OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be affirmed, with costs, and the certified question not answered upon the ground that it is unnecessary. While playing golf with two friends at a nine-hole course in Suffolk County, defendant Anoop Kapoor "shanked" a shot, striking plaintiff Azad Anand in the left eye, with the errant ball. The accident occurred during play on the first hole. Kapoor's second shot landed in the "rough." Without waiting for Kapoor to...
OPINION OF THE COURT CIPARICK, J. Petitioner Barbara Kowaleski began her employment with the State Department of Correctional Services (DOCS) as a correction officer in 1981, and was assigned to the Hale Creek Correctional Facility (Hale Creek) in 1995. In October 2004, she was served with a notice of discipline (Notice) charging her with violating provisions of the employees' manual on three separate occasions in September and October 2004: 1 (1) in September 2004, she allegedly "made...
OPINION OF THE COURT JONES, J. The common issue presented in these appeals is whether defendants' motions to substitute counsel were properly denied in light of the "minimal inquiry" standard of People v Sides ( 75 N.Y.2d 822 [1990]). Finding no reversible error, we affirm both convictions. People v Porto On July 24, 2006, complainant Sai Hung Chui returned to his apartment to find that he had been the victim of a burglary. The police recovered a fingerprint from a metal cookie tin that...
OPINION OF THE COURT Per Curiam. Under the Election Reform and Modernization Act of 2005 (L 2005, ch 181), adopted in order to implement New York's new regime of voting by the use of electronic scanning machines, mandated by the federal Help America Vote Act of 2002 (42 USC 15481), voters scan marked electronic ballots into a ballot scanner and wait for notice that the ballot has been received. In addition, in order to ensure that verifiable results are maintained, the ballot machines are...
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be affirmed. At trial, after some but not all jurors had been sworn, and while voir dire was ongoing, one of the sworn jurors advised a court officer that there was important information he neglected to tell the court. When questioned, the juror revealed that he worked the night shift and would be coming to court directly from work, raising concerns about his ability to stay awake during the trial (the juror...
OPINION OF THE COURT Chief Judge LIPPMAN. The primary issue presented by these cross appeals is whether defendant is subject to consecutive sentences for the crimes of burglary in the second degree and grand larceny in the third degree. Since we find consecutive sentences are authorized, we modify and remit to the Appellate Division for further proceedings. Defendant broke into two Upper East Side apartments—each located on the fifth floor of a five-story walk-up. The crimes occurred within...
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be modified, without costs, by denying the motions of defendants and the third-party defendant for summary judgment insofar as they seek dismissal of plaintiff's Labor Law 240 (1) claim and, as so modified, affirmed. Triable issues of fact exist as to whether the defendants provided proper protection under Labor Law 240 (1). Plaintiff's remaining contentions lack merit. On review of submissions pursuant to...
OPINION OF THE COURT CIPARICK, J. In Batson v Kentucky, the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used by a party to exclude potential jurors on the basis of race ( see 476 U.S. 79 , 94-98 [1986]). These four appeals, once again, center on the application of this now-familiar three-step Batson protocol. At step one, "the moving party bears the burden of establishing a prima facie case of discrimination in the exercise...
OPINION OF THE COURT Chief Judge LIPPMAN. The common issue presented by these appeals is whether certain statements appearing in medical records were properly admitted at trial as relevant to diagnosis and treatment under the business records exception to the hearsay rule. We find no reversible error in either case and uphold the convictions. People v Benston Defendant, who was without another place to live, had been residing in the spare bedroom in complainant's apartment, at her...
OPINION OF THE COURT GRAFFEO, J. The issue before us is whether vicarious liability under Labor Law 241 (6) may be predicated solely on a violation of regulations contained in part 12 of the Industrial Code. We conclude that it may not. During the 1970s and 1980s, decedent Donald Nostrom worked as a boilermaker for subcontractors on construction projects at various energy facilities, including those owned by defendants Orange & Rockland Utilities, Inc. (O&R) and Central Hudson Gas &...
OPINION OF THE COURT PIGOTT, J. Petitioner New York State United Teachers (NYSUT) submitted requests under the Freedom of Information Law (FOIL) to the six respondent Charter Schools 1 seeking, among other things, payroll records showing the full names, titles, corresponding salaries, and home addresses of all persons employed as teachers, instructors and faculty (collectively referred to hereafter as teachers). The Charter Schools partially denied the request, stating that full...
OPINION OF THE COURT SMITH, J. The United States Court of Appeals for the Second Circuit has asked us three questions about the interpretation of CPLR 214-c (4), which extends the statute of limitations for certain tort victims who do not, for some time, know the cause of their injuries. We answer the questions by holding that: (1) the provisions of CPLR 214-c (4) are limited to actions for injuries caused by the latent effects of exposure to a substance; (2) an injury that occurs within...
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be affirmed. Prior to trial in this robbery prosecution, the People turned over a police omniform system complaint report that included descriptive information relating to the crime and the perpetrators but did not contain the name of the officer that compiled that information. Defendant contends that the People's failure to disclose the officer's identity amounts to a Brady violation warranting reversal of his...
OPINION OF THE COURT Appeal dismissed, without costs. As the nonparticipating tobacco manufacturers are not required by Supreme Court's order to arbitrate and will not be bound by the arbitration, they are not aggrieved.
OPINION OF THE COURT CIPARICK, J. The United States Court of Appeals for the Second Circuit has certified the following question for our consideration: "Does New York Insurance Law 3205 (b)(1) and (b)(2) prohibit an insured from procuring a policy on his own life and immediately transferring the policy to a person without an insurable interest in the insured's life, if the insured did not ever intend to provide insurance protection for a person with an insurable interest in the insured's...
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be reversed, with costs, and defendants' motion for summary judgment denied. Plaintiffs raised a triable issue of fact as to whether defendants had constructive notice of the alleged defect in the stairs ( see Gordon v American Museum of Natural History, 67 N.Y.2d 836 , 837 [1986]). On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.
OPINION OF THE COURT MEMORANDUM. The motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order ( 71 A.D.3d 520 [2010]) that affirmed the August 26, 2008 Supreme Court order, treated as a motion for reconsideration of so much of this Court's July 1, 2010 order ( 15 N.Y.3d 767 [2010]) as dismissed plaintiffs' appeal as of right from that portion of the Appellate Division order, should be granted, and, upon reconsideration, jurisdiction of so much of the...
OPINION OF THE COURT JONES, J. The issue before this Court is whether there is substantial evidence in the record to support the Unemployment Insurance Appeal Board's finding of an employer-employee relationship. We hold there is not. Peter O'Connell maintains a law practice in Albany that focuses on government relations and lobbying. Appellant Empire State Towing and Recovery Association, Inc., an association that represents members in the tow truck operating business, retained O'Connell...
OPINION OF THE COURT READ, J. On December 31, 2007, plaintiff Joseph Moray commenced this action for legal malpractice, breach of contract and professional negligence against defendant Koven & Krause, Esqs. by filing a summons with notice, which identified Warren Goodman, Esq. as plaintiff's attorney. The summons with notice was apparently served on defendant on February 5, 2008. On February 25, 2008, defendant served Goodman with a notice of appearance and a demand for a complaint. When...
OPINION OF THE COURT JONES, J. In this CPLR article 75 proceeding arising from respondent's determination denying petitioner's claim for supplementary uninsured/underinsured motorist (SUM) benefits, the primary issue before this Court is whether the SUM arbitrator exceeded the scope of his authority by not giving preclusive effect to a prior arbitration award involving the same parties and accident. On May 15, 2004, petitioner was involved in a two-car collision. Subsequently, she filed a...
