SUPREME COURT APPELLATE Y by sanmelody

VIEWS: 225 PAGES: 68

									                  SUPREME COURT, APPELLATE DIVISION
                           FIRST DEPARTMENT

                          FEBRUARY 21, 2008

            THE COURT ANNOUNCES THE FOLLOWING DECISIONS:



Lippman, P.J., Mazzarelli, Gonzalez, Sweeny, Acosta, JJ.

2632        Marie Rose Pena,                          Index 102241/03
                 Plaintiff-Appellant,

                      -against-

            New York City Transit Authority,
                 Defendant-Respondent.
                 _________________________

Levine & Gilbert, New York (Harvey A. Levine and Richard A.
Gilbert of counsel), for appellant.

Wallace D. Gossett, Brooklyn (Anita Isola of counsel), for
respondent.
               _________________________

       Judgment, Supreme Court, New York County (Kibbe F. Payne,

J.), entered December 14, 2006, dismissing the complaint,

unanimously affirmed, without costs.

       The trial court properly directed a verdict in favor of

defendant at the close of plaintiff’s case in this action where

plaintiff was injured when she fell as she descended a tiled ramp

in defendant’s subway station during the course of an ongoing

snowstorm, as it is unreasonable to require defendant to keep the

floors of its station dry during the course of the inclement
weather (see Hussein v New York City Tr. Auth., 266 AD2d 146

[1999]).    Nor was the trial evidence sufficient to show that

plaintiff’s injuries were the result of a recurring hazardous

condition of which defendant had knowledge.     Defendant’s general

awareness that the subject ramp would become wet during inclement

weather is “insufficient to establish constructive notice of the

specific condition causing plaintiff’s injury” (Solazzo v New

York City Tr. Auth., 6 NY3d 734, 735 [2005]).

     The trial court providently exercised its discretion in

granting defendant’s motion to quash the subpoena issued by

plaintiff during trial seeking the production of defendant’s

logbooks.    The circumstances presented do not warrant allowing

plaintiff to conduct additional discovery almost a year after the

filing of the note of issue (see Genevit Creations v Gueits Adams

& Co., 306 AD2d 142 [2003], lv dismissed in part and denied in

part 1 NY3d 617 [2004]; Henry L. Fox Co., Inc. v Sleicher, 186

AD2d 537 [1992]).

     We have considered plaintiff’s remaining arguments and find

them unavailing.

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                      ENTERED:   FEBRUARY 21, 2008

                                       _______________________
                                                 CLERK

                                   2
Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

2835      Clarence Jones,                          Index 49355/02
               Plaintiff-Respondent,                     83950/04

                    -against-

          Lehr Construction Corp., et al.,
               Defendants-Appellants,

          Euro Mechanical Inc.,
               Defendant.

          [And A Third-Party Action]

     Appeal from an order, Supreme Court, Bronx County (Mary Ann
Brigantti-Hughes, J.), entered September 26, 2006, unanimously
withdrawn in accordance with the terms of the stipulation of the
parties hereto. No opinion. Order filed.




                                  3
Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

2836        Florence Taubenfeld, et al.,            Index 117934/04
                 Plaintiffs-Appellants-Respondents,

                      -against-

            Starbucks Corporation, etc.,
                 Defendant-Respondent-Appellant,

            Park Plaza Larchmont, LLC, et al.,
                 Defendants-Respondents.
                 _________________________

Lowell D. Willinger, Mt. Kisco (Warren J. Willinger of counsel),
for appellants-respondents.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York
(Richard E. Lerner of counsel), for respondent-appellant.

Law Offices of David Adelson, PLLC, Suffern (David Adelson of
counsel), for respondents.
               _________________________

       Order, Supreme Court, New York County (Joan A. Madden, J.),

entered July 25, 2007, which, in an action for personal injuries

sustained in a trip and fall over a tree root located in a tree

well cut out of a public sidewalk in front of premises owned by

defendants landlords (Park Plaza) and leased to defendant

restaurant (Starbucks), granted Park Plaza’s motion for summary

judgment, denied Starbucks’ motion for summary judgment, and

denied plaintiffs’ cross motion to dismiss defendants’ defenses

under CPLR 1601 seeking to hold nonparty Village of Larchmont

responsible for plaintiffs’ damages, unanimously modified, on the

law, to grant Starbucks’ motion for summary judgment, and

                                  4
otherwise affirmed, except with respect to the defense under CPLR

1601, as to which the appeal is dismissed as academic, without

costs.   The Clerk is directed to enter judgment in favor of

Starbucks dismissing the complaint as against it.

     While the lease between Park Plaza and Starbucks required

the former to maintain the sidewalk and “landscaping,” and

assuming in plaintiffs’ favor that the tree well in which the

injured plaintiff tripped and fell is part of the sidewalk and/or

landscape, the lease could not create a duty to the public that

did not otherwise exist, and neither Park Plaza nor Starbucks

owed a duty to the public to repair the protruding root over

which plaintiff tripped, since neither created the root, or

caused it to exist by reason of some special use of the sidewalk

or tree well, or were obligated to maintain the sidewalk or tree

well under some statute or ordinance (see Montalvo v Western

Estates, 240 AD2d 45, 47 [1998]; cf. Flores v Baroudos, 27 AD3d

517, 518 [2d Dept 2006] [commenting that landlord may be held

liable for injury caused by unsafe condition on area of sidewalk

that tenant made special use of, if landlord was contractually

obligated to maintain sidewalk]).    Here, the lease created only a

duty to maintain those portions of the sidewalk that Starbucks,

for the purpose of providing outdoor seating for its customers,

made special use of, but as to the remainder of the sidewalk,

                                 5
beyond Starbucks’ outdoor seating, Park Plaza’s duty was limited

by Larchmont Village Ordinance, article IV, Sidewalk Repairs, §

245-19, which directs property owners to keep the sidewalk in

front of their premises in good repair and safe condition for

public use, but does not specifically create tort liability

(Montalvo, 240 AD2d at 47 [landowner may not be held liable for

negligence under ordinance or statute that charges landowner with

duty to maintain sidewalk but does not “specifically state[] that

if the landowner breaches that duty [it] will be liable to those

who are injured as a result of a sidewalk defect”]).   Nor are any

issues of fact raised as to whether Park Plaza derived a benefit

from Starbucks’ special use of the sidewalk (see Flores, 27 AD3d

at 518).   While Starbucks made special use of a portion of the

sidewalk, by putting out two tables with two chairs each, the

special use did not extend beyond the tables and chairs to the

tree well where plaintiff fell, or to the people on the crowded

sidewalk, some walking and others standing around Starbucks’

tables chatting, and around whom, plaintiff asserts, she had to

walk, diverting her path to the tree well (see MacLeod v Pete’s

Tavern, 87 NY2d 912 [1996]).   Accordingly, we modify to dismiss

as against Starbucks.   In view of the foregoing, it is

unnecessary to decide whether defendants have a defense under

CPLR 1601 in relation to the purported duty of the Village of

                                 6
Larchmont, which had no prior written notice of the tree root

(see Barry v Niagara Frontier Tr. Sys., 35 NY2d 629 [1974]), to

maintain the sidewalk.

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                    ENTERED:   FEBRUARY 21, 2008




                                     _______________________
                                               CLERK




                                 7
Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

2837-
2838        The People of the State of New York,         Ind. 6078/04
                           Respondent,

                      -against-

            Christopher Rodriguez,
                 Defendant-Appellant.
                 _________________________

Jorge Guttlein & Associates, New York (Jorge Guttlein of
counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Olivia Sohmer
of counsel), for respondent.
               _________________________

     Judgment, Supreme Court, New York County (Carol Berkman,

J.), rendered April 27, 2005, convicting defendant, after a jury

trial, of burglary in the second degree, and sentencing him to a

term of 7 years, unanimously affirmed.

     The verdict was not against the weight of the evidence (see

People v Bleakley, 69 NY2d 490 [1987]).      On the contrary, there

was overwhelming evidence of defendant’s guilt, consisting of the

victim’s reliable testimony and extensive circumstantial

evidence.

     The court properly precluded defendant from introducing an

alleged prior inconsistent statement by the victim about how the

burglar may have entered her apartment, because by failing to

confront the victim with the statement and ask her whether she


                                  8
made it, defendant failed to lay a proper foundation (see People

v Wise, 46 NY2d 321, 326 [1978]).    To the extent that defendant

is raising a constitutional right to introduce this evidence,

such claim is unpreserved and we decline to review it in the

interest of justice.   As an alternative holding, we also reject

it on the merits (see Crane v Kentucky, 476 US 683, 689-690

[1986]; Delaware v Van Arsdall, 475 US 673, 678-679 [1986]).

     To the extent that defendant’s ineffective assistance of

counsel claims involve counsel’s choice of defense theories,

those claims are unreviewable on direct appeal because they

involve matters outside the record (see People v Rivera, 71 NY2d

705, 709 [1988]; People v Love, 57 NY2d 998 [1982]).    On the

existing record, to the extent it permits review, we find that

defendant received effective assistance under the state and

federal standards (see People v Benevento, 91 NY2d 708, 713-714

[1998]; see also Strickland v Washington, 466 US 668 [1984]).

Counsel provided effective assistance at both trial and

sentencing, and defendant’s claims to the contrary are without

merit.   To the extent that defendant claims his counsel should

have questioned the victim about the alleged inconsistency

concerning the burglar’s possible means of entry, we find that

counsel’s failure to do so did not cause any prejudice, because

the alleged inconsistency was insignificant, because counsel was

                                 9
still able to place it before the jury in an indirect manner, and

because his overall impeachment of the victim’s testimony was

effective.   We perceive no basis for reducing the sentence.

     Defendant’s remaining contentions are unpreserved and we

decline to review them in the interest of justice.    As an

alternative holding, we also reject them on the merits.

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                     ENTERED:   FEBRUARY 21, 2008




                                      _______________________
                                                CLERK




                                 10
Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

2839        Michael Brantley,                       Index 120985/03
                 Plaintiff-Appellant,

                      -against-

            New York City Metropolitan Transit
            Authority, et al.,
                 Defendants-Respondents,

            The City of New York, et al.,
                 Defendants.
                 _________________________

Mark L. Lubelsky & Associates, New York (Mark L. Lubelsky of
counsel), for appellant.

Wallace D. Gossett, New York (Steve S. Efron of counsel), for New
York City Metropolitan Transit Authority, respondent.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Holly E.
Peck of counsel), for Sweeta Ram, respondent.
               _________________________

       Order, Supreme Court, New York County (Robert D. Lippmann,

J.), entered on or about December 18, 2006, which granted

defendants’ motions for summary judgment dismissing the complaint

for lack of a serious injury as required by Insurance Law §

5102(d), unanimously affirmed, without costs.

       With respect to the 90/180-day category, defendants met

their initial burden on the motion by submitting plaintiff’s

deposition testimony and bill of particulars indicating that he

was confined to bed for only five days and missed only five days

of work (see Thompson v Abbasi, 15 AD3d 95, 101 [2005]), and the


                                  11
report of an orthopedist who examined plaintiff about four months

after the accident and found unrestricted range of motion.    With

respect to all categories of serious injury claimed by plaintiff,

his opposition raised no issues of fact as to causation.   While

an MRI taken about three months after the accident indicated a

herniated lumbar disc, the only objective evidence of limitations

of motion is contained in a report of an orthopedist who examined

plaintiff about four years after the accident –- “too remote to

raise an issue of fact as to whether the limitations were caused

by the accident” (Lopez v Simpson, 39 AD3d 420, 421 [2007]), even

if there were no evidence of a prior neck and back injury left

unaddressed in the orthopedist’s report and which kept plaintiff

out of work for two months and on disability for six months (see

Pommells v Perez, 4 NY3d 566, 579-580 [2005]; Carter v Full

Serv., Inc., 29 AD3d 342 [2006], lv denied 7 NY3d 709 [2006]).

Without objective findings of limitations of motion

contemporaneous with the accident, plaintiff’s assertion that he

has “difficulty” engaging in athletic activities, lifting heavy

objects, and walking are insufficient to raise a triable issue as

to whether there was a curtailment of his customary activities




                               12
during the requisite 90/180-day period (see Nelson v Distant, 308

AD2d 338, 340 [2003]; Grimes-Carrion v Carroll, 17 AD3d 296, 297

[2005]).

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                    ENTERED:   FEBRUARY 21, 2008




                                     _______________________
                                               CLERK




                                13
Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

2840        Craig Bentham,                             Index 6647/05
                 Plaintiff-Respondent,

                      -against-

            Luis Rojas,
                 Defendant-Appellant.
                 _________________________

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Michael I.
Josephs of counsel), for appellant.

Julian J. Bailey & Associates, Manhasset (Willard G. LaFauci of
counsel), for respondent.
               _________________________

       Order, Supreme Court, Bronx County (Betty Owen Stinson, J.),

entered June 7, 2007, which denied defendant’s motion for summary

judgment dismissing the complaint, unanimously affirmed, without

costs.

       Summary judgment was properly denied as plaintiff presented

sufficient objective evidence demonstrating the existence of

triable issues of fact as to whether he sustained a “serious

injury” as a result of the automobile accident between the

parties (Insurance Law § 5102[d]).     An MRI taken after the

accident revealed tears of the medial meniscus and anterior

cruciate ligament in plaintiff’s left knee, and the affidavit of

plaintiff’s chiropractor and the affirmation of his physician

note that following detailed tests, plaintiff had significant and

specified limitations of the range of motion with respect to his

                                  14
lumbar and cervical spine and his left knee both shortly after

the accident and more than three years later (see Toure v Avis

Rent A Car Sys., 98 NY2d 345 [2002]; see also Britt v Goodspeed

Tr., 41 AD3d 179 [2007]).

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                    ENTERED:   FEBRUARY 21, 2008




                                     _______________________
                                               CLERK




                                15
Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

2841-
2842      The People of the State of New York,       SCI 4632/02
                         Respondent,

                    -against-

          Wesley Thomas,
               Defendant-Appellant.
               _________________________

Richard M. Greenberg, Office of the Appellate Defender, New York
(Margaret E. Knight of counsel), for appellant.

Wesley Thomas, appellant pro se.

Robert M. Morgenthau, District Attorney, New York (Mary C.
Farrington of counsel), for respondent.
               _________________________

     Judgment, Supreme Court, New York County (Micki A. Scherer,

J. on speedy trial motion; William A. Wetzel, J. at hearing, jury

trial, sentencing and resentencing), rendered November 15, 2004,

as amended May 23, 2005, convicting defendant of criminal

possession of a controlled substance in the first degree and

unlawful possession of marijuana, and sentencing him, as a second

felony drug offender, to an aggregate term of 12 years,

unanimously affirmed.

     The court properly denied defendant’s suppression motion.    A

narcotics officer observed a pattern of suspicious actions by

defendant and the other participants in the transaction, which,

when viewed as a whole and in light of the officer’s expertise


                                16
(see People v Valentine, 17 NY2d 128, 132 [1966]), was

inconsistent with a transfer of some lawful item and instead

indicated that defendant had just acquired drugs (see People v

Jones, 90 NY2d 835 [1997]; People v Schlaich, 218 AD2d 398

[1996], lv denied 88 NY2d 994 [1996]).     Accordingly, the police

had reasonable suspicion upon which to stop defendant’s car.

     Defendant received effective assistance of counsel under the

state and federal standards (see People v Benevento, 91 NY2d 708,

713-714 [1998]; see also Strickland v Washington, 466 US 668

[1984]).   Defense counsel filed a speedy trial motion that was

excessively generalized and factually inaccurate, and, when the

People filed a response that showed there was not enough

includable time to warrant dismissal under CPL 30.30, counsel did

not submit any reply.   However, upon our review of the periods of

delay at issue, we conclude that defendant has not established

that proper motion practice by his trial counsel would have

resulted in dismissal of the indictment.

     Defendant was properly adjudicated a second felony drug

offender based on his New Jersey conviction, which is for the

equivalent of a New York felony.     There is no merit to either his

statutory (see e.g. People v Reilly, 273 AD2d 143 [2000], lv

denied 95 NY2d 937 [2000]) or his constitutional (see Almendarez-

Torres v United States, 523 US 224 [1998]) challenges to that

                                17
adjudication.

     We have considered and rejected defendant’s pro se claims,

including those relating to the suppression and ineffective

assistance issues.

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                     ENTERED:   FEBRUARY 21, 2008




                                      _______________________
                                                CLERK




                                 18
Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

2843-
2843A     Tadeusz Olszewski, et al.,                 Index 101783/99
               Plaintiffs,

                    -against-

          Park Terrace Gardens, Inc., et al.,
               Defendants.
                    - - - - -
          Park Terrace Gardens, Inc., et al.,
               Third-Party Plaintiffs-Respondents,

                    -against-

          Plaza Restoration, Inc.,
               Third-Party Defendant-Appellant.
               _________________________

Nixon Peabody LLP, Jericho (Stephen A. Aschettino of counsel),
for appellant.

Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Christopher
Simone of counsel), for respondents.
               _________________________

     Judgment, Supreme Court, New York County (Nicholas Figueroa,

J.), entered February 9, 2007, awarding defendants/third-party

plaintiffs property owner, managing agent and general contractor

(owners) $12,404,109.59 on their claims for common-law

indemnification against third-party defendant subcontractor

(employer), and bringing up for review an order, same court and

Justice, entered January 5, 2007, which granted the owners’

motion for summary judgment on their claims against the employer

for common-law indemnification, and denied the employer’s cross


                                19
motion for summary judgment dismissing the third-party complaint,

unanimously reversed, on the law, without costs, and vacated, and

the owners’ motion denied.   Appeal from the aforesaid order

unanimously dismissed, without costs, as subsumed in the appeal

from the judgment.

     The court erred in granting summary judgment to the owners

on their claims for common-law indemnification against the

employer without proof that plaintiff sustained a “grave injury”

within the meaning of the Workers’ Compensation Law (see Workers’

Compensation Law § 11; Neighborhood Partnership Hous. Dev. Fund v

Blakel Constr. Corp., 34 AD3d 303, 305 [2006]).   We therefore

once again remand for further proceedings to determine whether

plaintiff’s brain injury is grave within the meaning of the

Workers’ Compensation Law (see 18 AD3d 349 [2005]).

     The court properly found that the issue of the owners’

liability was determined in their favor in a previous proceeding

in which they were granted judgment on their third-party claims

against the employer for contractual indemnification (see 306

AD2d 128 [2003]) and that therefore there was no reason to




                                20
undertake any apportionment of liability (see Colozzo v National

Ctr. Found., Inc., 30 AD3d 251 [2006]).

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                    ENTERED:   FEBRUARY 21, 2008




                                     _______________________
                                               CLERK




                                21
Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

2844        Lillian Chapdelaine, etc., et al.,       Index 20269/02
                 Plaintiffs-Respondents,

                      -against-

            Administration for Children’s
            Services, etc., et al.,
                 Defendants-Appellants,

            Solomon Narvaez, et al.,
                 Defendants.
                 _________________________

Harrington, Ocko & Monk, LLP, White Plains (I. Paul Howansky of
counsel), for appellants.

Drummond & Crawford, P.C., Queens Village (Mark A. Crawford of
counsel), for respondents.
               _________________________

       Order, Supreme Court, Bronx County (Janice L. Bowman, J.),

entered February 1, 2007, which, to the extent appealed from as

limited by the briefs, denied defendants-appellants’ motion for

summary judgment dismissing the complaint, unanimously reversed,

on the law, without costs, and the motion granted.    The Clerk is

directed to enter judgment in favor of defendants-appellants

dismissing the complaint as against them.

       The record contains no evidence of willful misconduct or

gross negligence, which is required to overcome the statutory

presumption that the Administration for Children’s Services (ACS)

and the City acted in good faith in the investigation into the

allegations of abuse in 2001 concerning the infant plaintiff and

                                  22
in the filing of the petition seeking the child’s temporary

removal from the home (see Social Services Law § 419; Van Emrik v

Chemung County Dept. of Social Servs., 220 AD2d 952, 953 [1995],

lv dismissed 88 NY2d 874 [1996]).     The investigation was

initiated by ACS upon a call from St. John’s Hospital on May 17,

2001.    The case came in designated “high priority” because there

had been four or more prior cases involving the family.       During

the investigation, both the child and the mother conceded that

the mother had pushed the child and that the child had felt

“dizzy.”    The mother herself related certain incidents to the ACS

child protective specialist concerning her boyfriend and the

child.    The child protective specialist confirmed that the

boyfriend had a prior arrest for domestic violence.    ACS

justifiably believed that in the absence of any changed

circumstances the mother was placing the child at risk by

continuing to allow her boyfriend to have access to the child.

     While plaintiffs’ claims that defendants failed to

adequately supervise the foster parents so as to prevent the

alleged sexual abuse of the child are not barred by statutory

immunity (see Sean M. v City of New York, 20 AD3d 146, 156

[2005]), plaintiffs failed to raise an issue of fact whether

defendants had “sufficiently specific knowledge or notice of the



                                 23
dangerous conduct which caused injury” (Mirand v City of New

York, 84 NY2d 44, 49 [1994]).   It is undisputed that the foster

parents had served as foster parents on two prior occasions

without any complaints; that during meetings with New York

Foundling (NYF) and during office visits with her mother the

child made no complaint regarding the foster father’s sexual

misconduct; that background information was gathered by NYF

regarding the foster parents, including fingerprint records,

which yielded no criminal records; and that the foster father

specifically denied having any prior arrests or convictions.

     Plaintiffs’ claim of intentional infliction of emotional

distress must be dismissed because there is no evidence of

conduct on defendants’ part that meets the threshold of

outrageousness required to support such a claim (see Murphy v

American Home Prods. Corp., 58 NY2d 293, 303 [1983]).

Furthermore, this claim is not available against governmental

entities (Pezhman v City of New York, __ AD3d __, 2008 NY Slip Op

350, *2 [2008]).




                                24
     Dismissal of the infant plaintiff’s claims mandates

dismissal of her mother’s derivative claims (see Camadeo v Leeds,

290 AD2d 355 [2002]).

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                    ENTERED:   FEBRUARY 21, 2008




                                     _______________________
                                               CLERK




                                25
Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

2846        Mayra Santana,                           Index 23537/03
                 Plaintiff,

            Geraldo Lopez,
                 Plaintiff-Appellant,

                      -against-

            Nazam Khan,
                 Defendant-Respondent,

            John Doe, etc., et al.,
                 Defendants.
                 _________________________

Law Offices of Michael S. Lamonsoff, New York (Tara M. Ulezalka
of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Michael I.
Josephs of counsel), for respondent.
               _________________________

       Judgment, Supreme Court, Bronx County (Mary Ann Brigantti-

Hughes, J.), entered on or about December 6, 2006, dismissing the

complaint on behalf of plaintiff-appellant pursuant to an order

that granted defendant’s motion for summary judgment as against

plaintiff-appellant for lack of a serious injury as required by

Insurance Law § 5102(d), unanimously affirmed, without costs.

       Defendant’s medical evidence in support of the motion showed

that appellant has normal range of motion in his cervical and

lumbar spine and shoulders and that he did not otherwise sustain

a serious injury as a result of the accident, and therefore

satisfied defendant’s initial burden on the motion

                                  26
“notwithstanding the existence of MRI reports indicating that

[appellant] had herniated or bulging discs” (Style v Joseph, 32

AD3d 212, 214 [2006]).   Summary judgment was properly granted as

appellant’s opposition failed to adduce evidence of a limitation

of range based on objective medical findings made within a

reasonable time after the accident (see Thompson v Abbasi, 15

AD3d 95, 98-99 [2005]; Toulson v Young Han Pae, 13 AD3d 317, 319

[2004]).   In addition, in response to defendant’s showing of disc

dessication and other degenerative findings in appellant’s spinal

MRIs, appellant’s expert merely speculated that the injuries were

causally related to the subject accident (see Pommells v Perez, 4

NY3d 566, 579-580 2005]; Diaz v Anasco, 38 AD3d 295, 296 [2007]).

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                     ENTERED:   FEBRUARY 21, 2008




                                      _______________________
                                                CLERK




                                 27
Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

2847      The People of the State of New York,      Ind. 6526/05
                         Respondent,

                    -against-

          Mike Burmingham, etc.,
               Defendant-Appellant.
               _________________________

Robert S. Dean, Center for Appellate Litigation, New York (Mark
W. Zeno of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Dennis Rambaud
of counsel), for respondent.
               _________________________

     Judgment, Supreme Court, New York County (Brenda Soloff,
J.), rendered on or about November 21, 2006, unanimously
affirmed. No opinion. Order filed.




                                28
Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

2848        The People of the State of New York,       Ind. 6818/81
                           Respondent,

                      -against-

            Rene Otero,
                 Defendant-Appellant.
                 _________________________

Steven Banks, The Legal Aid Society, New York (Michael C.
Taglieri of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Elizabeth A.
Squires of counsel), for respondent.
               _________________________

       Order, Supreme Court, New York County (Arlene R. Silverman,

J.), entered on or about October 11, 2005, which adjudicated

defendant a risk level three offender pursuant to the Sex

Offender Registration Act (Correction Law art 6-C), unanimously

affirmed, without costs.

       Defendant, who does not contest the assessment of 165

points, well over the 110-point threshold for a level-three

adjudication, asks this Court to reclassify him as a level one

sex offender.    We perceive no basis for a discretionary downward

departure (see People v Guaman, 8 AD3d 545 [2004]).    Defendant’s

educational and professional achievements are outweighed by the

serious nature of his crimes, the age and number of victims, his

prior record and his 1998 parole violation.    Defendant has not

shown that his academic degrees and credentials as a counselor

                                  29
would prevent him from reoffending; we note that defendant

relapsed into substance abuse in 1998, after already becoming a

counselor.

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                    ENTERED:   FEBRUARY 21, 2008




                                     _______________________
                                               CLERK




                                30
Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

2849        Reginald Wallace,                       Index 120225/03
                 Plaintiff-Respondent,

                      -against-

            Goodstein Management, LLC, et al.,
                 Defendants-Appellants.
                 _________________________

Thomas D. Hughes, New York (Richard C. Rubinstein of counsel),
for appellants.

Glenn J. Ingoglia, Island Park, for respondent.
               _________________________

       Order, Supreme Court, New York County (Karen S. Smith, J.),

entered September 18, 2006, which denied defendants’ motion for

summary judgment dismissing the complaint, unanimously affirmed,

without costs.

       Defendants failed to demonstrate their entitlement to

judgment by showing that they did not have notice of the ice on

the porch on which plaintiff slipped in time to remedy the

situation (see Pacheco v Fifteen Twenty Seven Assoc., 275 AD2d

282, 283-284 [2000]; Simmons v Metropolitan Life Ins. Co., 207

AD2d 290, 291 [1994], affd 84 NY2d 972 [1994]).    Ice could have

formed sufficiently in advance of the accident to place




                                  31
defendants on notice of the hazardous condition in time to

rectify it.

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                    ENTERED:   FEBRUARY 21, 2008




                                     _______________________
                                               CLERK




                                32
Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

2850N     In re The Travelers Indemnity           Index 106802/07
          Company of Connecticut,
               Petitioner-Appellant,

                    -against-

          Glenwood Medical, P.C.,
               Respondent-Respondent.
               _________________________

Carol R. Finocchio, New York for appellant.

Fazio, Rynsky & Associates, LLP, Syosset (David N. Vozza of
counsel), for respondent.
               _________________________

     Order, Supreme Court, New York County (Alice Schlesinger,

J.), entered on or about June 13, 2003, which denied petitioner

insurer’s application to permanently stay arbitration of

respondent medical provider’s claim for payment of no-fault

first-party benefits for services provided to petitioner’s

insured, unanimously reversed, on the law, with costs, the

petition granted, and the arbitration permanently stayed.

     The claim, which is subject to the six-year statute of

limitations in CPLR 213(2), not the three-year statute in CPLR

214(2) (Benson v Boston Old Colony Ins. Co., 134 AD2d 214, 215

[1st Dept 1987], lv denied 71 NY2d 801 [1988]; Mandarino v

Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2d Dept 2007]), was

not timely interposed where it had been denied in full by the

insurer, for lack of medical necessity, more than six years

                                33
before the provider demanded arbitration (see Benson, id.).

Contrary to the motion court, the insurer’s subsequent

reconsideration of the same claim based on the provider’s

unsolicited submission of additional medical information did not

extend the accrual date of the claim, i.e., the due date for

payment as fixed by statute (Insurance Law § 5106[a]; 11 NYCRR

65-3.8), until the insurer’s second denial of the claim less than

six years before the provider’s demand for arbitration.

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                    ENTERED:   FEBRUARY 21, 2008




                                     _______________________
                                               CLERK




                                34
Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

2851N-
2852N      Juan Sosa,                                Index 6885/04
                Plaintiff-Respondent,

                     -against-

           Mohamed N. Kasim,
                Defendant,

           Mazda American Credit Corporation,
                Defendant-Appellant.
                _________________________

Phillips Lytle LLP, Buffalo (Marc W. Brown and Craig A. Leslie of
counsel), for appellant.

Trolman, Glaser & Lichtman, P.C., New York (Michael T. Altman of
counsel), for respondent.
               _________________________

     Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.),

entered August 28, 2006, which, to the extent appealed from,

granted plaintiff’s motion to strike defendant Mazda’s answer

with respect to any issue of defendant Kasim’s medical condition,

unanimously reversed, on the law, without costs, and the motion

denied.   Appeal from order, same court and Justice, entered

February 2, 2007, which, to the extent appealable, denied Mazda’s

motion to renew, unanimously dismissed as academic, without

costs.

     Kasim, the operator of the vehicle leased from Mazda,

testified at his deposition that he was told he had suffered a

stroke just prior to striking plaintiff pedestrian, which would

                                 35
constitute an unforeseen medical emergency.   This testimonial

evidence sufficiently supported Mazda’s affirmative defense (see

Brewster v FTM Servo, Corp., 44 AD3d 351 [2007]), and it was an

improvident exercise of discretion for the trial court to

preclude Mazda from presenting any such evidence at trial.

Preclusion was an inappropriately severe sanction where there was

neither willful behavior on Mazda’s part nor prejudice to its

adversary (see Gallo v Linkow, 255 AD2d 113, 117 [1998]).

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                    ENTERED:   FEBRUARY 21, 2008




                                     _______________________
                                               CLERK




                                36
Lippman, P.J., Tom, Nardelli, Catterson, Moskowitz, JJ.

2893        Spider, A Division of Safeworks, LLC,   Index 600234/06
                 Plaintiff-Appellant,

                      -against-

            A.J. Pegno Construction Corp./Tully
            Construction, Inc., Joint Venture,
                 Defendant-Respondent,

            Federal Insurance Company, et al.,
                 Defendants.
                 _________________________

Mazur, Carp & Rubin, P.C., New York (Sayward Mazur of counsel),
for appellant.

Alvin Goldstein, New York, for respondent.
               _________________________

       Order, Supreme Court, New York County (Richard B. Lowe III,

J.), entered April 23, 2007, which denied plaintiff’s motion for

partial summary judgment dismissing Pegno’s counterclaim,

unanimously reversed, on the law, without costs, and the motion

granted.    The Clerk is directed to enter judgment accordingly.

       Whether all the damages claimed by Pegno in its counterclaim

fall within the scope of the contract provision disclaiming

consequential damages is immaterial under the circumstances of

this case.    The contract specifically prohibits recovery for

“substitute products” and the affidavit of plaintiff’s principal

that the claimed damages were “substitute products” was

unrebutted.    Furthermore, defendant failed to offer any proof in


                                  37
admissible form that it suffered damages that were not related to

substitute products or that the contract remedy failed of its

essential purpose. (UCC 2-719[2]; J.C. MacElroy Co. v Arben

Corp., 276 AD2d 434 [2000]).

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                    ENTERED:   FEBRUARY 21, 2008




                                     _______________________
                                               CLERK




                                38
Tom, J.P., Nardelli, Williams, McGuire, JJ.

2807        The People of the State of New York,         Ind. 6775/99
                           Respondent,

                      -against-

            Delvi Antonio Pimental, etc.,
                 Defendant-Appellant.
                 _________________________

Goldstein & Weinstein, Bronx (David J. Goldstein of counsel), for
appellant.

Robert M. Morgenthau, District Attorney, New York (Susan Axelrod
of counsel), for respondent.
               _________________________

       Judgment, Supreme Court, New York County (Renee A. White, J.

on severance motion; Marcy L. Kahn, J. at jury trial and

sentence), rendered on or about June 13, 2000, convicting

defendant of robbery in the first degree and criminal possession

of a weapon in the third degree, and sentencing him, as a second

violent felony offender, to concurrent terms of 15 years and 3½

to 7 years, unanimously affirmed.

       The verdict was based on legally sufficient evidence and was

not against the weight of the evidence.      There is no basis for

disturbing the jury’s determinations concerning identification

and credibility (see People v Bleakley, 69 NY2d 490, 495 [1987]).

Any inconsistencies in the victim’s testimony were not so

significant as to cast doubt on the reliability of her

identification of defendant.

                                  39
     The court properly denied defendant’s pretrial motion to

sever the robbery and weapon charges, since they were properly

joined in accordance with CPL 200.20(2)(b).   Evidence that at the

time of his arrest, approximately two weeks after the robbery,

defendant possessed a knife that was similar to the one described

as having been used in the robbery was relevant to establish his

identity as the robber, as well as to show that at the time of

his arrest he possessed the knife with intent to use it

unlawfully (see People v Bailey, 14 AD3d 362, 363 [2005], lv

denied 4 NY3d 856 [2005]; People v Marte, 7 AD3d 405, 407

[2004]).   To the extent that defendant presently argues that the

victim’s trial testimony did not conform to the representations

made by the People in opposing the severance motion, that

argument is unpreserved because defendant did not renew the

motion during trial (cf. People v Abrew, 95 NY2d 806, 808

[2000][absent renewed motion, trial evidence not a basis for

challenging suppression ruling]), and we decline to review it in

the interest of justice.   As an alternative holding, we also

reject it on the merits.   The trial testimony fully supported the

People’s joinder theory.

     The court properly denied defendant’s mistrial motion, which

asserted that the prosecutor’s summation arguments vouched for

witnesses and mischaracterized defendant’s defense.   Although the

                                40
court sustained objections to arguments by the prosecutor that

the robbery victim was honest, each argument was wholly proper as

each was grounded in the evidence and urged the jury to draw a

reasonable conclusion from the evidence and the prosecutor

neither purported to be asserting nor suggested he was asserting

a personal opinion let alone one unconnected to the evidence.

Defendant’s remaining summation claims are unpreserved and we

decline to review them in the interest of justice.   As an

alternative holding, we also reject them on the merits.

     We perceive no basis for reducing the sentence.

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                    ENTERED:   FEBRUARY 21, 2008




                                     _______________________
                                               CLERK




                                41
Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

2823-
2824-
2825      Derek Evans,                             Index 305698/04
               Plaintiff-Respondent,

                    -against-

          Marlena Evans,
               Defendant-Appellant.
               _________________________

Lebensfeld Borker Sussman & Sharon, LLP, New York (Brett R.
Schwartz of counsel), for appellant.

Cohen Goldstein & Silpe, LLP, New York (Steven M. Silpe of
counsel), for respondent.
               _________________________

     Judgment of divorce, Supreme Court, New York County (Joan B.

Lobis, J.), entered July 26, 2006, inter alia, distributing the

parties’ marital property, unanimously affirmed, without costs.

Judgments, same court and Justice, entered June 9, 2006, awarding

counsel fees to plaintiff’s attorneys, unanimously affirmed,

without costs.

     The court properly considered the relevant factors in

determining an equitable distribution of the marital property

(see Domestic Relations Law § 236[B][5][d]).   In particular, we

perceive no basis to disturb the court’s findings, which rest

largely on the parties’ credibility, concerning plaintiff’s




                                42
direct and indirect contributions to such property (subd

[5][d][6]) (see Rostropovich v Guerrand-Hermes, 18 AD3d 211

[2005]).

     Nor is there reason to disturb the court’s valuation of

plaintiff’s equity interest in the management consulting firm by

which he is employed.    The court properly relied on the opinion

of the neutral appraiser (see Burns v Burns, 84 NY2d 369, 375

[1994]).

     Defendant is not entitled to an additional separate property

credit from the proceeds of the sale of the marital residence

because, as the trial court found, she failed to establish that

her separate money, which was commingled with joint funds, was

used in the purchase of the residence (see Pullman v Pullman, 176

AD2d 113, 114 [1991]).

     In light of the large discrepancy between the parties’

disposable incomes and assets, which defendant repeatedly argued

at trial and on appeal, the court’s award of counsel fees did not

constitute an inappropriate exercise of discretion (see Shai v

Shai, 301 AD2d 461, 462 [2003]).




                                 43
     Defendant’s remaining contentions are unavailing.

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                    ENTERED:   FEBRUARY 21, 2008




                                     _______________________
                                               CLERK




                                44
Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

2826        Lovell W. Campbell,                       Index 8610/04
                 Plaintiff-Respondent-Appellant,

                      -against-

            Columbus Centre LLC, et al.,
                 Defendants-Appellants-Respondents.
                 _________________________

Fabiani Cohen & Hall, LLP, New York (Todd A. Paradeis of
counsel), for appellants-respondents.

Kravet & Hoefer, P.C., Bronx (John A. Maher of counsel), for
respondent-appellant.
               _________________________

       Order, Supreme Court, Bronx County (Howard R. Silver, J.),

entered February 1, 2007, which granted plaintiff’s motion for

summary judgment on the issue of liability on his cause of action

pursuant to Labor Law § 240(1) and denied plaintiff’s motion on

his claims pursuant to Labor Law § 200, § 241(5) and § 241(6),

and denied defendants’ cross motion for summary judgment

dismissing the complaint, unanimously modified, on the law, to

the extent of granting plaintiff’s motion on the Labor Law §

241(6) cause of action and on the Labor Law § 200 claim as

against defendant Bovis Lend Lease Holdings, Inc. (Bovis), and

granting defendants’ cross motion to the extent of dismissing the

Labor Law § 241(5) cause of action, and otherwise affirmed,

without costs.



                                  45
     Summary judgment was properly granted to plaintiff on the

Labor Law § 240(1) claim in this action where plaintiff suffered

injuries when, in the course of unloading sheetrock from the

hoist that had been used to deliver the material to the 37th

floor of the building under construction, the hoist suddenly

dropped down the shaft, thereby causing him to fall approximately

13 stories.   Although differing versions have been offered

concerning what exactly transpired in the moments prior to

plaintiff’s fall, the evidence establishes that the shaft’s

safety bar was not engaged when the hoist went down with a

coworker still inside and plaintiff was pulled down with it (see

Sharp v Scandic Wall Ltd. Partnership, 306 AD2d 39, 40 [2003]).

Had the gate and safety bar had been in place when the hoist

dropped, plaintiff would not have fallen regardless of which way

he leaned or where he was looking.   Accordingly, there is no

reasonable view of the evidence by which plaintiff may be said to

have been the sole proximate cause of his accident (see Vergara v

SS 133 W. 21, LLC, 21 AD3d 279 [2005]).

     Summary judgment should also have been granted to plaintiff

on his claim pursuant to Labor Law § 241(6), where the record

reveals that there was a failure to comply with the sufficiently

specific Industrial Code (12 NYCRR) § 23-6.3(d)(4), requiring

that the gates at a hoistway entrance be kept closed when the car

                                46
is not at such entrance.   The record evidence further establishes

plaintiff’s entitlement to summary judgment on his section 200

claim as against Bovis, which clearly had supervisory control

over the operator of the hoist and the signalmen who worked with

him, as both were employed by Bovis, the construction manager on

the project (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343,

352-353 [1998]; Comes v New York State Elec. & Gas Corp., 82 NY2d

876, 877 [1993]).

     Furthermore, the evidence demonstrates that plaintiff has no

viable claim under Labor Law § 241(5), which relates to the

construction of a material hoist as opposed to its operation, and

accordingly, defendants’ cross motion is granted to the extent of

dismissing that claim.

     We have considered the parties’ remaining arguments for

affirmative relief and find them unavailing.

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                    ENTERED:   FEBRUARY 21, 2008




                                     _______________________
                                               CLERK




                                47
Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

2827        The People of the State of New York,       Ind. 1063/03
                           Respondent,

                      -against-

            Michael Figueroa,
                 Defendant-Appellant.
                 _________________________

Richard M. Greenberg, Office of the Appellate Defender, New York
(Jessica A. Yager of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Jason S. Whitehead
of counsel), for respondent.
               _________________________

       Judgment, Supreme Court, Bronx County (Dominic R. Massaro,

J.), rendered January 20, 2006, convicting defendant, after a

jury trial, of robbery in the second degree (two counts) and

criminal possession of a weapon in the fourth degree, and

sentencing him, as a second felony offender, to an aggregate term

of 12 years, unanimously affirmed.

       The verdict was not against the weight of the evidence (see

People v Danielson, 9 NY3d 342, 348-349 [2007]).    There is no

basis for disturbing the jury’s determinations concerning

credibility.    The victims satisfactorily explained the

discrepancies between their trial testimony and their prior

statements.

       After the jury had sent a note indicating that it had

reached a verdict, the foreperson sent a personal note to the

                                  48
court indicating that he did not feel “comfortable” about reading

the verdict.    The court inquired of the foreperson about the

meaning of the note, outside the presence of defendant, his

codefendant or any of the attorneys.    Subsequently, the court

informed counsel of the note, and related that during the

inquiry, no mention of the verdict itself was made; instead, the

foreperson stated that he was uneasy about having to read the

verdict out loud in some sort of narrative form.    The court

related to counsel that when it assured the foreperson he would

only have to answer the clerk’s questions, the foreperson, who

had not served on a jury before, was “relieved” and satisfied.

In response to the prosecutor’s question, the court stated that

the foreperson never indicated any discomfort with the verdict

itself, which was simply not discussed.    Neither defendant

objected to this procedure or sought a further inquiry of the

foreperson.    The jury then rendered its verdict, and, when

individually polled, each juror including the foreperson agreed

with it.

     Subsequent to trial, the codefendant moved to set aside the

verdict pursuant to CPL 330.30, on the basis that the court, in

responding to the foreperson’s note, failed to follow the

procedure set forth in CPL 310.30, specifically in that he was

absent when the court responded to the note.    The foreperson

                                 49
signed an affidavit, which was obviously drafted by an attorney,

in which he claimed that other jurors had coerced his verdict,

and that he had communicated to the court that this was why he

was uncomfortable announcing the verdict.   However, during the

course of a CPL 330.30 hearing, the foreperson conceded that he

had never communicated to the court any discomfort with the

substance of the verdict, but only with the process of reading it

out loud; thus, he essentially corroborated the court’s version

of the colloquy.    The court, treating the motion as the motion of

both parties, ruled that it had acted only ministerially, that

defendants had waived any challenge, and that there was no basis

to set aside the verdict.

     We agree.   Defendant presently argues that his own presence

had been necessary and that counsel’s presence would have

elicited from the foreperson a better articulation of why he was

“uncomfortable.”    The only reasonable conclusion to be drawn from

this evidence, though, is that the court’s interaction with the

foreperson, involving only the mechanism by which the foreman

would announce the verdict, was entirely ministerial.   The court

simply clarified what the foreperson meant by being

uncomfortable, and it did not discuss anything about the law, the

facts of the case or the verdict (see People v Harris, 76 NY2d

810, 812 [1990]).   Neither defendant nor his attorney could have

                                 50
made a meaningful contribution (see People v Williams, 38 AD3d

429 [2007], lv denied 9 NY3d 965 [2007]), so their presence was

not required (People v Collins, 99 NY2d 14 [2002]).     Since the

court’s action was only ministerial and did not fall within its

core responsibilities in responding to a jury note (compare

People v Kisoon, 8 NY3d 129 [2007]), defendant was required to

request a further inquiry of the foreperson or otherwise preserve

a claim of error.   We decline to review this unpreserved claim in

the interest of justice.   As an alternative holding, we also

reject the claim on the merits.    Defendant’s claim that his or

his attorney’s presence might have helped determine the

foreperson’s actual but unarticulated concern is entirely

conjectural, and is belied by the hearing testimony.

     We perceive no basis for reducing the sentence.

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                     ENTERED:   FEBRUARY 21, 2008




                                       _______________________
                                                 CLERK




                                  51
Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

2828      Luz Dalinda Andramunio as               Index 590819/04
          Administratrix, of the Estate                 590885/04
          of Edgar Geovanny Dutan, et al.,              590566/05
               Plaintiffs-Respondents,                  590754/05

                    -against-

          3402 Land Acquisition LLC, et al.,
               Defendants-Appellants

          T&G Contracting, Inc.,
               Defendant.

          [And Third Party Actions]

     Appeal from an order, Supreme Court, New York County (Judith
J. Gische, J.), entered May 24, 2007, unanimously withdrawn in
accordance with the terms of the stipulation of the parties
hereto. No opinion. Order filed.




                                52
Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

2829      The People of the State of New York,      Ind. 1689/03
                         Respondent,

                    -against-

          Ariel H.,
               Defendant-Appellant.
               _________________________

Steven Banks, The Legal Aid Society, New York (Heidi Bota of
counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Rena Paul of
counsel), for respondent.
               _________________________

     Judgment, Supreme Court, New York County (Michael Corriero,
J.), rendered on or about June 1, 2005, unanimously affirmed. No
opinion. Order filed.




                                53
Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

2832        First American Title Insurance          Index 604096/05
            Company of New York, Inc.,
                 Plaintiff-Appellant,

                      -against-

            Benchmark Title Agency LLC, et al.,
                 Defendants-Respondents.
                 _________________________

Tarter Krinsky & Drogin LLP, New York (Edward R. Finkelstein of
counsel), for appellant.

Andrew Greene & Associates, P.C., White Plains (Stanley S. Zinner
of counsel), for respondents.
               _________________________

       Order, Supreme Court, New York County (Helen E. Freedman,

J.), entered January 8, 2007, which granted defendants’ motion

for partial summary judgment, dismissing the first, second and

fourth causes of action, unanimously affirmed, with costs.

       The restrictive covenants not to compete or solicit, set

forth in the contract of sale, had expired.    Furthermore, the

expressly negotiated covenant not to compete superseded the

normally implied common-law covenant, particularly where, as

here, the customers are generally identifiable, and enjoining

solicitation of former clients after the negotiated time period

would be tantamount to preventing defendants from acting as a




                                  54
title insurer in Westchester County (see MGM Court Reporting

Serv. v Greenberg, 74 NY2d 691 [1989]; Titus & Donnelly v Poto,

205 AD2d 475 [1994]).

     Defendants met their burden of demonstrating entitlement to

summary judgment on the issue of claimed confidential documents

and related violation of fiduciary duty, and plaintiff did not

meet its burden of demonstrating the existence of issues of fact

to warrant a trial (see Zuckerman v City of New York, 49 NY2d 557

[1980]).

     We have considered plaintiff’s remaining arguments and find

them without merit.

          THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

                      ENTERED:   FEBRUARY 21, 2008




                                       _______________________
                                                 CLERK




                                  55
Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

2833N     David Fromer, et al.,                   Index 602826/99
               Plaintiffs-Respondents,

                    -against-

          Fisher, Fisher & Berger,
               Defendant-Appellant.


     Appeal from an order, Supreme Court, New York County (Joan
A. Madden, J.), entered August 28, 2007, unanimously withdrawn in
accordance with the terms of the stipulation of the parties
hereto. No opinion. Order filed.




                                56
                   THE FOLLOWING MOTION ORDERS
                    WERE ENTERED AND FILED ON
                        FEBRUARY 21, 2008




Lippman, P.J., Tom, Mazzarelli, Andrias, Saxe, JJ.

M-599     People v Grace, Angelo, also known as Grace,
                   Angelo Kirk

M-605     People v Jean, Thelismond

M-606     People v Matwa, Robert

M-607     People v Pearson, Lonnie

M-608     People v Reyes, Pasqual, also known as Reyes,
                   Pascual

M-609     People v Sanchez, Rafelito

M-640     People v Manrique, Robinson

M-654     People v Gonzalez, Henry

          Leave to prosecute appeals as poor persons granted,
as indicated.



Lippman, P.J., Mazzarelli, Saxe, Nardelli, Buckley, JJ.

M-6193    In the Matter of D., Victoria

          Leave to prosecute appeal as a poor person granted,
as indicated.




                              M-01
Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

M-260     People ex rel. Artis, Arthur v Warden

          Leave to prosecute appeal as a poor person granted
to the extent indicated; assignment of counsel denied.



Lippman, P.J., Tom, Nardelli, Catterson, Moskowitz, JJ.

M-623     Emanvilova v Palotta - American Transit Insurance
          Company
          (And other actions)

          Dismissal of appeals denied, as indicated.



Lippman, P.J., Tom, Gonzalez, Buckley, JJ.

M-115     In the Matter of Carthage Palace, Inc. v New York
          State Liquor Authority

          Stay of licence revocation denied; interim relief
granted by order of a Justice of this Court, dated January 8,
2008, vacated.



Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

M-63      People v Duntata, Sultan Al Sabah

          Time to perfect appeal enlarged to the June 2008
Term.




                              M-02
Lippman, P.J., Gonzalez, Nardelli, Buckley, Sweeny, JJ.

M-144     Echevarria v New York City Transit Authority

          Leave to appeal to the Court of Appeals denied.



Lippman, P.J., Mazzarelli, Williams, Catterson, JJ.

M-6627    Hugh O’Kane Electric Co., LLC v MasTec North America,
          Inc., doing business as Wilde Construction

          Reargument or other relief denied.



Lippman, P.J., Tom, Nardelli, Catterson, Moskowitz, JJ.

M-468     Chung, also known as Zhung v Maxam Properties, LLC

          Time to perfect appeal enlarged to the June 2008 Term.



Lippman, P.J., Tom, Gonzalez, Buckley, JJ.

M-97      Kashihara v Kashihara
M-258
          Time to perfect appeal enlarged to the June 2008 Term;
appeal dismissed unless perfected for said Term, as indicated.



Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

M-253     Vorontsova v Priolo
M-472
          Enlargement of time to perfect appeal denied; appeal
dismissed.




                                M-03
Lippman, P.J., Tom, Nardelli, Catterson, Moskowitz, JJ.

M-629     Yoda, LLC v National Union Fire Insurance Company
M-681     of Pittsburgh, PA

          Leave to strike brief granted; leave to file brief
amicus curiae denied; appeal adjourned to the April 2008 Term.



Lippman, P.J., Friedman, Williams, Acosta, JJ.

M-347     Paltie v Marquise Construction Corp.
          (And other actions)

          Stay of trial granted.



Lippman, P.J., Andrias, Nardelli, Buckley, Acosta, JJ.

M-295     Gutierrez v Bernard - Schneider

          Stay granted, as indicated.



Tom, J.P., Nardelli, Williams, McGuire, JJ.

M-73      Montero v Auburn Leasing Limited Liability Company

          Appeal dismissed.



Tom, J.P., Saxe, Friedman, Gonzalez, McGuire, JJ.

M-430     People v Thomas, Christopher

          Appeal dismissed.




                              M-04
Tom, J.P., Saxe, Friedman, Buckley, JJ.

M-6610    In the Matter of S., Alexandria

          Leave to prosecute appeal as a poor person granted,
as indicated.



Tom, J.P., Nardelli, Williams, McGuire, JJ.

M-162     In the Matter of F., Mabelin

          Time to perfect appeal enlarged to the September 2008
Term.



Tom, J.P., Nardelli, Williams, McGuire, JJ.

M-279     Estate of Flores - Flores v Isabella Geriatric Center,
          Inc.

          Time to perfect appeal enlarged to the June 2008 Term.



Tom, J.P., Saxe, Friedman, Gonzalez, McGuire, JJ.

M-354     Triple Z Postal Services, Inc. v United Parcel Service,
          Inc.

          Time to perfect appeal enlarged to the September 2008
Term, as indicated.



Tom, J.P., Andrias, Nardelli, Williams, Buckley, JJ.

M-57      Nowack v New York City Transit Authority

          Leave to appeal to the Court of Appeals denied.




                              M-05
Tom, J.P., Nardelli, Williams, McGuire, JJ.

M-274     24 Seven Inc. v Fiorello

          Motion deemed withdrawn.



Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

M-388     Tejada v Dyal

          Appeal and cross appeal deemed withdrawn.



Mazzarelli, J.P., Andrias, Catterson, McGuire, JJ.

M-6558    In the Matter of F., Shanae - Administration for
          Children’s Services

          Leave to prosecute appeal as a poor person granted,
as indicated.



Mazzarelli, J.P., Saxe, Friedman, Catterson, Acosta, JJ.

M-99      Katsam Holdings LLC v 419 West 55th Street Corporation

          Stay denied.



Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

M-411     Ramirez v Ramirez

          Stay granted; appellant directed to perfect appeal for
the June 2008 Term.




                              M-06
Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

M-176     Savitt v Isabella Freedman Jewish Retreat Center, Inc.

          Stay of trial denied.



Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

M-123     Garcia v Defex

          Vacatur of dismissal of appeal granted to extent of
enlarging the time of the parties in which to perfect the appeal
and cross appeal to the September 2008 Term, as indicated; motion
otherwise denied.



Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

M-250     Angel v O’Neill

          Stay of trial denied.



Mazzarelli, J.P., Andrias, Saxe, Gonzalez, Sweeny, JJ.

M-522     Lamb v Rajinder

          Stay of trial granted.



Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

M-382     People v McDowell, Jerome

          Leave to respond to appeal as a poor person granted,
as indicated; appeal adjourned to the June 2008 Term.




                              M-07
Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

M-222     People ex rel. Simmons, Alphonso v Harrehand

          Assignment of counsel denied; appeal dismissed.



Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

M-112     Mittman v Netherland Gardens Corp.

          Stay denied.



Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

M-294     People v Johnson, Jeremy

          Notice of appeal and order of assignment amended,
as indicated.



Mazzarelli, J.P., Williams, Sweeny, Catterson, Moskowitz, JJ.

M-269     In the Matter of J., Charles Michael; M., Destiny
          Jess; M., Eduardo; J., Romeo Cesar; and J., Smooth
          Love - The Children’s Aid Society

          Transcription of minutes directed, as indicated.



Andrias, J.P., Friedman, Sweeny, Moskowitz, JJ.

M-46      Briglio v New York City & New York City Department
          of Education Impartial Hearing Office

          Appeal dismissed.




                              M-08
Andrias, J.P., Freidman, Sweeny, Moskowitz, JJ.

M-28      People v Almanzar, Roberto

          Notice of appeal deemed timely filed; leave to
prosecute appeal as a poor person granted, as indicated.



Andrias, J.P., Nardelli, Williams, McGuire, Acosta, JJ.

M-75      In the Matter of A., Ashanti - Catholic Home Bureau

          Leave to prosecute appeal as a poor person granted,
as indicated.



Andrias, J.P., Friedman, Buckley, McGuire, Moskowitz, JJ.

M-666     In the Adoption of Doe - L.M.B. v E.R.J.

          Clerk directed to calendar appeal for hearing in the
first week of the April 2008 Term.



Andrias, J.P., Friedman, Buckley, McGuire, Moskowitz, JJ.

M-549     People v Johnson, Robert

          Leave to file pro se supplemental brief granted for the
June 2008 Term, to which Term appeal adjourned.



Saxe, J.P., Gonzalez, Nardelli, Sweeny, Catterson, JJ.

M-5900    People v Salcedo, Tirso

          Reargument denied.




                               M-09
                         Lippman, P.J.

M-408     People v Serrano, Angel

          Leave to appeal to this Court and other relief
denied.



                         Mazzarelli, J.

M-6047    People v Cardoza, William

          Leave to appeal to this Court and other relief
denied.



                         Mazzarelli, J.

M-6292    People v Perez, Benci

          Leave to appeal to this Court denied.



                         Mazzarelli, J.

M-6526    People v Tancredi, Carmen

          Leave to appeal to this Court denied.




                              M-10
                        Catterson, J.

M-5915   People v Battle, Nathaniel

M-6624   People v Kearse, Michael

M-6423   People v Harris, Yusuf

M-6524   People v Johnson, Wilbur

         Leave to appeal to this Court denied.



                        Catterson, J.

M-5896   People v Vega, William

         Leave to appeal to this Court and other relief denied.



                        Nardelli, J.

M-343    People v Brightley, Helmer

         Leave to appeal to this Court denied.



                        Acosta, J.

M-5989   People v Sunter, Male

         Leave to appeal to this Court denied.




                             M-11
Mazzarelli, J.P., Saxe, Friedman, Nardelli, Williams, JJ.

          In the Matter of Attorneys Who Are in Violation
          of Judiciary Law Section 468-a:

M-498     Jon Lewis Goodman, admitted on 4-7-1980,
          at a Term of the Appellate Division,
          First Department

          Respondent reinstated as an attorney and counselor-
at-law in the State of New York, effective the date hereof.
No opinion. All concur.



Tom, J.P., Saxe, Friedman, Williams, Buckley, JJ.

M-6415    In the Matter of Valerie M. Velella,
          an attorney and counselor-at-law:

          Respondent disbarred and her name stricken from the
roll of attorneys and counselors-at-law in the State of New York,
effective the date hereof. Opinion Per Curiam. All concur.




                              M-12

								
To top