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 arises from a series of related business transactions in which a number of Israeli investors acquired membership interests in seven limited liability companies that purchased residential buildings in the Bronx and Harlem for renovation and resale. The promoter defendants organized the limited liability companies, located and...
OPINION OF THE COURT GRAFFEO, J. At issue on this appeal is whether the Martin Act (General Business Law art 23-A) preempts plaintiff's common-law causes of action for breach of fiduciary duty and gross negligence. For the reasons that follow, we conclude that plaintiff's common-law claims are not preempted. Plaintiff Assured Guaranty (UK) Ltd. commenced this action against defendant J.P. Morgan Investment Management Inc., asserting causes of action for breach of fiduciary duty, gross...
OPINION OF THE COURT GRAFFEO, J. We hold that County Court abused its discretion as a matter of law when it denied defendant's for-cause challenge to a prospective juror who had personal and professional relationships with several of the witnesses expected to testify at defendant's trial. Defendant Scott Furey was charged with committing burglary, kidnapping and other offenses against his former girlfriend. Detective Sergeant Kevin Carter of the City of Oswego Police Department testified at...
OPINION OF THE COURT SMITH, J. Regulations of the New York City Taxi & Limousine Commission limit the rates that may be charged by owners of taxicabs who lease those cabs to drivers. In this case, owners challenge a Commission regulation that prohibits owners from collecting sales tax in addition to the maximum permitted lease rates. We hold that the regulation must be annulled, because the Commission has not shown any rational basis for it. I The Commission was created by the New York...
OPINION OF THE COURT JONES, J. Petitioner New York State Superfund Coalition, Inc. (Superfund Coalition) commenced this combined CPLR article 78 proceeding and declaratory judgment action to challenge certain regulations promulgated by the New York State Department of Environmental Conservation (DEC or the Department) with respect to remedial programs implemented to clean "inactive hazardous waste disposal sites." 1 The Superfund Coalition asserts that the regulations are ultra vires and...
OPINION OF THE COURT MEMORANDUM. On defendant's appeal pertaining to his September 2006 arrest, the order of the Appellate Division should be affirmed. The People's appeal regarding his May 2007 arrest should be dismissed on the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal" (CPL 450.90 [2] [a]). The Appellate Division's determination that the police...
OPINION OF THE COURT CIPARICK, J. In People v Lopez ( 6 N.Y.3d 248 [2006]), we emphasized, once again, that "[a] waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" (6 NY3d at 256). Applying this standard here, we hold that the record fails to establish that defendant validly waived his right to appeal. I. A Kings County grand jury indicted defendant for rape in the first degree and other related...
OPINION OF THE COURT JONES, J. The issue before this Court is whether section 5 of the Religious Corporations Law grants plaintiffs, former parishioners of a church incorporated as a religious corporation, the authority to challenge the board of trustees' decision to demolish the church. We hold that it does not. In 1909, Our Lady of Vilna Church—a Roman Catholic church established to serve a Lithuanian community in New York City—was incorporated by the then board of trustees, comprised of...
OPINION OF THE COURT JONES, J. Defendant was charged with numerous offenses, including three counts of arson in the first degree (Penal Law 150.20), in connection with two fires set five days apart in a four-story apartment building located at 408 Greene Avenue in Brooklyn, New York. The evidence adduced at trial established that defendant, who did not own the building, engaged in a scheme to profit from its illegal sale. Defendant gained control of the property by means of a forged and...
OPINION OF THE COURT PIGOTT, J. We hold that harmless error analysis is applicable when a trial court has ordered the use of visible shackles without adequate justification articulated on the record ( see Deck v Missouri, 544 U.S. 622 [2005]). Here, defendant's shackling during trial was harmless, as was an evidentiary error committed by the trial court. We also agree with the People that the count of defendant's indictment charging him with attempted rape should not have been dismissed....
OPINION OF THE COURT SMITH, J. In Pommells v Perez ( 4 N.Y.3d 566 , 571 [2005]), then Chief Judge Kaye described the working of the No-Fault Law (officially the Comprehensive Motor Vehicle Insurance Reparations Act, Insurance Law 5101 et seq. ) by saying: "Abuse . . . abounds." That included, she said, "abuse . . . in failing to separate `serious injury' cases" from others ( id. ). No-fault abuse still abounds today. In 2010, no-fault accounted for 53% of all fraud reports received by...
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be affirmed, with costs. The Appellate Division properly construed the plain language of the agreement and determined that plaintiffs' failure to adopt a drug formulary bars them from sharing in certain rebates that defendant received from prescription drug manufacturers. Additionally, plaintiffs fail to state a cause of action for breach of fiduciary duty separate and apart from their breach of contract claim. On...
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be affirmed. At about 3:40 A.M. on June 10, 2006, Oscar Magallanes was accosted by two men, on the landing outside the front door of 124 East 103rd Street, in Manhattan. As he put his key into the lock, the men forced him to the ground. One attacker held Magallanes down, while the other went through the pockets of his jeans, taking his cell phone, as well as a $20 bill and a $1 bill from his wallet. The landing was...
OPINION OF THE COURT PIGOTT, J. In May 2003, plaintiffs Juliette and Jean Cadichon commenced a medical malpractice action against defendants Thomas Facelle, M.D., Good Samaritan Hospital and Montefiore Medical Center for injuries allegedly sustained by Mrs. Cadichon during surgery in July 2002. The trial court executed a preliminary and compliance conference order in August 2003 and May 2004, respectively, concerning the parties' discovery obligations and examinations before trial. After...
OPINION OF THE COURT SMITH, J. Defendants, Michael Hall and John Freeman, were accused of robbing a store and using a stun gun to incapacitate the store manager temporarily. We agree with the Appellate Division that the People failed to prove that the stun gun was a "dangerous instrument" as defined in the Penal Law, and that therefore defendants' convictions for first degree robbery and fourth degree weapon possession cannot stand. However, we sustain defendants' convictions for second...
OPINION OF THE COURT JONES, J. The issue before this Court is whether plaintiffs' challenge to appropriations in the New York State 2008-2009 budget, pursuant to article VII, 8 (1) of the New York State Constitution, can survive a motion to dismiss. We conclude that it cannot. Plaintiffs, a group of 50 taxpayers of the State of New York, commenced this declaratory judgment action against the State, New York State Urban Development Corporation (UDC) doing business as Empire State...
OPINION OF THE COURT CIPARICK, J. At issue in this appeal is whether the courts below erred in finding, as a matter of law, that defendant County of Monroe (the County) relinquished control over a county-owned but independently operated recycling center such that the County is not liable to plaintiff John Gronski for injuries sustained as a result of an unsafe condition on the premises. We hold that an issue of fact exists as to whether and to what extent the County exercised control over the...
OPINION OF THE COURT PIGOTT, J. The issue on appeal is whether the parties are required to arbitrate the meaning of a "no-layoff" clause in their collective bargaining agreement. Given the particular contract in this case, we conclude that they are not. I. On May 22, 2008, the Village of Johnson City and Johnson City Professional Fire Fighters, Local 921 IAFF executed a collective bargaining agreement (CBA) for a term running from June 1, 2006 through May 31, 2011. The CBA contains a no-...
OPINION OF THE COURT GRAFFEO, J. Over a century ago, People v Ledwon (153 N.Y. 10 [1897]) established that a criminal conviction is not supported by legally sufficient evidence if the only evidence of guilt is supplied by a witness who offers inherently contradictory testimony about the defendant's culpability. The victim in this case consistently told the jury that defendant was the person who robbed him but his testimony conflicted with the testimony of other witnesses. We hold that the...
OPINION OF THE COURT SMITH, J. We interpret a contract to assign a lease of real property, and hold that the risk that the City of New York might not permit the assignment was one that the buyer agreed to take. That risk did not give the buyer an excuse for terminating the contract. I The property in question is on the Lower East Side of Manhattan, and was sold by the City for $475,000 in 1981 to the sponsor of an urban renewal project. The agreement between the City and the sponsor,...
