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https://www.courtlistener.com/api/rest/v3/opinions/5901619/
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—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Brennan, J.), rendered December 1, 1983, adjudicating him a youthful offender, upon his plea of guilty to robbery in the first degree (two counts), robbery in the second degree, and assault in the first degree (two counts), and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v Califor*580nia, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606). Mollen, P. J., Bracken, Rubin and Spatt, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901620/
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—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lakritz, J.), rendered April 11, 1984, convicting him of robbery in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf, People v Gonzalez, 47 NY2d 606). Thompson, J. P., Niehoff, Eiber, Sullivan and Harwood, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901621/
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—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Garry, J.), rendered February 7, 1986, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf, People v Gonzalez, 47 NY2d 906).
*581The issues raised in the defendant’s pro se supplemental brief have been considered and found to be without merit. Bracken, J. P., Kunzeman, Eiber and Harwood, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901622/
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In an action, inter alia, to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Orange County (Bartlett, J.), dated February 7, 2012, which denied their motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is granted.
“In an action to recover damages for legal malpractice, a *956plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007] [internal quotation marks omitted]; see Verdi v Jacoby & Meyers, LLP, 92 AD3d 771, 772 [2012]; Barnett v Schwartz, 47 AD3d 197, 203 [2007]). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolfo Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). “To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements” (Verdi v Jacoby & Meyers, LLP, 92 AD3d at 772 [internal quotation marks omitted]). Once a defendant makes this prima facie showing, the burden shifts to the plaintiff to raise an issue of fact requiring a trial (see Siciliano v Forchelli & Forchelli, 17 AD3d 343, 344-345 [2005]; Schadoff v Russ, 278 AD2d 222, 223 [2000]).
Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the plaintiffs would be unable to prove the element of causation (see Marino v Lipsitz, Green, Fahringer, Roll, Salibury & Cambria, LLP, 87 AD3d 566, 567 [2011]; Pistilli Constr. & Dev. Corp. v Epstein, Rayhill & Frankini, 84 AD3d 913, 914 [2011]; Markowitz v Kurzman Eisenberg Corbin Lever & Goodman, LLP, 82 AD3d 719 [2011]). In opposition, the plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint. Skelos, J.P., Hall, Roman and Cohen, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901623/
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—Appeal by the defendant from an amended judgment of the Supreme Court, Kings County (Owens, J.), rendered November 6, 1985, convicting him of a violation of the terms of a sentence of probation of the same court, upon his plea of guilty, and imposing sentence.
Ordered that the amended judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf, People v Gonzalez, 47 NY2d 606). Mangano, J. P., Brown, Lawrence, Kunzeman and Weinstein, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5907169/
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— Order, Supreme Court, New York County (Bruce Wright, J.), entered on or about August 19, 1987, unanimously affirmed, without costs and without disbursements, for the reasons stated by Wright, J. Concur— Kupferman, J. P., Sullivan, Carro, Milonas and Smith, JJ. [134 Misc 2d 10.]
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901624/
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In an action, inter alia, to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Orange County (Bartlett, J.), dated February 7, 2012, which denied their motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is granted.
“In an action to recover damages for legal malpractice, a *956plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007] [internal quotation marks omitted]; see Verdi v Jacoby & Meyers, LLP, 92 AD3d 771, 772 [2012]; Barnett v Schwartz, 47 AD3d 197, 203 [2007]). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolfo Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). “To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements” (Verdi v Jacoby & Meyers, LLP, 92 AD3d at 772 [internal quotation marks omitted]). Once a defendant makes this prima facie showing, the burden shifts to the plaintiff to raise an issue of fact requiring a trial (see Siciliano v Forchelli & Forchelli, 17 AD3d 343, 344-345 [2005]; Schadoff v Russ, 278 AD2d 222, 223 [2000]).
Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the plaintiffs would be unable to prove the element of causation (see Marino v Lipsitz, Green, Fahringer, Roll, Salibury & Cambria, LLP, 87 AD3d 566, 567 [2011]; Pistilli Constr. & Dev. Corp. v Epstein, Rayhill & Frankini, 84 AD3d 913, 914 [2011]; Markowitz v Kurzman Eisenberg Corbin Lever & Goodman, LLP, 82 AD3d 719 [2011]). In opposition, the plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint. Skelos, J.P., Hall, Roman and Cohen, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901625/
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—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kooper, J.), rendered November 15, 1982, convicting him of robbery in the first degree (14 counts) and assault in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was for the suppression of certain statements made by him to law enforcement authorities.
Ordered that the judgment is affirmed.
On May 28, 1982, the defendant and four accomplices committed an armed robbery at the Patio Gardens parking garage in Brooklyn. While the defendant acted as a lookout, the codefendants drew guns, forced the seven complainants to lie down and strip, and robbed them of money and jewelry. The gunmen beat the parking attendant with a blackjack and thereafter fled the scene in a black Cadillac automobile stolen from the garage. During a police stakeout of the Cadillac the next morning, the defendant and his codefendants were observed entering the vehicle; upon the approach of police, the men fled in different directions. The defendant and two of his cohorts were apprehended shortly thereafter. The two remaining codefendants later surrendered to police after having fled the jurisdiction.
A search of the defendant’s person upon the properly effectuated arrest resulted in the recovery, inter alia, of $1,457.05 in unwrapped currency and coins and various pieces of jewelry. After being advised of his rights and indicating both that he understood them and that he desired to speak with the police, the defendant recounted the events of the prior night and admitted his part in the robbery.
In a more detailed videotaped statement made to an Assistant District Attorney, the defendant admitted that he and his cohorts had decided to "go * * * to work” by committing a robbery; that guns were distributed to each of the participants immediately prior thereto; that they proceeded in codefendant Robert Martin’s car to the Patio Gardens garage, where the defendant parked the car on the street, while the men en-. tered, the codefendant Robert Williams having directed the defendant to act as the lookout; that from his vantage point in *582front of the garage, the defendant observed that the gunmen had forced the people in the garage to strip, hand over their money and jewelry, and turn over a Cadillac which had been parked in the garage; and that, the next morning, they distributed the proceeds of the robbery.
The codefendants made statements "substantially identical” (People v Cruz, 66 NY2d 61, 69, revd 481 US —, 107 S Ct 1714) to those of the defendant and the Trial Justice, in reliance upon the law prevailing at the time, denied the defendant’s motion for severance based on the Bruton rule (see, Bruton v United States, 391 US 123). The statements of all defendants were introduced into evidence at their joint trial.
While the Confrontation Clause of the US Constitution bars the admission, at a joint trial, of a nontestifying codefendant’s confession which serves to incriminate the defendant even if the jury is given a limiting instruction and even if the defendant’s own confession is admitted against him, the defendant’s own confession may be considered on appeal in assessing whether any violation of the Confrontation Clause was harmless (see, Cruz v New York, 481 US —, 107 S Ct 1714, supra). Where a Confrontation Clause violation is involved, the error under review will be deemed harmless only where it can be said that it was harmless beyond a reasonable doubt (Harrington v California, 395 US 250; People v Smalls, 55 NY2d 407). To satisfy that criterion, there must be overwhelming proof of guilt and no reasonable possibility that the jury would have acquitted the defendant but for’the error (People v Crimmins, 36 NY2d 230).
In the instant case, we conclude that any error occasioned by the violation of the Bruton rule and the court’s denial of the defendant’s severance motion does not require reversal. The detailed confessions made by the defendant to law enforcement officials which were, in all respects, voluntary, and which were neither repudiated as untrue nor attacked as coerced (see, Cruz v New York, supra, 481 US, at —, 107 S Ct, at 1718), along with the in-court identification of the defendant by one of the complainants which, although made pursuant to CPL 60.25, nevertheless "constitutes 'evidence in chief (CPL 60.25, subd 2) and 'substantive evidence of identification’ (Richardson, Evidence [Prince, 10th ed], § 521, p 514; see, also, CPL 1.20, subd 40; United States v Lewis, 565 F2d 1248, 1252, cert den 435 US 973)” (People v Dure, 102 AD2d 873), the defendant’s joint possession of the car stolen from the Patio Gardens garage, his flight from the stolen car upon the approach of police officers, and his possession, upon arrest, of *583large quantities of money and jewelry, provided overwhelming evidence of his guilt. Furthermore, there is no reasonable possibility that the jury would have acquitted the defendant but for the admission of his codefendants’ statements into evidence. Notably, the defendant’s confession was among the more detailed ones given. Thus, we find the error to have been harmless beyond a reasonable doubt (see, People v Baptiste, 135 AD2d 546; People v McCain, 134 AD2d 287; cf., People v Cruz, 70 NY2d 733).
The remaining arguments advanced by the defendant have been examined and have been found to be lacking in merit. Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901627/
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—Appeal by the defendant from a judgment of the County Court, Westchester County (Edelstein, J.), rendered June 7, 1983, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf, People v Gonzalez, 47 NY2d 606). Thompson, J. P., Eiber, Sullivan and Harwood, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901628/
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—Appeal by the defendant from a judgment of the County Court, Nassau County (Goodman, J.), rendered October 16, 1985, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues *584which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf, People v Gonzalez, 47 NY2d 606). Mangano, J. P., Brown, Lawrence, Kunzeman and Weinstein, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901629/
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In an action to foreclose a mortgage, the defendant appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated December 21, 2011, which denied her motion, in effect, pursuant to CPLR 5015 (a) (3) to vacate an order of reference of the same court dated February 16, 2011, entered upon her default in answering the complaint, and to dismiss the complaint.
Ordered that the order dated December 21, 2011, is affirmed, with costs.
The defendant moved, in effect, pursuant to CPLR 5015 (a) (3) to vacate an order of reference entered upon her default in answering the complaint, and to dismiss the complaint. The defendant argued that the plaintiff lacked standing to commence the foreclosure action based upon an alleged fraudulent assignment and other related documents. The Supreme Court denied the motion, and the defendant appeals.
The defendant failed to make a showing that the plaintiff engaged in the type of fraud or misconduct that would warrant vacatur of the order of reference pursuant to CPLR 5015 (a) (3) (see U.S. Bank N.A. v Tate, 102 AD3d 859 [2013]; Deutsche Bank Natl. Trust Co. v Hunter, 100 AD3d 810 [2012]; Bank of N.Y. v Stradford, 55 AD3d 765, 766 [2008]; Aames Capital Corp. v Davidsohn, 24 AD3d 474, 475 [2005]).
The defendant’s remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the defendant’s motion, in effect, pursuant to CPLR 5015 (a) (3) to vacate her default, and to dismiss the complaint. Skelos, J.P., Dillon, Hall and Miller, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8076594/
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No opinion. Order .affirmed, with $10 costs and disbursements.
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01-03-2023
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09-09-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901631/
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—In a proceeding to quash subpoenas issued to the petitioner in connection with a hearing upon a motion to dismiss an indictment in a pending criminal action entitled People v Brensic (indictment No. 2678/79), the petitioner appeals from so much of a judgment of the County Court, Suffolk County (Namm, J.), dated January 5, 1988, as (1) denied that branch of the application which was to quash the subpoena ad testificandum, and (2) failed to quash paragraphs 1 through 6 and paragraph 8 of the subpoena duces tecum in their entirety.
Ordered that the judgment is reversed insofar as appealed from, on the law, without costs or disbursements, the application is granted, and the subpoenas in question are quashed in their entirety.
The judgment is final and appealable as to the appellant (see, People v Johnson, 103 AD2d 754; People v Marin, 86 AD2d 40). Under the circumstances of this case, the County Court erred in refusing to quash in their entirety the subpoenas served on the appellant. The issue of Spota’s pecuniary interest in the conviction of Robert Brensic was resolved by the order of the County Court, Suffolk County (Doyle, J.), dated April 22, 1982, and that order is binding on other Judges of coordinate jurisdiction absent exceptional circumstances, not present here (see, People v Finley, 104 AD2d 450, upon rearg 107 AD2d 709; People v Brensic, 118 Misc 2d 390).
In making the determination under review, the County Court attempted to reopen the issues previously determined. This was improper. Furthermore, while the doctrine of law of the case would not be binding on this court (see, People v Finley, supra), the issues now raised with respect to pecuniary interest, which were decided adversely to Brensic by Judge Doyle, were not raised either on Brensic’s appeal to this court following his conviction, or in the Court of Appeals [70 NY2d 9] upon appeal from this court’s order affirming the judgment [119 AD2d 281]. Thus, the right to seek review of these issues has been waived. In light of this determination, there would *585appear to be no need to hold a hearing with respect to pecuniary interest. Thompson, J. P., Rubin, Eiber and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901632/
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—Proceeding by the District Attorney of Suffolk County pursuant to CPLR article 78, inter alia, (1) to prohibit the respondent Stuart Namm, a Judge of the County Court, Suffolk County, from conducting a hearing in a pending criminal action entitled People v Brensic (indictment No. 2678/79) upon the motion of the defendant in that action to dismiss the indictment based upon prosecutorial misconduct, (2) to compel the respondent Namm to quash certain subpoenas issued to the petitioner with respect to a hearing on that motion, (3) to compel the respondent Namm to “define and limit the scope of the hearing” being conducted by him, and (4) to compel the respondent Namm to determine an application made by the petitioner to quash the subpoenas in issue, or (5), in the alternative, for declaratory relief. Motion by the respondent Namm to dismiss the proceeding.
Ordered that the motion to dismiss the proceeding is granted, and it is further,
Adjudged that the proceeding is dismissed, without costs or disbursements.
The underlying dispute concerns whether the respondent Namm was correct in directing and holding a pecuniary interest hearing in a criminal action entitled People v Brensic on the motion of the defendant in that action to dismiss the indictment pursuant to CPL 210.20. While there appears to be no reason to hold a hearing with respect to pecuniary interest (see, Matter of Spota v Bress, 136 AD2d 584 [decided herewith]), it is well established that where a petitioner has an adequate remedy of appeal (see, CPL 450.20 [1] [appeal by the People from an order dismissing an indictment]), relief by way of a CPLR article 78 proceeding will not lie (see, Matter of Lipari v Owens, 70 NY2d 731; Matter of Ladone v Lerner, 135 AD2d 535).
Moreover, under the circumstances at bar, declaratory relief to challenge the County Court’s determination to hold a hearing and to issue subpoenas is not available (see, Matter of Morgenthau v Roberts, 65 NY2d 749; Matter of Morgenthau v Erlbaum, 59 NY2d 143, cert denied 464 US 993). Thompson, J. P., Rubin, Eiber and Sullivan, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/4534481/
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COURT OF CHANCERY
OF THE
STATE OF DELAWARE
MORGAN T. ZURN LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734
May 14, 2020
Bradley R. Aronstam, Esquire Michael A. Barlow, Esquire
Roger S. Stronach, Esquire Daniel J. McBride, Esquire
Ross Aronstam & Moritz LLP Abrams & Bayliss LLP
100 South West Street, Suite 400 20 Montchanin Road, Suite 200
Wilmington, DE 19801 Wilmington, DE 19807
RE: Fortis Advisors LLC, v. Allergan W.C. Holding Inc.,
C.A. No. 2019-0159-MTZ
Dear Counsel:
I write regarding Defendant’s Motion to Treat Real-Party-in-Interest Sellers
as Parties for Purposes of Discovery and Trial, and to Compel Discovery (the
“Motion”).1 The Motion, filed on January 17, 2020, addresses Defendant Allergan
W.C. Holding Inc.’s (“Allergan”) request for an order requiring the former
stockholders of Oculeve, Inc. (the “Stockholders”) to participate in discovery as real
parties in interest and to be subject to trial subpoenas as parties; or in the alternative,
compelling the Stockholders’ agent, Plaintiff Fortis Advisors LLC (“Fortis” or
“Shareholder Representative”), to procure and produce documents and testimony
from the Stockholders. The parties completed briefing on the Motion on February
1
Docket Item (“D.I.”) 48.
Fortis Advisors LLC, v. Allergan W.C. Holding Inc,
C.A. No. 2019-0159-MTZ
May 14, 2020
Page 2 of 13
27. On March 2, I held a hearing on the Motion and took the matter under
advisement. For the reasons that follow, the Motion is denied.
I. Background
This case arose out of Allergan’s merger with Oculeve under the Agreement
and Plan of Merger (the “Merger Agreement”) executed on July 5, 2015. Under
Section 2.10(a) of the Merger Agreement, the Stockholders appointed Fortis to be
the Shareholder Representative, acting as the Stockholders’ “sole, exclusive, true
and lawful agent, representative and attorney-in-fact” with respect to “any and all
matters relating to, arising out of, or in connection with” the Merger Agreement,
including contingent payments.2 The Agreement provides that “[a]ll actions,
notices, communications and determinations by or on behalf of the [Stockholders]
shall be given or made by the Shareholders’ Representative.”3 Specifically, Fortis
was appointed to “receive service of process in connection with any claims under
this Agreement.”4 “[T]he [Stockholders] do not have any requirements,
prerequisites or veto rights in connection with the Shareholders’ Representative’s
2
D.I. 10 [hereinafter “Am. Compl.”], Ex. A § 2.10(a)(i) [hereinafter “Merger Agreement”].
3
Id. § 2.10(a).
4
Id. § 2.10(a)(vii).
Fortis Advisors LLC, v. Allergan W.C. Holding Inc,
C.A. No. 2019-0159-MTZ
May 14, 2020
Page 3 of 13
fulfillment of its obligations.”5 The Merger Agreement does not grant Fortis access
to the Stockholders’ books and records. Fortis’s obligations are limited to those
enumerated in the Merger Agreement.6
Allergan bargained for certain access to Oculeve information. Under Section
6.2, Oculeve agreed to “make available for inspection by [Allergan] and its
Representative . . . all of [Oculeve’s and its Affiliates’] respective properties, assets,
books of accounts, records . . . and any other materials requested by any of them
relating to [Oculeve] and its existing and prospective businesses and assets and
Liabilities.”7 Oculeve also agreed to make its officers and senior management
available to Allergan “to verify and discuss the information the information
furnished to [Allergan] and its Representatives and otherwise discuss [Oculeve]’s
existing and prospective businesses and assets and Liabilities.”8 Under Section
6.3(b), the parties also agreed to make available “any and all information or books
5
Id.
6
Id. § 2.10(a) (“Notwithstanding the foregoing, the Shareholders’ Representative shall
have no obligation to act on behalf of the [Stockholders], except as expressly provided
herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations
of the Shareholders’ Representative in any other ancillary agreement, schedule or exhibit
to be delivered in connection with this Agreement or the Escrow Agreement or in the
Disclosure Schedule.”).
7
Id. § 6.2.
8
Id.
Fortis Advisors LLC, v. Allergan W.C. Holding Inc,
C.A. No. 2019-0159-MTZ
May 14, 2020
Page 4 of 13
and records necessary to prepare or file” a tax return, including a pre-closing tax
period or to respond to an audit for any pre-closing tax period.9
Allergan and Fortis dispute the Stockholders’ entitlement to post-closing
milestone consideration under the Merger Agreement. For the Stockholders to earn
the milestone payment, Allergan’s medical device had to achieve a specifically
defined enhanced treatment authorization (the “Enhanced Product Labeling
Milestone”) from the Federal Drug Administration (“FDA”).10 After the FDA gave
its authorization, Allergan declined to pay the Stockholders the milestone payment,
contending the FDA’s authorization fell short of what was contractually required.11
Fortis, as Shareholder Representative, asserts Allergan materially breached
the Merger Agreement by failing to make the Enhanced Product Labeling Milestone
payment,12 and by failing to use commercially reasonable and good faith efforts to
achieve the Enhanced Product Labeling Milestone before March 31, 2018.13 I
sustained these claims over Defendants’ motion to dismiss in a memorandum
9
Id. § 6.3(b).
10
Id. §§ 1.1, 2.11(b)(ii).
11
Am. Compl. ¶¶ 31–32, 36–37.
12
Merger Agreement § 2.11(b)(ii).
13
See id. §§ 1.1, 2.11(b)(ii).
Fortis Advisors LLC, v. Allergan W.C. Holding Inc,
C.A. No. 2019-0159-MTZ
May 14, 2020
Page 5 of 13
opinion issued October 30, 2019 (the “Opinion”).14 The parties lifted a stipulated
stay on discovery following the Opinion.15
On December 3, 2019, Allergan served its initial document requests (the
“Requests”), which define “Sellers” as
each of the Sellers named in Schedule I to the Merger Agreement, and
each of their corporate affiliates, agents, officers, directors,
representatives, attorneys, advisors, consultants, or contractors
(including their counsel in connection with the Merger Agreement,
Wilson Sonsini Goodrich & Rosati, and their attorney-in-fact in this
litigation, Fortis Advisors LLC).16
This definition includes over fifty individual non-party selling stockholders.17 Fortis
objected to the Requests “on the basis that they are directed to the ‘Sellers’ who are
not parties to this action,” stating, “Fortis’s responses to the Requests and any
production of documents in response to the Requests will be on behalf of Fortis
only.”18
14
D.I. 39.
15
D.I. 24.
16
D.I. 49 [hereinafter “Haller Decl.”], Ex. 12, Defendant’s First Request for Inspection and
Production of Documents Directed to Plaintiffs, at 4.
17
Merger Agreement at Schedule I.
18
Haller Decl. Ex. 13, Plaintiff Fortis Advisors LLC’s Objections and Responses to
Defendant Allergan W.C. Holding Inc.’s Request for Inspection and Production of
Documents, at 2.
Fortis Advisors LLC, v. Allergan W.C. Holding Inc,
C.A. No. 2019-0159-MTZ
May 14, 2020
Page 6 of 13
The parties met and conferred. Both sides offered meaningful compromises,
but the parties did not reach an agreement was reached.19 The Motion followed.
II. Analysis
In evaluating the relationship between and duties of Fortis and the
Stockholders, I begin with the language of the Merger Agreement. Delaware law
presumes parties are bound by the language of the agreement they negotiated,
especially when the parties are sophisticated entities that have engaged in arms-
length negotiations.20
The Merger Agreement appoints Fortis as the Stockholders’ “sole, exclusive,
true and lawful agent, representative and attorney-in-fact of all Sellers . . . with
respect to any and all matters relating to, arising out of, or in connection with, this
Agreement.”21 In particular, Allergan agreed that Fortis would “act for the Sellers
with regard to all matters pertaining to the . . . Contingent Payments,” including the
19
Fortis has offered to accept electronic service of deposition and document subpoenas for
certain members of the Stockholder Advisory Group identified in Section 2.10(d) of the
Merger Agreement, and trial subpoenas for Oculeve’s co-founder and CEO, Michael
Ackermann, as well as perhaps for other Advisory Group witnesses depending on how the
case unfolds. Haller Decl. ¶¶ 5, 6, 12, 24, Ex. 15; D.I. 55 ¶¶ 23, 26. Fortis has also offered
to allow Allergan to use Delaware subpoenas, so long as any depositions take place where
the witnesses are located. D.I. 55 ¶ 26.
20
See HC Cos., Inc. v. Myers Indus., Inc., 2017 WL 6016573, at *5 (Del. Ch. Dec. 5, 2017).
21
Merger Agreement §§ 2.10(a), 2.11(b)(ii).
Fortis Advisors LLC, v. Allergan W.C. Holding Inc,
C.A. No. 2019-0159-MTZ
May 14, 2020
Page 7 of 13
Enhanced Product Labeling Milestone.22 The Merger Agreement does not empower
Fortis to compel Stockholder participation in litigation: rather, it appoints Fortis to
litigate in the Stockholders’ stead.
The contractual appointment of a shareholder representative to bring certain
actions makes that representative the real party in interest in those actions. 23 This
structure is helpful to both buyers and sellers, as it “enables each side to resolve post-
closing disputes efficiently.”24 Buyers also benefit from the fact that the structure
makes a judgment against the representative binding on all the stockholders,
eliminating the risk of inconsistent judgments.25 This Court has been “reluctant to
disregard the clear contractual authority of the Stockholders’ Representatives at the
22
Id. § 2.10(a)(i).
23
Coughlan v. NXP B.V., 2010 WL 1531596, at *2–3 (Del. Ch. Apr. 15, 2010) (“Coughlan,
as Stockholders’ Representative, is a party in whose name a contract has been made for the
benefit of the GloNav Stockholders, who are admittedly the real parties in interest.
Accordingly, she may bring this action without joining the GloNav Stockholders.”).
24
Ballenger v. Applied Dig. Sols., Inc., 2002 WL 749162, at *10 (Del. Ch. Apr. 24, 2002);
see also Mercury Sys., Inc. v. S’holder Representative Servs. LLC, 2014 WL 591218, at *1
(D. Mass. Feb. 14, 2014) (citing Ballenger for the principle that “a shareholder
representative [is] a helpful mechanism for resolving post-closing disputes efficiently and
quickly” and determining that the inclusion of individual shareholders as defendants would
“eviscerat[e] the salutary purpose of having appointed a shareholder representative in the
first place”).
25
Ballenger, 2002 WL 749162, at *11.
Fortis Advisors LLC, v. Allergan W.C. Holding Inc,
C.A. No. 2019-0159-MTZ
May 14, 2020
Page 8 of 13
behest of a party, [Defendant], whose aims are clearly adverse to those of the former
[Stockholders].”26
Allergan’s Motion seeks to displace Fortis and the agreed-upon shareholder
representative structure. To hold that the Stockholders must participate in discovery
as real parties in interest would be contrary to the language and purpose of the
Merger Agreement’s shareholder representative structure. Allergan bargained for
structural efficiency in closing the merger and in adjudicating post-closing disputes,
and cannot now avoid that structure because third-party discovery introduces some
tangential inefficiency in litigation against the sellers.27
Further, the Merger Agreement does not grant Fortis control over the
Stockholders or their documents. “In the Rule 34 context, [c]ontrol has been defined
to include ‘the legal right to obtain the documents requested upon demand.”28 A
party has possession and control of documents if it “has the power, unaided by the
26
Id.
27
D.I. 63 at 9 [hereinafter “Hrg. Tr.”].
28
Deephaven Risk Arb Trading Ltd. v. UnitedGlobalCom, Inc., 2005 WL 1713067, at *11
(Del. Ch. July 13, 2005) (quoting 7 James Wm. Moore et al., Moore’s Federal Practice §
34.14[2][b] (3d ed. 2005)).
Fortis Advisors LLC, v. Allergan W.C. Holding Inc,
C.A. No. 2019-0159-MTZ
May 14, 2020
Page 9 of 13
court, to force production of the documents.”29 The Merger Agreement does not
give Fortis any right to compel Stockholders to produce documents; accordingly,
Fortis has no control over those documents and no obligation to produce them in
discovery.30
Both Fortis and Allergan note that no Delaware authority addresses the scope
of a shareholder representative’s control over the stockholders’ documents.31
Allergan has submitted cases from outside Delaware, but I find them
distinguishable.32
29
Deephaven, 2005 WL 1713067, at *11; see Dawson v. Pittco Capital P’rs, L.P., 2010
WL 692385, at *1 (Del. Ch. Feb. 15, 2010) (“Court of Chancery Rule 34 requires
defendants to produce all documents within their possession, custody, or control.”).
30
See Theravectys SA v. Immune Design Corp., 2014 WL 5500506, at *2 (Del. Ch. Oct.
31, 2014) (declining “to apply a broader definition of ‘control’ that would also include an
inquiry into the practical ability of the subpoenaed party to obtain documents” (quoting
Cradle IP LLC v. Tex. Instruments, Inc., 2013 WL 1794992, at *1 (D. Del. Apr. 29,
2013))).
31
Plaintiff’s counsel from Delaware and California contend that Allergan’s position is
unusual in this Court. Hrg. Tr. at 13, 26; id. at 26 (“I checked with . . . my client at Fortis.
He said this is the first case he’s aware of in which a defendant in a merger agreement case
has taken the position that the selling stockholders should be treated as parties . . . a real
departure from the practice that’s followed in Chancery . . .”) (Martin S. Schenker,
Esquire); id. (“That’s been similar to my experience as well, not only with Fortis but also
with respect to Shareholder Representative Services.”) (Bradley R. Aronstam, Esquire).
32
Royal Park Invs. SA/NV v. Deutsche Bank Nat’l Tr. Co., 314 F.R.D. 341 (S.D.N.Y.
2016); JPMorgan Chase Bank, N.A. v. KB Home, 2010 WL 1994787 (D. Nev. May 18,
2010); JPMorgan Chase Bank v. Winnick, 228 F.R.D. 505 (S.D.N.Y. 2005); In re Infant
Formula Antitrust Litig., 1992 WL 503465 (N.D. Fla. Jan. 13, 1992). Delaware courts
Fortis Advisors LLC, v. Allergan W.C. Holding Inc,
C.A. No. 2019-0159-MTZ
May 14, 2020
Page 10 of 13
Allergan points to two cases: JPMorgan Chase Bank v. Winnick33 and
JPMorgan Chase Bank, N.A. v. KB Home34. In both Winnick and KB Home, the
court granted motions to compel discovery requiring administrative agents,
established under credit agreements, to produce discovery in the principal lenders’
possession, custody, and control. Neither of the underlying credit agreements
included litigation arrangements such as those present in the Merger Agreement.
This distinction is dispositive.
In Winnick, JPMorgan Chase Bank (“the Bank”) served as administrative
agent to lenders who sued a borrower company’s directors and employees for
fraud.35 The Bank’s authority as agent was governed by a credit agreement to which
the borrower company was a party. Although the Bank was the assignee of certain
litigation claims, the credit agreement did not expressly establish any litigation
arrangement.36 Considering the underlying agreement, the court placed the burden
of discovery on the administrative agent, stating, “If plaintiff and the assignees failed
have not cited any of these authorities in the context of a shareholder representative
framework or otherwise.
33
228 F.R.D. 505.
34
2010 WL 1994787.
35
228 F.R.D. at 506.
36
Id. at 507; D.I. 59, Ex. 2 at 9–10.
Fortis Advisors LLC, v. Allergan W.C. Holding Inc,
C.A. No. 2019-0159-MTZ
May 14, 2020
Page 11 of 13
to obtain rights to insist on cooperation from their assignors in providing such
discovery, and cannot persuade the lending Banks to cooperate now, that is their
problem, not defendants’.”37
In KB Home, the Bank again served as administrative agent for a group of
lenders who loaned money to the defendants.38 The Bank and the lenders were
parties to a written credit agreement, which again assigned certain rights to the Bank
but did not delineate any litigation arrangement. The borrower defendant, which
was not a party to the credit agreement, moved to compel lender discovery from the
Bank as the administrative agent.39 The court analyzed Winnick and reasoned that
“[a]ny failure to obtain rights to insist on cooperation in discovery [in the credit
agreement] was the Bank’s fault and is therefore the [Bank’s] problem, not the
defendants’.”40
37
Winnick, 228 F.R.D. at 507 (“It would be unfair to the defendants to permit plaintiff and
the assignees to divorce the benefits of the claims from the obligations that come with the
right to assert them, to the detriment of defendants . . . having purchased the right to bring
the lawsuit, there is nothing unfair about imposing on them the cost of purchasing
cooperation or otherwise complying with discovery obligations”).
38
2010 WL 1994787, at *1.
39
Id. at *1–2.
40
Id. at *5.
Fortis Advisors LLC, v. Allergan W.C. Holding Inc,
C.A. No. 2019-0159-MTZ
May 14, 2020
Page 12 of 13
Here, the lack of authority to compel the stockholders’ participation is not
Fortis’s burden to bear as agent. Unlike the credit agreements in KB Home and
Winnick, which were silent as to litigation responsibilities, the Merger Agreement
specifies Fortis is to act for the Sellers with regard to all matters pertaining to the
Contingent Payments. Allergan consented to the shareholder representative
structure as formulated in the Merger Agreement, which does not include the
discovery rights it seeks to enforce, and which limits itself to the enumerated rights.41
The fact that the Merger Agreement does not give Fortis control over the
Stockholders and their discovery is not Fortis’s “fault” or “problem”—it is a result
that Allergan bargained for.
Further, Fortis has submitted that (i) it has no “substantive relationship with
any of the Stockholders outside of the Advisory Committee and has had no
communication with them about the litigation,” and (ii) Fortis’s litigation counsel
was engaged for Fortis alone, not on the Stockholders’ behalf.42 These facts bolster
the conclusion that Fortis does not have control over the Stockholders’ documents,
and raise the threat of legal conflicts if Fortis were ordered to procure discovery on
the Stockholders’ behalf.
41
See Merger Agreement § 2.10(a).
42
D.I. 55, Pl.’s Opp’n Br. ¶ 6; id., Adam Lezack Decl., ¶¶ 5, 8.
Fortis Advisors LLC, v. Allergan W.C. Holding Inc,
C.A. No. 2019-0159-MTZ
May 14, 2020
Page 13 of 13
As a practical matter, upholding the terms of the Merger Agreement will not
significantly prejudice Allergan in this litigation. Allergan retained most of the
Oculeve documents post-closing.43 Allergan explained that its Motion seeks
discovery into what Oculeve’s investors thought about the merger.44 This issue does
not appear to me to be at the core of the parties’ dispute, and in any event, it can be
explored through third-party discovery.
III. Conclusion
The Merger Agreement’s shareholder representative structure identifies Fortis
as the real party in interest in this action, and does not give Fortis control over the
Stockholders’ discoverable material. Allergan’s Motion is denied.
To the extent an order is required to implement this decision, IT IS SO
ORDERED.
Sincerely,
/s/ Morgan T. Zurn
MTZ/ms Vice Chancellor
cc: All Counsel of Record via File & ServeXpress
43
Hrg. Tr. at 10 (“Q: Can you elaborate for me a little bit more on basically what is already
is in Allergan’s control and what remains with Oculeve? . . . A: Well, Allergan should
have most of the documentation.”).
44
D.I. 48 ¶ 8(d); Hrg. Tr. at 10–11.
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: April 21, 2020
* * * * * * * * * * * * * * UNPUBLISHED
FREDERICK W. HAYNES, as the*
Executor of the ESTATE OF *
IMOGENE HAYNES-BLEAU, * No. 17-356V
* Special Master Sanders
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Shahid Manzoor, Manzoor Law Firm, Inc., Roseville, CA, for Petitioner.
Heather L. Pearlman, United States Department of Justice, Washington, D.C., for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On March 15, 2017, Imogene Haynes-Bleau filed a petition for compensation pursuant to
the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to 34 (2012). Upon
Ms. Haynes-Bleau’s death, Frederick Haynes (“Petitioner”) was substituted as the petitioner in
this matter. The petition alleged that the pneumococcal conjugate (“Prevnar”) vaccine Ms. Haynes-
Bleau received on January 14, 2015, caused her to suffer from a flare of rheumatoid arthritis,
interstitial lung disease, and/or pulmonary fibrosis. Petitioner further alleged that Ms. Haynes-
Bleau’s death was the sequela of her claimed vaccine-induced injury. On August 30, 2019, the
1
The undersigned intends to post this Ruling on the United States Court of Federal Claims’ website. This
means the Ruling will be available to anyone with access to the Internet. In accordance with Vaccine
Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the
disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this case,
the undersigned is required to post it on the United States Court of Federal Claims’ website in accordance
with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion
of Electronic Government Services).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
parties filed a stipulation, which the undersigned adopted as her decision awarding compensation
on September 5, 2019. ECF No. 54.
On November 5, 2019, Petitioner filed an application for attorneys’ fees and costs. ECF
No. 61 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$33,383.85 (representing $25,900.50 in fees and $7,483.35 in costs). Fees App. at 1. Pursuant to
General Order No. 9, Petitioner warrants that he has not personally incurred any costs related to
the prosecution of the petition. ECF No. 65. Respondent responded to the motion on November
19, 2019, indicating that he “is satisfied the statutory requirements for an award of attorneys’ fees
and costs are met in this case” and requesting that the undersigned “exercise her discretion and
determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2–3 (ECF No. 62).
Petitioner did not file a reply thereafter.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . . by
‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly
rate.’” Id. at 1347–48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may
make an upward or downward departure from the initial calculation of the fee award based on
specific findings. Id. at 1348.
It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys’ fees and
costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.
Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
2
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t
of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant
part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to
reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program
special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton,
3 F.3d at 1521.
a. Hourly Rates
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, and 2019 can be accessed online.3
Petitioner requests that his attorney, Mr. Shahid Manzoor, be compensated at $250.00 per
hour for all work in this case (from 2016-2019). Mr. Manzoor practices law in Roseville,
California, a suburb of Sacramento. Previously, attorneys in the Sacramento area have been found
to qualify for forum rates. See Miltenberger v. Sec’y of Health & Human Servs., No. 17-1491V,
2019 WL 7557794 (Fed. Cl. Spec. Mstr. Dec. 19, 2019) (finding an attorney in Davis, California
in the Sacramento region to be entitled to forum rates).4 Thus, the only remaining issue is to
determine a reasonable hourly rate for Mr. Manzoor.
Mr. Manzoor has been licensed to practice law in California since 2014, giving him
approximately two years of experience in 2016 when he began work in this case and placing him
in the lowest range on the OSM Fee Schedules. Accordingly, Mr. Manzoor’s requested rate is
excessive, because it exceeds the highest prescribed rate for attorneys with fewer than four years
of experience. It is also worth noting that although Mr. Manzoor has a fair deal of experience in
local state and federal courts, this is his first Vaccine Program case. Based upon all these factors,
3
The 2015–2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The
2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-
Rate-Fee-Schedule-2017.pdf. The 2018 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202018.pdf. The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202019.pdf. The hourly rates contained within the schedules are updated from the decision in
McCulloch, 2015 WL 5634323.
4
The undersigned notes that although Davis, California and Roseville, California are different locales,
they share a “local” federal court, in this case the District Court for the Eastern District of California,
Sacramento Division. Thus, the cases discussed in Miltenberger would be relevant data points in
determining whether an attorney in Roseville would be eligible to receive forum rates. The parties have
not provided any information to suggest that a contrary determination on forum rates should be reached
here.
3
the undersigned finds the following hourly rates to be reasonable for Mr. Manzoor in the instant
case: $200.00 per hour for work performed in 2016, $215.00 per hour for work performed in 2017,
$240.00 per hour for work performed in 2018, and $250.00 per hour for work performed in 2019.
Application of these rates results in a total reduction of $2,682.50.5
b. Hours Expended
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521. “[I]t is inappropriate for
counsel to bill time for educating themselves about basic aspects of the Vaccine Program.”
Matthews v. Sec’y of Health & Human Servs., No. 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl.
Spec. Mstr. Apr. 18, 2016). “An inexperienced attorney may not ethically bill his client to learn
about an area of law in which he is unfamiliar. If an attorney may not bill his client for this task,
the attorney may also not bill the Program for this task.” Carter v. Sec’y of Health & Human
Servs., No. 04-1500V, 2007 WL 2241877, at *5 (Fed. Cl. Spec. Mstr. July 13, 2007).
Upon review, the undersigned finds the billed hours require a minor reduction. Mr.
Manzoor billed a small amount of time to educate himself on the requirements of the Vaccine
Program (e.g., 0.3 hours on 1/21/16 for “Research on VICP filing requirements”, 1.0 hours on
3/8/16 on “researched requirements to include in the vaccine petition”, 0.8 hours on 4/8/16 on
“Met with Professor John Simms regarding sponsorship of my application to the Court of Federal
Claims”, etc.). The undersigned also notes that review of routine court scheduling orders and
preparation of pro forma filings took an excessive amount of time. One example is that review of
orders routinely took 0.3 hours, when in the undersigned’s experience they should take 0.1 hours.
Another example is Mr. Manzoor billing 1.0 hours for the preparation of the Joint Notice Not To
Seek Review, a filing containing three sentences. Mr. Manzoor’s paralegal also billed time for
administrative/clerical tasks, such as scanning documents.
To account for these minor issues, the undersigned shall reduce the final award of
attorneys’ fees by $1,000.00 in order to achieve “rough justice.” See Florence v. Sec’y of Health
& Human Servs., No. 15-255V, 2016 WL 6459592, at *5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (citing
Fox v. Vice, 563 U.S. 826, 838 (2011). Accordingly, Petitioner is awarded final attorneys’ fees of
$22,218.00.
c. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $7,483.35 in attorneys’ costs. This amount is comprised of acquiring medical records,
postage, copies, the Court’s filing fee, and work done by Petitioner’s expert. ECF No. 61.
Petitioner has provided adequate documentation to support these costs and in the undersigned’s
experience, they are largely reasonable. The only reduction is for photocopies, which counsel
5
2016: ($250.00 per hour requested - $200.00 per hour awarded) * 30.6 hours billed = $1,530.00.
2017: ($250.00 per hour requested - $215.00 per hour awarded) * 23.5 hours billed = $822.50.
2018: ($250.00 per hour requested - $240.00 per hour awarded) * 27.6 hours billed = $276.00.
4
billed at $0.50 per copy, a rate which the undersigned finds to be excessive. The Vaccine Program
has previously awarded in-house copies at a rate of $0.20 per page. Fragoso v. Sec’y of Health &
Human Servs., No. 08-0236V, 2011 WL 300139 (Fed. Cl. Spec. Mstr. Jan. 6, 2011). Application
of a $0.20/per page rate results in a reduction of $63.90. Petitioner is therefore awarded final costs
of $7,419.45.
II. Conclusion
Based on all the above, the undersigned finds that Petitioner is entitled to the following
award of reasonable attorneys’ fees and costs:
Attorneys’ Fees Requested $25,900.50
(Reduction to Fees) - ($3,682.50)
Total Attorneys’ Fees Awarded $22,218.00
Attorneys’ Costs Requested $7,483.35
(Reduction of Costs) - ($63.90)
Total Attorneys’ Costs Awarded $7,419.45
Total Attorneys’ Fees and Costs $29,637.45
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs, other than the reductions delineated above, is reasonable. Accordingly, the undersigned
awards a lump sum in the amount of $29,637.45, representing reimbursement for
Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner and his
attorney, Mr. Shahid Manzoor.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the
Court shall enter judgment in accordance herewith.6
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
6
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).
5
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Electronically Filed
Intermediate Court of Appeals
CAAP-15-0000028
24-FEB-2017
07:59 AM
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01-03-2023
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02-24-2017
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https://www.courtlistener.com/api/rest/v3/opinions/5901634/
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—In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Orange County (Hickman, J.), entered July 31, 1986, as, upon a jury verdict, was in favor of the defendant.
Ordered that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.
On June 21, 1982, Bryan Franck, then 11 years old, was enrolled in a fifth grade class. His teacher, Gregory DiNunzio, took the class of approximately 20 children outside to a playing field for what he referred to as a recess. Most of the class joined DiNunzio in a softball game, but DiNunzio gave four students permission to do cartwheels and handsprings in a grassy area behind the catcher. The students had learned cartwheels and handsprings in their gym class. DiNunzio permitted Bryan to join the cartwheel group. DiNunzio pitched in the softball game and looked over at the cartwheel group after every few pitches. Bryan watched the cartwheeling but did not do cartwheels himself. Once or twice the cartwheelers asked him to move, but he did not. As he talked to two of the group, a third student, doing a cartwheel behind Bryan, kicked him in the head. That child was wearing wooden clogs at the time and Bryan allegedly suffered a head and brain injury as a result thereof.
At a bifurcated trial on the issue of liability, the plaintiffs called the physical education teacher who had taught the students cartwheels in gym class earlier in the school year. The plaintiffs sought to have her testify as an expert that cartwheeling was a dangerous activity which required a certain level of supervision. The trial court excluded her testimony on the basis of relevancy. The court distinguished formal instruction in cartwheeling from supervision of cartwheeling as an outdoor activity during recess. However, the court agreed that a properly qualified expert would be permitted to testify as to whether it was an accepted practice to allow fifth graders to do cartwheels on the grass during recess.
Thereafter, the plaintiffs called another physical education teacher who had taught physical education, coached, and supervised playground activities for 27 years. He held a doc*589torate in administration and supervision of physical education and had published more than 50 articles on safety including safety in gymnastics. The trial court sustained the defendant’s objection to inquiry into accepted practices in the teaching profession in supervising children doing cartwheels, reasoning that the expert should not be allowed to state his opinion on the "ultimate issue” in the case. The court excluded expert testimony on numerous questions including the supervisory practices of teachers under the facts in evidence. Ultimately, the court ruled that no expert testimony was admissible because such testimony would be a substitute for the jury’s determination on the issues and that knowledge of cartwheeling was within the ken of the jurors.
Whether expert testimony is admissible on a particular point is a mixed question of law and fact addressed primarily to the discretion of the trial court; as a general rule an expert should be permitted to offer facts and an opinion on an issue calling for "professional or technical” knowledge possessed by the expert and beyond the ken of the typical juror (De Long v County of Erie, 60 NY2d 296, 307; Selkowitz v County of Nassau, 45 NY2d 97, 102; Dougherty v Milliken, 163 NY 527; see, e.g., Rodriguez v Board of Educ., 104 AD2d 978; Dier v City of New York, 79 AD2d 596).
At bar, the trial court erred as a matter of law in excluding all expert testimony because it did not properly apply the test for expert testimony. The trial court excluded expert testimony on the ground that the testimony went to the ultimate question in the case and would usurp the jury’s function. Therefore, "[t]he court failed to exercise its discretion because it erroneously perceived that it had no discretion to exercise” (People v Cronin, 60 NY2d 430, 433). In applying the proper standard, familiarity of the jury with cartwheeling should not preclude expert testimony where the jury would not be familiar with accepted professional procedures for supervising cartwheeling (see, Selkowitz v County of Nassau, supra, at 102; Rodriguez v Board of Educ., supra). Although jurors may be familiar with cartwheeling, acceptable practices of teacher supervision of cartwheeling during an outdoor recess period cannot be said as a matter of law to be within the ken of the typical juror. For example, in Rodriguez v Board of Educ. (supra, at 979), we held that it was proper for an expert to testify as to the proper procedure for supervising "free style running” (see also, Darrow v West Genesee Cent. School Dist., 41 AD2d 897). Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901636/
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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Loehr, J.), entered October 18, 2011, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.
Ordered that the order is affirmed, with costs.
Contrary to the plaintiffs contention, the defendant met its *957prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injury to the cervical region of the plaintiffs spine did not constitute a serious injury within the meaning of Insurance Law § 5102 (d) (see Staff v Yshua, 59 AD3d 614, 614 [2009]).
In opposition, the plaintiff failed to raise a triable issue of fact as to whether she sustained a serious injury. Thus, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. Rivera, J.P., Dickerson, Leventhal and Lott, JJ., concur.
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https://www.courtlistener.com/api/rest/v3/opinions/5901637/
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—In an action, inter alia, to recover damages for breach of an agreement and stipulation of settlement of an action for a divorce, (1) the defendant husband appeals from a judgment of the Supreme Court, Westchester County (Marbach, J.), dated October 28, 1986, which is in favor of the plaintiff wife and against him in the sum of $147,813 in settlement of the plaintiffs remaining financial interest in the marital residence, and, as limited by his notice of appeal and brief, from so much of an order of the same court, entered January 23, 1987, as denied the defendant’s motion for renewal, and (2) the plaintiff cross-appeals (1) from so much of the judgment as gave the defendant a credit for payments made by him to maintain the marital residence, and (2) so much of the order as denied her cross motion for renewal.
Ordered that the judgment is reversed, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a hearing and further proceedings consistent herewith; and it is further,
Ordered that the appeal and cross appeal from the order are dismissed as academic, without costs or disbursements.
The parties were divorced by judgment entered May 21, 1982. On May 18, 1982, they had entered into a written stipulation of settlement. Pursuant to article VIII-A of that agreement, the wife deeded her interest in the marital residence to the husband for the sum of $500,000. Paragraph 4 of article VIII-A provided for "additional monies” to be paid to the wife upon the occurrence of any 1 of 3 alternative events. Under this section of the agreement the husband was to have the option of selling the house and paying the wife a portion of the profits or retaining ownership and residing in the premises. If he retained ownership past September 15, 1985, a hypothetical sale was to occur pursuant to paragraph 4 (C) of article VIII-A , with the plaintiff receiving "a sum equal to one-half the difference between $1,000,000 and the net amount that would have been received after allowance for brokers’ fees, legal expenses and application [sic] capital gains and other taxes had the home been sold for $1,500,000, such sum to be known as 'the attributable sales price’ ”. The agreement further provided that "there shall be deducted from the sum the Wife would otherwise receive a sum equal to one-half of the actual net costs and expenses of maintaining the house between the date of the Wife’s removal and the date the *591'attributable sales price’ of the property is fixed" (emphasis supplied).
Initially the plaintiff commenced this action alleging that a paragraph other than paragraph 4 (C) of article VIII-A should determine the parties’ respective rights. The defendant moved for summary judgment, and the Supreme Court, Westchester County (Marbach, J.), by order entered May 1, 1986, declared the rights of the parties with respect to the agreement, found that paragraph 4 (C) was the provision to be applied, and ordered the parties to submit accountants’ calculations so the court could fix the amount due the wife. The plaintiff did not appeal from this order and therefore apparently conceded that paragraph 4 (C) was the applicable clause.
Each party submitted calculations. The plaintiff’s accountant found that there should be no allowance for capital gains taxes because under paragraph 3 of article XX of the agreement the husband was "to indemnify and hold the Wife harmless from the payment of any such taxes” (i.e., capital gains). Further, the plaintiff’s calculations made no provision for the costs of maintaining the property.
In contrast, the defendant’s accountants arrived at a theoretical capital gains tax liability of approximately $254,000 and calculated that the wife’s share of expenses of maintaining the house was in excess of $72,000. This computation resulted in a net payment of zero for the wife.
The Supreme Court held that there should be no allowance for capital gains taxes because under paragraph 3 of article XX the "defendant husband has agreed to hold the plaintiff harmless from capital gain consequences”. As to the allowance for the expenses of maintaining the house the Supreme Court found that "the intent of the parties [was] to charge plaintiff with a share of the costs incurred to maintain the physical and legal integrity of the property” but not with those costs directly related to the defendant’s "use and enjoyment of the property”. Therefore, the wife’s share of these costs was reduced to $51,687.
On appeal, the defendant argues that the Supreme Court erred when it failed to include any allowance for capital gains taxes since paragraph 4 (C) of article VIII-A specifically provided for such an allowance, regardless of the provisions of article XX. The plaintiff claims that the Supreme Court included several questionable expenses in its calculations with regard to the costs of maintaining the property and, in any case, she was not required to share in the maintenance costs *592past September 15, 1982, because, pursuant to paragraph 4 (C) of article VIII-A, this was the date on which the attributable sales price was fixed.
At first blush there appears to be an inconsistency between the provision allowing a deduction for capital gains taxes and the provision making the husband solely responsible for the payment of all such taxes. However, the discrepancy is illusory. A reading of article XX, which is entitled "Income Tax Returns”, reveals that its purpose was apparently to facilitate the filing of such returns once the parties were divorced. Under that article the husband was to individually pay any capital gains taxes "arising out of the transactions between the parties, or between either or both of the parties and others * * * and to indemnify and hold the wife harmless from the payment of any such taxes”. It is highly unlikely however that the plaintiff will incur any capital gains liability under the article VIII-A sale since she is no longer the owner of the capital asset to be sold. Since she transferred her ownership interest in the marital residence to the husband shortly after he paid her the initial $500,000 pursuant to article VIII-A, any sale pursuant to paragraph 4, whether real or theoretical, would have capital gains consequences to the husband alone.
Although the plaintiff may not incur any capital gains liability as a result of the payment she received, the clear language of article VIII-A would require that the defendant be given a credit for the capital gains taxes theoretically incurred by him since the theoretical sale would be by the husband to a third person and article XX was applicable only if an actual sale occurred, and capital gains taxes were incurred and payable to the Government. Further, in determining the capital gains tax liability it was the intent of the parties to treat the theoretical sale as if only a profit of $500,000 was realized. This is clear from the wording in paragraph 4 (C), which provides that the net amount payable is to be the difference between $1,000,000 and $1,500,000, less allowable expenses.
Therefore, this matter is remitted to the Supreme Court for a hearing to compute the defendant’s theoretical capital gains liability as to this theoretical sale. Article VIII-A makes it clear that it was the intent of the parties that the wife would receive additional money for her interest in the marital residence. Accordingly, the amount of the defendant’s theoretical capital gains taxes should be computed in such a way as *593to minimize his tax liability, and to maximize the payment due the plaintiff.
With respect to the plaintiff’s liability for a portion of the residential maintenance costs for the period of September 15, 1982 through September 15, 1985, we initially note that contrary to the plaintiff’s contention, we find that she is responsible for one half of the expenses necessary to maintain the physical and legal integrity of the premises. Her contention that the "attributable sales price” was fixed on September 15, 1982, is without merit. Article VIII-A clearly indicates that the "price” did not become fixed until September 15, 1985, the date on which the defendant was required to comply with paragraph 4 (C), since he had not previously sold the house pursuant to paragraphs 4 (A) or 4 (B).
However, we find that upon remittitur, the hearing should encompass the issue of the monetary amount the plaintiff owes for the maintenance costs. As noted by the plaintiff, certain repair expenses submitted by the defendant, to wit, the replacement of a television antenna, a fixture replacement, and a $10,000 item for "various repairs”, may not have been incurred to maintain the physical and legal integrity of the premises, and the defendant’s entitlement to receive a portion of those expenses should be established by him. Additionally, the expense for real estate taxes should be recomputed to take into account the income tax deductions the husband received during the three-year period, so as to arrive at the "actual net costs and expenses” of maintaining the premises. Thompson, J. P., Lawrence, Rubin and Spatt, JJ., concur.
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https://www.courtlistener.com/api/rest/v3/opinions/5901638/
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—In an action for a divorce and ancillary relief, the defendant wife appeals, as limited by her notice of appeal and brief, from so much of a judgment of the Supreme Court, Kings County (Spodek, J.), entered August 27, 1985, as, after a nonjury trial, (1) granted the plaintiff husband a divorce on the ground of cruel and inhuman treatment by the defendant wife; (2) awarded the defendant maintenance of only $75 per week for six months from the date of the signing of the judgment, $50 per week for the next 30 months and $35 per week for the next three years, and child support of only $120 per week except for four summer weeks spent by the child with the plaintiff, until the parties’ infant child reaches majority or becomes emancipated; (3) awarded the plaintiff *594one half of the defendant’s share in the property located at 1746 Ocean Avenue, Brooklyn, amounting to $32,500 with interest from the date of entry of the judgment; (4) awarded the defendant a portion of the plaintiffs pension without determining its value; (5) ordered that the marital residence be sold (a) when the infant child reaches majority or becomes sooner emancipated or (b) if the defendant remarries or shares the marital residence with another person; (6) failed to distribute the plaintiffs life insurance or direct its continuance; (7) held that should the defendant fail to comply with visitation orders or demonstrate an unwillingness to act in the child’s best interests, the court would entertain an application for a change of custody; (8) failed to require the plaintiff to comply with Domestic Relations Law § 253; (9) awarded the defendant the sum of only $2,250 for counsel fees; and (10) failed to ascribe any value to the collectibles business of the plaintiff; and cross appeal by the plaintiff from the same judgment.
Ordered that the cross appeal is dismissed as abandoned, without costs or disbursements; and it is further,
Ordered that the judgment is modified, on the law and the facts and as a matter of discretion, by (1) deleting from the second decretal paragraph thereof all words beginning with the phrase "The marital premises shall be sold” and ending with the phrase "with another person” and substituting therefor: "The marital premises shall be sold if the defendant remarries or when Amanda, the parties’ child, is emancipated or reaches her majority, whichever occurs first, and the net proceeds from the sale of the marital home shall be divided as follows: the defendant shall be credited with the amounts paid by her on the mortgage for payments due and owing after August 27, 1985, whereupon the remainder of the proceeds shall be divided between the parties equally”; (2) deleting from the third decretal paragraph thereof the phrase beginning with the words "Should the defendant fail to comply” and ending with the words "an application for a change of custody”; (3) deleting from the eighth decretal paragraph thereof the provision awarding the plaintiff a one-half share of the property located at 1746 Ocean Avenue, with interest, and substituting therefor a provision awarding the plaintiff one quarter of the defendant’s share in said property or $16,250, without interest; (4) deleting from the second subparagraph (a) of the eighth decretal paragraph thereof the phrase "or residing with someone in said marital residence” and (5) adding a provision thereto directing the plaintiff to serve and file a sworn statement that, to the best of his knowledge, he has *595taken all steps solely within his power to remove all barriers to the defendant’s remarriage following the divorce; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the transfer of any money or property to the plaintiff is stayed until the plaintiff files a sworn statement that, to the best of his knowledge, he has taken all steps solely within his power to remove all barriers to the defendant’s remarriage following the divorce.
The record reveals no reason to disturb the court’s finding of cruel and inhuman treatment, based as it was on an assessment of credibility (see, Domestic Relations Law § 170 [1]; D’Amato v D’Amato, 96 AD2d 849).
The trial court’s inclusion in the third decretal paragraph of its judgment of language pertaining to its willingness to entertain an application for a change of custody was unnecessary. The parties have the right to bring applications to resolve future custody disputes should they deem it necessary to do so.
We find that the court properly considered and applied the provisions of Domestic Relations Law § 236 (B) with regard to the equitable distribution of the parties’ assets except that upon the sale of the marital residence, the net proceeds of the sale shall be divided as follows: the defendant shall be credited with the amounts paid by her on the mortgage, which payments were due and owing after August 27, 1985, whereupon the remainder of the proceeds shall be divided between the parties equally (see, Miller v Miller, 128 AD2d 844). Moreover, the award of interest on the plaintiff’s share of the Ocean Avenue property was excessive. While we find incredible the defendant’s assertion that her relationship to the Ocean Avenue property was simply that of an accommodation endorser, we deem the trial court’s allocation to the plaintiff of a one-half interest in this particular asset to have been excessive as well. It appears from the record that marital assets were used to contribute to the purchase price of that property, that the plaintiff obligated himself by signing the mortgage and that the defendant’s name appeared on the deed when the property was purchased. This was clearly neither a gift nor separate property. Rather, the circumstances are more clearly indicative of an investment made by the parties in the hope that the value of the subject property would increase over time. However, by imposing a nominally equal division of the proceeds which might someday be realized from a sale of the Ocean Avenue property but failing to consider the income tax impact of such a determination, the court failed to achieve an equit*596able distribution. To achieve that result, we award the plaintiff a one-quarter share in the Ocean Avenue property, without any interest.
The requirement that the marital residence be sold if the defendant shares it with another person was improper and that factor should not entitle the plaintiff to force a sale of the residence (see, Matter of Bliss v Bliss, 66 NY2d 382).
We further find that, under the circumstances, the awards of maintenance, child support and counsel fees were reasonable.
In view of the fact that it is the husband who seeks a judgment of divorce, we deem it reasonable to require a statement from him in compliance with Domestic Relations Law § 253 (3) to remove any religious barriers to the wife’s remarriage. Until he complies with Domestic Relations Law § 253 (3), he should not receive any benefits under the divorce judgment. Therefore, the transfer of any property or money to the plaintiff pursuant to the judgment is stayed pending his compliance. Lawrence, J. P., Weinstein, Rubin and Hooper, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901639/
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—In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Williams, J.), dated April 27, 1987, as denied his motion for summary judgment, and Cadman Plaza North, Inc., and Peter J. Burgess Management Corp. appeal, as limited by their brief, from so much of the same order as denied, with leave to renew, their cross motion for summary judgment on their third-party complaint against Kano Construction Corp., doing business as Kay Construction Corp. for common-law indemnification.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff-appellant was injured when he fell from a hanging scaffold to the roof of the defendants-appellants’ building. Trial Term properly denied summary judgment to the plaintiff-appellant on the issue of liability. Although the plaintiff-appellant made out a prima facie violation of Labor Law § 240, the defendants carried their burden of showing that there existed several material issues that required a trial *597(Zuckerman v City of New York, 49 NY2d 557, 560). In order to prevail under Labor Law § 240, the plaintiff-appellant had to show that there was a violation of the statute and that the violation caused his injury (Lagzdins v United Welfare Fund-Security Div. Mariott Corp., 77 AD2d 585, 588). Here the plaintiff-appellant did not explain how he fell from the scaffold, and thus it was unclear that the alleged violation was the proximate cause of his accident. In addition, there were other issues of material fact which required a trial (CPLR 3212 [b]; Warren v Arena Assocs., 109 AD2d 738, 739), including whether 1 of the 2 guardrails actually came loose, since both rails were in place the next day, and whether rope alone was an improper means to attach the guardrails, which would require expert testimony to establish.
The defendants-appellants sought summary judgment on their third-party complaint for common-law indemnification from third-party defendant Kano Construction Corp. only in the event the Supreme Court granted the plaintiff’s motion for summary judgment. Since plaintiff’s motion was properly denied, the Supreme Court properly did not reach the issues raised on the cross motion of the defendants-appellants and denied that cross motion with leave to renew. Mangano, J. P., Brown, Lawrence and Sullivan, JJ., concur.
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https://www.courtlistener.com/api/rest/v3/opinions/5901640/
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—In an action, inter alia, for a judgment declaring that the plaintiff has an easement to use and maintain a cesspool on the defendant Daniel Grattan’s property, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated September 15, 1986, as granted the defendant Daniel Grattan’s cross motion for summary judgment dismissing the complaint thereupon and dismissed the complaint against all defendants, and (2) the defendant Daniel Grattan cross-appeals from so much of the same order as granted that branch of the plaintiff’s motion which was to dismiss his counterclaims to recover damages for malicious prosecution. The plaintiff’s appeal brings up for review so much of an order of the same court, dated December 3, 1986, as, upon reargument of the defendant Daniel Grattan’s cross motion for summary judgment, adhered to its original determination (see, CPLR 5517 [b]).
Ordered that the plaintiff’s appeal from the order dated September 15, 1986, is dismissed, as so much of that order as *598is appealed from by the plaintiff was superseded by the order dated December 3, 1986, made upon reargument; and it is further,
Ordered that the order dated December 3, 1986, is affirmed insofar as reviewed; and it is further,
Ordered that the order dated September 15, 1986, is affirmed insofar as cross-appealed from; and it is further,
Ordered that the defendant Daniel Grattan is awarded one bill of costs.
The court properly granted summary judgment dismissing the complaint because the affirmation of the plaintiff’s attorney, who had no personal knowledge of the facts, was insufficient to raise a triable issue of fact with respect to the plaintiff’s claimed easement on Daniel Grattan’s property (see, Barbieri v D’Angelo, 128 AD2d 661).
The court also properly dismissed Daniel Grattan’s counterclaims for malicious prosecution. In this case, a claim for malicious prosecution would lie if the defendant Grattan’s property was interfered with, as by injunction or some other provisional remedy (see, Ellman v McCarty, 70 AD2d 150, 155; Tedeschi v Smith Barney, Harris Upham & Co., 548 F Supp 1172). Since there is no proof of such interference, these counterclaims were properly dismissed. Bracken, J. P., Kunzeman, Fiber and Harwood, JJ., concur.
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901641/
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—In an action for a declaratory judgment, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Levine, J.), dated March 11, 1987, which, after a nonjury trial, is in favor of the defendants and which declares that the plaintiff has an obligation to defend and indemnify the defendants Salvatore and Angelina Farrauto with respect to a certain pending action to recover damages for personal injuries.
Ordered that the judgment is reversed, on the law, with costs, and a new trial is ordered.
The defendants Salvatore and Angelina Farrauto have been sued in an action to recover damages for personal injuries allegedly suffered by their granddaughter, the infant codefendant Angela Farruggio. It is alleged that the infant suffered injuries in an accident which occurred on premises owned by the Farrautos on October 11, 1971. The plaintiff insurance company provided a liability policy which covered the subject premises on the date of the accident.
*599The plaintiff seeks, in the present action, a judgment declaring that it has no duty to defend or indemnify the Farrautos in connection with the underlying personal injury action, because of the Farrautos’ failure to comply with the provision in the policy which required them to give written notice of any occurrence covered by the policy “as soon as practicable”.
During a brief trial, the Supreme Court held that because the subject policy did not expressly warn the insured persons that failure to comply with the notice provision might result in a forfeiture of coverage, the plaintiff was precluded from disclaiming coverage. Upon this basis, judgment was granted in favor of the defendants. This was error.
Generally, the requirement that an insured provide notice of any occurrence to the insurance company within a reasonable time is considered a condition precedent to the insurer’s obligation to defend or indemnify the insured (Security Mut. Ins. Co. v Acker-Fitzsimons Corp., 31 NY2d 436, 440; Rushing v Commercial Cas. Ins. Co., 251 NY 302, 304). In other words, the insured’s failure to provide timely notice of an occurrence vitiates the insurance contract (Deso v London & Lancashire Indem. Co. 3 NY2d 127, 129-130). This is the case regardless of whether the policy contains a provision expressly warning the insured that failure to honor the condition requiring notice may result in a forfeiture of coverage (see, 8 Appleman, Insurance Law & Practice § 4732, at 19; 13A Couch, Insurance Law § 49:49 [2d ed]). The court therefore erred in granting judgment in favor of the defendants on this basis.
Based on the evidence contained in the record, it is impossible to determine whether the defendants, in fact, complied with the requirement that they provide notice of an occurrence “as soon as practicable”. We therefore conclude that a new trial is necessary in order to allow the defendants to demonstrate whether they did, in fact, provide notice of the occurrence “as soon as practicable”. Although no written notice was given to the plaintiff until several years after the occurrence, notice was provided soon after the personal injury action was commenced. Various factors must be considered in order to determine whether the defendants might have had a reasonable basis for believing that there was no liability on their part for the accident, so that their failure to provide prompt notice of the accident may be deemed excusable (see generally, Mighty Midgets v Centennial Ins. Co., 47 NY2d 12; Merchants Mut. Ins. Co. v Hoffman, 86 AD2d 779, affd 56 NY2d 799; 875 Forest Ave. Corp. v Aetna Cas. & Sur. Co., 37 AD2d 11, 13, affd 30 NY2d 726). Since it is possible that the *600defendants failed to adduce proof relative to this issue because of the trial court’s ruling in their favor, a new trial is warranted in the interest of justice. Mangano, J. P., Bracken, Brown and Eiber, JJ., concur.
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https://www.courtlistener.com/api/rest/v3/opinions/5901643/
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In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Dutchess County (Brands, J.), entered December 23, 2010, which, upon a decision of the same court dated September 21, 2010, made after a nonjury trial, inter alia, awarded her spousal maintenance in the sum of only $1,100 per week for a duration of only four years.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
“[T]he amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts” (Griggs v Griggs, 44 AD3d 710, 711 [2007] [internal quotation marks omitted]; see Giokas v Giokas, 73 AD3d 688, 688 [2010]; Baron v Baron, 71 AD3d 807, 809 [2010]; Meccariello v Meccariello, 46 AD3d 640, 641 [2007]). “ ‘The court may order maintenance in such amount as justice requires, considering, inter alia, the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance’ ” (Scher v Scher, 91 AD3d 842, 847 [2012], quoting Kret v Kret, 222 AD2d 412, 412 [1995]; see Domestic Relations Law § 236 [B] [6] [a]; Giokas v Giokas, 73 AD3d at 689; *958Baron v Baron, 71 AD3d at 809). Here, considering the relevant factors, the award of maintenance in the sum of $1,100 per week for a duration of four years was a provident exercise of discretion.
The defendant failed to satisfy her burden of proving that the source of part of the funds utilized to purchase the property located on Lime Mill Road was her separate property (see Phillips v Haralick, 70 AD3d 663, 665 [2010]; Masella v Masella, 67 AD3d 749, 750 [2009]; Bennett v Bennett, 13 AD3d 1080, 1082 [2004]). Thus, as the Supreme Court properly determined, it is marital property (see Domestic Relations Law § 236 [B] [1] [c]) and, therefore, subject to equitable distribution.
The defendant’s remaining contention is without merit. Mastro, J.P., Dickerson, Lott and Austin, JJ., concur.
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—In an action to foreclose a mortgage, the defendant third-party plaintiff Katherine E. Pennolino appeals (1) from so much of an order of the Supreme Court, Suffolk County (McCarthy, J.), dated April 30, 1985, as (a) granted the motion of the plaintiff Greenpoint Savings Bank (hereinafter the bank) for summary judgment against her, and a severance of the foreclosure action from the third-party action and from all cross claims by all parties against the defendant Dominick Pennolino, (b) denied, with leave to renew with respect to her first cross claim against the defendant Dominick Pennolino, her cross motion for summary judgment against the plaintiff bank, against the defendant Dominick Pennolino on her cross claims against him, and against the third-party defendants Lorraine Backal and Peter M. Wolf on her third-party complaint against them, and (2) from so much of an order of the same court, dated November 25, 1985, as, upon reargument of the plaintiff’s motion and her cross motion, adhered to its original determination; and the third-party defendant Lorraine Backal appeals, as limited by her notice of appeal and brief, from so much of the order dated April 30, 1985, as (1) denied that branch of her motion which was for summary judgment against the third-party defendant Peter M. Wolf, and (2) granted the plaintiff bank’s motion for summary judgment and a severance. The appeal by Lorraine Backal from so much of the order dated April 30, 1985, as granted the plaintiff bank’s motion, brings up for review so much of the order dated November 25, 1985, as, upon reargument, adhered to the original determination with respect to that motion.
Ordered that the appeal by the defendant third-party plaintiff Katherine E. Pennolino from stated portions of the order dated April 30, 1985, and the appeal by the third-party defendant Backal from so much of that order as granted the plaintiff’s motion is dismissed, as those portions of the order dated April 30, 1985, were superseded by the order dated November 25, 1985, made upon reargument; and it is further,
*601Ordered that the order dated November 25, 1985, is modified, on the law, (1) by deleting therefrom those provisions which adhered to so much of the original determination as (a) granted that branch of the plaintiff bank’s motion which was for summary judgment against the defendant Katherine Pennolino, (b) struck the fifth, sixth, seventh and eighth affirmative defenses interposed in the answer of the defendant Katherine Pennolino, and (c) granted that branch of the plaintiff bank’s motion which was for a severance of its foreclosure action from the third-party action and from all cross claims by all parties against the defendant Dominick Pennolino and (2) by substituting therefor provisions (a) denying that branch of the plaintiff bank’s motion which was for summary judgment against the defendant Katherine Pennolino, (b) reinstating the fifth, sixth, seventh and eighth affirmative defenses interposed in the answer of Katherine Pennolino, and (c) denying that branch of the plaintiff bank’s motion which was for a severance of its foreclosure action from the third-party action and all cross claims by all parties against the defendant Dominick Pennolino; as so modified, the order dated November 25, 1985, is affirmed insofar as appealed from and reviewed, and the order dated April 30, 1985, is modified accordingly; and it is further,
Ordered that on the appeal by the third party defendant Lorraine Backal from so much of the order dated April 30, 1985, as denied that branch of her motion which was for summary judgment against the third-party defendant Peter M. Wolf, that portion of the order is affirmed; and it is further,
Ordered that Katherine E. Pennolino is awarded one bill of costs, payable by the plaintiff.
The papers submitted by the plaintiff bank and by the defendant Katherine Pennolino in support of their respective motion and cross motion for summary judgment raise an issue of fact as to whether the plaintiff bank was "guilty of a degree of negligence fatal to its claim that it is a bona fide purchaser” under the recording statute (Vitale v Pinto, 118 AD2d 774, 776; Real Property Law § 291). Accordingly, a trial is required to resolve this issue which was effectively raised by the defendant Katherine Pennolino in the fifth, sixth, seventh and eighth affirmative defenses interposed in her answer. Finally, under the circumstances, severance of the plaintiff bank’s foreclosure action from the third-party action and the cross claims is not warranted (see, Shanley v Callanan Indus., *60254 NY2d 52, 57). Mangano, J. P., Kunzeman and Harwood, JJ., concur.
Thompson, J., concurs in part and dissents in part and votes to dismiss Katherine E. Pennolino’s appeal from the order dated April 30, 1985 and Lorraine Backal’s appeal from so much of that order as granted the plaintiffs motion, and to otherwise affirm that order insofar as appealed from, and to affirm the order dated November 25, 1985, insofar as appealed from and reviewed, with the following memorandum. I believe that the determinations of Justice McCarthy should be sustained for the reasons stated in his memorandum decision and in his order granting reargument.
I would add only that the case of Vitale v Pinto (118 AD2d 774) which was modified on appeal to this court subsequent to the proceedings before Special Term, and upon which the defendant third-party plaintiff Katherine E. Pennolino substantially relies on appeal, is factually distinct from the matter before us. Any reliance thereon is misplaced. Vitale involved an arm’s length transaction in which the plaintiff possessed a six-year lease of certain premises with an option to buy the premises free of all encumbrances. Thereafter, the landlord mortgaged the leased premises. In an action by the tenant to compel delivery of the title following her unsuccessful effort to exercise her option to purchase the premises free of all encumbrances and for a judgment declaring the rights under the mortgage, this court declared the mortgagee’s rights under the mortgage to be subordinate to the plaintiff tenant’s rights under the option to purchase. The basis for this determination was the court’s finding that the mortgagee was on inquiry notice of the plaintiff’s interest in the property because the plaintiff was in open possession of the property.
The Vitale ruling is not properly applicable to the case at bar involving as it does a former spouse of the record owner who was in possession of the mortgaged premises. The possession by the defendant third-party plaintiff Katherine E. Pennolino was not sufficiently inconsistent with the interests of her former spouse the defendant Dominick Pennolino, the record owner, so as to have the plaintiff and mortgagee, the Green Point Savings Bank, on notice of Katherine E. Pennolino’s interest in the property. That interest, which was derived from a separation agreement, was not of such a nature as would have come to the attention of the bank in the ordinary course of events. Accordingly, unlike Vitale, the bank did not have constructive notice of the alleged adverse interest of one in possession of the mortgaged premises.
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—In jointly tried negligence actions to recover damages for personal injuries, etc., (1) the plaintiffs in action No. 2 appeal from a judgment of the Supreme Court, Putnam County (Dickenson, J.), entered August 22, 1986, which, upon the motion of the defendants in action No. 2 made at the close of their case, dismissed the complaint in action No. 2, and (2) the plaintiff in action No. 1 appeals from a judgment of the same court, entered September 24, 1986, which is in the defendants’ favor and against him in action No. 1, upon a jury verdict.
Ordered that the judgments are affirmed, with one bill of costs payable to the respondents in actions Nos. 1 and 2, appearing separately and filing separate briefs.
On November 22, 1978, Philip Kapinos allegedly sustained serious physical injuries when his automobile collided with a van which was operated by Harry Alvarado, and owned by Luna Baking Company, Alvarado’s employer. Veronica Kapinos, Philip’s mother and natural guardian, commenced an action in his behalf (action No. 1) to recover damages for the injuries sustained by her son as a result of the collision. Mrs. Kapinos then commenced a separate action (action No. 2), on her own and her son’s behalf, against the defendant Highland Falls Volunteer Ambulance Corp. and two of its employees, to recover damages for the injuries allegedly sustained by Philip while he was being transported from the site of the accident to a hospital emergency room.
The appellant in action No. 1 challenges the judgment which resulted in a dismissal of action No. 1, claiming, inter alia, that the trial court improperly permitted a police officer to render an opinion as to the point of impact of the colliding vehicles. He contends that such testimony was impermissible since the officer had not been qualified as an expert in accident reconstruction. We disagree. The record discloses that the police officer, who investigated the collision, testified primarily as to his observations at the scene of the accident. He recalled that he had observed broken glass, along with other debris, in the southbound lane. He also testified as to the location and position of the vehicles when he arrived at the scene. Based upon these observations, the officer expressed his *333conclusions regarding the point of impact of the colliding vehicles. Contrary to the plaintiffs contention, we find that the trial court properly permitted the officer to testify as to his conclusions, without having qualified him as an expert, since his testimony constituted observations not requiring any particular expertise (see, Hileman v Schmitt’s Garage, 58 AD2d 1029).
We further find that the trial court did not improvidently exercise its discretion in denying the request of the appellant in action No. 1 to recall his expert witness, in order to rebut the testimony provided by the defendants’ expert. The record reveals that the appellant, through this expert, intended to elicit testimony to the effect that the collision occurred in the northbound lane. However, he had ample opportunity to adduce such proof during direct examination. "A party holding the affirmative of an issue is bound to present all the evidence on his side of the case before he closes his proof and may not add to it by the device of rebuttal evidence (Marshall v Davies, 78 NY 414)” (see, Hutchinson v Shaheen, 55 AD2d 833, 834). Accordingly, we conclude that the trial court properly refused to permit rebuttal testimony concerning a fact which merely served to bolster the appellant’s case after the defendants had rested.
The appellant’s remaining contentions concerning the propriety of the judgment in action No. 1 have been considered and have been found to be without merit.
With respect to action No. 2, we note that the appellants have not raised any specific arguments in their brief challenging the dismissal thereof. In any event, we find that the trial court properly granted the motion to dismiss action No. 2, since no reasonable view of the evidence supports the conclusion that the defendants in action No. 2 were grossly negligent. Thus, they are immune from liability for the medical services rendered to Philip Kapinos (see, Public Health Law § 3013). Thompson, J. P., Brown, Eiber and Sullivan, JJ., concur.
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—In an action to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Nassau County (Kutner, J.), dated September 29, 1986, which denied his motion pursuant to CPLR 3213 for summary judgment in lieu of complaint.
Ordered that the order is reversed, on the law, without costs or disbursements, the plaintiff’s motion for summary judgment in lieu of complaint is granted, the counterclaims based on quantum meruit asserted by the defendant are severed, and the defendant is directed to plead those counterclaims in a formal pleading within 10 days after service upon him of a copy of this decision and order, with notice of entry; in the event the defendant fails to so plead, his counterclaims shall be dismissed.
The defendant admits that on or about July 29, 1983, he received $15,000 from the plaintiff, and that, on February 20, 1984, he executed a promissory note in which he promised to repay that $15,000 to the plaintiff on demand. The defendant nevertheless argues that summary judgment in favor of the plaintiff should not be granted, because he is entitled to recover certain sums from the plaintiff on account of various legal services he performed for the plaintiff at various times as early as 1980. We disagree.
"[I]f defendant’s claim is not as clear and liquidated as one based on a judgment or instrument, it should not be interposable in response to a [CPLR] 3213 motion-action” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3213:17, at 842). There is an exception to this general rule where it appears that the transactions upon which the counterclaim is based are inseparable from and may constitute a defense to the main claim (see, e.g., Lackmann Food Serv. v E & S Vending Co., 125 AD2d 366; Beninati v Hanley, 95 AD2d 816). However, even where the proposed counterclaim arises out of the “same general transaction” but would not constitute a defense to the main claim, the plaintiff should not be deprived of his right to summary judgment on the note (see, Logan v Williamson & Co., 64 AD2d 466, 470; see also, Maglich v Saxe, Bacon & Bolan, 97 AD2d 19, 23-24). There is nothing in the record on appeal which indicates that the defendant would be prejudiced by being compelled to litigate his claim for compensation for legal services in a separate action, after entry of the judgment against him and in favor of the plaintiff on the note. The *604plaintiff has clearly shown his right to an accelerated judgment pursuant to CPLR 3213.
Accordingly, the order under review is reversed, summary judgment in favor of the plaintiff is granted pursuant to CPLR 3213, and the defendant’s counterclaims are severed. The defendant is also directed to formally plead his counterclaims within 10 days of the service upon him of a copy of this decision and order, and in the event he defaults in so pleading, the counterclaims shall be dismissed (see, Logan v Williamson & Co., supra, at 470). Bracken, J. P., Kunzeman, Rubin and Eiber, JJ., concur.
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—In an action to recover the proceeds of a check, the plaintiff appeals from an order of the Supreme Court, Orange County (Isseks, J.), entered July 16, 1986, which granted the defendant’s motion for summary judgment dismissing the complaint and denied the plaintiff’s cross motion for summary judgment in its favor.
Ordered that the order is affirmed, with costs.
The plaintiff instituted this action seeking recovery for its payments made in reliance upon a check drawn by the defendant, Strober Bros., Inc., payable to the Tamara Trust, its depositor (hereinafter the trust). The trust as payee endorsed and deposited this check in the amount of $150,000 on December 15, 1982, in its account at the plaintiff bank. That amount was credited to the account and the plaintiff bank began disbursing funds from that account in reliance thereon. However, the check was subsequently dishonored and marked "Payment Stopped”.
The plaintiff claimed that it was a holder in due course. In its first cause of action, it sought damages in the amount of the check. In the second cause of action, the plaintiff asserted that the defendant was equitably estopped from asserting any defense to the payment of the check as a result of the defendant’s wrongful actions in stopping payment without legal justification. In its third cause of action, it asserted that the defendant had negligently allowed the check to be executed and delivered, with words on the face struck and without indicating thereon any restriction, condition or limitation of the obligation owed under the check.
The defendant answered the complaint and moved for summary judgment. Eric Strober, the chairman of the board of directors of the defendant, contended that the check was, on its face, nonnegotiable since it was not payable to the order of *605the payee. Therefore, he asserted that the plaintiff bank was not a holder in due course, and that the plaintiff’s causes of action must therefore fail.
Strober explained that, in or about November 1982 he was told by the principals of a venture with which he was doing business that they wanted to introduce him to a wealthy financier who would invest in that venture. He was introduced to Sidney Pal and Anthony Moscatiello (Sidney Pal, along with his wife Tamara Pal, were the cotrustees of the trust). Shortly thereafter, Sidney Pal asked Strober to lend him $150,000 on a short-term basis and indicated that the loan would be collateralized by a negotiable certificate of deposit. Strober insisted that the loan would have to be short term, collateralized and subject to any terms that David Bernstein, his attorney and agent in the matter, would impose.
David Bernstein asserted that he met with Anthony Moscatiello, Sidney Pal’s agent in this transaction, after receiving the check made out to the order of the trust from Eric Strober on December 15, 1982. Both Pal and Moscatiello urged the delivery of the check immediately. When Moscatiello was unable to provide Bernstein with the trust agreement, Bernstein refused to release the check. The trust agreement was finally delivered, and Bernstein demanded a negotiable certificate of deposit as security. Pal, on the phone, promised Bernstein that a negotiable certificate would be delivered the next day. Bernstein told Pal that he could have the check that day only on condition that it be made nonnegotiable, that a stop payment order would be placed on the check, and that the negotiable certificate must be delivered by 4:00 p.m. on December 16, 1982. He further demanded that Pal deliver a confession of judgment and a note evidencing the existence of the loan. Finally, Bernstein told Pal that the stop payment order would not be removed until all of these conditions were met. Bernstein struck out the words “the order of’ on the face of the check, so that it now read “pay to” the trust, thereby rendering it nonnegotiable, and told Moscatiello that it was nonnegotiable. Thereafter, Moscatiello signed a memorandum evidencing the terms of the agreement. On that same day, Bernstein called a vice-president of Chemical Bank which handled the defendant’s account and placed a stop payment order on the check which was to remain in effect until it was released. Strober called the vice-president and confirmed the stop payment order.
On December 15, 1982, the Tamara Trust deposited the check in an account it maintained in the plaintiff bank. *606Sidney Pal did not deliver the negotiable certificate of deposit on the next day as agreed. On December 17, 1982, Pal and his wife delivered a nonnegotiable certificate of deposit. The stop payment order was never removed, and the check was dishonored when the plaintiff bank sought to collect on it.
The plaintiff cross-moved for summary judgment. The plaintiff asserted that the issue of whether it was a holder in due course was not pivotal in the case because the written agreement between the defendant and the plaintiff’s depositor did not involve a condition precedent, but rather invoked conditions subsequent upon which the trust had not defaulted at the time that the check was deposited for collection. It also affirmed that the statements made by David Bernstein in support of the defendant’s motion concerning the placement of a stop payment order on the check constituted parol evidence of the terms of the written agreement between the parties, and therefore, should not be considered to vary those terms. Furthermore, it was the contention of the plaintiff bank that it had obtained a security interest pursuant to UCC 4-208 as the collecting bank of the check deposited into the trust account. It also maintained that it was a holder in due course of the check because it had paid value for it, and had taken it in good faith and without notice that the check had been dishonored or of any defense against it. Finally, the plaintiff asserted that the defendant was negligent in allowing a check which was made nonnegotiable to be delivered into the channels of commerce without a restrictive endorsement.
Apparently, the plaintiff bank had previously committed a posting error in the Tamara Trust account by crediting that account twice for a deposit made by Sidney and Tamara Pal in the amount of $75,000, so that the account balance was overstated to the extent of $75,000. Thereafter, the plaintiff had honored various checks which depleted the funds in the account and it was unable to reverse the erroneously posted deposit. The plaintiff bank continued to honor checks on uncollected funds upon the promise of Sidney Pal that he would satisfy the overdraft and the $75,000 which had been erroneously posted. On December 15, 1982, Pal deposited the subject check. A vice-president of the plaintiff bank called an officer at the drawer bank when he received the check on December 15, 1982, and was allegedly told that the check was good at that time, that most checks presented by the defendant were honored, and that the defendant did not normally order payment stopped on its checks. The plaintiff honored more checks on the trust account, paid off the debit balance, *607and reversed the $75,000 posting error. On December 22, 1982, when the plaintiff learned of the stop payment order, the entire proceeds of the check had been withdrawn or applied.
The Supreme Court, Orange County, found that the check was nonnegotiable and that the plaintiff was not a holder in due course. Upon determining that the defendant had established its defense of a failure of a condition precedent to payment under the check, the court granted the defendant’s motion for summary judgment and denied the plaintiff’s cross motion for summary judgment.
We agree. The plaintiff has failed to demonstrate that it was a holder in due course of the check. The striking of the words "the order of’ on the face of the check served to provide notice to the plaintiff that a claim or defense existed in favor of someone with an interest therein (see, UCC 3-304 [1] [a]). Therefore, the plaintiff did not acquire the rights of a holder in due course under the requirements of UCC 3-302. Since the plaintiff was not a holder in due course of the instrument, it took the instrument subject to all claims and defenses against it (see, UCC 3-305, 3-306).
Although UCC article 3 applies to nonnegotiable checks such as the one at bar, it is specifically provided that there can be no holder in due course of such an instrument (UCC 3-805). Therefore, the plaintiff must defend against the claims or defenses of the defendant. As noted above, the striking of the words from the face of the check served to provide notice that claims or defenses existed against it, and the plaintiff cannot maintain that it had obtained holder in due course status.
Contrary to the plaintiff’s contention, General Obligations Law § 13-105 does not operate to deny the defendant its right to assert defenses against payment under the check. The plaintiff bank was not an assignee of a chose in action which was subject to conditions subsequent to the notice of assignment; rather, the conditions imposed upon payment of the check were conditions that arose prior to the deposit of the check, and, therefore, prior to the defendant receiving notice of that deposit (see, General Obligations Law § 13-105; see, Banco Portugues Do Atlantico v Fonda Mfg. Corp., 31 AD2d 122, affd 26 NY2d 642).
Although the plaintiff has standing to assert the bar of the parol evidence rule (see, Oxford Commercial Corp. v Landau, 12 NY2d 362), that rule does not operate to deny the defendant the right to assert its defense of failure to satisfy conditions precedent to the making of the loan. Contrary to the *608plaintiffs contention, the oral statements by David Bernstein concerning the placement of a stop payment order on the check, which was to be removed only when the conditions in the written agreement had been met, did not contradict the terms of that writing. The writing determined what collateral would be required for the loan, whereas the issuance of a stop payment order pending the delivery of that collateral was an additional condition precedent that could stand side by side with the terms of the writing (see, Hicks v Bush, 10 NY2d 488).
Moreover, the plaintiffs contention that it had obtained a security interest in the check when it gave value for it by crediting the depositor’s account and that this security interest served to deny the defendant the right to assert its defenses to payment is meritless. It is true that the plaintiff had obtained a security interest in the item (see, UCC 4-208), but that security interest did not make the plaintiff a holder in due course (see, UCC 4-209; see also, UCC 4-208, Comment).
We have considered the plaintiffs remaining contentions and find them to be without merit. Mangano, J. P., Brown, Lawrence and Sullivan, JJ., concur.
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—In a negligence action to recover damages for pain and suffering and for wrongful death, the defendant William Zarowitz appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), dated March 9, 1987, which granted the plaintiffs motion to amend her complaint to join him as an additional party defendant and to serve him with a supplemental summons and amended complaint.
Ordered that the order is affirmed, with costs to the plaintiff payable by the appellant.
It was not improper to grant the plaintiff leave to amend the complaint under CPLR 3025 (b), and to substitute the defendant Zarowitz’s real name for the fictitious name appearing in the summons and complaint (see, Duffy v Horton Mem. Hosp., 119 AD2d 847).
The defendant Zarowitz was "on call” at the defendant hospital’s emergency room on May 22, 1983, the date of the alleged negligent treatment of the decedent, and was subject to the hospital’s rules and regulations regarding emergency room physician care. The hospital bill sent to the deceased *609included a charge attributable to medical services rendered to the deceased by the defendant Zarowitz. Since, under such circumstances, the hospital would be vicariously liable for the negligence committed by the defendant Zarowitz (see, Felice v St. Agnes Hosp., 65 AD2d 388; Mduba v Benedictine Hosp., 52 AD2d 450), the defendant Zarowitz and the hospital are united in interest (see, Connell v Hayden, 83 AD2d 30). Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.
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*959In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the New York City-Department of Education, Public School 346, Franklin Douglas VIII Academy, and the City of New York appeal from an order of the Supreme Court, Kings County (Velasquez, J.), dated October 26, 2011, which granted the petition.
Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, the petition is denied, and the proceeding is dismissed.
In determining whether to grant leave to serve a late notice of claim, the court must consider whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant was an infant at the time the claim arose and, if so, whether there was a nexus between the claimant’s infancy and the delay, (3) the claimant had a reasonable excuse for the failure to serve a timely notice of claim and the subsequent delay in seeking leave to serve a notice of claim, and (4) the public corporation was prejudiced by the delay in its ability to maintain its defense on the merits (see Education Law § 3813 [2-a]; General Municipal Law § 50-e [5]; Williams v Nassau County Med. Ctr., 6 NY3d 531, 535 [2006]; Bazile v City of New York, 94 AD3d 929, 929-930 [2012]; Matter of Diggs v Board of Educ. of City of Yonkers, 79 AD3d 869, 869-870 [2010]; Troy v Town of Hyde Park, 63 AD3d 913, 914 [2009]).
In their petition and supporting papers, the petitioners did not proffer any excuse for their failure to serve a timely notice of claim upon the appellants. The excuses they did proffer, which were improperly raised for the first time in a reply affidavit (see Matter of Bell v City of New York, 100 AD3d 990 [2012]), were either unsupported by medical evidence or did not constitute reasonable excuses (see Matter of Minkowicz v City of New York, 100 AD3d 1000 [2012]; Matter of Taylor v County of Suffolk, 90 AD3d 769, 770 [2011]). Furthermore, the comprehensive injury report prepared by the New York City Department of Education on an unspecified date, which merely indicated that the infant petitioner sprained his ankle during basketball class in a gymnasium, did not establish that the appellants had actual knowledge of the essential facts underlying the petitioners’ claim that the appellants were negligent, inter alia, in their ownership, operation, maintenance, supervision, and control of the school and its students (see Williams v Nassau County Med. Ctr., 6 NY3d at 535; Matter of Castro v Clarkstown Cent. School Dist., 65 AD 3d 1141, 1142 [2009]; Matter of Felice v Eastport/*960South Manor Cent. School Dist., 50 AD3d 138, 150, 152 [2008]; Matter of Scolo v Central Islip Union Free School Dist., 40 AD3d 1104, 1106 [2007]; Matter of Doyle v Elwood Union Free School Dist., 39 AJDSd 544 [2007]). Moreover, the petitioners failed to meet their initial burden of showing a lack of prejudice or rebutting the appellants’ claims that they will be substantially prejudiced by the more-than-three-month delay after the expiration of the 90-day statutory period (see Matter of Khalid v City of New York, 91 AD3d 779 [2012]; Buchanan v Beacon City School Dist., 79 AD3d 961, 962 [2010]; Matter of Liebman v New York City Dept. of Educ., 69 AD3d 633 [2010]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 152). Accordingly, the petition for leave to serve a late notice of claim should have been denied. Angiolillo, J.P., Balkin, Austin and Miller, JJ., concur.
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https://www.courtlistener.com/api/rest/v3/opinions/5901650/
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*959In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the New York City-Department of Education, Public School 346, Franklin Douglas VIII Academy, and the City of New York appeal from an order of the Supreme Court, Kings County (Velasquez, J.), dated October 26, 2011, which granted the petition.
Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, the petition is denied, and the proceeding is dismissed.
In determining whether to grant leave to serve a late notice of claim, the court must consider whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant was an infant at the time the claim arose and, if so, whether there was a nexus between the claimant’s infancy and the delay, (3) the claimant had a reasonable excuse for the failure to serve a timely notice of claim and the subsequent delay in seeking leave to serve a notice of claim, and (4) the public corporation was prejudiced by the delay in its ability to maintain its defense on the merits (see Education Law § 3813 [2-a]; General Municipal Law § 50-e [5]; Williams v Nassau County Med. Ctr., 6 NY3d 531, 535 [2006]; Bazile v City of New York, 94 AD3d 929, 929-930 [2012]; Matter of Diggs v Board of Educ. of City of Yonkers, 79 AD3d 869, 869-870 [2010]; Troy v Town of Hyde Park, 63 AD3d 913, 914 [2009]).
In their petition and supporting papers, the petitioners did not proffer any excuse for their failure to serve a timely notice of claim upon the appellants. The excuses they did proffer, which were improperly raised for the first time in a reply affidavit (see Matter of Bell v City of New York, 100 AD3d 990 [2012]), were either unsupported by medical evidence or did not constitute reasonable excuses (see Matter of Minkowicz v City of New York, 100 AD3d 1000 [2012]; Matter of Taylor v County of Suffolk, 90 AD3d 769, 770 [2011]). Furthermore, the comprehensive injury report prepared by the New York City Department of Education on an unspecified date, which merely indicated that the infant petitioner sprained his ankle during basketball class in a gymnasium, did not establish that the appellants had actual knowledge of the essential facts underlying the petitioners’ claim that the appellants were negligent, inter alia, in their ownership, operation, maintenance, supervision, and control of the school and its students (see Williams v Nassau County Med. Ctr., 6 NY3d at 535; Matter of Castro v Clarkstown Cent. School Dist., 65 AD 3d 1141, 1142 [2009]; Matter of Felice v Eastport/*960South Manor Cent. School Dist., 50 AD3d 138, 150, 152 [2008]; Matter of Scolo v Central Islip Union Free School Dist., 40 AD3d 1104, 1106 [2007]; Matter of Doyle v Elwood Union Free School Dist., 39 AJDSd 544 [2007]). Moreover, the petitioners failed to meet their initial burden of showing a lack of prejudice or rebutting the appellants’ claims that they will be substantially prejudiced by the more-than-three-month delay after the expiration of the 90-day statutory period (see Matter of Khalid v City of New York, 91 AD3d 779 [2012]; Buchanan v Beacon City School Dist., 79 AD3d 961, 962 [2010]; Matter of Liebman v New York City Dept. of Educ., 69 AD3d 633 [2010]; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 152). Accordingly, the petition for leave to serve a late notice of claim should have been denied. Angiolillo, J.P., Balkin, Austin and Miller, JJ., concur.
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—In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Planning Board of the Town of LaGrange (hereinafter the board), dated April 18, 1984, which denied the petitioner’s application for a two-lot subdivision of his property, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Juidice, J.), dated April 11, 1986, which dismissed the proceeding.
Ordered that the judgment is affirmed, without costs or disbursements.
The petitioner sought the approval of the board for a proposed subdivision whereby a parcel of approximately 12 acres of his land would be divided into two lots. The board was presented with proposed lots which were to be provided access by a preexisting driveway which connected the northeast corner of one of the proposed lots with a town road known as "Arthursburg Road” over a parcel of land previously condemned by the State in connection with construction of the Taconic State Parkway. The record indicates that actual access to the lot from "Arthursburg Road” was to be by a purported right-of-way over the intervening State lands. However, it is clear that the petitioner failed to produce sufficient proof before the board to show that proper access could be had by way of an easement. Accordingly, the board was justified in disapproving the petitioner’s application in view of the uncertainty of access across the State lands (see, Panariello v Demetri, 99 AD2d 770).
Moreover, the Town Code of the Town of LaGrange pro*611vides, in relevant part, that the "minimum lot frontage on street right-of-way line” is 50 feet for all lots located in the AG-40 zoning district (which classification covers the petitioner’s property; see, Town Code of Town of LaGrange § 100-23 [B]). The underlying basis for enactment of local zoning ordinance frontage requirements stems from Town Law § 280-a (1) and (5), which provide, in relevant part, that all improved lots must have sufficient frontage and direct abutment on an existing State, county or town highway or street, so as to allow access for the ingress and egress of emergency vehicles. Thus, the board properly determined that the frontage of the petitioner’s property along the Taconic State Parkway could not be used to satisfy the 50-foot frontage requirement of the zoning ordinance since there is no access to the parkway from the petitioner’s property. Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901652/
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—In an action for the partition of real property, the plaintiff appeals from so much of a judgment of the Supreme Court, Rockland County (Edelstein, J.), dated June 9, 1986, as confirmed in all respects the Referee’s report, dated May 2, 1985, and ordered the net proceeds of the sale of the parties’ former marital residence be distributed with the plaintiff’s *612account debited for one half the amount of an Internal Revenue Service lien in the amount of $13,099.63, and limited his award of costs to $370.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The plaintiffs various claims for adjustments in the distribution of the proceeds from the partition sale are without merit. A tenant in common has the right to take and occupy the whole of the premises and preserve them from waste and injury, so long as he does not interfere with the right of a cotenant to also occupy the premises (see, Jemzura v Jemzura, 36 NY2d 496, 503; Valentine v Healey, 158 NY 369, 374; Johnson v Depew, 38 AD2d 675, appeal dismissed 30 NY2d 565). It follows that the occupancy by one of the tenants in common in and of itself does not make the occupant liable to the cotenant for rent of the premises or for use and occupation (see, Jemzura v Jemzura, supra).
In the case at bar, following the defendant’s period of exclusive possession, the plaintiff was granted summary judgment in this partition action resulting in the termination of the cotenancy. Furthermore, the court’s direction that the defendant maintain her exclusive possession of the marital property did not continue the term of the cotenancy. A partition action, although statutory, is equitable in nature and the court could compel the parties to do equity between themselves when adjusting the distribution of the proceeds of sale (Worthing v Cossar, 93 AD2d 515, 517; 24 NY Jur 2d, Cotenancy and Partition, § 242). Thus, the court could direct that the defendant maintain her exclusive possession of the marital abode in order to ensure her safety and welfare until the time of sale without continuing the cotenancy (Worthing v Cossar, supra, 14 Carmody-Wait 2d, NY Prac § 91:242). Therefore, the plaintiff did not have a right to occupy the premises, and his being precluded from occupancy did not amount to an ouster. Accordingly, the plaintiff is not entitled to reimbursement for the full rental value of the property from the time the defendant’s exclusive right of possession ended until the time the property was sold.
Similarly without merit is the plaintiffs claim for credit for payment toward amortization of the mortgage. Where a cotenant agrees to contribute to the payment of a mortgage on property owned in common with another, the nonpaying cotenant’s share will not be charged on a subsequent partition with one half the amount of the mortgage (see, 14 Carmody*613Wait 2d, NY Prac § 91:248). Here, the plaintiff stipulated, and a judgment of divorce provided, that the plaintiff would contribute to the total costs of maintaining the defendant and their children in their home. It was clearly the intent of the parties that the defendant would receive the benefit of the plaintiff’s contribution. Accordingly, the plaintiff’s claim for reimbursement is contrary to the intention of the parties’ agreement and is, therefore, denied.
Finally, we find that the court did not abuse its discretion in denying the plaintiff an additional allowance for costs under CPLR 8303 (a) (3). Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6822865/
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Per curiam.
People’s Building and Loan Association of Hampton, Virginia, presented to this court its petition for a writ of mandamus (Const. §88, Code § 17-96) to compel the clerk of the Circuit Court of Gloucester county to admit to record a power of attorney tendered to him for recordation. The clerk refused to admit it to record because in his opinion the acknowledgment of the instrument did *917not meet the requirements of the statute, § 55-113 of the Code, “in that the date of the writing and the name of the person executing the instrument were omitted entirely,” so stated his answer to the petition.
The power of attorney was dated October 22, 1962, was signed “James W. Welch” and appointed his wife, Laura C. Welch, his lawful attorney, “GIVING AND GRANTING” to her as such the full power, inter alia, to sell and dispose of or encumber his property and to execute and deliver good and sufficient deeds or other instruments therefor.
Immediately under the signature to the instrument, and on the same sheet of paper, was a certificate of acknowledgment taken by Margaret A. Theis, a notary public in and for the city of Hampton, Virginia, in which she certified as follows:
“* * the grantor in the foregoing Power of Attorney, who is personally well known to me, appeared before me this day within the territorial limits of my authority and executed said instrument after the contents thereof had been read and duly explained to him, and acknowledged that the execution of said instrument by him was his free and voluntary act and deed * *.”
Section 55-107 of the Code provides that a power of attorney may be admitted to record in any county or corporation.
Section 55-113 provides that the clerk shall admit any such writing to record as to any person whose name is signed thereto,
(1) Upon the certificate of a notary public (or other named official) that such writing has been acknowledged before him by such person; and such certificate shall be written upon or annexed to such writing, and shall be “substantially” to the effect that E. F. (the person signing) “whose name is signed to the writing above (or hereto annexed) bearing date on the......day of........, has acknowledged the same before me in my county (or corporation) aforesaid.”
The object of the statute is that the notary or other official taking the acknowledgment shall know and certify that the person whose name is signed to the instrument is the person who is acknowledging it. “If it is reasonably certain that the grantor made the acknowledgment of the instrument in question, that is sufficient.” Blair v. Rorer's Adm'r, 135 Va. 1, 24, 116 S.E. 767, 775.
The date of the instrument is a means of identification, but not necessarily the only means; and the name of the person signing is *918also a means of his identification, but not necessarily the only means. The requirement of the statute is that the certificate of acknowledgment be “substantially” in the given form.
Here the notary public has certified that the “grantor” in the “foregoing Power of Attorney,” who is personally well known to her, appeared before her and executed said instrument and acknowledged it to be his free and voluntary act.
As stated, the certificate immediately follows the signature of James W. Welch and is on the same sheet of paper, so that the word “foregoing” in the certificate of acknowledgment sufficiently identifies the instrument being acknowledged, and the words “grantor in the foregoing Power of Attorney” necessarily refer to and identify the person who signed the instrument and granted the power of attorney, and who is well known to the notary public.
We conclude that the certificate of acknowledgment is substantially to the effect required by the statute and that the power of attorney should be admitted to record.
Accordingly the writ of mandamus will issue requiring the clerk to admit said instrument to record and to record it in the proper book in his office.
Writ awarded.
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01-03-2023
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07-23-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6822866/
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Snead, J.,
delivered the opinion of the court.
On January 9, 1963, C. P. Moore, plaintiff, instituted an action seeking a judgment for $7500 jointly and severally against United Brotherhood of Carpenters and Joiners of America, hereinafter called Brotherhood, and United Brotherhood of Carpenters and Joiners of *7America, Local 2826, hereinafter referred to as Local union. The plaintiff alleged in his motion for judgment, among other things, that he was promised by the Brotherhood and the Local union that if he would engage in a strike against his employer, Universal Moulded Fiber Glass Corporation, hereinafter called Universal, the two labor organizations “would pay to and for him and on his behalf while on strike, all of his necessary bills and payments, including, but not exclusively, rent, food, clothing, house and car payments, utilities, recurring payments of small indebtedness contracted prior to said strike, small loans, reasonable wages for duty on a picket line to be established by defendants, and script for purchases of day to day groceries * *
The plaintiff further alleged that he relied upon such promises, left his employment, was on strike from April 11, 1962, until July 19, and fuUy performed all the duties required of him, but that the Brotherhood and the Local union failed and refused to perform “any of said promises, other than to pay a small part of the bills of plaintiff in the approximate amount of $105.00 and seven weeks’ grocery money.”
The Brotherhood filed its grounds of defense and also a demurrer which was overruled. The Local union failed to appear or plead to plaintiff’s motion. A trial was had and the Brotherhood’s motions to strike plaintiff’s evidence at the conclusion of plaintiff’s evidence and at the conclusion of all the evidence were overruled. The jury returned a verdict for plaintiff in the sum of $330. Whereupon, judgment was entered against the Local union, and a motion of the Brotherhood to set aside the verdict and enter judgment in its favor was taken under advisement. On January 8, 1964, the court overruled the motion and entered judgment for plaintiff against the Brotherhood in accordance with the verdict. We granted the Brotherhood a writ of error.
In its assignments of error the Brotherhood contends that the court erred (1) in overruling its demurrer; (2) in overruling its motions to strike plaintiff’s evidence; (3) in overruling its motion to set aside the verdict and enter final judgment on its behalf; (4) in giving and refusing certain instructions; and (5) in admitting certain testimony.
Since plaintiff is fortified with a jury verdict which bears the stamp of approval by the trial judge, he is entitled to have the evidence stated and considered in the light most favorable to him. Adams v. Allen, 202 Va. 941, 945, 121 S.E. 2d 364.
*8The record discloses that the Brotherhood is a voluntary, unincorporated association and is a labor organization of international scope with its principal office in the city of Washington, D. C. The rights, powers, obligations and duties of the Brotherhood, the local unions, and the members inter se are controlled by a “Constitution and Laws”. This document is referred to as the “Bible” of the Brotherhood, and provides, among other things, that the general executive board of the Brotherhood has the power to sanction strikes by local unions and to render financial aid to the members of the local unions to the extent it deems adequate when a strike has been sanctioned. It also provides that the general president has the power to deputize a representative to proceed to the scene of the difficulty when a labor dispute arises to endeavor “to adjust the trouble by negotiation or arbitration”.
The plaintiff was a member of the Local union, an organization affiliated with and chartered by the Brotherhood, which was located in Bristol. The Local union was operating under a contract with Universal which was due to expire on March 31, 1962, and it was attempting to negotiate a new contract. As was its custom, it requested the Brotherhood to send down a representative to assist its negotiating committee in obtaining the contract, and the Brotherhood sent A. O. McKinney in compliance with the request.
McKinney had been to Bristol previously for the purpose of handling “some grievances”, and he had also helped the Local union negotiate other contracts. The plaintiff claims that McKinney was the alter ego of the president of the Brotherhood. His credentials card was signed by the general president of the Brotherhood and it stated that McKinney was his “representative”. McKinney’s duties included “organizing, negotiating contracts, settling grievances and arbitrations, handling arbitrations and so forth.” After his arrival in Bristol he participated in the negotiations between the Local union and Universal prior to the strike. He was in and out of Bristol until sometime after the strike had ended.
The members of the Local union held meetings from time to time at the union hall and discussed the progress of the negotiations. McKinney was present at some of these meetings, and he was questioned by members concerning the financial assistance they would receive from the Brotherhood in the event a strike was called. According to plaintiff, McKinney was present in the union hall on April 6, 1962. By that time a strike vote had already been taken by secret *9ballot, and a majority of the members were in favor of striking, although plaintiff had voted not to strike. Plaintiff testified:
“A. On April 16 [6], Mr. McKinney and the negotiating committee come back and they had been in a meeting with the company, and Mr. McKinney said that the company took the attitude that they wasn’t going to do anything and we was going to have to come out on a strike to show them that we meant business.
* * # # # # #
“A. They [the members] asked Mr. McKinney who was going to take care of our bills, and Mr. McKinney said that the local, I mean the international had always took care of the members and they wasn’t a quitting now, that they would pay our bills.
*.«, JJ. M. W tv 'f?
“A. At that special meeting, Mr. McKinney said all of our bills would be paid.”
Plaintiff further testified that McKinney made it plain that “he was the boss of the thing”; that he would appoint a finance committee “to suit theirselves” for the purpose of disbursing the money to be received from the Brotherhood; “that he would take full responsibility of the money that come in and what was paid out”; that members “would be paid for walking the picket line”; that members were to turn in their bills to the committee, and that all bills would be paid. He also testified that the promise to pay the bills was made before the strike commenced and was renewed several times thereafter.
W. E. Beard, a member of the Local union, substantially corroborated plaintiff’s testimony. McKinney denied making the alleged agreement or promises, and other witnesses who were present at the meetings said they never heard such promises made.
Pursuant to the “Constitution and Laws” and with the assistance of McKinney, the Local union filled out and mailed a schedule of inquiries, dated March 30, 1962, to the headquarters of the Brotherhood requesting strike benefits. On April 2, the Brotherhood acknowledged receipt of the schedule, and the general executive board granted official sanction to the Local union’s “trade movement.” It cautioned the Local union to avoid a strike if possible, but on April 11, T. S. Morrell, vice-president of Universal, addressed the members of the Local union and made an offer of settlement which was not acceptable and the members decided to strike that night.
Approximately 200 members of the Local union went on strike. Plaintiff actively participated in the strike from beginning to end. He *10walked the picket line for an hour each day and in addition remained in the area for three hours daily.
According to the president of the Local union, during the course of the strike the Brotherhood rendered financial aid to the Local union in the approximate amount of $44,000. The money was placed in a special bank account by the finance committee of the Local union, which committee plaintiff believed was appointed by McKinney. However, McKinney denied making the appointment and other witnesses stated that the members of the finance committee were appointed by the officers of the Local union. The funds were distributed by the committee according to a formula it adopted based on the number of dependents a member had, and an accounting report complete with receipts was sent each week to the Brotherhood. The record indicates that plaintiff received strike benefits amounting to approximately $300 which were not sufficient to cover all of his bills or expenses incurred.
As the strike continued the Local union on several occasions sent representatives to the Brotherhood’s headquarters in an attempt to secure additional funds. Some additional aid was provided, but finally the Brotherhood discontinued payments because the strike “was lost” and as a result, it had to be abandoned. Later, the Local union ceased to exist and its charter was “picked up” by the Brotherhood because the required per capita tax was in arrears for six months. When the strike ended on July 19, 1962, plaintiff’s position with Universal had been filled by a permanent replacement, and at the time this action was instituted he had secured employment elsewhere.
The evidence adduced was sufficient to make a jury question of whether the alleged promise was made by McKinney, and the jury by its verdict has resolved that question in favor of plaintiff. Whether McKinney had the authority to bind the Brotherhood is the crucial question presented.
In 31 Am. Jur., Labor, § 33, p. 415, it is stated:
“The articles of agreement of a labor union, whether called a constitution, charter, bylaws, or any other name, constitute a contract between the union and its members, as well as a contract between the members of the union, which the courts will enforce, if not immoral or contrary to public policy or the law of the land. A labor union has the right to make and adopt reasonable bylaws governing the conduct of its own members. So long as the bylaws of a union relate to matters in which no one except the association and its members is interested, and violate no right of a third person and *11no rule of public policy, they are valid.” See also 87 C.J.S., Trade Unions, § 36, p. 822, et seq.
In the frequently cited case of Amalgamated Clothing Workers v. Kiser, 174 Va. 229, 6 S.E. 2d 562, the plaintiff, Mrs. Kiser, sought a recovery of defendant, Amalgamated, a labor union which was a voluntary unincorporated association, for breach of contract. The plaintiff claimed that the agents of defendant entered into an oral contract with her whereby if she should lose her employment by reason of joining the defendant union, the union would pay her the salary she was earning at the time of her discharge and continue to pay same until she obtained other employment or until other employment was provided her by the defendant union. The plaintiff joined the union and lost her job as a result thereof. At the time of her discharge she was earning $18 per week. The defendant thereafter, through its agents, paid plaintiff a lesser sum for forty-six weeks at which time she was advised that no future payments would be made. The plaintiff contended that the payments were made under the oral contract, whereas defendant claimed that they were relief payments and were not made under any contract. The jury fixed Mrs. Kiser’s damages at $1500 and judgment was entered thereon. On appeal this court reversed the judgment and entered final judgment for defendant. The opinion states in part:
“We have searched the constitution from beginning to end and have found no express authority for the contract. Inferred or implied powers must rest upon some provision in the constitution, for it embodies the association’s whole plan of existence. All rights, privileges and duties of both the association and its members must be found in the constitution. We are not permitted to look elsewhere for them.
# # # & ■/? * #
“* * * She [Mrs. Kiser] was charged with knowledge of the limited authority of the officers and agents of the defendant. * * * The constitution not only constitutes the contract between a member and the association but it also constitutes the contract between a member or members and other members. Bradley v. Wilson, 138 Va. 605, 123 S.E. 273; Brotherhood of Railroad Trainmen v. Barnhill, 214 Ala. 565, 108 So. 456, 47 A.L.R. 270; Cameron v. International Alliance, etc., 119 N.J.Eq. 577, 578, 183 A. 157, 161.
# ;X: # ;X' # #
“In International Brotherhood of Boiler-Makers, etc. v. Wood, *12supra, [162 Va. 517, 175 S.E. 45J we expressly held that a person who applies for membership in an association of this kind is just as much bound by the constitution and by-laws of the association as a full member. The International Brotherhood was a labor union somewhat similar to the defendant. It was an unincorporated association of international scope. Its powers and duties and the rights of those who applied for membership and its members were expressly defined, prescribed and limited by a constitution and by-laws. At page 552 of the opinion in that case we restated the familiar principle in this language: ‘A person applying for membership in a fraternal benefit association is charged with the duty of acquainting himself with its constitution and by-laws; and, in the absence of fraud, is conclusively presumed to know the qualifications for membership therein prescribed and the limitations thereby imposed upon the power and authority of its officers, and upon its subordinate lodges and their officers as its agents. The same rule, of course, applies to persons who have become members. 1 Bacon on Ben. Societies and Ins. (2d Ed.) section 157; Kennard v. Travelers’ Prot. Ass’n, 157 Va. 153, 157, 160 S.E. 38; Bixler v. Modern Woodmen of America, 112 Va. 678, 72 S.E. 704, 38 L.R.A. (N.S.) 571; Woodmen of World v. Hall, 104 Ark. 538, 148 S.W. 526, 41 L.R.A. (N.S.) 517.’
“There being no power in the constitution of the defendant authorizing it to enter into the contract with Mrs. Kiser, it could not have been validly made. Mrs. Kiser is bound to have known of the absence of authority in the constitution. The defendant itself not having the power to make the contract, its agents would have no implied authority to do what the principal itself is not empowered to do. * * *” 174 Va. at pp. 235, 236, 237.
Here, the Brotherhood is a voluntary, unincorporated association. The rights, privileges, obligations and duties of the association and its members are found in the “Constitution and Laws”. We must look only to this document for McKinney’s authority to enter into the alleged oral contract with plaintiff on behalf of the Brotherhood. It is conceded by plaintiff that there is no provision in the constitution which expressly states that the Brotherhood has the power to promise strike benefits, but he contends that references in various places of the constitution to “strike pay” and “strike benefits” indicate the implied power to make such promise of payment.
The record shows that the alleged promise to pay the strike benefits claimed by plaintiff was made by McKinney, who was the representative of the general president of the Brotherhood. The plaintiff de*13scribed him as the alter ego of the president. However, if the general president had no authority to make the promise, it must follow that McKinney, acting as his representative, had no such authority.
The benefits paid to the members of the Local union were authorized by the general executive board of the Brotherhood. The Constitution provides that the board may render financial aid to the extent it deems adequate.
It is true that paragraph L of § 59, under the heading “General Strikes and Lock-outs”, gives the officers the power to render financial assistance under certain limited circumstances. It reads:
“In case of a strike or lock-out, where immediate aid is required the General President, General Secretary and General Treasurer shall be vested with power to appropriate such sums as, in their judgment, they deem advisable to meet these particular demands, and until such time as the General Secretary can act upon the same through correspondence with the General Executive Board.” (Italics supplied.)
This provision does not give the power to the three officers to act separately. They must act jointly. Thus, the general president, under paragraph L, has no authority alone to render financial aid to the members and we do not think it can be implied that he or his representative, McKinney, could have the authority under it to make an effective promise on behalf of the Brotherhood to pay benefits as claimed by plaintiff.
Moreover, our study of the “Constitution and Laws” fails to reveal any provision whereby it may be reasonably implied that the general president alone had the power or the authority to pay strike benefits or to enter into the alleged oral contract with plaintiff and bind the Brotherhood. That being the case, McKinney, his representative, certainly lacked such authority. Also we find no basis upon which it can be found that McKinney had the implied authority from the general executive board to act.
We hold that the trial court erred in refusing to sustain the Brotherhood’s motions to strike plaintiff’s evidence on the ground that it was not proved that McKinney had authority to make the promise claimed by plaintiff. In view of this holding it becomes unnecessary to discuss other questions raised by the assignments of error relied upon.
Accordingly, the judgment appealed from is reversed and final judgment is entered for defendant.
Reversed and final judgment.
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01-03-2023
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07-23-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901655/
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—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Donovan, J.), entered May 9, 1986, which is in favor of the defendant and against them, upon a jury verdict.
Ordered that the judgment is affirmed, with costs.
The plaintiff Isabelle Passiotti was injured in an automobile accident involving a car driven by her and a car driven by the defendant. As a result of this accident, Mrs. Passiotti experienced pain in her neck and left arm and hand. She testified that these injuries, and resultant pain, prevented her from performing her customary activities from the time of accident until trial. The crucial issue at trial was whether Mrs. Passiotti suffered a "serious injury” within the purview of Insurance Law § 5102 (d). The jury found that her injuries did not meet the threshold.
Faced with conflicting testimony as to the nature of Mrs. Passiotti’s injuries, the jury was presented with a clear question of fact as to whether the injuries met the threshold for noneconomic loss within the purview of Insurance Law § 5102 (d). Inasmuch as the jury’s finding, i.e., that Mrs. Passiotti did not sustain a serious injury, was supported by a fair interpretation of the evidence, we conclude that the trial court properly denied the plaintiffs’ motion for a new trial (see, Cohen v Hallmark Cards, 45 NY2d 493; Coho v McNeil Constr. Co., 122 AD2d 103; Nicastro v Park, 113 AD2d 129). We have examined the plaintiffs’ contention regarding the charge and find it to be unpreserved for appellate review and, in any event, without merit. Furthermore, we see no merit to the plaintiffs’ contention regarding the jury’s apportionment of comparative fault. Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901656/
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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Futnam County (Lubell, J.), dated August 16, 2011, which granted the defendant’s motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The injured plaintiff, while delivering parcels to the defendant’s home on a hot, misty day, allegedly slipped and fell on a brick walkway that had grass growing up between the bricks.
On her motion for summary judgment, the defendant made a prima facie showing that the complained-of condition was both open and obvious, i.e., readily observable by those employing the reasonable use of their senses, and not inherently dangerous (see Misir v Beach Haven Apt. No. 1, Inc., 32 AD3d 1002 [2006]; Cupo v Karfunkel, 1 AD3d 48 [2003]; Sun Ho Chung v Jeong Sook Joh, 29 AD3d 677 [2006]; Osborne v Village of N. Tarrytown, 180 App Div 224 [1917]). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment. Angiolillo, J.P., Dickerson, Miller and Hinds-Radix, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901657/
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—In an action for a divorce and ancillary relief, the plaintiff appeals (1) from an order of the Supreme Court, Westchester. County (Coppola, J.) entered April 18, 1986, which denied his motion for reconsideration of a decision dated March 19, 1986, and (2) from so much of an amended judgment of the same court, dated June 3, 1986, as (a) awarded the defendant $850 per week in maintenance, (b) made an award of the marital assets, and (c) awarded the defendant $20,000 in counsel fees.
Ordered that the appeal from the order is dismissed, as no appeal lies from an order denying reargument of a decision; and, it is further,
Ordered that the amended judgment is affirmed insofar as appealed from; and it is further,
Ordered that the defendant is awarded one bill of costs.
At trial, the plaintiff alleged that the defendant, his wife, had secreted and wasted marital assets using an elaborate scheme to conceal her wrongdoing. The court found that there was a failure of proof to support the alleged misconduct and it refused to consider economic waste in determining the award for either maintenance or equitable distribution.
On appeal, the plaintiff claims that this finding was in error *615and that this court should modify the award to take into account the defendant’s economic fault. While we have great discretion to make findings of fact different from that of the trial court if the credible evidence so dictates (Sable v Fuchs-berg, 128 AD2d 692), upon our review of the record, we must agree with the findings of the trial court that the plaintiff failed to prove by a preponderance of the evidence that the defendant was guilty of the waste and dissipation of marital assets.
The plaintiff further contends that, contrary to the trial court’s stated intention, the wife received 60% of the marital assets because the trial court, in determining the manner of distribution, failed to consider the potential tax liability which he would incur upon the sale or liquidation of certain assets. The plaintiff also claims, as he did on his posttrial motion, that the value of the assets he received is substantially less than the value of the assets distributed to defendant. We disagree.
As required by Domestic Relations Law § 236 (B) (5) (d) (10), the court took into account the tax consequences to each party when it made the distribution (see, Schanback v Schanback, 130 AD2d 332). Moreover, a substantial amount of the assets awarded to the plaintiff consists of tax-deferred IRAs and employer-funded pension funds, the value of which will grow considerably by the time the plaintiff begins to receive taxable income from them. Any taxes which will be incurred upon the plaintiff’s future receipt of these benefits will be more than offset by the increased value of the assets, and we discern no abuse of discretion in the manner by which the assets were distributed. We note, moreover, that there was no evidence offered at trial to support the plaintiff’s theory that the stated value of the assets he received is, because of potential tax liability, less than that which was fixed by the trial court, and we discern no abuse of discretion in the denial of plaintiff’s posttrial motion.
There was also no error in the award of maintenance to the wife. The fact that the couple may have lived frugally during their marriage does not preclude the court from awarding the defendant the sum which the plaintiff now contends is too high. The record reveals that the court considered all the factors listed in Domestic Relations Law § 236 (B) (6) and we see no reason to disturb the award. The defendant, who had not worked during most of the 20-year length of the parties’ marriage, can never hope to earn as much as the plaintiff now does, although she plans to teach full time once she completes *616her doctoral program. Furthermore, the court limited the maintenance to a period of six years and the plaintiff's substantial earnings will allow him to pay the maintenance without hardship.
Considering the financial circumstances of each party, the award to the defendant of $20,000 for attorney’s fees is well within the discretion available to the court under Domestic Relations Law § 237.
We have considered the plaintiff’s remaining contentions and find them to be without merit. Bracken, J. P., Kunzeman, Eiber and Harwood, JJ., concur.
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—Motion by the appellant for "clarification” of a decision and order of this court, dated July 20, 1987, which determined an appeal from a judgment of the Supreme Court, Queens County (Goldstein, J. H. O.), dated November 10, 1986.
Upon the papers filed in support of the motion and the papers filed in response thereto, it is
Ordered that the motion is granted to the extent of deleting from the decretal paragraph all words starting with the words "by deleting from” and ending with the words "from Defendant’s $1,000,000”, and substituting therefor the following: "by (1) adding to the third sentence of subdivison 2 of the eleventh decretal paragraph thereof after the words 'corporate taxes’ the words 'and taxes imposed pursuant to Tax Law article 31-B’, and (2) adding a provision to the eleventh decretal paragraph that any additional proceeds from the lease sale and liquidation are to be divided equally between the parties”; and it is further,
Ordered that the motion is otherwise denied. Lawrence, J. P., Kunzeman, Kooper and Spatt, JJ., concur.
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901659/
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—Proceeding pursuant to CPLR article 78 to review a determination of the respondent City Manager of the City of Newburgh, dated April 9, 1986, which after a hearing, found the petitioner guilty of violating (1) article XII (2) of the Rules and Regulations of the City of Newburgh Police Department (hereinafter the Rules) for disrespect to a superior officer, (2) article XIII (12) of the Rules for failure to conduct himself in a manner that would foster the greatest harmony and cooperation between officers, (3) article II (5) of the Rules for insubordination in the making of ridiculing statements to a superior officer, and (4) article II (1) of the Rules for insubordination in failing to carry out a direct order of a superior officer, and demoted him from the position of detective to patrolman.
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.
We find substantial evidence in the record to support the determination of the respondent finding the petitioner guilty of insubordination and related charges (see, CPLR 7803 [4]; Matter of Pell v Board of Educ., 34 NY2d 222, 230, 231). A police force is a quasi-military organization demanding strict discipline (Matter of De Bois v Rozzi, 114 AD2d 848) and much deference is to be accorded the internal discipline of, and the penalties imposed upon, its members (see, Matter of Meyer v Rozzi, 108 AD2d 859).
The petitioner’s showing of disrespect to his superior officer cannot be sanctioned since such behavior poses a serious threat to the discipline and the efficiency of the agency’s operation. Under the circumstances, the sanction of demotion in rank is not disproportionate to the offense (see, Matter of *617Wahl v Lehman, 67 AD2d 930). Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901660/
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—Appeal by the defendant from an order of the Supreme Court, Westchester County, entered February 19, 1987.
Ordered that the order is affirmed, with costs, for reasons stated by Justice Wood in his memorandum decision at the Supreme Court. Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901661/
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Proceeding pursuant to CPLR article 78, in effect, to review a determination of the New York State Department of Motor Vehicles Appeals Board dated April 26, 2011, confirming a determination of an administrative law judge, which, after a hearing held on December 22, 2010, found that the petitioner had refused to submit to a chemical test in violation of Vehicle and Traffic Law § 1194, and revoked her driver’s license.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
Shortly after 11:00 p.m. on October 9, 2010, a Suffolk County police officer responded to a report of a motor vehicle accident at a specific location in Huntington. Upon arriving at the scene, he observed the petitioner standing in the vicinity of a damaged vehicle. As the petitioner appeared to be injured, the police officer summoned an ambulance, which transported her to the hospital. At approximately 12:30 a.m. on October 10, 2010, while at the hospital, the petitioner was arrested for driving while intoxicated, in violation of Vehicle and Traffic Law § 1192. As the petitioner allegedly refused to submit to a chemical test pursuant to Vehicle and Traffic Law § 1194 (2) (b), a hearing was conducted before an administrative law judge (hereinafter the ALJ) on December 22, 2010, pursuant to Vehicle and Traffic Law § 1194 (2) (c). After the hearing, the ALJ found that the statutory conditions mandating administrative revocation of the *961petitioner’s driver’s license were met (see Vehicle and Traffic Law § 1194 [2] [c]), and revoked her driving privileges. The petitioner appealed to the Department of Motor Vehicles Appeals Board (hereinafter the Appeals Board). The Appeals Board confirmed the ALJ’s determination. Thereafter, the petitioner commenced this CPLR article 78 proceeding to review the determination. The Supreme Court transferred the proceeding to this Court for disposition (see CPLR 7804 [g]).
“Appellate review of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence” (Matter of Hughes v New York State Unified Ct. Sys., Off. of Ct. Admin., 78 AD3d 700, 701 [2010]; see Matter of Hildreth v New York State Dept. of Motor Vehs. Appeals Bd., 83 AD3d 838, 839 [2011]). Substantial evidence consists of “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). While substantial evidence consists of more than a “ ‘mere scintilla of evidence’ ” (Matter of Miserendino v City of Mount Vernon, 96 AD3d 946, 947 [2012], quoting Matter of Stork Rest. v Boland, 282 NY 256, 273 [1940]) or mere speculation or conjecture, it is less than a preponderance of the evidence (see Matter of Benjamin v Carrion, 79 AD3d 744 [2010]). Hearsay evidence may form the basis for an administrative determination (see Matter of Hughes v New York State Unified Ct. Sys., Off. of Ct. Admin., 78 AD3d at 701). “The duty of weighing the evidence and resolving conflicting testimony rests solely upon the administrative agency” (Matter of Wright v Commissioner of N.Y. State Dept. of Motor Vehs., 189 AD2d 767, 768 [1993]; see Matter of Hildreth v New York State Dept. of Motor Vehs. Appeals Bd., 83 AD3d at 839). In reaching a determination that a driver has violated a provision of the Vehicle and Traffic Law, an administrative law judge may rely on evidence such as a police officer’s testimony (see Matter of Kobel v State of N.Y. Dept. of Motor Vehs. Appeals Bd., 85 AD3d 916 [2011]; Matter of Hall v Swartz, 61 AD3d 868 [2009]).
The evidence adduced at the hearing demonstrated that the police had reasonable grounds to believe that the petitioner had been driving in violation of Vehicle and Traffic Law § 1192, that the police lawfully arrested the petitioner, that the police gave the petitioner sufficient warning of the consequences of refusing to submit to a chemical test, and that the petitioner refused to submit to the chemical test (see Vehicle and Traffic Law § 1194 [2] [c]; Matter of Robinson v Swarts, 82 AD3d 986 [2011]).
*962We reject the petitioner’s only contention, which was that the record did not support a finding that she had been operating the vehicle that was involved in the subject accident. The arresting officer testified, inter alia, that upon responding to a report of a motor vehicle accident, he observed the petitioner in an upset and apparently injured state, standing on the corner near a damaged vehicle at which point the petitioner stated that ‘T was going home and I got hit and my car is messed up.” Under these circumstances, it was reasonable for the ALJ to infer that the petitioner, prior to standing on the corner, had been driving the vehicle which was involved in the accident. Accordingly, the officer’s testimony was sufficient to sustain the ALJ’s determination (see Matter of Hildreth v New York State Dept. of Motor Vehs. Appeals Bd., 83 AD3d at 840). Dillon, J.P., Balkin, Chambers and Hall, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901662/
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Proceeding pursuant to CPLR article 78, in effect, to review a determination of the New York State Department of Motor Vehicles Appeals Board dated April 26, 2011, confirming a determination of an administrative law judge, which, after a hearing held on December 22, 2010, found that the petitioner had refused to submit to a chemical test in violation of Vehicle and Traffic Law § 1194, and revoked her driver’s license.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
Shortly after 11:00 p.m. on October 9, 2010, a Suffolk County police officer responded to a report of a motor vehicle accident at a specific location in Huntington. Upon arriving at the scene, he observed the petitioner standing in the vicinity of a damaged vehicle. As the petitioner appeared to be injured, the police officer summoned an ambulance, which transported her to the hospital. At approximately 12:30 a.m. on October 10, 2010, while at the hospital, the petitioner was arrested for driving while intoxicated, in violation of Vehicle and Traffic Law § 1192. As the petitioner allegedly refused to submit to a chemical test pursuant to Vehicle and Traffic Law § 1194 (2) (b), a hearing was conducted before an administrative law judge (hereinafter the ALJ) on December 22, 2010, pursuant to Vehicle and Traffic Law § 1194 (2) (c). After the hearing, the ALJ found that the statutory conditions mandating administrative revocation of the *961petitioner’s driver’s license were met (see Vehicle and Traffic Law § 1194 [2] [c]), and revoked her driving privileges. The petitioner appealed to the Department of Motor Vehicles Appeals Board (hereinafter the Appeals Board). The Appeals Board confirmed the ALJ’s determination. Thereafter, the petitioner commenced this CPLR article 78 proceeding to review the determination. The Supreme Court transferred the proceeding to this Court for disposition (see CPLR 7804 [g]).
“Appellate review of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence” (Matter of Hughes v New York State Unified Ct. Sys., Off. of Ct. Admin., 78 AD3d 700, 701 [2010]; see Matter of Hildreth v New York State Dept. of Motor Vehs. Appeals Bd., 83 AD3d 838, 839 [2011]). Substantial evidence consists of “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). While substantial evidence consists of more than a “ ‘mere scintilla of evidence’ ” (Matter of Miserendino v City of Mount Vernon, 96 AD3d 946, 947 [2012], quoting Matter of Stork Rest. v Boland, 282 NY 256, 273 [1940]) or mere speculation or conjecture, it is less than a preponderance of the evidence (see Matter of Benjamin v Carrion, 79 AD3d 744 [2010]). Hearsay evidence may form the basis for an administrative determination (see Matter of Hughes v New York State Unified Ct. Sys., Off. of Ct. Admin., 78 AD3d at 701). “The duty of weighing the evidence and resolving conflicting testimony rests solely upon the administrative agency” (Matter of Wright v Commissioner of N.Y. State Dept. of Motor Vehs., 189 AD2d 767, 768 [1993]; see Matter of Hildreth v New York State Dept. of Motor Vehs. Appeals Bd., 83 AD3d at 839). In reaching a determination that a driver has violated a provision of the Vehicle and Traffic Law, an administrative law judge may rely on evidence such as a police officer’s testimony (see Matter of Kobel v State of N.Y. Dept. of Motor Vehs. Appeals Bd., 85 AD3d 916 [2011]; Matter of Hall v Swartz, 61 AD3d 868 [2009]).
The evidence adduced at the hearing demonstrated that the police had reasonable grounds to believe that the petitioner had been driving in violation of Vehicle and Traffic Law § 1192, that the police lawfully arrested the petitioner, that the police gave the petitioner sufficient warning of the consequences of refusing to submit to a chemical test, and that the petitioner refused to submit to the chemical test (see Vehicle and Traffic Law § 1194 [2] [c]; Matter of Robinson v Swarts, 82 AD3d 986 [2011]).
*962We reject the petitioner’s only contention, which was that the record did not support a finding that she had been operating the vehicle that was involved in the subject accident. The arresting officer testified, inter alia, that upon responding to a report of a motor vehicle accident, he observed the petitioner in an upset and apparently injured state, standing on the corner near a damaged vehicle at which point the petitioner stated that ‘T was going home and I got hit and my car is messed up.” Under these circumstances, it was reasonable for the ALJ to infer that the petitioner, prior to standing on the corner, had been driving the vehicle which was involved in the accident. Accordingly, the officer’s testimony was sufficient to sustain the ALJ’s determination (see Matter of Hildreth v New York State Dept. of Motor Vehs. Appeals Bd., 83 AD3d at 840). Dillon, J.P., Balkin, Chambers and Hall, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901841/
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by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (McKay, J.), imposed January 18, 2011, on the ground that the sentence was excessive.
Ordered that the sentence is affirmed.
The defendant’s valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v Bradshaw, 18 NY3d 257, 264-267 [2011]; People v Ramos, 7 NY3d 737, 738 [2006]; People v Lopez, 6 NY3d 248, 255 [2006]; People v Stanley, 99 AD3d 955 [2012]). Eng, P.J., Rivera, Leventhal and Hall, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6822867/
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Gordon, J.,
delivered the opinion of the court.
The defendant, James, was convicted on a warrant charging him with violation of the ordinances of the City of Norfolk, in that he failed to yield the right of way, and fined $10. Section 29-68 of The Code of the City of Norfolk, Virginia, 1950 (the “Norfolk Code”)(1) prescribes who shall have the right of way, when two vehicles approach or enter an intersection at approximately the same time, and Section 29-19 of the Norfolk Code makes violation of Section 29-68 a misdemeanor.
The alleged violation occurred at the intersection of Bolling and Powhatan Avenues, where automobiles driven by the defendant and one Bradshaw collided. In approaching the intersection, the defendant drove south on Powhatan Avenue, and Bradshaw drove east on Bolling Avenue. A “Yield Right of Way” sign near the southwest corner of the intersection faced Bradshaw as he proceeded on Bolling Avenue and into the intersection.
The City contends that Bradshaw had the right of way under Section 29-68 of the Norfolk Code; that the defendant’s unlawful speed, as disclosed by the evidence, operated to transfer the right of way from the defendant to Bradshaw.
Section 29-68 of the Norfolk Code (set forth in footnote (1)) does not provide, however, for the transfer of the right of way from one driver to another. In this case, Bradshaw, the driver on the right, did not have the right of way initially, because his movements (when he entered the intersection) were controlled by the “Yield Right of Way” sign; and Section 29-68 provides expressly that the driver on the right does not have the right of way in that case. The Section does not provide, moreover, for transfer of the right of way from one driver to another driver, by virtue of one driver’s operating at an excessive speed. The only result of unlawful speed, specified in *37the Section, is forfeiture of right of way by one who otherwise would have had the right of way.
We have held that under the Virginia right-of-way statute (now Virginia Code of 1950, Section 46.1-221) there can be only one right of way, and forfeiture of the right of way does not operate to transfer the right of way to another. Moore v. Warren, 203 Va. 117, 122 S.E.2d 879; Panned v. Fauber, 201 Va. 380, 111 S.E.2d 445; Independent Cab Assn. v. Barksdale, 177 Va. 587, 15 S.E.2d 112. The same conclusions are dictated by the language of the Norfolk right-of-way ordinance (Norfolk Code Section 29-68). In this case, however, the defendant had no right of way to be forfeited; the Norfolk right-of-way ordinance may be contrasted with the Virginia right-of-way statute, which expressly provides; “Where any such sign [a ‘Yield Right of Way’ sign] is posted, the driver of the vehicle approaching or entering such intersection on the highway, road or street on which such sign is posted shall yield the right of way to the driver of a vehicle approaching or entering such intersection from either direction” (Virginia Code of 1950, Section 46.1-221).
In oral argument before us, counsel for the City contended that the defense in the lower court was based on the inapplicability of Norfolk Code Section 29-68 by virtue of the last sentence of the Section, which excludes application of the Section in cases involving intersections “where there are traffic controls” (see footnote (1)) — the defendant’s counsel argued that a “Yield Right of Way” sign is a traffic control within the meaning of that Section. We do not agree that the defendant’s counsel confined his objections in the lower court to the provisions of the last sentence of the Section and his contention that a “Yield Right of Way” sign is a traffic control within the meaning of that Section.
The Record discloses that, before the trial commenced, the court overruled the motion that “any evidence of alleged speed on behalf of the defendant be excluded on the grounds that such evidence would be irrelevant and immaterial since the defendant was charged with the failure to yield the right of way”. At the conclusion of the City’s evidence and again at the conclusion of the defendant’s evidence, counsel moved the court to strike the evidence on the ground “That Section 29-68 of the City Code of Norfolk was clearly not applicable to the facts of this case because the intersection in question was controlled by a ‘Yield Right of Way’ sign”, and on the ground that the Section does not apply at intersections where there are traffic *38controls. The defendant’s counsel objected, for the reasons stated in his motion to strike the evidence, to the giving of this instruction:
“The Court instructs the jury that, as between the drivers of two vehicles entering an intersection from different directions, if the driver of the vehicle having the right of way forfeits that right of way because of unlawful speed or other reason, the right of way is then acquired by the driver of the other vehicle.”
Due exception was noted to the court’s ruling and the giving of the instruction.(2 After the verdict, the court overruled the defendant’s motion to set aside the verdict, on the ground it was contrary to the law and evidence, to which ruling the defendant excepted.
Since neither the defendant nor Bradshaw had the right of way, the court erred in sustaining the conviction of the defendant for failure to yield the right of way. Accordingly, the judgment of conviction is reversed and the warrant dismissed.
Reversed and dismissed.
(1) Section 29-68 of The Code of the City of Norfolk, Virginia, 1950:
“Sec. 29-68. Right of way — General rule.
“When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right unless a ‘Yield Right of Way’ sign is posted.
“At traffic circles vehicles already in the circle shall have the right of way over vehicles approaching and entering the circle. The driver of any vehicle traveling at an unlawful speed shall forfeit any right of way which he might otherwise have under this section or section 29-70 of this Code. This section shall not be construed to apply to the drivers of any vehicles at intersections where there are traffic controls or where one of the vehicles is entering a public highway from a private road or driveway. (Code 1950, § 27-69)”
(2) It may be noted that the defendant’s counsel made an additional objection to the inclusion, in the instruction set forth above, of the words “or other reason,” since these words “would allow the jury to find the defendant guilty for any reason”. This objection was well taken.
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01-03-2023
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07-23-2022
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