JOAN LOBIS , J. These Article 78 proceedings were brought to challenge the determination of respondent New York State Department of Health (DOH) to approve an application by respondent Jewish Home Lifecare, Manhattan (JHL) to construct a twenty-story nursing home (proposed facility or project) at 125 West 97th Street in Manhattan's Upper West Side (proposed site). Petitioners, including an organization of parents and teachers of children attending a public school adjacent to the proposed...
OPINION OF THE COURT MARCY FRIEDMAN , J. In this CPLR article 77 proceeding, four trustees of residential mortgage-backed securitization (RMBS) trusts seek judicial approval of their decision to accept a settlement, on behalf of the trusts, of claims against Citigroup Inc. and its direct and indirect subsidiaries (Citigroup). 1 ( See first amended petition 19.) The proposed settlement, the RMBS Trust Settlement Agreement (proposed settlement or agreement), was negotiated by...
It is hereby ordered that the order so appealed from is unanimously affirmed without costs. Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law 168 et seq. ). Contrary to defendant's contention, Supreme Court properly assessed 15 points under risk factor 11 for a history of drug or alcohol abuse. That assessment is supported by the reliable hearsay contained in the presentence report and...
It is hereby ordered that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of one count of attempted murder in the second degree (Penal Law 110.00, 125.25 [1]), two counts of assault in the first degree ( 120.10 [1], [4]), and one count of assault in the second degree ( 120.05 [4]). The crimes were committed by defendant when he was 18 years old, and his conduct involved attempting to kill a...
Ordered that the order is modified, on the law, by deleting the provision thereof denying those branches of the motions of National Grid Electric Services, LLC, and Long Island Power Authority which were to dismiss the plaintiffs' cause of action for injunctive relief insofar as asserted against each of them, and substituting therefor a provision granting those branches of the motions; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. On October 29,...
Ordered that the order is affirmed insofar as appealed from, with costs. The plaintiff Diane Zeolla (hereinafter the plaintiff) allegedly sustained personal injuries when she fell from a single-step riser at the Town of Stanford Courthouse. It is undisputed that, only minutes prior to the accident, the plaintiff had ascended the subject step without any problems. The plaintiff, and her husband suing derivatively, commenced this action, interposing causes of action alleging negligence and...
Ordered that the judgment is affirmed, with one bill of costs. On July 3, 2006, the plaintiffs were in the process of purchasing fuel at a Shell gas station owned by the defendant Arden Shell Corp. (hereinafter Arden) when a fire suppression system activated and discharged a fire extinguishing agent into the area. The defendant Fire Guard of Long Island, Inc., installed, maintained, and inspected the subject fire suppression system. The plaintiffs commenced this action to recover damages for...
Ordered that the order is modified, on the law, by (1) deleting the provisions thereof granting the motion of the defendant Atlantic Court, LLC, and the separate motion of the defendants/third-party plaintiffs, Kit Construction, LLC, and Kit Construction Co., Inc., for summary judgment dismissing the plaintiffs' wrongful death cause of action, and substituting therefor provisions denying those motions, and (2) deleting the provision thereof granting that branch of the cross motion of the...
Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as it was related to the defendant Jovan Francois (hereinafter the appellant) and denied the appellant's cross motion for summary judgment dismissing the complaint insofar as asserted against him. A plaintiff in a mortgage foreclosure action establishes its prima facie entitlement to judgment...
Ordered that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that Executive Order (Cuomo) No. 38 (9 NYCRR 8.38) and 10 NYCRR part 1002 are not unconstitutional, void ab initio, or violative of the separation of powers doctrine. For the reasons stated in our opinion and order in a companion appeal ( see Agencies for Children's Therapy Servs., Inc. v New York State Dept. of...
Ordered that the interlocutory judgment is affirmed, with costs. On July 5, 2005, in the course of his employment with the defendant, Long Island Rail Road, the plaintiff was operating a shuttlewagon, which is a vehicle used to move trains and equipment around a rail yard and into a repair shop. The plaintiff allegedly was injured when the shuttlewagon derailed. The plaintiff subsequently commenced this action to recover damages for personal injuries, and the case proceeded to a jury trial...
OPINION OF THE COURT DICKERSON , J. Introduction In 1992, New York State established an early intervention program to provide assistance to developmentally disabled children from birth until three years of age (Public Health Law art 25). The early intervention program offers these young children a wide variety of services, including physical and occupational therapy, nursing care, speech pathology, and nutrition and social work services ( see Public Health Law 2541 [7]). These...
OPINION OF THE COURT FRIEDMAN , J. This appeal presents the question of whether a sophisticated investor has sufficiently alleged that it justifiably relied on credit ratings of securities that defendants, the organizers of the offering, allegedly had manipulated and otherwise knew, from nonpublic information, to be inaccurate. We hold that the element of reasonable reliance has been sufficiently pleaded in support of plaintiff's fraud and fraudulent concealment causes of action, and...
The record reflects that plaintiff's sole owner, principal and employee was convicted, after a jury trial, of conspiracy to commit mail and wire fraud, and substantive mail fraud and substantive wire fraud in connection with a scheme to defraud insurance companies. Nevertheless, plaintiff seeks to enforce the provisions of a promissory note providing that it receive 50% of the death benefits payable under a policy on the life of Limquee's late husband. The record indicates that this policy...
The motion court correctly found that plaintiff established prima facie that it had no obligation to defend or indemnify defendant Hossain in the underlying personal injury action by showing, pursuant to an exclusion in his homeowners policy, that Hossain did not reside at the premises when the accident happened. As the court recognized, the affidavit by plaintiff's insurance investigator stating that Hossain admitted that he had not resided at the premises since November 2008, nearly a year...
While defendants argue that plaintiff's motion was not timely, they do not indicate that they suffered "prejudice or surprise" as a result ( 360 W. 11th LLC v ACG Credit Co. II, LLC, 90 A.D.3d 552 , 553 [1st Dept 2011]). In any event, the record supports a finding that plaintiff moved to amend the complaint shortly after the judgment became final. Plaintiff is entitled to amend the complaint to assert a claim for aiding and abetting fraud, since her allegations are not "palpably...
Nomura's motion was properly denied, in this action where plaintiff Daniel Costa alleges that he was injured when he slipped on brown liquid in the freight elevator lobby of a floor leased by Nomura. The record presents triable issues of fact as to which floor that Nomura leased was the accident location, which entity was responsible for cleaning that part of the premises, and when, prior to plaintiff's accident, those premises were last inspected ( see e.g. Nugent v 1235 Concourse Tenants Corp....
Plaintiff (tenant) and defendant (landlord) entered into a lease dated August 31, 2007, which became effective October 9, 2007. In accordance with the terms of the lease, tenant paid landlord a $400,000 security deposit to be held in a segregated account. Counterclaim defendant Allen Gutterman executed a personal guaranty dated August 31, 2007, guaranteeing tenant's obligations under the lease. Either party had the right to terminate the lease "[s]ubsequent to the first consecutive twelve...
Plaintiff, a drywall installer employed by O'Kane, was injured at premises owned by defendant 24 West and leased to ATNY. ATNY was converting the space into a gallery to display the work of the artist Ana Tsarev, and had hired R&R as the general contractor. R&R retained Atlantic to construct a scaffold on the premises for use in the renovation. Because the ceiling in the premises was 30 feet high, Atlantic's scope of work in its subcontract included building a staircase within the scaffold to...
This case arises from dealings dating back over a decade between plaintiff Mark Elliot Zuckerberg and nonparty Paul Ceglia. The underlying facts of this case are as follows: On April 28, 2003, Ceglia hired Zuckerberg to design a website for a company called Street Fax, Inc. Ceglia and Zuckerberg executed a two-page contract (the Street Fax Contract) and Zuckerberg performed some work under the contract, although he was not paid in full by Ceglia. In December 2003, Zuckerberg conceived of...
