OPINION OF THE COURT The order of the Appellate Division should be modified, without costs, by denying defendant's motion for summary judgment and remitting to the Appellate Division for further proceedings in accordance with this memorandum, and, as so modified, affirmed. Sufficient record evidence exists to raise a triable issue of fact as to whether plaintiff suffered a "serious injury" within the meaning of Insurance Law 5102 (d) ( see Gaddy v Eyler, 79 N.Y.2d 955 , 957 [1992]). In...
OPINION OF THE COURT Chief Judge LIPPMAN. The issue before the Court is whether a conflict-of-laws analysis must be undertaken when there is an express choice of New York law in the contract pursuant to General Obligations Law 5-1401. We hold that the need for a conflict-of-laws analysis is obviated by the terms of the parties' agreement. Defendant Inepar S.A. Industria e Constru es (IIC) is a Brazilian power company which held a 60% stake in defendant Inepar Investments, S.A. (Inepar), a...
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be affirmed. A Queens County grand jury charged defendant with one count of criminal possession of a weapon in the second degree and other related charges. At defendant's jury trial, the People adduced evidence that on the evening of August 16, 2006, defendant engaged in a street level altercation with a third party. Shortly thereafter, complainant, an off-duty police officer, arrived at the scene. Complainant and a...
OPINION OF THE COURT GRAFFEO, J. Each of these appeals involves a police officer who responded to provide assistance at the World Trade Center following the September 11, 2001 attacks. Two officers seek accidental disability retirement benefits and the surviving spouse of another officer makes a claim for line-of-duty death benefits. Central to all three CPLR article 78 proceedings is the application of the statutory World Trade Center (WTC) presumption ( see Administrative Code of City of...
OPINION OF THE COURT Chief Judge LIPPMAN. The issue presented by this appeal is whether double jeopardy barred defendant from being retried for criminal possession of a controlled substance in the third degree after a previous jury had deadlocked on that charge, but rendered a partial verdict convicting him of the lesser included offense of criminal possession of a controlled substance in the seventh degree. We find that, under these circumstances, double jeopardy does not preclude defendant'...
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the declaration that the Buffalo Fiscal Stability Authority (the BFSA) does not have the authority to freeze the wages of plaintiffs vacated, and plaintiffs' complaint as against defendant BFSA dismissed. In 2003, the legislature enacted the Buffalo Fiscal Stability Authority Act (the Act), declaring "that the city of Buffalo is facing a severe fiscal crisis, and...
OPINION OF THE COURT READ, J. Defendants Gregory and Marina Tomchinsky own a residential apartment at 200 Riverside Boulevard at Trump Place, a 47-story building located in Manhattan, which is organized as a condominium ( see Real Property Law art 9-B [Condominium Act]). The other defendants in this action are the condominium; its Board of Managers (the Board), the entity responsible for the building's day-to-day operation and management; and the Trump Corporation (Trump), the Board's...
OPINION OF THE COURT SMITH, J. When an owner of real property moves, and does not give a new address to the collector of real property taxes, he or she may fail to receive notices of overdue taxes and related legal proceedings, and the property may consequently be lost in foreclosure. The United States Supreme Court and our Court have held that, in such situations, due process requires taxing authorities to take reasonable steps to track down the missing taxpayer before seizing and selling...
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be affirmed. A Monroe County grand jury returned an indictment charging defendant with the crime of murder in the second degree (Penal Law 125.25 [1]) for the killing of his elderly father. The indictment alleged that defendant caused his father's death by stabbing him and striking him in the head with a blunt instrument. Defendant had a documented history of mental illness and had been hospitalized in psychiatric...
OPINION OF THE COURT GRAFFEO, J. Shortly after the horrendous attacks on September 11, 2001, the New York Legislature convened in special session to address the ramifications of these terrorist actions. Confronted with the tragic events of that infamous day, the legislature recognized that "terrorism is a serious and deadly problem that disrupts public order and threatens individual safety both at home and around the world" (L 2001, ch 300, 4). It decided that New York laws needed to be "...
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be affirmed, with costs. When a statute or local law does not expressly authorize a private right of action, the inquiry becomes whether the plaintiff is one of the class for whose particular benefit the law was enacted, whether recognition of a private right of action would promote the legislative purpose, and whether creation of such a right would be consistent with the legislative scheme ( see Uhr v East...
OPINION OF THE COURT Chief Judge LIPPMAN. The issue presented by this appeal is whether the State can be held liable to individuals who were injured and the personal representatives of those who lost their lives due to the tragic capsizing of a public vessel — the Ethan Allen. We conclude that because the State owes no special duty to these claimants, the claims that the State's inspectors failed to certify safe passenger capacity on the vessel must be dismissed. The Ethan Allen was a public...
OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be modified, without costs, by vacating the award for punitive damages and, as so modified, affirmed, and the certified question not answered upon the ground it is unnecessary. In January 2000, plaintiff Kristin Kahkonen Dupree sought and obtained treatment for depression and stress from defendant James E. Giugliano, a licensed family physician with a concentration in osteopathic medicine. Defendant prescribed...
OPINION OF THE COURT CIPARICK, J. In determining probable cause, the standard to be applied is that it must "appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice" ( People v Carrasquillo, 54 N.Y.2d 248 , 254 [1981]). Applying this standard, there is support in the record for the Appellate Term's determination that the facts did not support probable...
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. There is support in the record for the Appellate Division's determination that defendant unequivocally invoked his right to counsel while in custody, and that mixed question of law and fact is beyond our further review. We agree with the Appellate Division that the hearing court's error in failing to suppress defendant's statements was not harmless...
OPINION OF THE COURT SMITH, J. In this proceeding for a writ of error coram nobis, defendant claims that he was deprived of the effective assistance of appellate counsel in an earlier appeal. Specifically, he claims appellate counsel was at fault for failing to argue, on appeal, that the conduct of the prosecutor at trial subjected defendant's trial lawyers to ethical conflicts and thereby deprived defendant of the effective assistance of trial counsel. We hold that defendant has failed to...
OPINION OF THE COURT CIPARICK, J. In this appeal, we are called upon to determine whether respondent Judge of Albany County Court exceeded his authority under County Law 701 when he disqualified petitioner District Attorney of Albany County and his staff from prosecuting a case against respondents Naomi Loomis, Robert Loomis, Kenneth Michael Loomis, Kirk Calvert and Tony Palladino (collectively the defendants) and appointed a special district attorney to pursue the case. We hold that...
OPINION OF THE COURT PIGOTT, J. Plaintiffs Steve Pappas and Constantine Ifantopoulos along with defendant Steve Tzolis formed and managed a limited liability company (LLC), for the purpose of entering into a long-term lease on a building in Lower Manhattan. Pappas and Tzolis each contributed $50,000 and Ifantopoulos $25,000, in exchange for proportionate shares in the company. Pursuant to a January 2006 Operating Agreement, Tzolis agreed to post and maintain in effect a security deposit of $...
OPINION OF THE COURT MEMORANDUM. The orders of the Appellate Division should be affirmed. Defendant adequately preserved the argument that the exclusion of his wife from the courtroom violated his right to a public trial ( see People v Alvarez, 20 N.Y.3d 75 , 81 [2012]; see also People v Caban, 14 N.Y.3d 369 , 373 [2010]). The closure of the courtroom during jury selection was not trivial ( see People v Martin, 16 N.Y.3d 607 , 613 [2011]). Chief Judge LIPPMAN and Judges CIPARICK,...
OPINION OF THE COURT PIGOTT, J. In this proceeding pursuant to Mental Hygiene Law article 10, respondent, Myron P., contends that he was entitled to a jury trial on the determination of confinement. We hold that he was not and therefore affirm. On February 13, 2001, respondent was convicted of attempted rape in the first degree and sentenced to six years' imprisonment with 30 months of parole supervision. Prior to his release, in October 2006, he was transferred from prison to the Sex...
