OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. This action was not settled because the general release and the hold harmless agreement were never delivered to defendant, nor was the acceptance of the settlement offer otherwise communicated to defendant or its carrier ( see White v Corlies, 46 N.Y. 467, 469 [1871]). On review of submissions pursuant to section 500.11 of the Rules of...
OPINION OF THE COURT PIGOTT, J. The United States Court of Appeals for the Second Circuit has asked us to determine whether this State recognizes an independent equitable cause of action for medical monitoring and, if so, what the elements, appropriate statute of limitations and accrual date are for that particular cause of action. I Plaintiffs, who are all over the age of 50, are current and/or former smokers of Marlboro cigarettes with histories of 20 pack-years 1 or more. None of the...
OPINION OF THE COURT MEMORANDUM. The orders of the Appellate Division should be affirmed, with costs. This litigation arises out of defendants' construction of a sewer system throughout Nassau and Suffolk Counties (the Counties), including areas under plaintiffs' jurisdiction. In the 1970s, the Counties entered into public works contracts with defendants to perform the sewer construction work. The Counties included "protection clauses" in the contracts, which incorporated statutory...
OPINION OF THE COURT SMITH, J. Defendant was convicted of manslaughter in the first degree for causing the death of a man by holding him in a headlock. The duration of the headlock was an important issue at trial. Defendant argues that several of the trial court's rulings in admitting and excluding evidence related to that issue were mistaken. As to one of those rulings — the court's refusal to permit defendant to refresh his witness's recollection with a statement the witness had previously...
OPINION OF THE COURT Chief Judge LIPPMAN. This case calls on us to decide whether certain collective bargaining agreements conferred upon plaintiff retirees a vested right to the same health insurance coverage they had when they retired and, if so, whether unilateral modifications to that coverage are nonetheless permissible under either the contract terms or the New York Insurance Moratorium Law. We hold that the contracts establish a vested right to a continuation of the same health...
OPINION OF THE COURT READ, J. By indictment dated February 8, 2005, the grand jury accused defendant Andre Collier of five first-degree robberies (Penal Law 160.15 [3]). Each count of the indictment related to a holdup at a different store in the Albany area during a two-month period in the fall of 2004. Defendant was alleged to have displayed and threatened the immediate use of a knife to force employees of these stores to turn over monies in the cash register. At a hearing on April 22,...
OPINION OF THE COURT RIVERA, J. Defendant Anthony Pignataro challenges his resentencing under Penal Law 70.85, claiming the statute is unconstitutional because it deprives him of his right to vacate his guilty plea. Finding no constitutional deprivation visited on the defendant by his resentencing under section 70.85, we affirm. I. In November 2000, defendant Anthony Pignataro pleaded guilty to attempted assault in the first degree (Penal Law 110.00, 120.10), a class C violent felony...
OPINION OF THE COURT On the Court's own motion, it is determined that Honorable Cathryn M. Doyle is suspended, with pay, effective immediately, from the office of Surrogate of Albany County, pending disposition of her request for review of a determination by the State Commission on Judicial Conduct.
OPINION OF THE COURT GRAFFEO, J. New York's Shield Law provides an absolute privilege that prevents a journalist from being compelled to identify confidential sources who provided information for a news story. In this case, the issue is whether it would violate New York public policy for a New York court to issue a subpoena directing a New York reporter to appear at a judicial proceeding in another state where there is a substantial likelihood that she will be directed to disclose the names...
OPINION OF THE COURT SMITH, J. We hold that on the facts of this case defendant's acquittal of a charge of first degree robbery that was based on the alleged display of a firearm barred the People from introducing, at a later trial for second degree robbery, evidence that a firearm was displayed. I Defendant was charged with first and second degree robbery and other crimes. The first degree charge was brought under Penal Law 160.15 (4), which is applicable when a person "forcibly steals...
OPINION OF THE COURT Chief Judge LIPPMAN. The issue presented by this appeal is whether the determination of the Workers' Compensation Board, finding that plaintiff had no further causally-related disability and no further need for treatment, was entitled to collateral estoppel effect in plaintiff's personal injury action. We find that there is no identity of issue and that collateral estoppel therefore should not be applied. On December 24, 2003, Jose Verdugo (hereinafter plaintiff) *...
OPINION OF THE COURT PIGOTT, J. In Matter of World Trade Ctr. Bombing Litig. ( 17 N.Y.3d 428 [2011]) ( Ruiz ), we held that the governmental immunity doctrine insulated the Port Authority of New York and New Jersey (Port Authority) from tortious liability for injuries sustained in the 1993 World Trade Center bombing ( id. at 455). Four days after our decision in Ruiz was published, the Port Authority moved by order to show cause to vacate the $4.4 million judgment of plaintiff, Linda...
OPINION OF THE COURT PIGOTT, J. We hold that when a missing witness charge is requested in a civil case, the uncalled witness's testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the witness. It may not be considered cumulative simply because it would repeat or be consistent with an opposing party's evidence. I On February 13, 2006, plaintiff Theresa DeVito, who was in her late 70s, was injured in a...
OPINION OF THE COURT READ, J. This appeal calls upon us to apply settled law to the unique facts of a gunpoint robbery. We conclude that defendants Malik Howard (Howard) and Hilbert Stanley (Stanley) (collectively, defendants) were not deprived of effective representation at trial by, among other alleged omissions, counsel's failure to assert as an affirmative defense that one of two weapons allegedly displayed during the robbery "was not a loaded weapon from which a shot, readily capable...
OPINION OF THE COURT READ, J. This appeal calls upon us to interpret a lease's payment terms. We conclude that the pertinent lease obligated defendant tenant Van Wagner Communications, LLC (Van Wagner) to pay the full annual basic rent for calendar year 2007 to plaintiff landlord Eujoy Realty Corp. (Eujoy) on January 1, 2007. Although Van Wagner terminated the lease a week later, the parties did not agree in the lease to apportion rent posttermination except in specified circumstances not...
OPINION OF THE COURT GRAFFEO, J. Plaintiffs are judgment debtors whose bank accounts were "frozen" by judgment creditors in anticipation of enforcement of a money judgment pursuant to CPLR article 52. Plaintiffs allege that the restraints were invalid because their banks failed to comply with requirements imposed on financial institutions under the Exempt Income Protection Act of 2008 (EIPA). That legislation compels banks served with restraining notices by judgment creditors to forward...
OPINION OF THE COURT READ, J. In People v Havelka ( 45 N.Y.2d 636 [1978]), we held that the People, if afforded a full and fair opportunity to present evidence of the dispositive issues at a suppression hearing, are not entitled to a remand after appeal for a reopened hearing. We hold that the principles underlying Havelka have equivalent force in the pretrial setting, and preclude a trial judge from reopening a suppression hearing to give the People an opportunity to shore up their...
OPINION OF THE COURT ABDUS-SALAAM, J. We hold that, when Penal Law 70.30 (2) (b) limits consecutive definite sentences to an aggregate term of two years' imprisonment, jail time credit and good time credit should be deducted from that two-year aggregate term rather than the aggregate term imposed by the sentencing court. On October 24, 2011, petitioner Richard Shaver was convicted of two counts of petit larceny and one count of criminal possession of stolen property in the fifth degree....
OPINION OF THE COURT RIVERA, J. The City of New York appeals from an order of the Appellate Division holding Local Law No. 43 (2009) of City of New York, a hotel room occupancy tax applicable to online travel companies, unconstitutional ( Expedia, Inc. v City of NY. Dept. of Fin., 89 A.D.3d 640 [1st Dept 2011]). Plaintiffs are a group of travel companies that enable customers to make online travel arrangements, including hotel reservations. Plaintiffs claim that the City lacks authority...
OPINION OF THE COURT Chief Judge LIPPMAN. Defendants in these three appeals challenge their convictions of depraved indifference murder. Each defendant drove in an outrageously reckless manner while intoxicated by alcohol or drugs and caused the death of at least one other person. Defendants maintain that the evidence was not legally sufficient to support their convictions — specifically, that there was insufficient proof that they had the requisite mental state of depraved indifference....
