OPINION OF THE COURT RIVERA , J. This appeal involves a dispute over future rental payments sought under an acceleration clause from an out-of-possession tenant after termination of the leasehold agreement. The Appellate Division affirmed an order of Supreme Court which granted the landowner plaintiff summary judgment on the issue of liability, and affirmed a judgment for damages in accordance with the parties' stipulation. We conclude that the acceleration clause is not per se invalid...
OPINION OF THE COURT RIVERA , J. In this appeal concerning a police officer's personal injury action against municipal defendants the City of New York and the New York City Police Department, we conclude that Labor Law 27-a (3) (a) (1) sets forth an objective clear legal duty that may serve as a predicate for a claim under General Municipal Law 205-e. Therefore, the order of the Appellate Division should be affirmed and the certified question answered in the affirmative. I....
OPINION OF THE COURT On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs. Plaintiff failed to produce admissible evidence raising a triable issue of fact concerning whether defendant Barratt had an opportunity to avoid the collision. Concur: Chief Judge LIPPMAN and Judges READ, SMITH, PIGOTT, RIVERA and ABDUS-SALAAM.
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Term should be reversed and the judgments of District Court reinstated. On May 3, 2011, a town investigator with the Town of Brookhaven (Town) filed five informations (subsequently superseded) against On Sight Mobile Opticians (On Sight). Each information charged On Sight with violating section 57A-11 of the Town Code of the Town of Brookhaven (Town Code) by placing a sign advertising its opticians' business on public property, and...
OPINION OF THE COURT PIGOTT , J. Defendant sought an evidentiary hearing as part of his postjudgment motion to vacate his conviction on the ground that newly discovered evidence in the form of mitochondrial DNA (mtDNA) testing excluded him as the perpetrator of crimes of which he was convicted in 1981 ( see CPL 440.10 [1] [g]). Supreme Court and the Appellate Division, in the exercise of their discretion, summarily denied defendant's motion. The jurisprudence of this Court, for nearly...
OPINION OF THE COURT SMITH , J. The issue here is whether a search of a driver by the police officer who stopped his car was "incident" to the driver's arrest. We hold that it was not, because the record shows that, although probable cause to arrest the driver existed before the search, the driver would not have been arrested if the search had not produced evidence of a crime. I Officer Jacob Merino testified at a suppression hearing that he followed the car defendant was driving while...
OPINION OF THE COURT MEMORANDUM. In People v Argyris and People v DiSalvo, the orders of the Appellate Division should be affirmed. In People v Johnson, the order of County Court should be reversed, the suppression motion granted and the accusatory instrument dismissed. Regardless of whether we apply a totality of the circumstances test or the Aguilar-Spinelli standard ( see Spinelli v United States, 393 U.S. 410 [1969]; Aguilar v Texas, 378 U.S. 108 [1964]), there is record...
OPINION OF THE COURT RIVERA , J. Defendant/counterclaim plaintiff Mahesh Gandhi appeals an order of the Appellate Division that modified Supreme Court's judgment by denying Gandhi's application to amend his pleading to assert a counterclaim for payments Gandhi alleges are due to him under a settlement agreement. We conclude, as a matter of law, the Appellate Division abused its discretion in denying the amendment, and reverse and remit. I The underlying litigation in this appeal is...
OPINION OF THE COURT PIGOTT , J. Defendant Lewiston Golf Course Corporation (Lewiston Golf) is an indirect, wholly owned subsidiary of the Seneca Nation of Indians, a federally recognized Indian tribe. We are asked to decide whether that corporation is protected from suit by the Seneca Nation's sovereign immunity. Applying the factors set out in Matter of Ransom v St. Regis Mohawk Educ. & Community Fund ( 86 N.Y.2d 553 [1995]), we hold that it is not. I. In 2002, the Seneca Nation's...
OPINION OF THE COURT SMITH , J. In Hiraldo v Allstate Ins. Co. ( 5 N.Y.3d 508 [2005]), we interpreted a so-called "noncumulation clause" contained in a series of successively-issued liability insurance policies. We held that a person suing for exposure to lead paint during the terms of all the policies could recover no more than one policy limit. Here we interpret a nearly identical clause in a case where members of different families were successively exposed to lead paint in the...
OPINION OF THE COURT GRAFFEO , J. In these cases, we must decide whether a mode of proceedings error occurs under People v O'Rama ( 78 N.Y.2d 270 [1991]) and its progeny when a court accepts a verdict without affirmatively acknowledging or responding to a jury's substantive request for information during deliberations. I People v Julian Silva Defendant Julian Silva was charged with weapon possession and various drug offenses, including criminal sale of a controlled substance in...
OPINION OF THE COURT READ , J. A Syracuse grand jury indicted defendant Dwight R. DeLee for second-degree murder as a hate crime (Penal Law 125.25 [1]; 485.05 [1] [a]), second-degree murder (Penal Law 125.25 [1]) and third-degree criminal weapon possession (Penal Law 265.02 [1]). Defendant was tried in County Court before a jury, which rendered a verdict convicting him of the lesser included offense of first-degree manslaughter as a hate crime (Penal Law 125.20, 485.05 [1] [a])...
OPINION OF THE COURT Chief Judge LIPPMAN . We hold that CPLR 901 (b) permits otherwise qualified plaintiffs to utilize the class action mechanism to recover compensatory overcharges under Roberts v Tishman Speyer Props., L.P. ( 13 N.Y.3d 270 [2009]), even though Rent Stabilization Law of 1969 (RSL) (Administrative Code of City of NY) 26-516 does not specifically authorize class action recovery and imposes treble damages upon a finding of willful violation. We find the recovery of...
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be affirmed. Defendant failed to bring a motion to withdraw his plea under CPL 220.60 (3) or a motion to vacate the judgment of conviction pursuant to CPL 440.10. Nor did his factual recitation negate the intent element of the crime to which he pleaded guilty. His plea therefore does not qualify for the "rare case" exception to the preservation requirement under People v Lopez ( 71 N.Y.2d 662 , 666 [1988])....
OPINION OF THE COURT Chief Judge LIPPMAN . By letter dated September 23, 2011, respondent School District notified petitioner, a tenured school social worker, that she was to be suspended for 30 days without pay for specified misconduct. Petitioner made a written request for a hearing on the specifications pursuant to Education Law 3020-a, but was advised by respondent that she was not entitled to the process prescribed in that statute, and could challenge the disciplinary determination...
OPINION OF THE COURT GRAFFEO , J. On this appeal, we are asked if defendants were entitled to summary judgment on the issue of whether the police officer's operation of his patrol vehicle rose to the level of "reckless disregard" necessary for liability under Vehicle and Traffic Law 1104. We conclude that defendants met their burden and plaintiff failed to raise a triable issue of fact. We therefore affirm the Appellate Division order. On September 20, 2006, around 10:00 p.m., New...
OPINION OF THE COURT RIVERA , J. Plaintiff Frank Paterno appeals from the dismissal for lack of personal jurisdiction of his medical malpractice action against non-domiciliary defendants Laser Spine Institute (LSI) and various LSI professionals. We conclude that defendants' contacts with New York are insufficient to confer long-arm jurisdiction under CPLR 302 (a) (1). We further reject plaintiff's alternative basis for personal jurisdiction under CPLR 302 (a) (3) because he suffered his...
OPINION OF THE COURT SMITH , J. A statute requires anyone who brings a lawsuit against the Port Authority of New York and New Jersey first to serve a notice stating the nature of the claim. We hold that under this statute a notice of a claim for personal injuries is a sufficient notice of a claim for wrongful death, where the person injured dies of his injuries between the service of the notice of claim and the beginning of the lawsuit. I. The Port Authority was created in 1921 by a...
OPINION OF THE COURT ABDUS-SALAAM , J. The United States Court of Appeals for the Second Circuit has certified a question to this Court which requires us to resolve the following issue: May a bankruptcy debtor's interest in her rent-stabilized lease be exempted from her bankruptcy estate pursuant to New York State Debtor and Creditor Law 282 (2) as a "local public assistance benefit " We hold that section 282 (2) of the Debtor and Creditor Law exempts a debtor-tenant's interest in a...
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be reversed, without costs, the matter remitted to the Appellate Division with directions to dismiss the proceeding solely on the ground of mootness, and the certified question not answered as unnecessary. The issues presented in this case are moot because respondent voluntarily vacated the premises. The mootness exception is not applicable under the facts of this case ( see e.g. Matter of Hearst Corp. v Clyne, 50...
