v O'Brien, 56 NY2d 1009, 1010; People v Jones, 300 AD2d 1057;
People v Dewitt, 295 AD2d 937, 938, lv denied 98 NY2d 709, 767). The
sentence is neither unduly harsh nor severe.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

833
KA 02-01785
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                             MEMORANDUM AND ORDER

PATRICK O. DUNN, DEFENDANT-APPELLANT.


J. SCOTT PORTER, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Onondaga County Court (Walsh, J.),
entered June 4, 2002, which revoked defendant's probation and
sentenced defendant to a determinate term of imprisonment.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously modified as a matter of discretion in
the interest of justice by reducing the determinate term of
imprisonment to three years and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment revoking his
probation and sentencing him to a determinate term of imprisonment.
Contrary to the contention of defendant, the record supports County
Court's finding that he violated the conditions of his probation (see
CPL 410.70 [1]). Although we conclude that the court did not abuse
its discretion in revoking his probation on that ground (see People v
Costanza, 281 AD2d 120, 125, lv denied 96 NY2d 827), we modify the
judgment as a matter of discretion in the interest of justice by
reducing the determinate term of imprisonment to three years (see
470.15 [6] [b]).




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

834
KAH 02-00127
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.


PEOPLE OF THE STATE OF NEW YORK EX REL. ANDERSON
WETHINGTON, PETITIONER-APPELLANT,

                    V                                MEMORANDUM AND ORDER

JOHN BEAVER, SUPERINTENDENT, ORLEANS CORRECTIONAL
FACILITY, AND BRION D. TRAVIS, CHAIRMAN, NEW YORK
STATE DIVISION OF PAROLE, RESPONDENTS-RESPONDENTS.


STEPHEN K. UNDERWOOD, WEST SENECA, FOR PETITIONER-APPELLANT.

ANDERSON WETHINGTON, PETITIONER-APPELLANT PRO SE.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (EDWARD LINDNER OF COUNSEL),
FOR RESPONDENTS-RESPONDENTS.


     Appeal from a judgment (denominated order) of Supreme Court,
Orleans County (Punch, J.), entered December 12, 2001, which denied
the petition for a writ of habeas corpus.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs.

     Memorandum: Supreme Court properly denied the petition for a
writ of habeas corpus based upon the failure of petitioner to exhaust
his administrative remedies (see People ex rel. Victory v Herbert, 277
AD2d 933, 934, lv denied 96 NY2d 705; People ex rel. Joyce v New York
State Div. of Parole, 249 AD2d 638; People ex rel. Childs v Bennett,
231 AD2d 951, 952, lv denied 89 NY2d 802). We reject the contention
of petitioner that his constitutional claims of unlawful seizure
"justify a departure from the general rule requiring exhaustion of
administrative remedies" (People ex rel. Greany v Travis, 269 AD2d
666, 666, lv denied 94 NY2d 765). In any event, those claims, "even
if meritorious, would not entitle petitioner to immediate release,"
and thus habeas corpus is not an appropriate remedy (Joyce, 249 AD2d
at 638). We have considered the remaining contentions of petitioner,
including those contained in his pro se supplemental brief, and
conclude that they are without merit.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

835
CAF 01-02384
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.


MATTER OF JASON A. CHABOT, PETITIONER-APPELLANT,

                    V                                               ORDER

LISA A. CHABOT, RESPONDENT-RESPONDENT.


MULDOON & GETZ, ROCHESTER (GARY MULDOON OF COUNSEL), FOR
PETITIONER-APPELLANT.


     Appeal from an order of Family Court, Livingston County (Cicoria,
J.), entered October 31, 2001, which, inter alia, denied the amended
petition seeking joint custody of and visitation with the parties'
child.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs for reasons stated
in decision at Family Court, Livingston County, Cicoria, J.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

836
CAF 02-01780
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.


MATTER OF PAUL E. O'BRIEN, PETITIONER-RESPONDENT,

                    V                                            ORDER

HEATHER S. THOMAS, RESPONDENT-APPELLANT.


SOUTHERN TIER LEGAL SERVICES, BATH (MARK H. WATTENBERG OF COUNSEL),
FOR RESPONDENT-APPELLANT.

MADIGAN & BARRY, BATH (TRAVIS J. BARRY OF COUNSEL), FOR PETITIONER-
RESPONDENT.


     Appeal from an order of Family Court, Steuben County (Furfure,
J.), entered March 27, 2002, which granted the parties joint custody
of the child with placement to petitioner and visitation to
respondent.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs for reasons stated
at Family Court, Steuben County, Furfure, J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

837
CAF 02-01890
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.


MATTER OF RICHARD P., JR.
------------------------------------------------
JEFFERSON COUNTY DEPARTMENT OF SOCIAL SERVICES,                  ORDER
PETITIONER-RESPONDENT;

RICHARD P., RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


ALAN BIRNHOLZ, AMHERST, FOR RESPONDENT-APPELLANT.

KAREN V. DONALD, WATERTOWN, FOR PETITIONER-RESPONDENT.


     Appeal from an order of Family Court, Jefferson County (Hunt,
J.), entered August 16, 2002, which terminated respondent's parental
rights on the ground of mental retardation.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

838
CAF 02-01891
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.


MATTER OF RICHARD P., JR.
-----------------------------------------------
JEFFERSON COUNTY DEPARTMENT OF SOCIAL SERVICES,                  ORDER
PETITIONER-RESPONDENT;

RICHARD P., RESPONDENT-APPELLANT.
(APPEAL NO. 2.)


ALAN BIRNHOLZ, AMHERST, FOR RESPONDENT-APPELLANT.

KAREN V. DONALD, WATERTOWN, FOR PETITIONER-RESPONDENT.


     Appeal from an order of Family Court, Jefferson County (Hunt,
J.), entered August 16, 2002, which terminated respondent's parental
rights on the ground of permanent neglect.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                            JOANN M. WAHL
                                                  Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

839
CAF 01-02141
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.


MATTER OF RICHARD P., JR.
-----------------------------------------------
JEFFERSON COUNTY DEPARTMENT OF SOCIAL SERVICES,                 ORDER
PETITIONER-RESPONDENT;

RICHARD P., RESPONDENT-APPELLANT.
(APPEAL NO. 3.)


STEPHEN LANCE CIMINO, SYRACUSE, FOR RESPONDENT-APPELLANT.

KAREN V. DONALD, WATERTOWN, FOR PETITIONER-RESPONDENT.


     Appeal from an order of Family Court, Jefferson County (Hunt,
J.), entered September 7, 2001, which extended placement of the child
with petitioner until March 17, 2002.

     It is hereby ORDERED that said appeal be and the same hereby is
unanimously dismissed without costs as moot (see Matter of Joshua A.,
294 AD2d 950).




Entered: June 13, 2003                            JOANN M. WAHL
                                                  Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

844
CA 02-02603
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.


THOMAS A. YELDON, JR., PLAINTIFF-APPELLANT,

                    V                                            ORDER

AMERICAN REAL ESTATE HOLDINGS LIMITED PARTNERSHIPS,
DEFENDANT,
AND THE WIDEWATERS GROUP, INC., DEFENDANT-RESPONDENT.


STANLEY LAW OFFICES, SYRACUSE (ROBERT A. QUATTROCCI OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (JENNIFER L. PLOETZ OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of Supreme Court, Onondaga County (Centra,
J.), entered July 16, 2002, in favor of defendant The Widewaters
Group, Inc. upon motion.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs for reasons
stated in decision at Supreme Court, Onondaga County, Centra, J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

850
TP 03-00227
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


MATTER OF MARIO STACCHINI, PETITIONER,

                    V                                               ORDER

GARY GREEN, SUPERINTENDENT, MARCY CORRECTIONAL
FACILITY, RESPONDENT.


MARIO STACCHINI, PETITIONER PRO SE.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (NANCY A. SPIEGEL OF COUNSEL),
FOR RESPONDENT.


     CPLR article 78 proceeding transferred to this Court by an order
of Supreme Court, Oneida County (Julian, J.), entered January 3, 2003,
seeking review of a determination after a Tier III hearing.

     It is hereby ORDERED that the determination be and the same
hereby is unanimously confirmed without costs and the petition is
dismissed.




Entered: June 13, 2003                           JOANN M. WAHL
                                                 Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

851
KA 01-02457
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                                               ORDER

DARYL BOYKIN, ALSO KNOWN AS DARYL SMITH,
DEFENDANT-APPELLANT.


ALAN BIRNHOLZ, AMHERST, FOR DEFENDANT-APPELLANT.

FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DON I. DALLY OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Erie County Court (Drury, J.), entered
October 30, 2001, convicting defendant upon his plea of guilty of
attempted burglary in the second degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed (see People v Hidalgo, 91 NY2d
733, 737).




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

852
KA 02-00429
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                                               ORDER

RANDALL C. HOLDEN, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


DAVID M. PARKS, ITHACA, FOR DEFENDANT-APPELLANT.

RANDALL C. HOLDEN, DEFENDANT-APPELLANT PRO SE.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR PLAINTIFF-
RESPONDENT.


     Appeal from a judgment of Ontario County Court (Henry, Jr., J.),
entered July 28, 1999, convicting defendant upon his plea of guilty of
grand larceny in the second degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

853
KA 02-00430
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                                               ORDER

RANDALL C. HOLDEN, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


DAVID M. PARKS, ITHACA, FOR DEFENDANT-APPELLANT.

RANDALL C. HOLDEN, DEFENDANT-APPELLANT PRO SE.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR PLAINTIFF-
RESPONDENT.


     Appeal from a judgment of Ontario County Court (Henry, Jr., J.),
entered July 28, 1999, convicting defendant upon his plea of guilty
of, inter alia, grand larceny in the second degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

854
KA 02-00036
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STEVEN W. BURNETT, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

RICHARD E. SWINEHART, DISTRICT ATTORNEY, SYRACUSE, D.J. & J.A.
CIRANDO, ESQS. (JOHN A. CIRANDO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Seneca County Court (Bender, J.),
entered October 30, 2001, convicting defendant after a jury trial of,
inter alia, sexual abuse in the second degree (three counts).

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously modified on the law by reversing those
parts convicting defendant of promoting prison contraband in the
second degree under counts 14, 15 and 16 of the indictment as
renumbered and official misconduct under count 17 of the indictment as
renumbered, vacating the sentences imposed thereon and dismissing
those counts of the indictment and as modified the judgment is
affirmed.

     Memorandum: Defendant was convicted after a jury trial of three
counts of sexual abuse in the second degree (Penal Law § 130.60 [1]),
four counts of promoting prison contraband in the second degree (§
205.20 [1]) and one count of official misconduct (§ 195.00 [1]). We
agree with defendant that the three counts of promoting prison
contraband alleged to have occurred "on or about a day in the month of
October 2000" were never linked sequentially or otherwise to the
proof, and there was testimony concerning more than three incidents of
promoting prison contraband during that time. Thus, those parts of
the judgment convicting defendant of those counts must be reversed
(see People v Shaughnessy, 286 AD2d 856, 857, lv denied 97 NY2d 688;
People v McNab, 167 AD2d 858; cf. People v Curtis, 195 AD2d 968, lv
denied 82 NY2d 752). We further agree with defendant that the part of
the judgment convicting him of official misconduct must also be
reversed. "Where[, as here,] there is a variance between the proof
and the indictment [as amplified by the bill of particulars], and
where the proof is directed exclusively to a new theory rather than
the theory charged in the indictment, the proof is deemed insufficient
to support the conviction" (People v Smith, 161 AD2d 1160, 1161, lv
denied 76 NY2d 865; see People v Orso, 270 AD2d 947, 948, lv denied 95
                                 -317-                         854
                                                         KA 02-00036

NY2d 856). Although defendant failed to preserve those contentions
for our review, we nevertheless reach them because the "right of an
accused to be tried and convicted of only those crimes and upon only
those theories charged in the indictment is fundamental and
nonwaivable" (People v Rubin, 101 AD2d 71, 76, lv denied 63 NY2d 711).

     The contention of defendant that County Court erred in denying
his motion to suppress his statements to an investigator with the
Department of Corrections is moot because those statements were never
introduced at trial (see People v Falcon, 281 AD2d 368, 368-369, lv
denied 96 NY2d 901; People v Townsley, 240 AD2d 955, 957, lv denied 90
NY2d 943, 1014). Defendant further contends that the testimony of a
second investigator with the Department of Corrections who took
statements from the inmates involved improperly bolstered the
testimony of the complaining witnesses. That contention is not
preserved for our review inasmuch as defendant failed to object to the
testimony of that investigator (see People v Yelle, ___ AD2d ___ [Mar.
21, 2003]; People v Martinez, 298 AD2d 897, 899, lv denied 98 NY2d
769, cert denied ___ US ___, 123 S Ct 1752, reh denied ___ US ___
[June 2, 2003]). In any event, the testimony of the investigator did
not constitute improper bolstering because he testified only with
respect to his own observations of the demeanor of the inmates and did
not testify with respect to their statements (see People v Williams,
216 AD2d 211, 212, lv denied 87 NY2d 920, 926). Defendant also failed
to preserve for our review his challenge to the legal sufficiency of
the evidence with respect to that part of the judgment convicting him
of count 12 of the indictment as renumbered (see People v Gray, 86
NY2d 10, 19). We have examined defendant's remaining contention and
conclude that it is without merit. We therefore modify the judgment
by reversing those parts convicting defendant of promoting prison
contraband in the second degree under counts 14, 15 and 16 of the
indictment as renumbered and official misconduct under count 17 of the
indictment as renumbered, vacating the sentences imposed thereon and
dismissing those counts of the indictment.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

857
KA 02-01083
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-
RESPONDENT,

                    V                                MEMORANDUM AND ORDER

STACY SNYDER, DEFENDANT-APPELLANT.


JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.

THOMAS E. MORAN, DISTRICT ATTORNEY, GENESEO (ERIC R. SCHIENER OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Livingston County Court (Alonzo, J.),
entered November 8, 2001, convicting defendant after a jury trial of,
inter alia, assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting her
following a jury trial of assault in the second degree (Penal Law §
120.05 [9]) and endangering the welfare of a child (§ 260.10 [1]).
Contrary to defendant's contention, the conviction is supported by
legally sufficient evidence and the verdict is not against the weight
of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
The People presented evidence at trial that defendant ordered her
five-year-old son to drink household bleach as a punishment for
failing to clean his room, and it is well settled that a defendant's
intent to cause physical injury to the victim may be inferred from
defendant's conduct and the surrounding circumstances (see People v
Amin, 294 AD2d 863, lv denied 98 NY2d 672, 674; People v Scavone, 284
AD2d 928, 929, lv denied 96 NY2d 942; see also People v Mike, 283 AD2d
989, lv denied 96 NY2d 904). Contrary to defendant's further
contention, the sentence is neither unduly harsh nor severe. We have
examined defendant's remaining contention and conclude that it is
lacking in merit.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

858
KAH 02-01723
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


PEOPLE OF THE STATE OF NEW YORK EX REL. RICARDO
WASHINGTON, PETITIONER-APPELLANT,

                    V                                               ORDER

H. MC CARTHY GIPSON, SUPERINTENDENT, ERIE COUNTY
CORRECTIONAL FACILITY, AND BRION D. TRAVIS,
CHAIRMAN, NEW YORK STATE DIVISION OF PAROLE,
RESPONDENTS-RESPONDENTS.


PRESCOTT, HOWITT, MANCHESTER & ANDRUSCHAT, EAST AURORA (THOMAS E.
ANDRUSCHAT OF COUNSEL), FOR PETITIONER-APPELLANT.

FREDERICK A. WOLF, COUNTY ATTORNEY, BUFFALO (KRISTIN M. MACHELOR OF
COUNSEL), FOR RESPONDENT-RESPONDENT H. MC CARTHY GIPSON,
SUPERINTENDENT, ERIE COUNTY CORRECTIONAL FACILITY.

ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF
COUNSEL) FOR RESPONDENT-RESPONDENT BRION D. TRAVIS, CHAIRMAN, NEW YORK
STATE DIVISION OF PAROLE.


     Appeal from a judgment (denominated order) of Supreme Court, Erie
County (Dillon, J.), entered July 2, 2002, which converted the
petition for a writ of habeas corpus to a CPLR article 78 petition and
dismissed the petition.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs (see People ex
rel. Christy v Goord, 291 AD2d 835, lv denied 98 NY2d 601).




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

859
CAF 01-02422
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


MATTER OF AERIOL H.
------------------------------------------------
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,                        ORDER
PETITIONER-RESPONDENT;

SHALEENA H., RESPONDENT-APPELLANT,
ET AL., RESPONDENT.


DAVID J. PAJAK, BUFFALO, FOR RESPONDENT-APPELLANT.

GARY J. WOJTAN, BUFFALO, FOR PETITIONER-RESPONDENT.

DAVID C. SCHOPP, LAW GUARDIAN, THE LEGAL AID BUREAU OF BUFFALO, INC.,
BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR AERIOL H.


     Appeal from an order of Family Court, Erie County (Rosa, J.),
entered September 26, 2001, which adjudged that respondents' child is
an abused child.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs for reasons stated
in decision at Family Court, Erie County, Rosa, J.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

860
CAF 02-01763
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


MATTER OF MARK L. OSMUNDSON, PETITIONER-APPELLANT,

                    V                                MEMORANDUM AND ORDER

HELEN HELD-CUMMINGS, RESPONDENT-RESPONDENT.


PAUL SKAVINA, ROME, FOR PETITIONER-APPELLANT.


     Appeal from an order of Family Court, Jefferson County (Flemma,
J.H.O.), entered July 23, 2002, which dismissed the petition seeking
modification of a visitation order.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously reversed on the law without costs, the
petition is reinstated, and the matter is remitted to Family Court,
Jefferson County, for further proceedings on the petition in
accordance with the following Memorandum: Petitioner filed a pro se
petition seeking modification of a visitation order based on an
alleged "change of circumstances." On the return date of the
petition, the parties and a law guardian assigned by Family Court
appeared before a Judicial Hearing Officer (JHO). Proceedings
concerning the parties' children have been on-going, and we have
decided numerous appeals related to these parties. Nevertheless,
where, as here, the pro se petition seeks custody of the children and
concerns visitation matters, petitioner was entitled to be advised
"that he has the right to be represented by counsel of his own
choosing, of his right to have an adjournment to confer with counsel,
and of his right to have counsel assigned by the court in any case
where he is financially unable to obtain the same" (Family Ct Act §
262 [a] [v]; see Matter of Wilson v Bennett, 282 AD2d 933, 934-935).
The JHO failed to advise petitioner of those rights prior to
proceeding on the petition. Furthermore, it is unclear from the
record before us whether petitioner consented to proceeding before a
JHO. Indeed, petitioner's signature on the consent form indicates
that the signature was "under objection" and there does not appear to
be any other recorded indication of consent to proceeding before the
JHO. "It is well settled that an order of reference to a [JHO] to
hear and determine is permissible only with the consent of the
parties" (Batista v Delbaum, Inc., 234 AD2d 45, 46; see CPLR 4317 [a];
McCormack v McCormack, 174 AD2d 612, 613). Based upon the foregoing,
we conclude that the order must be reversed and the petition
reinstated, and we remit the matter to Family Court, Jefferson County,
                                 -322-                         860
                                                         CAF 02-01763

for further proceedings on the petition in accordance with our
decision herein.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

861
CAF 02-00317
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


MATTER OF STACY B.
-----------------------------------------------                   ORDER
LIVINGSTON COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;

KATHY B., RESPONDENT-APPELLANT,
ET AL., RESPONDENT.


DAVID M. PARKS, ITHACA, FOR RESPONDENT-APPELLANT.

JOHN T. SYLVESTER, MT MORRIS, FOR PETITIONER-RESPONDENT.


     Appeal from an order of Family Court, Livingston County (Cicoria,
J.), entered January 14, 2002, which terminated the parental rights of
respondents.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs for reasons stated
in decision at Family Court, Livingston County, Cicoria, J.




Entered: June 13, 2003                             JOANN M. WAHL
                                                   Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

863
CA 02-02612
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


LAKE SIDE CONTRACTING CO., INC., PLAINTIFF-
RESPONDENT,

                    V                                             ORDER

CAMBRIDGE FLOORS, INC., DEFENDANT-APPELLANT.


GIBSON, MC ASKILL & CROSBY, LLP, BUFFALO (TIMOTHY J. GRABER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAW OFFICES OF JOHN QUACKENBUSH, BUFFALO (ALAN J. BEDENKO OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of Supreme Court, Erie County (Makowski,
J.), entered December 11, 2001, in favor of plaintiff and against
defendant in the amount of $86,192.50.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs for reasons
stated in decision at Supreme Court, Erie County, Makowski, J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

868
CA 02-01230
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


MARY J. MARKHAM, FORMERLY KNOWN AS MARY J.
SCHMIDT, PLAINTIFF-APPELLANT,

                    V                                               ORDER

ROBERT A. SCHMIDT, DEFENDANT-RESPONDENT.


LAW OFFICE OF EUGENE VINCENT BURKE, WILLIAMSVILLE (EUGENE VINCENT
BURKE OF COUNSEL), FOR PLAINTIFF-APPELLANT.

GERALD P. GORMAN, HAMBURG, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of Supreme Court, Cattaraugus County (Nenno,
J.), entered February 21, 2002, which denied plaintiff's motion to
compel defendant to comply with an oral stipulation.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed with costs for reasons stated in
decision at Supreme Court, Cattaraugus County, Nenno, J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

872
CA 02-02821
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


SUSAN I. CARNEY, PLAINTIFF-APPELLANT,

                    V                                             ORDER

KENNETH CARNEY, DEFENDANT-RESPONDENT.


FIORELLA, PALMER & ZAKIA, BUFFALO (DEANNE M. TRIPI OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

OFFERMANN, CASSANO, GRECO & SLISZ, LLP, BUFFALO (ALLAN H. KAMINSKY OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of Supreme Court, Erie County (Siwek, J.),
granted March 20, 2002, which granted defendant's motion to dismiss
the action for lack of jurisdiction.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs for reasons stated
in decision at Supreme Court, Erie County, Siwek, J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

873
CAF 03-00652
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


MATTER OF THOMAS S., RESPONDENT-APPELLANT.
--------------------------------------------     MEMORANDUM AND ORDER
ERIE COUNTY PROBATION DEPARTMENT,
PETITIONER-RESPONDENT.


DAVID C. SCHOPP, LAW GUARDIAN, THE LEGAL AID BUREAU OF BUFFALO, INC.,
BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR RESPONDENT-APPELLANT.

FREDERICK A. WOLF, COUNTY ATTORNEY, BUFFALO (MICHAEL J. LISZEWSKI OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of Family Court, Erie County (Dillon, J.),
entered September 9, 2002, which placed respondent in the custody of
Erie County Department of Social Services for placement at the
Gustavus Adolphus Children's Home for a period of one year.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.

     Memorandum: Family Court did not abuse its discretion in placing
respondent, a chronic truant, at the Gustavus Adolphus Children's Home
for a period of one year. Respondent was adjudicated a person in need
of supervision and was placed on probation with the conditions that he
attend school regularly, appear for all scheduled meetings with his
probation officer, and attend counseling on a regular basis. It is
undisputed that respondent failed to comply with any of those
conditions, and thus the court properly placed respondent with an
authorized agency pursuant to Family Ct Act § 756.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

874
CA 02-01925
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


MICHELLE EHMKE, PLAINTIFF-APPELLANT,

                    V                                             ORDER

FRITZ EHMKE, DEFENDANT-RESPONDENT.


FIORELLA, PALMER & ZAKIA, BUFFALO (BARBARA E. HANDSCHU OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

COLE, SORRENTINO, HURLEY, HEWNER & GAMBINO, P.C., BUFFALO (DONNA L.
HASLINGER OF COUNSEL), FOR DEFENDANT-RESPONDENT.

SHARI JO REICH, LAW GUARDIAN, BUFFALO, FOR SCOTT E.


     Appeal from an order of Supreme Court, Erie County (Marshall,
J.), granted August 15, 2002, which amended the judgment of divorce
by, inter alia, awarding sole custody of the parties' child to
defendant.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

875
CA 02-00015
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


AMY L. COLLINS, PLAINTIFF-APPELLANT,

                    V                                             ORDER

BRUCE COLLINS, DEFENDANT-RESPONDENT.


MELVIN BRESSLER, PITTSFORD, FOR PLAINTIFF-APPELLANT.

SHARON KELLY SAYERS, ROCHESTER, FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of Supreme Court, Monroe County (Lunn,
J.), entered December 11, 2001, which, inter alia, dismissed the
action and awarded sole custody of the parties' child to defendant.

     It is hereby ORDERED that the judgment so appealed from be and
the same hereby is unanimously affirmed without costs for reasons
stated in decision at Supreme Court, Monroe County, Lunn, J.




Entered: June 13, 2003                          JOANN M. WAHL
                                                Clerk of the Court
                                    -330-                             875
                                                                CA 02-00015

MOTION NO. (1576/90) KA 90-01576. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V HARRY AYRHART, DEFENDANT-APPELLANT. -- Motion

for writ of error coram nobis denied.       PRESENT:   GREEN, J.P., PINE,

WISNER, AND HAYES, JJ.     (Filed June 13, 2003.)



MOTION NO. (843/92) KA 03-00923. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V SAMUEL LOZADA, DEFENDANT-APPELLANT. -- Motion

for writ of error coram nobis denied.       PRESENT:   GREEN, J.P., PINE,

SCUDDER, AND LAWTON, JJ.     (Filed June 13, 2003.)



MOTION NO. (745/94) KA 03-00903. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V CLINT ROBERT BARNETT, DEFENDANT-APPELLANT. --

Motion for writ of error coram nobis denied.        PRESENT:   GREEN, J.P.,

PINE, WISNER, AND HURLBUTT, JJ.     (Filed June 13, 2003.)



MOTION NO. (2003/94) KA 03-00705. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V MICHAEL FLAX, DEFENDANT-APPELLANT. -- Motion

for writ of error coram nobis denied.       PRESENT:   PINE, J.P., KEHOE,

LAWTON, AND HAYES, JJ.     (Filed June 13, 2003.)



MOTION NO. (368/96) KA 03-00870. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V TIMOTHY J. TAYLOR, DEFENDANT-APPELLANT. --

Motion for writ of error coram nobis denied.        PRESENT:   PINE, J.P.,

WISNER, HURLBUTT, AND LAWTON, JJ.     (Filed June 13, 2003.)



MOTION NO. (305/97) KA 01-00027. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V MICHAEL D. HUBBARD, DEFENDANT-APPELLANT. --
                                  -331-                            875
                                                             CA 02-00015

Motion for writ of error coram nobis denied.     PRESENT:   GREEN, J.P.,

PINE, WISNER, AND HAYES, JJ.   (Filed June 13, 2003.)



MOTION NO. (937/00) KA 97-05546. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V WILLIAM A. VALERIO, DEFENDANT-APPELLANT. --

Motion for writ of error coram nobis denied.     PRESENT:   GREEN, J.P.,

HURLBUTT, KEHOE, AND HAYES, JJ.   (Filed June 13, 2003.)



MOTION NO. (1532/01) KA 00-02219. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V TERRIS HANKS, DEFENDANT-APPELLANT. -- Motion

for writ of error coram nobis denied.     PRESENT:   WISNER, J.P.,

HURLBUTT, KEHOE, AND BURNS, JJ.   (Filed June 13, 2003.)



MOTION NO. (1573/01) KA 01-01335. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V DIC SHAWN SINKLER, DEFENDANT-APPELLANT. --

Motion for writ of error coram nobis denied.     PRESENT:   PIGOTT, JR.,

P.J., WISNER, SCUDDER, BURNS, AND HAYES, JJ.     (Filed June 13, 2003.)



MOTION NO. (1582/01) KA 00-01899. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V DOUGLAS T. CUMMINGS, DEFENDANT-APPELLANT. --

Motion for writ of error coram nobis denied.     PRESENT:   PIGOTT, JR.,

P.J., WISNER, SCUDDER, BURNS, AND HAYES, JJ.     (Filed June 13, 2003.)



MOTION NO. (54/02) KA 00-01267. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V RASHEEN MILLS, DEFENDANT-APPELLANT. -- Motion

for writ of error coram nobis denied.     PRESENT:   PIGOTT, JR., P.J.,

                                   331
                                    -332-                            875
                                                               CA 02-00015

HURLBUTT, KEHOE, BURNS, AND HAYES, JJ.       (Filed June 13, 2003.)



MOTION NO. (285/02) KA 99-05373. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V JAMES LEWIS, DEFENDANT-APPELLANT. -- Motion

for writ of error coram nobis denied.       PRESENT:   PIGOTT, JR., P.J.,

GREEN, HURLBUTT, KEHOE, AND LAWTON, JJ.       (Filed June 13, 2003.)



MOTION NO. (287/02) KA 99-01532. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V ELROY HENDRIX, DEFENDANT-APPELLANT. -- Motion

for writ of error coram nobis denied.       PRESENT:   PIGOTT, JR., P.J.,

GREEN, HURLBUTT, KEHOE, AND LAWTON, JJ.       (Filed June 13, 2003.)



MOTION NO. (329/02) KA 99-05424. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V BRANDON HALL, DEFENDANT-APPELLANT. -- Motion

for writ of error coram nobis denied.       PRESENT:   GREEN, J.P.,

HURLBUTT, KEHOE, BURNS, AND HAYES, JJ.       (Filed June 13, 2003.)



MOTION NO. (1122/02) KA 00-01303. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V CHRISTOPHER T. FAETH, DEFENDANT-APPELLANT. --

Motion for writ of error coram nobis denied.       PRESENT:   PINE, J.P.,

HURLBUTT, KEHOE, BURNS, AND HAYES, JJ.       (Filed June 13, 2003.)



MOTION NO. (1125/02) KA 01-01681. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V TAD MC KINNEY, DEFENDANT-APPELLANT. -- Motion

for reargument denied.   PRESENT:   PINE, J.P., HURLBUTT, KEHOE, BURNS,



                                    332
                                  -333-                               875
                                                                CA 02-00015

AND HAYES, JJ.   (Filed June 13, 2003.)



MOTION NO. (1200/02) KA 01-01201. -- PEOPLE OF THE STATE OF NEW YORK,

PLAINTIFF-RESPONDENT, V DENNIS TIMMONS, DEFENDANT-APPELLANT. -- Motion

for writ of error coram nobis denied.        PRESENT:   GREEN, J.P., SCUDDER,

GORSKI, LAWTON, AND HAYES, JJ.   (Filed June 13, 2003.)



MOTION NO. (1403/02) CA 02-01410. -- CHARLES L. BAUM, PLAINTIFF-

APPELLANT-RESPONDENT, V CIMINELLI-COWPER CO., INC., DEFENDANT-

RESPONDENT-APPELLANT, AND AMTHOR STEEL, INC., DEFENDANT-RESPONDENT. –-

Motion to correct or amend order denied.        PRESENT:   PIGOTT, JR., P.J.,

GREEN, PINE, GORSKI, AND HAYES, JJ.        (Filed June 13, 2003.)



MOTION NO. (6/03) CA 02-00579. -- JOHN N. ZEGARELLI AND JOANNE

ZEGARELLI, PLAINTIFFS-RESPONDENTS, V GREGORY D. HUGHES, DEFENDANT-

APPELLANT. -- Motion for reargument or, in the alternative, leave to

appeal to Court of Appeals denied.     PRESENT:     PIGOTT, JR., P.J., PINE,

WISNER, KEHOE, AND GORSKI, JJ.   (Filed June 13, 2003.)



MOTION NO. (7/03) CA 02-01980. -- NIAGARA FRONTIER TRANSPORTATION

AUTHORITY, PLAINTIFF-RESPONDENT, V EURO-UNITED CORPORATION, EURO-

UNITED, INC., EURO-UNITED COLOUR CORPORATION, 1099606 ONTARIO LIMITED,

KPMG INC., KPMG INC., IN ITS CAPACITY AS INTERIM RECEIVER FOR EURO-

UNITED CORPORATION, DEFENDANTS-APPELLANTS, ET AL., DEFENDANTS. --

Motion for reargument granted and, upon reargument, the caption and



                                     333
                                  -334-                            875
                                                             CA 02-00015

the ordering paragraph of the memorandum and order entered March 21,

2003 are amended by deleting “KPMG INC.” in any capacity other than as

interim receiver for Euro-United Corporation.   PRESENT:     PIGOTT, JR.,

P.J., PINE, WISNER, KEHOE, AND GORSKI, JJ. (Filed June 13, 2003.)



MOTION NOS. (137-138/03) CA 02-00355. -- BEVERLY NENNO, AS EXECUTRIX

OF THE ESTATE OF W. DAVID NENNO, DECEASED, AND JEFFREY NENNO,

PLAINTIFFS-RESPONDENTS, V BLUE CROSS & BLUE SHIELD OF WESTERN NEW

YORK, DEFENDANT-APPELLANT, ET AL., DEFENDANT.   (APPEAL NO. 1.)      CA

02-00356. -- BEVERLY NENNO, AS EXECUTRIX OF THE ESTATE OF W. DAVID

NENNO, DECEASED, AND JEFFREY NENNO, PLAINTIFFS-RESPONDENTS, V BLUE

CROSS & BLUE SHIELD OF WESTERN NEW YORK, DEFENDANT-APPELLANT, ET AL.,

DEFENDANT.   (APPEAL NO. 2.) -- Motion for reargument or, in the

alternative, leave to appeal to Court of Appeals denied.      PRESENT:

GREEN, J.P., PINE, HURLBUTT, KEHOE, AND HAYES, JJ.   (Filed June 13,

2003.)



MOTION NOS. (147-148/03) CA 02-00134. -- MATTER OF BRIGHTON RESIDENTS

AGAINST VIOLENCE TO CHILDREN, INC., PETITIONER-RESPONDENT, V MW

PROPERTIES, LLC, MORRIS WORTMAN, M.D., DOING BUSINESS AS CENTER FOR

MENSTRUAL DISORDERS AND REPRODUCTIVE CHOICES, TOWN OF BRIGHTON, ZONING

BOARD OF APPEALS OF TOWN OF BRIGHTON, PLANNING BOARD OF TOWN OF

BRIGHTON, RESPONDENTS-APPELLANTS, ET AL., RESPONDENT.      (APPEAL NO. 1.)

CA 02-00135. -- MATTER OF BRIGHTON RESIDENTS AGAINST VIOLENCE TO

CHILDREN, INC., PETITIONER-RESPONDENT, V MW PROPERTIES, LLC, MORRIS



                                   334
                                     -335-                         875
                                                             CA 02-00015

WORTMAN, M.D., DOING BUSINESS AS CENTER FOR MENSTRUAL DISORDERS AND

REPRODUCTIVE CHOICES, RESPONDENTS-APPELLANTS, ET AL., RESPONDENTS.

(APPEAL NO. 2.) -- Motion and cross motion for reargument or, in the

alternative, leave to appeal to Court of Appeals denied.      PRESENT:

PIGOTT, JR., P.J., GREEN, SCUDDER, GORSKI, AND LAWTON, JJ.      (Filed

June 13, 2003.)



MOTION NO. (229/03) CA 02-02423. -- ROBERT PELOW, PLAINTIFF-APPELLANT,

V TRI-MAIN DEVELOPMENT, DEFENDANT-RESPONDENT.      TRI-MAIN DEVELOPMENT,

THIRD-PARTY PLAINTIFF, V TRICO PRODUCTS CORPORATION, THIRD-PARTY

DEFENDANT-RESPONDENT. -- Motion for reargument denied.      PRESENT:

PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND GORSKI, JJ.      (Filed

June 13, 2003.)



MOTION NO. (264/03) CA 02-01571. -- JANICE D. MAZUREK, PLAINTIFF-

RESPONDENT, V HOME DEPOT U.S.A., INC., DEFENDANT-APPELLANT. (APPEAL

NO. 1.) –-   Motion for reargument denied (see Ceravole v Giglio, 186

AD2d 170, 171).   PRESENT:     GREEN, J.P., PINE, HURLBUTT, AND LAWTON,

JJ.   (Filed June 13, 2003.)



MOTION NO. (352/03) TP 02-02112. -- MATTER OF ROBERT W. TUMMINIA,

PETITIONER, V DONALD SELSKY, DIRECTOR OF SPECIAL HOUSING/INMATE

DISCIPLINARY PROGRAMS, NEW YORK STATE DEPARTMENT OF CORRECTIONAL

SERVICES, RESPONDENT. -- Motion for reargument denied.      PRESENT:

PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.      (Filed June



                                      335
                                      -336-                         875
                                                              CA 02-00015

13, 2003.)



MOTION NO. (353/03) KAH 02-00388. -- PEOPLE OF THE STATE OF NEW YORK

EX REL. LAWRENCE HOUGH, PETITIONER-APPELLANT, V NEW YORK STATE

DIVISION OF PAROLE, AND H. MC CARTHY GIBSON, SUPERINTENDENT, ERIE

COUNTY CORRECTIONAL FACILITY, RESPONDENTS-RESPONDENTS. -- Motion for

reargument denied.    PRESENT:     PIGOTT, JR., P.J., GREEN, WISNER, BURNS,

AND GORSKI, JJ.   (Filed June 13, 2003.)



MOTION NO. (412/03) CA 02-02247. -- MATTER OF THE ARBITRATION BETWEEN

GRAPHIC ARTS MUTUAL INSURANCE COMPANY, PETITIONER-APPELLANT, AND GARY

L. DUNHAM AND MARY M. DUNHAM, INDIVIDUALLY AND AS PARENT AND NATURAL

GUARDIAN OF TAYLOR DUNHAM, AN INFANT, RESPONDENTS-RESPONDENTS. --

Motions insofar as they seek leave to appeal to Court of Appeals

denied and insofar as they seek reargument granted and, upon

reargument, the ordering paragraph of the memorandum and order entered

March 21, 2003 is amended by providing that “the order is unanimously

reversed on the law without costs, and the matter is remitted to

Supreme Court, Steuben County, for further proceedings in accordance

with the following Memorandum,” and the Memorandum is amended by

deleting the first sentence and substituting in its place the

following sentence:    “Supreme Court denied the petition seeking a

permanent stay of arbitration,” and by adding the following sentences

as the last two sentences:       “Nevertheless, there remains a question of

fact whether petitioner should be estopped from denying the claim of

respondent Gary Dunham because of statements allegedly made by the

                                       336
                                    -337-                             875
                                                                CA 02-00015

attorney chosen by petitioner to represent him.        We therefore reverse

the order, and we remit the matter to Supreme Court, Steuben County,

for a hearing on that issue.”     PRESENT:     WISNER, J.P., HURLBUTT,

SCUDDER, KEHOE, AND LAWTON, JJ.     (Filed June 13, 2003.)



MOTION NO. (428/03) TP 02-02693. –- MATTER OF DOLORES MIRACLE,

PETITIONER, V NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, RAYMOND

MARTINEZ, COMMISSIONER, AND NEW YORK STATE DEPARTMENT OF MOTOR

VEHICLES APPEALS BUREAU, RESPONDENTS. –- Motion for leave to appeal to

Court of Appeals denied.     PRESENT:     PINE, J.P., SCUDDER, KEHOE,

LAWTON, AND HAYES, JJ.     (Filed June 13, 2003.)



MOTION NO. (516/03) CAF 01-02479. -- MATTER OF DRAMOS I. KALAPODAS,

PETITIONER-RESPONDENT-APPELLANT, V ADRIANA I. KALAPODAS, RESPONDENT-

APPELLANT-RESPONDENT. -- Motion for reargument or, in the alternative,

leave to appeal to Court of Appeals denied.        PRESENT:   PINE, J.P.,

HURLBUTT, KEHOE, GORSKI, and HAYES, JJ.        (Filed June 13, 2003.)



MATTER OF ELIZABETH A. FRANK, AN ATTORNEY, RESPONDENT.         GRIEVANCE

COMMITTEE OF THE FIFTH JUDICIAL DISTRICT, PETITIONER. -- Order of

suspension entered.   Per Curiam Opinion:       Respondent was admitted to

the practice of law by this Court on January 12, 1989, and maintains

an office for the practice of law in Liverpool.        The Grievance

Committee filed a petition charging respondent with acts of

professional misconduct arising from her misappropriation of retainer

funds and funds entrusted to her by clients while she was employed by

                                        337
                                  -338-                            875
                                                             CA 02-00015

a law firm.   Respondent filed an answer admitting the allegations of

the petition, and she appeared before this Court to submit matters in

mitigation.

     We conclude that respondent violated the following Disciplinary

Rules of the Code of Professional Responsibility:

     DR 1-102 (a) (4) (22 NYCRR 1200.3 [a] [4]) - engaging in conduct

involving dishonesty, fraud, deceit or misrepresentation;

     DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]) - engaging in conduct

that adversely reflects on her fitness as a lawyer; and

     DR 9-102 (a) (22 NYCRR 1200.46 [a]) - misappropriating funds

belonging to another person that are in her possession incident to her

practice of law.

     Additionally, by failing to comply with attorney registration

requirements, respondent has violated Judiciary Law § 468-a and Rules

of the Chief Administrator of the Courts (22 NYCRR) § 118.1.

     We have considered the matters submitted by respondent in

mitigation, including her financial difficulty and her depression

associated with an eating disorder.      As this Court has previously

noted, however, financial difficulty does not justify or excuse

conversion (see Matter of Steinbach, 290 AD2d 81), nor has      respondent

established a connection between her eating disorder and her multiple

thefts.   Finally, we note that respondent has not made restitution.

Accordingly, after consideration of all of the factors in this matter,

we conclude that respondent should be suspended for a period of two

years and until further order of the Court.      Additionally, we direct

respondent to make restitution in accordance with the order entered


                                   338
                                    -339-                             875
                                                                CA 02-00015

herewith.   PRESENT:   PINE, J.P., HURLBUTT, KEHOE, BURNS, AND HAYES,

JJ.   (Filed June 13, 2003.)



MATTER OF TIMOTHY P. HEALD, AN ATTORNEY, RESPONDENT.         GRIEVANCE

COMMITTEE OF THE EIGHTH JUDICIAL DISTRICT, PETITIONER. -- Order of

censure entered.   Per Curiam Opinion:       Respondent was admitted to the

practice of law by this Court on June 26, 1986, and formerly

maintained an office for the practice of law in Buffalo.         The

Grievance Committee filed a petition charging respondent with acts of

misconduct based upon his repeated failure to comply with attorney

registration requirements.     Respondent filed an answer admitting the

allegations of the petition and appeared before this Court and

submitted matters in mitigation.

      We conclude that respondent violated the following Disciplinary

Rules of the Code of Professional Responsibility:

      DR 1-102 (a) (5) (22 NYCRR 1200.3 [a] [5]) - engaging in conduct

that is prejudicial to the administration of justice; and

      DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]) - engaging in conduct

that adversely reflects on his fitness as a lawyer.

      Additionally, respondent has violated Judiciary Law § 468-a and

Rules of the Chief Administrator of the Courts (22 NYCRR) § 118.1.

      We have considered, in mitigation, that respondent has satisfied

outstanding attorney registration fees and has not engaged in the

practice of law for more than six years.        Accordingly, we conclude

that respondent should be censured.        PRESENT:   GREEN, J.P., WISNER,

SCUDDER, GORSKI, AND LAWTON, JJ.     (Filed June 13, 2003.)


                                     339
                                   -340-                              875
                                                                CA 02-00015

KA 02-01489. -- PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

V GIANNI CIOFFI, DEFENDANT-APPELLANT. -- Judgment unanimously

affirmed.    Counsel’s motion to be relieved of assignment granted (see

People v Crawford, 71 AD2d 38).    (Appeal from Judgment of Monroe

County Court, Keenan, J. - Grand Larceny, 3rd Degree.)         PRESENT:

PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.         (Filed June

13, 2003.)



KA 99-02246. -- PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

V TIMOTHY FREELAND, DEFENDANT-APPELLANT. -- Judgment unanimously

affirmed.    Counsel’s motion to be relieved of assignment granted (see

People v Crawford, 71 AD2d 38).    (Appeal from Judgment of Yates County

Court, Falvey, J. - Rape, 3rd Degree.)      PRESENT:     PIGOTT, JR., P.J.,

GREEN, PINE, WISNER, AND LAWTON, JJ.      (Filed June 13, 2003.)



KA 00-00282. -- PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

V JOHN LaVALLA, DEFENDANT-APPELLANT. -- Judgment unanimously affirmed.

Counsel’s motion to be relieved of assignment granted (see People v

Crawford, 71 AD2d 38).   (Appeal from Judgment of Monroe County Court,

Geraci, Jr., J. - Burglary, 1st Degree.)      PRESENT:     PIGOTT,JR., P.J.,

GREEN, PINE, WISNER, AND LAWTON, JJ.      (Filed June 13, 2003.)



KAH 02-01970. -- PEOPLE OF THE STATE OF NEW YORK EX REL. MARVIN

SEABROOK, PETITIONER-APPELLANT, V NEW YORK STATE DIVISION OF PAROLE,

RESPONDENT-RESPONDENT. -- Judgment unanimously affirmed without costs.

Counsel’s motion to be relieved of assignment granted (see People v

                                    340
                                  -341-                          875
                                                           CA 02-00015

Crawford, 71 AD2d 38).   (Appeal from Judgment of Supreme Court,

Wyoming County, Dadd, J. - Habeas Corpus.)   PRESENT:   PIGOTT, JR.,

P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.   (Filed June 13, 2003.)




                                   341
-342-         875
        CA 02-00015




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