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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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01-13-2022
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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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Eggleston, C. J.,
delivered the opinion of the court.
Charles E. Jenkins, as committee of the estate of Evelyn Collins Hill, an incompetent, filed a bill in equity in the court below for the sale of valuable real estate owned by the incompetent. In due course a decree of sale was entered in which the court found “that it would be advisable to sell the real properties which are the subject matter of this suit by sealed bids, after advertisement, rather than by public auction.” To effect the sale the decree appointed Jenkins “a Special Commissioner, with the authority to receive offers and submit them to the court for acceptance or rejection.”
Pursuant to the direction of this decree, Jenkins prepared a notice of sale soliciting, at a specified time and place, sealed offers for the tract of land proposed to be sold, commonly known as “Sea Breeze Farm,” in the city of Virginia Beach. The notice stated that the land was divided into two parcels by Little Neck road, one containing 71.229 acres and the other 123.7 acres. The notice, which was published in the local newspapers and circulated among various real-estate brokers, invited sealed bids for each tract separately and for the two as a whole. The bidders were required to designate the broker or brokers representing them in submitting their respective bids.
Among the eight bids submitted and opened at the designated time and place was one from Fine Acres, Incorporated, which offered $229,500 for the 123.7-acre tract, $124,500 for the 71.229-acre tract, and a total of $354,000 for the entire tract of 194.92 acres. This bid stated that “no real-estate broker” was involved. Another was from Willard P. Whitehurst, through his named brokers, who offered $234,007 for the 71.229-acre tract, $94,007 for the 123.7-acre tract, and $328,014 for the entire tract.
In the presence of all of the bidders and without objection from any of them, the commissioner permitted Whitehurst to amend his *68bid to show that the offer of $234,007 was intended for the 123.7-acre tract and $94,007 for the smaller tract of 71.229 acres, leaving the offer of $328,014 for the combined tract of 194.92 acres as originally submitted.
The commissioner filed a report relating his advertisement of the property, the several bids which he had received, and his permitting the amendment to the Whitehurst bid. He recommended that should the court determine that he “did not exceed his authority” in permitting Whitehurst to “correct an error” in his bid, then the Whitehurst bid of $234,007 for the 123.7-acre tract and that of Fine Acres of $124,500 for the 71.229-acre tract should be accepted since they were the highest offers submitted; but should the court determine that he had exceeded his authority in permitting Whitehurst to correct his bid, then the offer of Fine Acres for $354,000 for the entire tract of 194.92 acres should be accepted.
Fine Acres filed exceptions to the report. There was an ore tenus hearing of the evidence relating to the exceptions, after which the lower court filed a written opinion rejecting the objections raised by Fine Acres to the validity of the sale. In accordance with this opinion, a decree was entered overruling the exceptions, confirming the report, and directing that the Whitehurst offer of $234,-007 for the 123.7-acre tract and that of Fine Acres of $124,500 for the 71.229-acre tract be accepted.
From this decree Fine Acres has appealed. In its assignments of error it makes the basic contentions that the lower court erred in (1) confirming the action of the commissioner in permitting Whitehurst to correct his bid for the property, and (2) not accepting its (Fine Acres’) bid of $354,000 for the two combined parcels of land.
The first contention of the appellant, Fine Acres, is without merit. As has been said, when the sealed bids were opened it was found that Whitehurst had submitted an offer of $234,007 for the 71.229-acre tract and one of $94,007 for the 123.7-acre tract. As the commissioner stated in his report, it was “apparent” “that a mistake had been made [in this bid] as the larger offer was for the smaller and less valuable parcel.” He confirmed this in his oral testimony at the hearing. Consequently, he said, in the presence of all of the bidders or their representatives, and without objection from anyone, he permitted the Whitehurst bid to be amended and corrected.
In its written opinion the lower court found “from the facts presented’’ that the manner in which the bid of Whitehurst had *69originally been submitted was “plainly an error,” and that his corrected bid should be considered.
On the present appeal Fine Acres argues that the act of the commissioner in permitting Whitehurst to amend his sealed bid was beyond his power and authority as embodied in the decree of sale under which he was acting. Hence, it says, the bid of Whitehurst for the two separate parcels of land should have been rejected by the lower court.
This contention misconceives the function and authority of the commissioner with respect to the sale of this property. It is well that the court and not the commissioner is the real seller at a judicial sale. The commissioner is merely the ministerial agent of the court and the medium through which the purchaser makes an offer of purchase to the court. A bid by a purchaser to the commissioner is a bid to the court. Until his offer of purchase has been accepted and confirmed the sale is incomplete. French v. Phipps, 171 Va. 133, 139, 198 S. E. 458, 460; French v. Pobst, 203 Va. 704, 709, 127 S. E. 2d 137, 140, 141; 11 Mich. Jur., Judicial Sales, etc., § 38, pp. 335, 336.
In the present case it was the function of the commissioner merely to receive the offers which he had for the property and transmit them to the lower court. This he did. He quite properly reported to the court the “error” which he found in the Whitehurst bid, the circumstances under which it had been amended, and left to the court to determine whether the amended bid should be considered. It was the function of the court and not that of the commissioner to determine what disposition should be made of the Whitehurst amended bid. The court met this responsibility and in the exercise of its discretion decided to accept and consider the amended bid along with the others. There was no error in such disposition of the matter.
In Fine Acres’ next contention, that the lower court erred in not accepting its bid of $354,000 for the two combined parcels of land, it makes two arguments. First, it says, the decree of sale directed the commissioner “to receive offers and submit them to the court” for the “Sea Breeze Farm,” “comprising 194.92 acres, more or less;” that under the terms of this decree the commissioner was empowered to offer the farm for sale as a single tract of land and not in separate parcels; and that since Fine Acres’ offer of $354,000 for the entire tract was the highest bid therefor it should have been accepted.
We do not agree with this argument. In the first place, no such question was raised in the lower court. When the court had under *70consideration the acceptance or rejection of the several bids no contention was made by Fine Acres, or any other bidder, that only bids on the entire property should be considered. Without objection, Fine Acres participated in the bidding, submitted offers for the separate parcels as well as for the whole, and was awarded the right to purchase one of the parcels. Thus, it is in no position to argue on appeal that it should not have been permitted to bid on the property in this manner.
In the next place, as has been said, the commissioner was merely the instrumentality who had the duty of reporting to the court what bids he had received for the property. In the absence of direction in the decree as to whether the property should be offered as a whole or in parcels, it was within the discretion of the commissioner to offer it for sale in that manner which, in his judgment, would bring the highest price. Terry v. Fitzgerald, 73 Va. (32 Gratt.) 843, 851; 11 Mich. Jur., Judicial Sales, etc., § 32, p. 332; 30A Am. Jur., Judicial Sales, § 85, p. 951; Annotation: 61 A. L. R. 2d 548.
It was the function of the court as the final seller of the property, and within its discretion, to determine whether it would consider the bids offered for the property in parcels as well as those offered for it as a whole. 11 Mich. Jur., Judicial Sales, etc., § 32, p. 331. After considering all of the bids it accepted that of Whitehurst for the larger tract and that of Fine Acres for the smaller, thus obtaining the highest price for the property, which is the controlling purpose and prime object of a judicial sale. 11 Mich. Jur., Judicial Sales, etc., § 31, p. 331.
Fine Acres next argues that its bid of $354,000 for the property as a whole should have been accepted because it was the highest net bid, since it was submitted directly and not through a broker, whereas the next highest bid was made through a broker and carried the necessary inference that if accepted such broker would be paid a real-estate commission out of the proceeds of sale.
In- disposing of this contention the lower court, in its written opinion, aptly pointed out that there was no provision in the decree of sale or suggestion in the advertisement that any broker would be paid a commission out of the proceeds of sale. Nor is there any such provision in the decree confirming the commissioner’s report and directing the sale of the larger tract of land to Whitehurst.
There is no error in the proceedings and the decree is
Affirmed.
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Spratléy, J.,
delivered the opinion of the court.
Marjorie Hassell, administratrix of the estate of her deceased husband, Sylvester Hassell, hereinafter referred to as plaintiff, filed a motion for judgment against George R. Poole and the Norfolk and Western Railway Company, hereinafter referred to as defendants, to *98recover damages for the death of her husband, who was killed on October 31, 1960, when an automobile which he was operating was struck by a Norfolk and Western Railway train operated by George R. Poole, at a public highway crossing.
Upon the trial of the action, there was a verdict in favor of the plaintiff in the sum of $25,000.00.
We granted this writ of error.
There were seventeen assignments of error to the rulings of the trial court; but the only issue presented to us upon review is: Was there enough evidence to sustain the verdict of the jury finding that the railway company failed to give the signals required by Code, § 56-414 [1959 Repl. Vol.]?
Code, § 56-414 provides that:
“Every railroad company shall provide each locomotive or Diesel engine passing upon its road with a bell of ordinary size and steam whistle, or horn, and such whistle or horn shall be sharply sounded outside of incorporated cities and towns at least twice at a distance of not less than three hundred yards nor more than six hundred yards from the place where the railroad crosses upon the same level any public highway crossing, and such bell shall be rung or whistle or horn sounded continuously or alternately until the engine has reached such highway crossing, and shall give such signals in cities and towns as the legislative authorities thereof may require. (Code 1919, § 3958; 1950, p. 944; 1956, c. 164.)”
The trial judge instructed the jury that Hassell, plaintiff’s decedent, was guilty of negligence as a matter of law; but that, under Code, § 56-416, his negligence was not a bar to a recovery, if they believed from a preponderance of the evidence that the crossing signals required by § 56-414 were not given, and that such failure on the part of the defendants contributed to the accident.
The accident occurred about three or four minutes before seven a. m., on October 31, 1960, at a grade crossing referred to as the intersection of Old Deep Creek Road and the Norfolk and Western Railway Company track, in Norfolk county, now the city of Chesapeake. At this location, the railway track extends east and west, and Old Deep Creek Road extends north and south. The track and highway intersect at a right angle. Sylvester Hassell, thirty-seven years old, accompanied by Jimmy Soles, nineteen years old, was driving his 1959 Chevrolet automobile south on Old Deep Creek Road and was crossing the railway track when it was struck broadside by defendants’ Diesel engine, which was traveling forty to forty-five miles *99per hour in an easterly direction toward Norfolk. Both Hassell and Soles were killed.
Plaintiff relies upon the testimony of three witnesses to prove that no statutory signals were given by the train. Defendants contend that the testimony of their witnesses proves that the required signals were given. The evidence pertinent to the sole issue is as follows:
The witnesses for plaintiff were three United States Navy enlisted men: Linjamen T. Cummings, Hoyt Black and Flemming Waller, Jr., who were on their way in a Volkswagen micro bus, together with two other service men, to Oceana Naval Air Station, where they were stationed. They traveled that morning over Gust Road to Old Deep Creek Road along the same route which they had followed on every working day for the past year or more. The weather was fair. It had been raining; but it had cleared up and visibility was good. The automobile Avas owned and operated by Cummings, a Chief Steward’s Mate. Gust Road proceeds in a southeasterly direction until it merges with Virginia Drive to form Old Deep Creek Road. From Gust Road the view to the right towards the railway right of way is open and clear, and an unrestricted view of the railroad track may be had for a distance of 730 feet west of the crossing over Old Deep Creek Road.
Hoyt Black, seated on the right-hand side of the back seat of the automobile, testified that he had been riding over the railway crossing on Old Deep Creek Road about the same time every weekday morning for “pretty near a year or more;” that he was familiar with the crossing and the time of the arrival of the morning freight train; that he had his window down and “was watching out for the train at that particular time because” of what had occurred “three days before that —that he saw the train approach the crossing, distant “around about a couple hundred yards or more;” that he saw the collision; and after the collision heard the train blow its whistle for the first time. He was “positive” that no horn, whistle or bell was sounded until after the crash. He was not permitted, upon objection of defendants, to relate what had occurred three days before to cause him to watch out for the train.
Linjamen T. Cummings said that he had his windoAv down; that he saw the train strike the automobile; that prior to the collision the train did not “blow;” that he recalled hearing only “noise from the train but not any whistle sound, anything of that noise;” and that the train did “blow after it struck the car, definitely.” He was “positive” *100that he “heard” no “whistle sound” or “any bell sound” prior to the collision.
Flemming Waller, Jr., who sat in the right front seat of the car, said that the windows on his side were down; that he was familiar with the crossing and the time “that particular train came down the track;” that he saw it nearly every morning; and that on “this particular morning” he did not see the collision because he wasn’t “paying that much attention to the accident,” but was listening to hear the train blow. When asked, “Did the train blow?” he replied, “No, it didn’t.” When asked, “Did it give any signal of any kind?” he said: “No, it didn’t.” When questioned if he was positive of that, he answered: “Positive.” In addition, he said: “I heard the whistle blow continuously after the accident occurred.”
The evidence of plaintiff shows that the occupants of the Volkswagen had a motive for looking for the train and listening for signals as it approached the crossing over which they intended to pass, a motive of safety for themselves. They had full opportunity to see the train and hear the signals, if any were given. Two of them were looking at the train as it approached the crossing and struck the automobile. Two said positively that the train gave no signals before it struck the car. One said that he “heard” no signal of horn, whistle or bell, but only the noise of the moving train. He had full opportunity to hear the signals if they had been sounded.
The defendants presented twelve witnesses. Four were members of the train crew, and eight resided in the vicinity of the railway crossing. One member of the train crew, who was in the caboose, could not say whether or not the signals were given before the accident. George R. Poole, engineer, and B. E. Lovern, the fireman, who were riding in the cab of the forward Diesel engine, testified positively that the statutory signals were given. James A. Tuck, the brakeman, riding in the caboose, said he heard the whistle blow about seven hundred and thirty feet from the crossing at a point where the Portsmouth Gas Company plant is located.
The other eight witnesses, who lived in the neighborhood of the crossing involved, testified that they either heard the whistle sounded or the bell rung on the approach of the train; but some of them were not quite sure of the time, or the place where the train was, when they heard the sounds. None of defendants’ witnesses saw the accident except the engineer and fireman. None of the others gave any special reason for looking or listening for the train at that particular time.
The evidence is in serious and substantial conflict. The two *101versions of the circumstances surrounding the collision are diametrically opposed to each other. It is impossible to reconcile them. The train either gave the required statutory signals or it did not. The evidence of plaintiff’s witnesses is not incredible. The resolution of the conflict was for the jury. It is manifest that the jury accepted the statements of plaintiff’s witnesses as true, and rejected those of defendants’ witnesses. Neither the trial court nor this Court may usurp the jury’s role as a trier of facts and the weigher of testimony. Adams v. Allen, 202 Va. 941, 946, 121 S. E. 2d 364.
The present case is somewhat similar in point of facts to State and City Bank and Trust Company, Administrator, etc. v. Norfolk and Western Railway Company, 144 Va. 185, 131 S. E. 331; The Virginian Railway Company v. Haley, 156 Va. 350, 157 S. E. 776; and The Virginian Railway Company v. Craighead, 193 Va. 300, 68 S. E. 2d 647.
Defendants rely principally upon Railway Company v. Barden, 200 Va. 98, 104 S. E. 2d 13, and a line of cases involving facts similar to those in that case. Each may be distinguished from the factual situation presented in this case.
In the Barden case, supra, all of the testimony of the witnesses for the plaintiff was negative. They testified simply that they did not hear the signals given; but they did not say that the signals were not given. That case differs from the present, in that here witnesses for the plaintiff did not testify merely that they did not hear the signals given; but, on the other hand, declare that the signals were not given.
The plaintiff is before us as a successful litigant, armed with a jury verdict that has been approved by the trial judge. All conflicts in the evidence have been resolved in her favor, and there is credible evidence to support the verdict. The judgment complained of is, therefore, affirmed.
Affirmed.
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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/5901665/
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—In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Dutchess County (Benson, J.), entered September 19, 1986, which granted the defendant’s motion for summary judgment dismissing the complaint, and (2) as limited by their brief, from so much of an order of the same court, entered November 21, 1986, as upon reargument, adhered to the original determination.
Ordered that the appeal from the order entered September 19, 1986, is dismissed, as that order was superseded by the order entered November 21, 1986, made upon reargument; and it is further,
Ordered that the order entered November 21, 1986, is reversed insofar as appealed from, the order entered September 19, 1986, is vacated, and the defendant’s motion is denied; and it is further,
Ordered that the plaintiffs are awarded one bill of costs.
On December 22, 1983, the plaintiff Karen Secor (hereinafter Secor) and the defendant were involved in a two-vehicle accident. Secor alleges that she was injured as a result of the accident and thereafter could not return to her employment or resume her normal household chores. The plaintiffs commenced the instant action claiming that Secor had suffered a "serious injury” within the meaning of Insurance Law § 5102 (d). Thereafter, the Supreme Court granted the defendant’s motion for summary judgment, finding that the evidence adduced by the plaintiffs in their opposition papers was insufficient to establish that Secor had sustained a serious injury within the meaning of Insurance Law § 5102 (d). We disagree.
In support of her argument that she has made a prima facie showing of serious injury, Secor contends that she met the requirement of Insurance Law § 5102 (d) by proving that she suffered a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident (see, Insurance Law § 5102 [d]).
In the statutory definition of "serious injury”, "the words 'substantially all’ should be construed to mean that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment” (Licari v Elliott, 57 NY2d 230, 236). Applying that rule, based upon the evidence, Secor has at least raised a factual question sufficient *619to proceed to trial as to her inability to perform substantially all of the acts constituting her usual and customary daily activities during the period in question (see, Greco v Five Five Garage Corp., 123 AD2d 422; Sole v Kurnik, 119 AD2d 974).
However, we note that Secor has failed to sustain her alternative claim of "serious injury” under Insurance Law § 5102 (d) in that she failed to establish, as a matter of law, that she had suffered a "significant limitation” of a bodily function or system (see, Grotzer v Levy, 133 AD2d 67, 68, Iv denied 70 NY2d 611; Hezekiah v Williams, 81 AD2d 261). 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/5901666/
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—Appeal by the defendants from an order of the Supreme Court, Orange County (Green, J.), dated June 24, 1987, which granted the plaintiffs’ motion for a preliminary injunction prohibiting the defendants from prosecuting any proceedings to terminate the plaintiffs’ rights under the lease between the parties except in the present action.
Ordered that the order is reversed, with costs, and the plaintiffs’ motion for a preliminary injunction is denied.
The plaintiffs served upon the defendants a summons and order to show cause and accompanying papers which sought a preliminary injunction preventing the defendants from commencing eviction proceedings against the plaintiffs. However, the plaintiffs failed to comply with CPLR 305 (b) in that neither the summons nor the papers attached thereto gave notice of the nature of the underlying action. Therefore, the plaintiffs failed to obtain personal jurisdiction over the defendants (see, Parker v Mack, 61 NY2d 114).
This court has previously held that the filing of a notice of appearance and demand for a complaint as was filed here is a waiver of this jurisdictional defect (see, Aversano v Town of Brookhaven, 77 AD2d 641; see also, Bal v Court Employment Project, 73 AD2d 69). However, the Court of Appeals subsequent decision in Parker v Mack (supra) which stressed the mandatory nature of CPLR 305 (b), casts doubt on whether such a waiver occurs. We conclude that since personal jurisdiction over the defendants had not been obtained, the defendants were free to raise the issue by way of motion (see, CPLR 3211 [a] [8]) or, as they did here in their papers in response to the plaintiffs’ order to show cause (see, Le Conte v City of New York, 129 Misc 2d 719). Having thus raised the issue, the defendants did not waive their objection thereto.
*620Accordingly, the motion should have been denied as personal jurisdiction was not obtained over the defendants. 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/5901667/
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Hybrid proceeding pursuant to CPLR article 78 to review a determination of James J. Wrynn, Superintendent of Insurance of the State of New York, dated September 15, 2011, which adopted the recommendations of a hearing officer dated February 4, 2011, made after a hearing pursuant to Insurance Law § 2319, and affirmed the determination of the New York State Compensation Insurance Rating Board denying the petitioner’s application for reclassification of its business from New York Workers’ Compensation Classification Code 8018 to Classification Code 8017, and, in effect, action for a judgment declaring that certain portions of the New York Manual for Workers Compensation & Employers Liability Insurance are unconstitutional.
Adjudged that the determination dated September 15, 2011, is confirmed, the petition is denied, and the proceeding is dismissed, with costs, and the matter is remitted to the Supreme Court, Westchester County, for severance of and further proceedings on the cause of action for a judgment declaring that certain portions of the New York Manual for Workers Compensation & Employers Liability Insurance are unconstitutional, and the entry of an appropriate judgment thereafter.
The petitioner/plaintiff, Colortone Camera, Inc. (hereinafter Colortone), is a corporation with its principal place of business located in Elmsford, New York. In 2007, the New York State *963Compensation Insurance Rating Board (hereinafter the Rating Board) reclassified some of Colortone’s employees, for the purpose of fixing workers’ compensation insurance rates, from Classification Code 8017 (“Retail Store NOC [Not Otherwise Classified]”) to Classification Code 8018 (“Wholesale Store NOC [Not Otherwise Classified]”). The effect of the reclassification was a significant increase in the rates that Colortone was required to pay for workers’ compensation insurance for those employees.
Colortone asked the Rating Board to reconsider its determination, but the Rating Board rejected the request. Colortone then appealed to the Superintendent of the New York State Department of Insurance (hereinafter the Superintendent), who directed a hearing (see Insurance Law § 2319 [b]). The evidence at the hearing established, inter alia, that approximately 75% of Colortone’s business involved the sale of projectors, interactive white boards, speakers, microphones, and screens, and that for the fiscal years ending in March 2007 and March 2008, as much as 80% of Colortone’s combined sales were to schools, corporations, governments, utilities, and churches. The evidence also established that Colortone’s employees were classified under Code 8018 primarily because the majority of Colortone’s sales were to large institutional purchasers rather than to individuals for personal use. The evidence at the hearing also established that an objective of the classification system is to group employers into classifications that accurately reflect the risk of injury to them in their employment. The hearing officer filed a report and recommendation, dated February 4, 2011, in which he found that the reclassification of Colortone’s employees was proper. The Superintendent adopted the report and recommendation, and consequently affirmed the Rating Board’s determination.
Colortone then commenced this hybrid proceeding and action in the Supreme Court, seeking review of the Superintendent’s determination and a judgment declaring that certain portions of the Rating Board’s Manual for Workers Compensation & Employers Liability Insurance (hereinafter the Manual), which defined certain business classifications, are “unconstitutional for vagueness.” The Supreme Court transferred the entire matter to this Court.
Inasmuch as the Superintendent’s evidentiary hearing was held “pursuant to direction by law,” we must determine whether the Superintendent’s determination was supported by “substantial evidence” (CPLR 7803 [4]). Substantial evidence “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 *964Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]; see Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494, 499 [2011]). “In the final analysis, it is not the function of the reviewing court to weigh the evidence or substitute its own judgment for that of an administrative body to whose expertise a subject matter has been entrusted, but rather to determine whether there is a reasonable fulcrum of support in the record to sustain the body’s findings” (Matter of DeCillis v Grannis, 69 AD3d 851, 852 [2010] [internal quotation marks omitted]). Here, the reclassification of Colortone’s employees from Code 8017 to Code 8018 was supported by substantial evidence that Colortone’s business was primarily wholesale, rather than retail (cf. Matter of Buffalo Civic Auto Ramps, Inc. v Serio, 21 AD3d 722, 724 [2005]).
That aspect of this hybrid proceeding and action, by which Colortone seeks a judgment declaring that certain portions of the Manual are unconstitutionally vague, is not properly before us on transfer from the Supreme Court (see CPLR 7804 [g]; Matter of Herman v Incorporated Vil. of Tivoli, 45 AD3d 767, 769 [2007]). Therefore, the matter must be remitted to the Supreme Court, Westchester County, for severance of and further proceedings on that cause of action, and the entry of an appropriate judgment thereafter (see Matter of Huntington Hills Assoc., LLC v Town of Huntington, 49 AD3d 647 [2008]; Matter of Herman v Incorporated Vil. of Tivoli, 45 AD3d at 769; cf. Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 207 [1987]; Matter of Applegate v Heath, 88 AD3d 699, 700 [2011]). 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/5901668/
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Hybrid proceeding pursuant to CPLR article 78 to review a determination of James J. Wrynn, Superintendent of Insurance of the State of New York, dated September 15, 2011, which adopted the recommendations of a hearing officer dated February 4, 2011, made after a hearing pursuant to Insurance Law § 2319, and affirmed the determination of the New York State Compensation Insurance Rating Board denying the petitioner’s application for reclassification of its business from New York Workers’ Compensation Classification Code 8018 to Classification Code 8017, and, in effect, action for a judgment declaring that certain portions of the New York Manual for Workers Compensation & Employers Liability Insurance are unconstitutional.
Adjudged that the determination dated September 15, 2011, is confirmed, the petition is denied, and the proceeding is dismissed, with costs, and the matter is remitted to the Supreme Court, Westchester County, for severance of and further proceedings on the cause of action for a judgment declaring that certain portions of the New York Manual for Workers Compensation & Employers Liability Insurance are unconstitutional, and the entry of an appropriate judgment thereafter.
The petitioner/plaintiff, Colortone Camera, Inc. (hereinafter Colortone), is a corporation with its principal place of business located in Elmsford, New York. In 2007, the New York State *963Compensation Insurance Rating Board (hereinafter the Rating Board) reclassified some of Colortone’s employees, for the purpose of fixing workers’ compensation insurance rates, from Classification Code 8017 (“Retail Store NOC [Not Otherwise Classified]”) to Classification Code 8018 (“Wholesale Store NOC [Not Otherwise Classified]”). The effect of the reclassification was a significant increase in the rates that Colortone was required to pay for workers’ compensation insurance for those employees.
Colortone asked the Rating Board to reconsider its determination, but the Rating Board rejected the request. Colortone then appealed to the Superintendent of the New York State Department of Insurance (hereinafter the Superintendent), who directed a hearing (see Insurance Law § 2319 [b]). The evidence at the hearing established, inter alia, that approximately 75% of Colortone’s business involved the sale of projectors, interactive white boards, speakers, microphones, and screens, and that for the fiscal years ending in March 2007 and March 2008, as much as 80% of Colortone’s combined sales were to schools, corporations, governments, utilities, and churches. The evidence also established that Colortone’s employees were classified under Code 8018 primarily because the majority of Colortone’s sales were to large institutional purchasers rather than to individuals for personal use. The evidence at the hearing also established that an objective of the classification system is to group employers into classifications that accurately reflect the risk of injury to them in their employment. The hearing officer filed a report and recommendation, dated February 4, 2011, in which he found that the reclassification of Colortone’s employees was proper. The Superintendent adopted the report and recommendation, and consequently affirmed the Rating Board’s determination.
Colortone then commenced this hybrid proceeding and action in the Supreme Court, seeking review of the Superintendent’s determination and a judgment declaring that certain portions of the Rating Board’s Manual for Workers Compensation & Employers Liability Insurance (hereinafter the Manual), which defined certain business classifications, are “unconstitutional for vagueness.” The Supreme Court transferred the entire matter to this Court.
Inasmuch as the Superintendent’s evidentiary hearing was held “pursuant to direction by law,” we must determine whether the Superintendent’s determination was supported by “substantial evidence” (CPLR 7803 [4]). Substantial evidence “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 *964Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]; see Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494, 499 [2011]). “In the final analysis, it is not the function of the reviewing court to weigh the evidence or substitute its own judgment for that of an administrative body to whose expertise a subject matter has been entrusted, but rather to determine whether there is a reasonable fulcrum of support in the record to sustain the body’s findings” (Matter of DeCillis v Grannis, 69 AD3d 851, 852 [2010] [internal quotation marks omitted]). Here, the reclassification of Colortone’s employees from Code 8017 to Code 8018 was supported by substantial evidence that Colortone’s business was primarily wholesale, rather than retail (cf. Matter of Buffalo Civic Auto Ramps, Inc. v Serio, 21 AD3d 722, 724 [2005]).
That aspect of this hybrid proceeding and action, by which Colortone seeks a judgment declaring that certain portions of the Manual are unconstitutionally vague, is not properly before us on transfer from the Supreme Court (see CPLR 7804 [g]; Matter of Herman v Incorporated Vil. of Tivoli, 45 AD3d 767, 769 [2007]). Therefore, the matter must be remitted to the Supreme Court, Westchester County, for severance of and further proceedings on that cause of action, and the entry of an appropriate judgment thereafter (see Matter of Huntington Hills Assoc., LLC v Town of Huntington, 49 AD3d 647 [2008]; Matter of Herman v Incorporated Vil. of Tivoli, 45 AD3d at 769; cf. Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 207 [1987]; Matter of Applegate v Heath, 88 AD3d 699, 700 [2011]). 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/5901669/
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—In an action to recover damages for libel and abuse of process, the defendants appeal from (1) so much of an order of the Supreme Court, Westchester County (Delaney, J.), entered March 31, 1986, as denied that branch of their motion which was for summary judgment dismissing the plaintiffs second cause of action, and (2) so much of an order of the same court, entered July 14, 1986, as upon reargument, adhered to its original determination denying that branch of the defendants’ motion which was for summary judgment on the second cause of action alleged in the complaint.
Ordered that the appeal from the order entered March 31, 1986, is dismissed, as that order was superseded by the order entered July 14, 1986, made upon reargument; and it is further,
Ordered that the order entered July 14, 1986, is reversed insofar as appealed from, on the law, that branch of the defendants’ motion which was for summary judgment dismissing the second cause of action is granted, and the complaint dismissed in its entirety; and it is further,
Ordered that the order entered March 31, 1986, is modified accordingly; and it is further,
Ordered that the defendants are awarded one bill of costs.
The plaintiff Matthew A. Siegel commenced the instant action asserting two causes of action. In the first he alleged that a statement made in a letter written by the defendant Philip Smith of the defendant law firm of Smith, Panish & Shapiro, P. C. to the Judge presiding over a matrimonial action, in which he and the defendant Smith represented adverse interests, was injurious to his professional reputation and, therefore, was libelous per se. In the second cause of action, the plaintiff contended that he had suffered, inter alia, emotional distress as the result of the abuse of process by the defendant law firm and the individual defendants. The process alleged to have been abused was the service of a summons and complaint upon the plaintiff in a libel action instituted by the defendant Sam Panish of the defendant law firm. The plaintiff further alleged that Panish sought to use the pending libel action as a means for coercing an unconscionable settlement in the underlying matrimonial action. The Supreme Court, *621Westchester County, dismissed the first cause of action but denied that branch of the defendants’ motion which was for summary judgment dismissing the second cause of action. It found that triable issues of fact existed with regard to "the alleged intent to do harm without cause or justification by the defendants and whether or not such process was issued in a perverted manner so as to obtain a collateral objective by defendants”. Upon reargument, the court adhered to its original determination. This appeal ensued. We reverse and dismiss the complaint in its entirety.
In order to sustain a cause of action to recover damages for abuse of process, the process complained of must involve an injury to or an interference with one’s person or property (Curiano v Suozzi, 63 NY2d 113, 116; Williams v Williams, 23 NY2d 592, 596; Lewis v Pay Tel., 124 AD2d 559, 560). In this regard, "the institution of a civil action by summons and complaint is not legally considered process capable of being abused” (Curiano v Suozzi, supra, at 116; Lewis v Pay Tel., supra; Rebore v Pace, 115 AD2d 468). The only process issued in the libel action against the plaintiff herein was a summons and complaint. Thus, we conclude the plaintiff has failed to meet his burden of proving an unlawful interference with his person or property sufficient to support a claim of abuse of legal process.
Nor do we find evidentiary facts sufficient to make out a cause of action to recover damages for prima facie tort or intentional infliction of emotional distress such that the grant of summary judgment in favor of the defendants would be precluded (see, Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 280-281). With respect to the claim to recover damages for prima facie tort, the plaintiff failed to set forth allegations of special damages or to demonstrate that malice was the defendants’ only motive in commencing the prior lawsuit (see, Curiano v Suozzi, supra, at 117-118; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333; Vevaina v Paccione, 125 AD2d 392). The plaintiff further failed to show that the defendants’ conduct was " 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized [society]’ ” (Fischer v Maloney, 43 NY2d 553, 557, quoting from Restatement [Second] of Torts § 46, comment d). Thus, no cognizable claim to recover damages for intentional infliction of emotional distress is stated. 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/4144717/
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OFFiCE OF THE ATTORNEY GENERAL OF TEXAS
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01-03-2023
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02-18-2017
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https://www.courtlistener.com/api/rest/v3/opinions/5901671/
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—In an action to recover damages for wrongful death, the plaintiffs appeal (1) from an order of the Supreme Court, Nassau County (Ain, J.), dated July 21, 1986, which denied their motion to set aside the jury verdict in favor of the defendant on the issue of liability as against the weight of the evidence, and (2) from a judgment of the same court, dated September 15, 1986, which is in favor of the defendant in accordance with the jury verdict.
Ordered that the appeal from the order dated July 21, 1986 is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the defendant is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
The plaintiffs’ decedent, who was a member of a marching band which was performing for the Hicksville Fire District on June 11, 1983, suffered fatal injuries when he fell from an open fire pumper which had been transporting band members back to the parade area. The plaintiffs commenced an action seeking to recover damages for wrongful death and conscious pain and suffering. At the trial, the action was dismissed against the defendant driver of the vehicle upon motion made at the conclusion of the plaintiff’s case. The case against the Fire District went to the jury and it returned a verdict in *624favor of that defendant. Based upon the record before us, we cannot conclude that the jury could not have reached the verdict on any fair interpretation of the evidence presented at trial (see, Nicastro v Park, 113 AD2d 129).
The question of whether the fire pumper on which the plaintiffs’ decedent had been riding prior to his fall was fit for the purpose of safely transporting lay passengers presented an issue of fact for the jury to resolve. In view of the testimony of a fellow band member to the effect that she had, on a number of prior occasions, been transported in open fire pumpers on which passengers had ridden while standing on the steps and holding on to the rail and that of the chief of the Hicksville Fire Department to the effect that the subject vehicle was constructed in such fashion as to allow passengers to ride on the rear and back steps, it cannot be said that the jury’s determination was without rational basis.
While we are mindful that the court will more readily set aside the verdict where interest of justice factors have intervened (see, Nicastro v Park, supra, at 133), we determine that the plaintiffs’ arguments regarding certain alleged trial errors do not require that a new trial be held.
Based upon the evidence, it was proper for the court to instruct the jury on the principle of assumption of risk (see, Maddox v City of New York, 66 NY2d 270; Arbegast v Board of Educ., 65 NY2d 161). The record reveals that two vehicles had been provided for the band’s transportation: an open and a closed one. The band members were not given any instructions by the Hicksville Fire District regarding where they should position themselves. There was no indication on the record that the closed vehicle was filled up before the open one, thus allowing the inference that it was the decedent’s choice to ride on the open vehicle. Moreover, the decedent was encumbered with his trombone which he declined to put down during the ride. He chose, rather, to hold on to the truck with his right hand while holding the trombone with his left. With respect to the language used by the court, the issue is not preserved for appellate review since only a general objection was raised concerning whether the evidence would support giving the charge at all. In any event, we conclude that the language used was entirely proper (see, PJI 2:55) and that the court did not suggest to the jury that a finding that the decedent assumed the risk could absolve the defendant of all liability.
Finally, we have reviewed the plaintiffs’ remaining contentions that the testimony of certain of their witnesses was *625improperly restricted and find that the rulings made by the trial court constituted a proper exercise of its discretion. Mangano, J. P., Lawrence, Weinstein and Rubin, 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/5901672/
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-In an action to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Morrison, J.), dated April 16, 1986, which granted the defendant’s motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
This action involves an attempt by the plaintiffs to recover proceeds of insurance under a policy issued by the defendant. Contrary to the plaintiffs’ contention, we find that the defendant satisfied its burden of establishing that the notice of cancellation of the plaintiffs’ homeowner’s insurance policy had been properly mailed to the plaintiffs on April 1, 1985. The cancellation of the policy based on nonpayment of premiums became effective on April 17, 1985, the day preceding the fire which allegedly caused substantial property damage to the plaintiffs’ home.
To support its claim that the notice of cancellation had been mailed to the plaintiffs, the defendant submitted an affidavit which set forth the standard operating procedure utilized by the defendant to insure that notices of cancellation were properly mailed to its insureds. This procedure involved, inter alia, the verification by a post-office employee that the names and addresses of policyholders which were on a computer-generated list provided by the defendant actually appeared in the window of envelopes containing the notices of cancellation. The defendant additionally submitted a certificate of mailing which evidenced that the notice of cancellation addressed to the plaintiffs was actually received by the post office.
We conclude that the foregoing proof was sufficient to demonstrate that the notice of cancellation had been mailed to the plaintiffs (see, Insurance Law § 3425 [h]; Ramos v DeMond, 127 AD2d 751; Diaz v Great Am. Ins. Co., 109 AD2d 775; Sanders v Chautauqua County Patrons’ Fire Relief Assn., 67 AD2d 1091). Accordingly, since the policy of insurance was effectively canceled prior to the date of the fire in issue, the defendant had no further obligations under its policy and was, therefore, properly awarded summary judgment dismissing the complaint. Mangano, J. P., Bracken, 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/5901880/
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McCarthy, J. (dissenting).
Defendant is entitled to a reversal of his judgment of conviction because his 6th Amendment rights to confront and cross-examine adverse witnesses were violated by County Court’s failure to turn over to defendant certain crit*1011ical mental health records pertaining to the victim. Defendant was entitled to the undisclosed records pursuant to controlling Court of Appeals precedent. The undisclosed records all raise issues that would affect the victim’s credibility or her ability to recall events, and some of the undisclosed records would be extremely damaging to the People’s case. We, therefore, respectfully dissent.
County Court followed the proper procedure by conducting an in camera review of the victim’s mental health records to balance defendant’s 6th Amendment rights to confront and cross-examine adverse witnesses with the public interest in keeping certain matters confidential (see People v Gissendanner, 48 NY2d 543, 549-551 [1979]; People v Boyea, 222 AD2d 937, 938-939 [1995], lv denied 88 NY2d 934 [1996]). Confidential records should only be turned over to the defense if they contain information that is “relevant and material to the determination of guilt or innocence” (People v Gissendanner, 48 NY2d at 548), such as “evidence that the victim has a history of hallucinations, sexual fantasies or false reports of sexual attacks” (People v Fish, 235 AD2d 578, 580 [1997], lv denied 89 NY2d 1092 [1997]; see People v Brown, 24 AD3d 884, 887 [2005], lv denied 6 NY3d 832 [2006]).
As the majority notes, the 28 pages of mental health records provided to the defense by County Court—out of the thousands of pages reviewed in camera—contain statements about the victim’s history of psychiatric hospitalizations, hallucinations and preoccupation with talking about sex. Contrary to the majority’s conclusion, however, these 28 pages do not “cover all of the victim’s relevant and material mental health issues.” We acknowledge that some of the undisclosed records would have been, in some respects, redundant, as they include, among other things, some of the same material as the records that were provided.1 But, contrary to the majority’s assertion, criminal defendants are entitled to more than just a “sample” of documents addressing a key witness’s mental health problems that could affect his or her testimony. In a case such as this, which the majority correctly characterizes as presenting “a classic he-*1012said she-said credibility determination,” defendant must be allowed to consider and explore all legitimate avenues of information relevant to his defense and to the victim’s testimony and potential cross-examination. The question here is not whether County Court should have permitted the defense to enter certain documents into evidence or ask the victim about certain topics at trial (compare People v Mandel, 48 NY2d 952, 953-954 [1979], appeal dismissed and cert denied 446 US 949 [1980]), but whether the court should have provided defendant certain records that would have allowed the defense to investigate information contained therein to determine if admissible evidence could be gathered or proper questions could be formulated. More records should have been provided to defendant, addressing all of the victim’s relevant mental health issues, so that defense counsel could fully investigate, prepare and advocate for defendant.2
Certain records that were not provided to defendant relate to the victim’s ability to recall events. “Where a primary prosecution witness is shown to suffer from a psychiatric condition, the defense is entitled to show that the witness’s capacity to perceive and recall events was impaired by that condition” (People v Baranek, 287 AD2d 74, 78 [2001] [citations omitted]; see People v Rensing, 14 NY2d 210, 213-214 [1964]). While some disclosed records mentioned that the victim suffered from epilepsy or grand mal seizures in the past, those records did not associate her seizure activity with possible memory loss as the undisclosed records did. A July 2006 record3 discussed her history of seizures, which condition was treated successfully with medication, but raised a question of possible seizure activity due to episodes where she ended up in places and could not remember going there, such as walking along a busy highway. An August 2006 record also referred to times when the victim wound up on a highway and spent the night in a shelter but could not remember how she got there. Similarly, a June 2006 record noted “recent dissociative4 episodes [without] visible seizure activity” for which the author sought a neurological *1013consultation. An October 2006 record noted “significant short term memory loss.” According to a May 2007 record, the victim talked about times when she was out of control and related how it was sometimes scary to learn afterward what she had done or said because, at times, she has had no recollection of the events. A progress note from June 2008 includes information given by the victim’s mother that the victim acted strangely, related a feeling of bugs crawling on her face and said that she had taken morphine. An August 2008 psychiatric assessment found that the victim’s memory is selective, namely that she admits not being able to remember good experiences with a person if she had bad experiences with that person. This last record could be especially important, considering defendant’s testimony that they had consensual sex and struggled afterward when the victim attempted to take his money. Defense counsel could have explored whether the victim was unable to remember any good experiences with defendant due to this subsequent bad experience of the struggle over money, making defendant’s testimony more plausible (see People v Hunter, 11 NY3d 1, 6-7 [2008]). All of these records raise questions as to the victim’s ability to accurately recall the details of the alleged rape, making the records relevant and material to the determination of defendant’s guilt or innocence (see People v Baranek, 287 AD2d at 79). These records were not merely redundant, because the records provided by County Court did not address these topics. Thus, defendant was entitled to all of these undisclosed records.
Records also mention that the victim has suffered flashbacks from previous sexual abuse. This was noted in July 2006. While the majority correctly notes that a disclosed record from June 2006 mentions that the victim reported flashbacks, it is unclear if that record is relating the flashbacks to prior sexual abuse or physical abuse. Disclosure of additional records could have helped to clarify that ambiguity. A March 2008 record mentioned that the victim was “experiencing increased flashbacks of prior abuse.” Another record from that same month discussed the flashbacks and noted that they were triggered by, among other things, role playing in consensual sex with her boyfriend. This is another topic that defense counsel could have investigated in preparing for trial.
Additionally, a July 2006 record included the summary that the victim had “a very poor perception of reality with distortions in her interpersonal relationships.” That record also noted the victim’s wishful thinking regarding relationships with males that she had just met, that she offered sexual favors to make friends, and that she became extremely upset when these *1014relationships did not last. Similarly, a January 2008 record noted that the victim was adamant that she had a realistic plan for her new boyfriend—whom she met online but had never met in person, was more than 10 years older than her and lived out of state—to move to New York within a month and live with her. The therapist who wrote the note found that the victim was fixated on this fantasy, which the victim considered her reality, of a relationship with this man she recently met online. A June 2008 record indicated that the victim was invested in the fantasy of an ideal relationship. Proof of these fantasies and misconceptions of her relationships with males was also relevant and material to the defense.
Also relevant were records of prior allegations of sexual abuse that were possibly false. Evidence of a prior rape complaint is admissible if there is sufficient proof that the complaint was false, and it suggests “a pattern casting substantial doubt on the validity of the charges made by the victim” or “indicate[s] a significant probative relation to such charges” (People v Mandel, 48 NY2d at 953; see People v Blackman, 90 AD3d 1304, 1310 [2011], lv denied 19 NY3d 971 [2012]; People v Pereau, 45 AD3d 978, 980 [2007], lv denied 9 NY3d 1037 [2008]). In footnote 4 of its opinion, the majority mentions one October 2006 undisclosed mental health record containing information about a possible false allegation of sexual abuse, but dismisses the victim’s allegations that her father “tried to rape her” and “pinned her up against the wall in a sexual position” by saying that “[t]he only suggestions that the allegation was false” came from a mental health worker who listed the allegation as “unfounded” and the victim’s mother’s “opinion that the father never sexually abused the victim.” Although the mental health records do not contain more details of the alleged attack, the records do not indicate that the mother’s statements are mere “opinion”; one states that the mother “did continue to deny that [the victim’s] father ever sexually abused her.” This supports disclosure to defendant so he could investigate the details of the purportedly false allegations prior to trial. Considering that the mother lived with both her husband—who is the victim’s father and the alleged perpetrator—and the victim, the mother’s statement that the abuse did not happen was an outright denial by a fact witness rather than a mere “opinion.” When a female claims that a male “tried to rape her,” the alleged conduct is inherently sexual in nature. Either the victim’s mother and a mental health worker concluded that the victim fabricated the allegations or they blindly ignored clear allegations of sexual abuse. The physical abuse by the father was apparently reported to authorities and resulted in an indicated report of abuse; the *1015records do not clearly state whether the alleged attempted rape was similarly reported or investigated. The record mentioned by the majority states on its face that the victim’s sex abuse allegations against her father were “unfounded,” but it is unclear whether this term was used in its legal sense, as in the context of child abuse allegations (see Social Services Law § 422 [5]; 18 NYCRR 433.2 [1]).
The majority states repeatedly that this evidence would not be admissible, but that is not the standard. Regardless of admissibility at trial, pursuant to controlling Court of Appeals case law, defendant was entitled to records that are relevant to a potentially false allegation of sexual abuse so that he could have investigated that claim prior to trial, consistent with his 6th Amendment right to cross-examine his accuser. Defendant was not even aware that this report existed, but he could have tried to establish the falsity of this prior claim if the record were disclosed, and he would only be permitted to discuss it in front of the jury if he “established a good faith ‘basis for the allegation that the prior complaint was false’ ” (People v Bridgeland, 19 AD3d 1122, 1123 [2005], quoting People v Gozdalski, 239 AD2d 896, 897 [1997], lv denied 90 NY2d 858 [1997]). The first mention of alleged sexual abuse of the victim by her father appears in a July 2004 record, after she revealed details of an attempted rape by him. Throughout numerous intake reports and mental health histories taken during the ensuing years, answers to a question about past physical and sexual abuse include statements about physical abuse by the father and sexual abuse by others,5 but they do not mention sexual abuse by the father. Other records mention possible sexual abuse in the home, without explanation.
The majority refers to the lack of proof that the victim ever recanted these allegations. Two years after this undisclosed 2006 report, the victim continued to insist that her father sexually abused her. A March 2008 record discussed the victim’s regressive behavior as related to her “recent disclosures” of sexual abuse by her father.6 That same record noted that the victim’s mother “was able to be more genuine and spoke openly about past traumas that [the victim] experienced,” but—despite the victim’s insistence and lack of recantation—the note also *1016stated that the mother continued to deny that the victim was ever sexually abused by her father. The mother had been separated from the father since 2004 and the record discloses that she harbored ill feelings towards him, making it unlikely that the mother was denying the abuse out of loyalty to him. A July 2008 record also notes that the victim has alluded to past sexual abuse that was not substantiated by the mother.
These records alone may have provided defendant with a good faith basis that the victim’s prior rape allegation against her father was false. Even if they were not sufficient to prove falsity by themselves, defense counsel could have used these records as the basis for an investigation and a subpoena of child protective services records regarding unfounded reports (see generally Social Services Law § 422 [4] [A] [e]). Although there are differences between a complaint of attempted rape of a young teen by her father and a complaint by an older teen of date rape, the circumstances of the prior allegation here suggest a pattern, casting doubt on the validity of the charge at issue at defendant’s trial (see People v Bridgeland, 19 AD3d at 1123-1124; compare People v Hunter, 11 NY3d at 7), and “indicate a significant probative relation to such charge! ]” (People v Mandel, 48 NY2d at 953). While the majority finds the rape by defendant as too unlike the alleged attempted rape by the victim’s father, at the very least defendant had a right to be advised of the prior allegation and provided an opportunity to address the similarity or presence of a pattern. When considered in conjunction with the many undisclosed records regarding the victim’s impaired memory, hallucinations, ability to recall events, sexual fantasies and flashbacks, the failure to disclose these records was error. The undisclosed records all raise issues that would affect the victim’s credibility or ability to recall events, and the allegations of prior sexual assault—if proven to be false—would be extremely damaging to the People’s case.7 Regardless of their admissibility at trial, defendant was entitled to be aware of and afforded the opportunity to investigate these matters prior to trial.8 By not disclosing these records, County Court deprived defendant of the ability to fully prepare his defense, in violation of his 6th Amendment rights to confront and cross-examine the key adverse witness. He is, therefore, entitled to a new trial.
*1017Mercure, J.P., concurs. Ordered that the judgment is affirmed.
. County Court provided records noting that the victim experienced visual and auditory hallucinations at different times between 2003 and 2007. Other records indicated earlier hallucinations, gave more details on some of the more recent ones and noted that the victim denied that what she sensed was a hallucination. Although those records probably should have been turned over as well, we will not go so far as to say that it was an abuse of discretion for the court to have limited the number of documents it provided that contain similar information. On remittal, however, we would provide those documents to defendant as well.
. Some of the records that were disclosed did not contain the name of the author, the source of information, the date they were created or where the original record was located. Such information should have been provided, if available (and it generally was), so that defense counsel could place the information in context. For example, hallucinations in 2003 may not be as relevant or important as hallucinations that occurred closer in time to the incident.
. None of the records referred to in this dissent by a specific month and year were disclosed to defendant; all of them should have been.
. This term refers to a detachment from one’s surroundings, consciousness, memory or identity.
. The answers were also inconsistent regarding her prior sexual abuse history that apparently is not contested, sometimes mentioning an incident when she was seven years old, sometimes mentioning an incident when she was 12, and sometimes including both incidents.
. This record does not refer to the 2004 or 2006 records of the victim’s prior disclosure.
. Prior to trial, the People offered defendant a plea to a misdemeanor and time served, presumably based on the People’s recognition of the serious problems with the victim’s credibility.
. Compared to the 28 pages that County Court provided to the defense, there are an additional 34 pages that, pursuant to prevailing case law, should also have been provided. By our calculations, this means that when preparing his defense prior to trial, defendant had less than 50% of the documents to which he was entitled.
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Levine, J.
Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Education Law § 6510-a [4]) to review a determination of respondent which revoked petitioner’s license to practice medicine in New York.
Petitioner, a licensed physician in New York since 1980, was charged with numerous specifications of professional misconduct including, inter alia, practicing medicine fraudulently and with gross negligence, and being morally unfit for the *812practice of medicine. The majority of the charges pertained to petitioner’s treatment of 20 patients during a one-month period when he was affiliated with the Manhattan Stress and Pain Control Center. Despite the fact that these patients presented very different symptoms and medical histories, petitioner issued identical prescriptions of methaqualone to each of them. Petitioner was also charged with failing to disclose a 90-day suspension of his Canadian medical license on three separate applications for hospital privileges in the New York metropolitan area, based upon his negative responses to questions asking specifically whether his medical license had ever been suspended or revoked. Other charges of professional misconduct were based on petitioner’s conviction of the crime of criminal solicitation in the second degree, a class D felony; petitioner had pleaded guilty to soliciting another person to kill his wife. Petitioner was also charged with practicing medicine under unauthorized names and addresses.
A disciplinary proceeding was commenced against petitioner by service of a notice of hearing on December 11, 1984. A hearing was held before a five-member panel of the State Board for Professional Medical Conduct. In its report the Hearing Panel sustained all but three of the charges against petitioner. One charge was dismissed by the Panel, sua sponte, and petitioner was found not guilty of two specifications that he prescribed drugs to a known addict. The Hearing Panel recommended revocation of petitioner’s license to practice medicine in the State. The findings, determination and recommendation of the Hearing Panel were adopted by both the Regents Review Committee and the Board of Regents (the Board). Petitioner commenced this proceeding pursuant to CPLR article 78 and Education Law § 6510-a (4) to annul respondent’s determination effectuating the Board’s decision.
Petitioner contends that there is no evidence in the record to support the Board’s determination that petitioner prescribed methaqualone to 20 patients fraudulently and with gross negligence. We disagree. The evidence adduced at the hearing demonstrated that, while employed by the Manhattan Stress and Pain Control Center, petitioner regularly prescribed uniform amounts of methaqualone to patients whose symptoms and medical histories varied from one another. From this evidence, the Board could properly find that petitioner was not prescribing methaqualone in good faith or for sound medical reasons. Such an abuse of the privilege to prescribe controlled substances constitutes the fraudulent practice of medicine (see, Matter of Katz v Ambach, 72 AD2d *813894). The Board could also find that prescribing methaqualone so liberally constituted gross negligence based upon the expert testimony of Dr. Robert J. Chalemian that it was common knowledge in the medical community at the time that methaqualone was a widely abused and addictive drug which should not have been prescribed for insomnia without trying other means of treatment first.
We next reject petitioner’s contention that no evidence supports the Board’s conclusion that petitioner intentionally failed to disclose the earlier suspension of his Canadian medical license on three applications for hospital privileges. There is no question that petitioner was aware of the suspension and the Board was free to reject petitioner’s excuse that he thought it unnecessary to mention the temporary suspension. Petitioner’s other contention, that the failure to disclose the suspension did not constitute fraud because it was not "material”, is also without merit.
Finally, petitioner challenges the severity of the sanction imposed by the Board. However, considering all of the charges of professional misconduct which have been sustained against petitioner, we cannot say that the penalty of license revocation is so disproportionate to these offenses " 'as to be shocking to one’s sense of fairness’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 233, quoting Matter of Stolz v Board of Regents, 4 AD2d 361, 364).
Determination confirmed, and petition dismissed, with costs. Kane, J. P., Casey, Yesawich, Jr., and Levine, JJ., concur.
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In two related child custody proceedings pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Kings County (Hepner, J.), dated September 26, 2011, as, after a hearing, granted the father’s petition for sole custody of the parties’ child and denied her cross petition for sole custody of the child.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The Family Court’s paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). The proceedings here concerned an initial determination of custody. Therefore, contrary to the mother’s contention, the father was not required to show a change of circumstances in order to be awarded custody of the subject child (see Matter of Roberta GG. v Leon HH., 99 AD3d 1057, 1058 [2012]; Matter of Thomas v Trice, 83 AD3d 722, 723 [2011]; Matter of Smith v Smith, 61 AD3d 1275, 1276 [2009]). The parties’ informal prior arrangement was but one factor for the Family Court to consider in determining that child’s best interests (see Eschbach v Eschbach, 56 NY2d at 171; Matter of Roberta GG. v Leon HH., 99 AD3d at 1058; Matter of Smith v Smith, 61 AD3d at 1276).
Since custody determinations depend in large part on the trial court’s assessment of the character and credibility of the parties and witnesses (see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985]; Eschbach v Eschbach, 56 NY2d at 173-174), that court’s findings are generally accorded deference and will not be disturbed unless they lack a sound and substantial basis in the record (see Matter of Davis v Pignataro, 97 AD3d 677, 677-678 [2012]; Matter of Nava v Kinsler, 85 AD3d 1186, 1186-1187 [2011]). Here, the Family Court’s determination that the child’s best interests would be served by an award of custody to the father has a sound and substantial basis in the record (see Matter of Thomas v Trice, 83 AD3d at 723). Dillon, J.P., Balkin, Chambers and Miller, JJ., concur.
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—In a proceeding pursuant to CPLR 5240 to vacate a levy of execution of a postdivorce money judgment obtained by the plaintiff wife upon an account in the joint names of the defendant husband and his mother, the defendant husband and his mother as an "interested person” appeal from an order of the Supreme Court, Nassau County (Roncallo, J.), entered April 23, 1987, which denied their motion to vacate and set aside the execution.
Ordered that the order is reversed, on the law and the facts and in the exercise of discretion, with costs, and the motion is granted; and it is further,
Ordered that the plaintiff shall pay to the Sheriff of Nassau County his levy fee as provided in CPLR 8011 (b) (2), and poundage as provided in CPLR 8012 (b) (1).
The opening of a joint bank account creates a rebuttable presumption that each named tenant is possessed of the whole of the account so as to make the account vulnerable to the levy of a money judgment by the judgment creditor of one of the joint tenants (Denton v Grumbach, 2 AD2d 420, 422; see also, Banking Law § 675).
Here the defendant husband and his mother were joint tenants in an account against which plaintiff wife sought to levy a money judgment for postdivorce child support arrears. The defendant husband and his mother as an "interested person”, as contemplated in CPLR 5240 (see, Triangle Pac. Bldg. Prods. Corp. v National Bank, 62 AD2d 1017) sought to vacate the levy claiming that the account was intended by the mother to be a convenience account for her benefit and that the defendant husband had no interest in the account. The plaintiff wife does not dispute this contention relying only on the fact that because of the form of the account, the defendant husband had a present interest in the account and could at any time withdraw the entire sum. That being so, the plaintiff *631wife claims that the joint account was subject to her levy pursuant to CPLR 5201 (b).
By sworn affidavit the defendant husband and his mother have shown that the funds in this joint account are traceable to various death benefits she received upon her husband’s death in 1981. The particular account was opened in 1984 with a part of those death benefits and the defendant husband’s name was added as a convenience in the event of the mother’s illness or disability. The mother maintained sole possession of the bankbook, took possession of all interest earned and paid all taxes due on the interest. Both the defendant husband and his mother stated that the defendant husband made no deposits to or withdrawals from the account.
The burden of proof to rebut the presumption that a joint account was intended rather than a convenience account in that form is upon the defendant husband and his mother (Sherman v Georgopoulos, 84 AD2d 811). The facts presented showed an intention to create a convenience account and not to give the defendant husband any interest in the account. Thus, the presumption that a joint account was intended was rebutted (Wacikowski v Wacikowski, 93 AD2d 885). Absent any controversion of those facts, the plaintiff wife, as a matter of law (see, Matter of Phelps v Kramer, 102 AD2d 908), can no longer rely on the presumptive rights of her ex-husband in the account as a joint tenant.
Even where a joint account is vulnerable to the levy of a money judgment as against one joint tenant, such a levy is effective only as to the actual interest of that judgment debtor in the account (Olshan v East N. Y. Sav. Bank, 28 F Supp 727 [US Dist Ct., ED NY 1939]; Annotation, Attachment-Joint Bank Account, 11 ALR3d 1465, 1473).
We find that in light of the above disposition, the plaintiff is responsible for all fees and poundage due to the Sheriff of Nassau County (see, CPLR 8012 [b]; Matter of Associated Food Stores v Farmer’s Bazaar, 126 Mise 2d 541). Mangano, J. P., Brown, Lawrence and Sullivan, JJ., concur.
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—In an action, inter alia, to recover damages for unfair competition, trade libel and prima facie tort, (1) the defendants appeal from so much of an order of the Supreme Court, Westchester County (Martin, J.), entered June 26, 1986, as, upon reargument, adhered to that portion of an original determination made in an order dated May 7, 1986, as denied that branch of their motion which was to dismiss the third cause of action asserted in the complaint for failure to state a cause of action, and (2) the plaintiff cross-appeals from so much of the same order, as, upon reargument, modified the original determination denying the defendants’ motion to dismiss the complaint in its entirety by granting that motion to the extent of dismissing the plaintiff’s first, second and fourth causes of action.
Ordered that the order is modified, on the law, by deleting the provision thereof which adhered to the original determination to the extent that dismissal of the plaintiff’s third cause of action was denied, and substituting therefor a provision dismissing the complaint in its entirety; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant.
In December 1985 the plaintiff made a formal proposal to the Putnam County Legislature to build and install a municipal solid waste disposal facility. On December 11, 1985, an article was published in a local newspaper detailing the plaintiff’s proposal.
As a result of that newspaper article, the defendants sent a letter to the chairman of the Putnam County Legislature which was critical of the plaintiff’s proposal. Thereafter, the plaintiff commenced the instant action seeking both damages and injunctive relief, alleging causes of action sounding in: (1) unfair competition, (2) deceptive business practices, (3) trade libel, and (4) prima facie tort. The defendants then moved, pursuant to CPLR 3211 (a) (7), to dismiss the complaint for failure to state a cause of action. The Supreme Court initially denied the motion in its entirety, but upon reargument dismissed all of the plaintiff’s causes of action except the third cause of action, alleging trade libel.
When a motion is made under CPLR 3211 (a) (7) to dismiss a complaint for failure to state a cause of action, every fact alleged must be assumed to be true and the complaint must be liberally construed in the plaintiff’s favor (see, Barr v Wack*634man, 36 NY2d 371, 375; Jacobs v Haber, 133 AD2d 739). The tort of trade libel or injurious falsehood consists of the knowing publication of false matter derogatory to the plaintiff’s business of a kind calculated to prevent others from dealing with the business or otherwise interfering with its relations with others, to its detriment (see, Prosser and Keeton, Torts § 128, at 967). The communication must play a material and substantial part in inducing others not to deal with the plaintiff, with the result that special damages, in the form of lost dealings, are incurred (see, SRW Assocs. v Bellport Beach Prop. Owners, 129 AD2d 328, 331). In pleading special damages, actual losses must be identified and causally related to the alleged tortious act (see, L.W.C. Agency v St. Paul Fire & Mar. Ins. Co., 125 AD2d 371, 373; Matherson v Marchello, 100 AD2d 233, 235). In the instant action, viewing the complaint in a light most favorable to the plaintiff, we hold that the plaintiff has failed to sufficiently allege that any losses incurred were causally related to the defendants’ letter. Therefore, the plaintiff’s trade libel cause of action must be dismissed.
Similarly, the absence of sufficient allegation of special damages mandates the dismissal of the plaintiff’s unfair competition and prima facie tort causes of action.
Finally, the plaintiff has failed to demonstrate why it is entitled to maintain a cause of action under General Business Law § 349 and accordingly the plaintiff’s claim thereunder was properly dismissed. Mangano, J. P., Bracken, Fiber and Harwood, JJ., concur.
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Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent, Marion McNulty, a Justice of the Supreme Court, Suffolk County, to sign an order to show cause.
Adjudged that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.
The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Angiolillo, J.P., Dickerson, Miller and Hinds-Radix, JJ., concur.
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Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent, Marion McNulty, a Justice of the Supreme Court, Suffolk County, to sign an order to show cause.
Adjudged that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.
The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Angiolillo, J.P., Dickerson, Miller and Hinds-Radix, JJ., concur.
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—In a proceeding pursuant to CPLR article 78 to compel the Kings Park Central School District to appoint the petitioner to a full-time position as an elementary teacher in its employ and for related relief, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), dated May 20, 1986, which, upon the respondent’s motion, dismissed the proceeding.
Ordered that the judgment is reversed, on the law, with costs, the motion is denied, and the petition is granted to the extent that the Board of Education of the respondent is directed to provide the petitioner with status as a regular full-time elementary school teacher with all related benefits and back pay of holding such a full-time position as an elementary school teacher for the. period from September 1, 1985 until December 16, 1985, less the amount of any outside earnings she received during that period; and it is further,
Ordered that the caption is amended to substitute "Board of Education of the Kings Park Central School District” in place of "Kings Park Central School District”.
The petitioner, who had been a tenured elementary teacher since 1973, lost her job in June 1984 when her position was eliminated due to cuts in staff. In accordance with Education *637Law § 2510 (3), the petitioner’s name was placed on a "preferred eligible list”, entitling her to reinstatement in the event that a "vacancy” occurred "in an office or position similar to the one which [she previously] filled”. As a "preferred eligible”, the petitioner had a right to be appointed to fill the next available "vacancy”, provided that there were no other teachers on the "preferred eligible list” with similar teaching experience who had greater "length of service in the system” prior to having been discharged (see, Education Law § 2510 [3]).
The petitioner worked as a per annum substitute teacher during the 1984-1985 school year. Per annum substitute teachers are teachers serving for tenured teachers who are on leaves of absence. Per annum substitutes receive no seniority credit from the respondent for their substitute service. In the summer of 1985, the petitioner refused an offer of a per annum substitute position for the 1985-1986 school year. In November 1985 the respondent’s administrative assistant to the superintendent for personnel discovered that there were three elementary teacher position vacancies which had been available since September. In November, two of those positions were filled by teachers who had greater length of service than the petitioner and who were employed as per annum substitute teachers for the 1985-1986 school year. Those two appointees were granted regular teacher status retroactive to September* 1, 1985, with the attendant full salary, benefits and seniority. The petitioner was the next eligible teacher on the "preferred eligible list”. Based on the petitioner’s refusal of the per annum substitute position for that school year, it was "concluded that [the petitioner] had no desire to accept a teaching position with the District for the 1985-86 school year, whether as a regularly employed teacher or per annum substitute teacher”. She was not offered the third available vacant teacher position.
The petitioner served a notice of claim on November 27, 1985 because "she [was] not properly recalled based on her seniority and tenure area in the Kings Park [Central] School District”. She was offered a position effective December 16, 1985. On or about February 28, 1986, the petitioner commenced the instant proceeding by serving a notice of petition and verified petition upon the Kings Park Central School District. The Supreme Court dismissed the proceeding for the petitioner’s failure to name the Board of Education of the Kings Park Central School District as "a necessary and indis*638pensable party” and also found that the four-month Statute of Limitations (CPLR 217) had begun to run either from the date that the petitioner was offered a per annum substitute position in May 1985 or from July 2, 1985, the date of the notice of the Board of Education of the Kings Park Central School District naming its appointments for per annum substitute teachers for the subsequent school year. These determinations were erroneous.
The respondent admits that it discovered in November 1985 that three vacancies were available. The earliest action taken by the petitioner that could legally be deemed a demand that the district perform its statutory duty to reappoint her to a full-time position was her notice of claim filed November 27, 1985. As such, the petitioner’s cause of action accrued "after the respondent’s refusal, upon the demand of the petitioner * * * to perform its duty” (CPLR 217). Therefore, this proceeding to compel appointment to a regular full-time tenured position was timely commenced (CPLR 217; Matter of Kaye v Board of Educ., 97 AD2d 794; Matter of Piaggone v Board of Educ., 92 AD2d 106).
It is clear that three vacancies existed in September and that, upon discovery of their existence, two teachers were reappointed retroactive to September 1, 1985. The petitioner had a statutory right to the third available vacancy as of September 1, 1985, and she must be reinstated to her position in the district, with back pay from September 1, 1985, until the date she was reinstated, December 16, 1985, less the amount of any outside earnings she received during that period (see, Matter of Lezette v Board of Educ., 35 NY2d 272, 283; Matter of McPhillips, 13 Ed Dept Rep 95; Matter of Gumpert, 10 Ed Dept Rep 77, 78-79). The respondent’s claim that the petitioner did not accept a per annum substitute position and she is not entitled to back pay is without merit. Such a position is not a "vacancy” contemplated by Education Law § 2510 (see, Matter of Brewer v Board of Educ., 51 NY2d 855) which the petitioner was obligated to accept.
The petitioner commenced this proceeding by naming the Kings Park Central School District rather than its Board of Education as the party respondent. Under the circumstances herein, we find that service was effected upon the Board of Education under a misnomer. As the Board was fairly apprised that it was the intended party, jurisdiction was obtained over it (see, Gajdos v Haughton Elevator, 131 AD2d *639428). Mollen, P. J. Lawrence, Kunzeman 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/6822870/
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Gordon, J.,
delivered the opinion of the court.
The primary issue presented, in this action for wrongful death, is whether the testimony of a thirteen-year-old boy was sufficient to support the verdict and the judgment for the plaintiff. The plaintiff’s case depended on his testimony. The defendant says that it was inconsistent and incredible, and therefore insufficient.
The defendant asks that the plaintiff’s judgment for $16,000 be reversed and final judgment for the defendant be entered here. In the alternative, he seeks a reversal and remand because of the erroneous instruction to be discussed.
The plaintiff’s decedent, Calvin Ray McDonald, who was four years old, died after he was struck by an automobile driven by Donald Gray Burnette, the defendant and appellant. The accident happened on State Highway 40, about one mile east of Gretna. The defendant was proceeding east on the highway, and Calvin and his older brother Dale (the thirteen-year-old witness mentioned in the opening paragraph, who was eleven years old at the time of the accident) were crossing the highway, from the north to the south side, when Calvin was struck by the defendant’s automobile in its proper lane of travel. The width of the highway is approximately twenty feet.
Before the accident, Dale and other boys were playing hide-and-seek. Calvin, who had joined in the game, and his brother Dale were hiding behind bushes on the property of Dalton, who lived on the north side of the highway. The base for the game was behind a pickup truck, on the south side of the highway and in the trailer court where the McDonald family lived. Calvin and Dale were “called home” — the boy who was “it” could not find them — and *188they were headed across the highway toward the base when the accident happened, resulting in Calvin’s death.
The highway was dry at the time of the accident, and visibility was good. The point of impact was visible, to a driver of an automobile headed east (the direction in which the defendant was driving), beginning at a point in the highway near a white house, identified as Clay’s house. This point was more than 500 feet from the point of impact.1 When the driver was approximately 285 feet from the point of impact, the Dalton yard was visible, unless his vision was obstructed by vehicles on the highway. There was a 4.2 foot-high paling fence on the west boundary of the Dalton property (between his property and the Amos property to the west), which began at a point twelve and one-half feet from the northern edge of the highway and extended back in a northerly direction.
The speed limit at this section of the highway was fifty-five miles per hour, and the defendant was driving at approximately fifty miles per hour. Skid marks were visible after the accident; they began in the eastbound lane of travel and veered to the right, extending eighty-four feet to the rear wheels of the automobile, where it stopped after the accident (on or near the south shoulder of the highway). The defendant estimated that his automobile had traveled fifty feet of these eighty-four feet when Calvin was struck by the front of the automobile, on the left side.
According to the defendant, he passed a big van-trailer-truck headed west (the opposite direction) at a slow rate of speed, when he was at a point almost opposite the paling fence at the west boundary of the Dalton property; that “As soon as the truck went by, immediately I was close to the end of the truck. Then the boys ran out right behind the truck, right in front of me”. The boys were at the edge of the hard surface, between fifteen and thirty feet ahead of his automobile, as estimated by the defendant, when he first saw them.
The boys, according to the defendant’s witnesses, were about three feet apart and were not holding hands. Both were running, with the large boy (Dale) in front. Dale stopped near the center of the highway, and Calvin continued across the highway, “slanting toward the radio station [to the east] ”.
*189The accident happened under quite different circumstances, according to the evidence in chief of Dale McDonald. This testimony will be outlined in the next paragraph.
Dale testified that the truck passed in front of Calvin and him when he was about twenty-one feet from the north edge of the highway. When the boys had reached a ditch, about eight feet from the north edge of the highway, Dale looked to his left (east) and saw nothing and, then, to his right (west) and saw the defendant’s automobile in front of Clay’s house — more than 500 feet from the point of impact. The two boys then proceeded across the highway, holding hands. They stopped in the westbound lane, near the center line of the highway, when the defendant’s automobile was “About in front of Mrs. Amos’ mail box”, approximately 165 feet away. They stopped to permit the defendant’s automobile to pass in front of them. Suddenly, “Calvin [who was standing behind Dale] jerked loose of my hand and tried to make it across the road before the car did”.
In view of the verdict for the plaintiff, we must accept Dale’s testimony, as outlined in the preceding paragraph, unless inconsistent evidence given by him, or the incredibility of his evidence, renders it insufficient to support the verdict. Before considering his inconsistent statements, or the credibility of his evidence, we will refer to the legal principles that support the verdict and judgment for the plaintiff, based on the evidence outlined above, resolving all conflicts in the plaintiff’s favor.
“If an operator of a motor vehicle sees or should have seen a child in or near the street it is his duty to take into consideration the fact that the child might act thoughtlessly and upon childish impulse, heedless of danger, put himself in a position of peril. Hence an operator must exercise that degree of care that a person of ordinary prudence would exercise under similar facts and circumstances to avoid injury to the child.” Read v. Daniel, 197 Va. 853, 857, 91 S.E.2d 400, 404. The same rule is stated, and the Virginia cases reviewed, in Boyd v. Brown, 192 Va. 702, 66 S.E.2d 559.
Furthermore, Calvin McDonald, being four years old, was legally incapable of contributory negligence. A.C.L.R. Co. v. Clements, 184 Va. 656, 36 S.E.2d 553; see Alexander v. Moore, 205 Va. 870, 140 S.E.2d 645; Grant v. Mays, 204 Va. 41, 129 S.E.2d 10.
Under the evidence in this case, viewed most favorably to the plaintiff, the defendant should have seen Calvin and Dale McDonald, when the boys were standing in the highway and the defendant’s *190automobile was far from them; and the defendant should have taken into consideration the possibility that Calvin might act thoughtlessly and under childish impulse, as he did when he ran across the eastbound lane of traffic in front of the defendant’s automobile. Therefore, the defendant was required to exercise the degree of care that a person of ordinary prudence would have exercised under similar facts and circumstancs to avoid injury to Calvin McDonald. The trial court properly submitted to the jury the question whether the defendant exercised that degree of care. See, in addition to Read v. Daniel, supra, Saulsbury v. Williams, 205 Va. 727, 139 S.E.2d 816; Vought v. Jones, 205 Va. 719, 139 S.E.2d 810; Gabbard v. Knight, 202 Va. 40, 116 S.E.2d 73; and Portsmouth Transit Company v. Brickhouse, 200 Va. 844, 108 S.E.2d 385. A different factual situation was presented by the plaintiff’s evidence in Boyd v. Brown, supra, 192 Va. 702, 66 S.E.2d 559, where final judgment for the defendant was entered in this court.
The most recent Virginia case involving injury to an infant, Virginia Transit Company v. Schain, 205 Va. 373, 137 S.E.2d 22, has no bearing upon the decision in this case. There, the infant ran into the side of a bus, and, as stated in the opinion, “there was no direct testimony placing the plaintiff and the northbound bus in such relative positions, one to the other, that the bus driver came under a duty to see and avoid the plaintiff”. (See 205 Va. 373, 377, 137 S.E.2d 22, 25.) The plaintiff attempted to support the verdict in his favor by an inference to be drawn from the evidence — an inference that the driver of the bus was not keeping a proper lookout. We found that such an inference was in derogation of the evidence in that case, and entered final judgment for the defendant. The plaintiff in the case now before us does not rely, however, upon an inference to be drawn from the evidence. Here, there was direct testimony to the effect that Calvin and Dale McDonald were in plain view of the defendant before the defendant arrived at the scene of the accident.
Turning to the inconsistencies in Dale McDonald’s testimony, we find that certain of the inconsistent statements related to matters that had no connection with the accident or the cause of the accident, and were relevant only as bearing on the credibility of the witness. For example, Dale stated that Calvin and he walked across the highway to the Dalton yard and walked back across the highway, contradicting his earlier statement that they ran to the Dalton yard. Other inconsistent statements involved recollections or estimates of *191points and distances, which could not reasonably be expected to be precise — e.g. the point at which Dale was standing when the truck passed in front of him (heading west), and the distance between him and the defendant’s automobile (heading east) when he first saw it.
The most damaging inconsistent testimony given by Dale, when pressed on cross-examination, was to the effect that he entered the highway behind the truck and did not see the defendant’s automobile until he was in the highway. But on direct examination, Dale said, in clear and positive terms, that the truck had passed and he had seen the defendant’s automobile at a point more than 500 feet away, before he began to cross the highway; that he stopped near the center line of the highway, when the defendant’s automobile was approximately 165 feet away. And Dale said on cross-examination (before he made the inconsistent statements) and on redirect examination that the truck had passed in front of him and he had seen the defendant’s automobile when he was in the Dalton yard.
The inconsistent statements do not destroy the probative value of the other evidence given by Dale, and his evidence (together with the physical facts) amply supports the verdict in favor of the plaintiff. It was for the jury to determine which of the statements made by Dale should be believed. Liberty Mut. Ins. Co. v. Tiller, 189 Va. 544, 53 S.E.2d 814; Atl. Greyhound Corp. v. Shelton, 184 Va. 684, 36 S.E.2d 625; Tignor v. Virginia E. & P. Co., 166 Va. 284, 184 S.E. 234; Parsons v. Parker, 160 Va. 810, 170 S.E. 1. The jury may have reasonably concluded that Dale was confused by the questions put to him on cross-examination. In any event, the jury had the right to reject the contradictory statements, and to accept Dale’s other testimony as true.
We find no basis for concluding that Dale McDonald’s evidence was incredible as a matter of law. The crucial factual issue was whether the defendant’s automobile passed the truck, headed in the opposite direction, near the place where Calvin was struck; whether the boys ran out from behind the oncoming truck, when the defendant’s automobile was near and he could not reasonably avoid the accident. Dale’s evidence as a whole was clearly to the effect that the truck and automobile did not pass near the point of impact, and that the boys did not run out from behind the truck. Results of mathematical calculations, used by the defendant to prove that the two boys and the two vehicles could not have been at the precise places indicated by Dale in his testimony, do not render *192his testimony incredible. See Newman v. Dalton, 206 Va. 119, 141 S.E.2d 677; Sink v. Masterson, 191 Va. 618, 61 S.E.2d 863.
The defendant assigns error to the giving of Instruction No. 2, which reads as follows:
“INSTRUCTION NO. 2
“The Court instructs the jury, that if the jury believe from the evidence that before the accident the defendant, Donald Gray Burnette, saw, or in the exercise of reasonable care should have seen, Calvin Ray McDonald in or near the highway ahead of him at or near the place where the accident occurred, that alone was notice to him of the risk and danger of the situation, and he had no right to assume that a child of tender age would remain in a place of safety, but on the contrary was required, in the exercise of reasonable care, to anticipate that the child, acting upon some childish impulse, heedless of danger and incapable of exercising precaution expected of adults, might, through his thoughtlessness, expose himself in some way to danger of injury, and it became the duty of the defendant, Burnette, to increase his vigilance as he approached the child and to exercise that degree of care that a person of reasonable prudence would have exercised under similar facts and circumstances to avoid danger of injuring the child; and if the jury believe from the evidence that the defendant, Burnette, violated the foregoing duty and that such violation was a proximate cause of the accident, and death of the said Calvin Ray McDonald, then you shall return your verdict in favor of the plaintiff, Harley L. McDonald, Administrator of the estate of Calvin Ray McDonald, deceased.” [Emphasis supplied]
The defendant conceded in his brief that this instruction “is correct-in a proper case”; it was taken almost verbatim from Doubles, Emroch and Merhige, Virginia Jury Instructions, Virginia Practice I, § 15.06. But he contends it is incorrect under the facts and circumstances of this case. The principal complaint is directed to the inclusion of the words “near the highway” and "near the place where the accident occurred”. These words, the defendant says, permitted the jury to find for the plaintiff if the defendant saw, or should have seen, the McDonald boys in the Dalton yard as he approached the scene of the accident, even if he did not see them, or should not have seen them, when they entered the highway.
If the jury would otherwise have been confused by the giving of *193Instruction No. 2 — that is, could have interpreted the words complained of by the defendant as referring to seeing the children when they were in the Dalton yard, before they began their movements south across the highway — the jury should not have been so confused in view of Instruction No. 4, which is set forth in the footnote2 and was given at the defendant’s request. The words “in close proximity to” (which the defendant contends are the proper words) are used in Instruction No. 4, instead of “near”, which is used in Instruction No. 2.3 When Instructions Nos. 2 and 4 are read together, there should be no confusion.
Furthermore, we do not find Instruction No. 2 improper in this case. Instructions must be read in the light of the evidence presented in the case and if, when so read, they are not misleading, no prejudicial error is committed. See Burks v. Webb, Administratrix, 199 Va. 296, 99 S.E.2d 629; Bourne v. Richardson, 133 Va. 441, 113 S.E. 893; Va. Ry. & P. Co. v. Smith & Hicks, Inc., 129 Va. 269, 105 S.E. 532. There was nothing in the evidence of this case to indicate that the court, by the language of Instruction No. 2, intended to refer to the defendant’s opportunity to see the McDonald boys when they were hiding in the bushes in the Dalton yard.
Since we find no error in the judgment appealed from, it is
Affirmed.
The approximate distance between a point in the highway in front of Clay’s house and the point of impact was 600 feet. According to the trooper’s testimony, the point of impact was first visible, to a driver headed east, about fifty feet east of the front of Clay’s house.
“INSTRUCTION NO. 4
“The Court instructs the jury, that the defendant was not an insurer of the safety of Calvin Ray McDonald and was not required to exercise that high degree of care owed for the safety of children unless he saw, or in the exercise of ordinary care should have seen, that Calvin Ray McDonald was in close proximity to Highway 40 as the defendant proceeded east along said highway.
“The Court further instructs the jury, that if they believe from the evidence that the defendant did not see, and by the exercise of ordinary care could not have seen, Calvin Ray McDonald in close proximity to said highway and that Calvin Ray McDonald suddenly entered the highway from behind an obstruction into the path of defendant’s oncoming vehicle and so closely thereto that the defendant had no reasonable opportunity to avoid striking Calvin Ray McDonald after seeing him, and that the defendant was otherwise exercising ordinary care, then the jury shall return their verdict in favor of the defendant.” [Emphasis supplied]
Actually, as indicated by the definition of the adverb “near” in Webster’s Third New International Dictionary, “near” and “in close proximity to” are almost alike in meaning or significance. See p. 1510.
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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/6822871/
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I’Anson, J.,
delivered the opinion of the court.
This is an appeal by the Virginia Employment Commission from a judgment of the court below reversing the Commission’s holding that the claimant, Evelyn R. Meredith, was not “available for work” from August 14 through September 3, 1963, on the ground that the findings of the Commission as to the facts were not supported by the evidence.
The Commission contends its finding of fact that the petitioner was not “available for work” during the period in question, under the requirements of Code § 60-46(c)1, as amended, was conclusive and binding on the court below by virtue of the provisions of Code § 60-55.
The evidence, which is without conflict, shows that during March 1963 claimant voluntarily left her employment with G-E-X Hampton Corporation, of Hampton, Virginia, to accept employment with the Noland Company. After working for Noland Company from March 25 through April 5, 1963, she was involved in an accident, which was not connected with her employment, and one of her legs was so badly burned that she was unable to return to work until June 18, 1963.
On June 19, 1963, claimant contacted by telephone the head of the department in which she had worked at Noland Company and advised her that she was now able to return to work, but she was told that the company could not hold her position open and that it had been filled. Two days later she visited the company’s employment office to advise its representatives that she was able to return to work, but there was nothing available at that time.
Claimant did not reapply for a position as saleslady at G-E-X because her physical condition would not permit her to perform the duties required for employment there. However she made application for employment at the Newport News Shipbuilding and Drydock Corporation, the local telephone office, four different banking institutions, a dental office, and other places of business during the period of her unemployment, but was told either that she was not qualified by training and experience to perform the duties required, or that there were no jobs available at that time. She also *208kept in constant contact with the local State employment office.
On August 2, 16 and 28, 1963, she again contacted Noland Company but was told that there was still no job available. She also checked on the status of her application at the shipyard on August 9, 16 and 26, 1963.
In the meantime, realizing that her difficulty in obtaining employment might be due to her lack of training, she inquired at the Hampton Roads Business College relative to the possibility of being admitted as a student for the term beginning in September. At the time she was not “enthused” about the idea of going to business school, and her financial condition was such that she could not attend without assistance even if she was accepted. However, acting on the advice of the admissions director of the college when she was interviewed on August 19, 1963, she filed an application for admission.
As a result of her visit to the Noland Company on August 28, 1963, she was notified on September 6, 1963, that a position was available for her. She then advised the company’s representative that she had filed an application tor admission to the business college and requested that she be allowed time to consider whether to take the job or to await the result of her application to the college. After her acceptance she decided to attend the school and entered on September 16, 1963.
Claimant’s application for unemployment compensation was not filed until July 31, 1963, although she could have claimed benefits earlier under Code § 60-46, as amended, and it was approved by a “deputy” of the Commission on August 21, 1963, for compensation to begin on July 31, 1963. On an appeal by G-E-X from the deputy’s ruling, an “examiner” held that although claimant was not .disqualified from receiving compensation, under Code § 60-47(a), as amended, because she had left G-E-X to accept employment with the Noland Company, she was not “available for work” under the requirements of Code § 60-46(c), as amended, and her entire claim for compensation was disallowed.
On an appeal to the Commission from the examiner’s decision, it allowed her claim for compensation from July 31 through August 13, 1963, but denied the claim for the period from August 14 through September 3, 1963, on the grounds that since she was “considering enrolling in school,” and had confined her contacts during that period to two employers she had applied to earlier, she was not “available for work” during that time. It was from the *209disallowance of compensation from August 14 through September 3, 1963, that petitioner appealed to the court below for a judicial review of the Commissioner’s findings.
It is well settled that the burden is on a claimant to prove that he is “available for work” under the requirements of Code § 60-46(c) of the Unemployment Compensation Act before he is eligible to receive benefits, and whether a claimant is available for work during a specific period is a question of fact to be determined by the Commission. Virginia Employment Commission v. Coleman, 204 Va. 18, 22, 129 S. E. 2d 6, 9; Unemployment Comp. Comm. v. Tomko, 192 Va. 463, 468, 65 S. E. 2d 524, 527, 25 A. L. R. 2d 1071.
The phrase “available for work,” as used in the statute, requires a claimant to actively and unrestrictively endeavor to obtain suitable employment in the market where he resides. Stated in another way, a claimant must actively seek employment and be willing to accept any suitable work which may be offered him, without attaching conditions not usual and customary in that occupation but which he may desire because of his particular needs or circumstances. Unemployment Comp. Comm. v. Tomko, supra; Virginia Employment Commission v. Coleman, supra.
Code § 60-5 5 provides in part:
“In any judicial proceedings under this chapter, the findings of the Commission as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of such court shall be confined to questions of law.”
Here the evidence clearly shows that from June 19 through September 3, 1963, claimant actively and unrestrictively sought employment in the labor market where she resided, and her efforts brought about an offer of reemployment from the Noland Company on September 6, 1963. It is true that on August 19 she considered the possibility of entering business school and filed an application for admission to enter on September 16 because she had found, from her efforts to find a job, that employment available to her was limited due to her lack of training and experience. But even after she filed her application for admission to the business school she continued, without restrictions as to conditions of work, to seek employment at Noland Company and Newport News Shipbuilding and Drydock Corporation, both large corporations where employment opportunities seemed most favorable, and kept in constant contact with the local employment office.
*210It is not reasonable to conclude that claimant would have contacted the shipyard on August 26 and the Noland Company on August 28 if she was not endeavoring in good faith to obtain a job, and it is uncontradicted that she would have accepted employment if it had been offered to her at that time. It is true that when the offer of employment with Noland Company did come a few days later, on September 6, she told a representative of the company that she was then thinking of entering business school, but that cannot be considered as an indication that she was not “available for work” through the week ending September 3.
We hold, under the facts and circumstances here, that the Commission’s finding of fact that claimant was not available for work from August 14 through September 3, 1963, is not supported by the evidence, and that she is entitled to compensation for the period specified.
For the reasons stated, the judgment of the court below is
Affirmed.
§ 60-46(c) reads in part as follows:
“An unemployed individual shall be eligible to receive benefits with respect to any week only if the Commission finds that:
(c) He is able to work, and is available for work.”
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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/6822872/
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Gordon, J.,
delivered the opinion of the court.
This controversy involves certificates of public convenience and necessity issued, before this proceeding was begun, by the State Corporation Commission under the Petroleum Tank Truck Carriers’ Act (Chapter 12.2, Title 56, §§ 56-338.19 et seq., Code of Virginia of 1950). That Act forbids the operation of motor vehicles by petroleum tank truck carriers for the transportation of petroleum products for compensation on the Virginia highways, except in accordance with the provisions of the Act. (See Code of Virginia of 1950, § 56-338.21)
To comply with the Petroleum Tank Truck Carriers’ Act, a carrier must obtain a certificate of public convenience and necessity from the State Corporation Commission under Code § 56-338.29, unless its operations are interstate or intracity or another exemption provided in the Act is available. As required by the Act, each certificate issued by the Commission designates the point of origin, that is, the place at which the tank truck carrier may obtain the petroleum products to be transported by it.
This proceeding was initiated before the State Corporation Commission by Oil Transport, Inc. and four other petitioners, all of whom are now appellants. When the petition was filed, they held certificates designating Craney Island (located in Norfolk County, when the certificates were issued) as the point of origin. The interveners before the Commission, who are appellees here, held certificates designating Broadmoor (also in Norfolk County) or South Norfolk (an independent city) as the point of origin.
After the certificates were issued and before this proceeding was initiated, a new city was formed by the consolidation of the County of Norfolk and the City of South Norfolk into the City of Chesapeake. As a result of the consolidation, the County of Norfolk and the City of South Norfolk ceased to exist as political subdivisions, and the points of origin named in the certificates — Craney Island, Broadmoor' and South Norfolk — now are within the corporate limits and are parts of the newly-formed City of Chesapeake.
In their petition to the Commission, Oil Transport, Inc. and the other petitioners (who, as already mentioned, held certificates designating Craney Island as the point of origin) alleged that other petroleum tank truck carriers had asserted their rights to originate petroleum cargoes from Craney Island; that these other carriers (who became interveners in this proceeding), whose certificates did not *228designate Craney Island as the point of origin, but designated other points in the former County of Norfolk or designated the former City of South Norfolk, based their claim of right to obtain petroleum from suppliers on Craney Island because of the inclusion of Craney Island in the City of Chesapeake. The petitioners prayed for a final determination by the Commission of their rights as holders of certificates designating Craney Island as the point of origin.
The Commission, after notice and hearing, entered the order dated May 27, 1964, from which this appeal was prosecuted. The text of the order, except for the preamble and conclusion and notation of the dissent of Commissioner Catterall, is: “IT IS ORDERED: That by the inclusion of Craney Island within the corporate limits of the new City of Chesapeake that Craney Island is now a part of the origin point of Chesapeake and shall hereafter be so considered under the provisions of Chapter 12.2, Title 56 of the Code of Virginia.”
It is clear from a reading of the majority opinion, if not from the text of the order set forth in the preceding paragraph, that the Commission intended to declare that the certificate holders who were before the Commission in the proceeding, whose certificates designated points within former Norfolk County or designated former South Norfolk, now hold certificates designating the City of Chesapeake, including all points within that city, as the point of origin. The question in issue, according to the majority opinion, is whether Craney Island, Broadmoor and South Norfolk are now one point or three different points, insofar as the existing certificates are concerned.
The majority of the Commission reasoned that, since the City of South Norfolk no longer exists, it must follow that South Norfolk is abolished in the certificates naming that city as the point of origin, and the City of Chesapeake is substituted as the point of origin. And, in the opinion of the majority, the same considerations are applicable to Craney Island and Broadmoor. Accordingly, in the opinion of the majority, the Commission should declare by its order that “All carriers will have identical authority to obtain oil from any supplier within the City of Chesapeake”, subject to the right of the city to require its authorization if any intracity service is performed.
The majority opinion referred, in support of its conclusion, to a policy of the Commission, unbroken since the adoption of the Petroleum Tank Truck Carriers’ Act: Its policy to designate an entire city, instead of points within the city, as the point of origin, *229when issuing certificates authorizing the obtaining of petroleum products from a supplier located at any point within the city. Reasons for the adoption of this policy and the Commission’s adherence to the policy are given in the majority opinion, and these reasons will be mentioned later in this opinion.
Commissioner Catterall’s contrary reasoning, as expressed in his dissenting opinion, is that “certificates that name Craney Island as a point of origin still mean Craney Island”; that the change of the point of origin to the entire City of Chesapeake “cannot properly be accomplished by interpreting the existing certificates” and, if the change of the point of origin is to be effected, “a hearing should be held as required by § 56-338.29 for the purpose of determining whether amending the existing certificates is justified by public convenience and necessity”.
Much attention was devoted, in the briefs and oral argument before us, to the meaning of the word “point”, as used in the Petroleum Tank Truck Carriers’ Act. The appellants urge that “point”, as used in the Act, does not refer to a political subdivision, such as a city, town or county, but (when used with reference to the point of origin) refers to the place where petroleum products are loaded on a tank truck.
We agree with these statements in the Commissioner’s dissenting opinion: “The ‘point’ could be described as a county, city or town or a particular government installation or a named oil refinery. No matter how the point is described, it is described with reference to need found to exist when it was described.” The intent of the Act is to give discretion to the Commission in designating the point of origin, in a certificate issued by the Commission, in the light of the public convenience and necessity. In the reasonable exercise of this discretion, the Commission may designate the point of origin as a confined area, such as an oil refinery or a street address, or as an entire city. When the Commission designates a city in a certificate, it is in effect designating “each point within the corporate limits of the city”.
Nevertheless, a distinction should be drawn, in interpreting the intent of the Commission in designating a point of origin in a certificate, between a certificate that designates an existing city, on the one hand, and a certificate that designates a refinery or a place or area that is not a political subdivision, such as Craney Island, on the other hand.
*230If- the Commission issues a certificate designating the point of origin as an existing city (such as the City of Chesapeake after its formation), it is quite reasonable to interpret the designation of that city as including “all points within the corporate limits of the city as now drawn (that is, at the time the certificate was issued) or as hereafter expanded”. See Truesdale v. City of Newport, 28 Ky. Law Rep. 840, 90 S.W. 589. Moreover, the policy of the Commission to designate an entire city might be relevant, and serve as an aid, in reaching the conclusion that points within the subsequently-expanded limits of the city, which was named in a certificate, were intended to be included as points of origin.
On the other hand, the Commission could not have intended, when it issued a certificate naming Craney Island or Broadmoor or South Norfolk as the point of origin, to designate the City of Chesapeake. That city had not then been conceived. And it is difficult to perceive.the relevance of the policy of the Commission— to ñamé an entire city — as an aid in interpreting the words Craney Island or Broadmoor or South Norfolk to mean the City of Chesapeake in the certificates issued by the Commission and involved in this appeal.
To accept the reasoning of the majority of the Commission — that .Craney Island, Broadmoor and South Norfolk became one point, by force of the creation of the City of Chesapeake and in view of the past policy of the Commission — would unduly restrict the discretion of the Commission respecting points of origin in certificates of public convenience and necessity, as illustrated in the succeeding paragraph. And a similar case may arise in the future.
If the Commission had found that the public convenience and necessity would be promoted, under the present circumstances, by continuing the designation of Craney Island as the point of origin in the certificates previously issued to the petitioners, and by continuing the designation of Broadmoor and South Norfolk in the other certificates, the Commission in our opinion would have been justified in departing from its past policy in this instance and in refusing to alter the points of origin designated in the several certificates.(1)
*231The Commission, by its order now appealed from, effected an amendment of the existing certificates. The designations of Craney Island, Broadmoor and South Norfolk, appearing in the certificates as points of origin, were amended to read the City of Chesapeake.(2) Our proper course of inquiry, then, is whether the Commission had authority in this proceeding to so amend the certificates. If so, its action should be sustained.
Under Code § 56-338.34, set forth in the footnote*, the Commission is granted authority to authorize the amendment, as well as the transfer or leasing, of a certificate issued under the Petroleum Tank Truck Carriers’ Act, upon a finding that the amendment will serve the public convenience and necessity. We must determine whether the notice given and the findings made in this proceeding conform to the requirements of § 56-338.34 for an order amending existing certificates.
Subsection (b) of § 56-338.34 requires the Commission to cause the same notice to be given as is required under § 56-338.29 in a proceeding for the original issuance of a certificate, if the proceeding under § 56-338.34 involves the sale, transfer or assignment of a certificate. Such notice, as specified in subsection (c) of § 56-338.29 (relating to the original issuance of a certificate), must include publication of notice in a newspaper or newspapers, as well as notice by receipted registered mail to all certified petroleum carriers.
But in a proceeding under § 56-338.34 involving the amendment of a certificate (as distinguished from the sale, transfer or assignment of a certificate), there is no requirement that notice be given as required under § 56-338.29 (see subsection (b) of § 56-338.34, set forth in the footnote below). Hence, notice by publication in a newspaper, as required by § 56-338.29, was not required in this case for the amendment of the existing certificates pursuant to § 56-338.34. In this proceeding, the Commission ordered that notice be given to *232all petroleum tank truck carriers in Virginia by receipted registered or certified mail, and we find this notice ample to enable the Commission to amend the outstanding certificates under § 56-338.34.
The Commission was asked, by the petition filed before it, to determine the rights of other certificate holders, namely the persons who became interveners in the proceeding, to obtain petroleum products from suppliers on Craney Island, and the interveners (as well as the holders of certificates designating points of origin outside of the area in question) were given notice of the proceeding.
The interveners-appellees have made no objection to the Commission’s action in enlarging the petitioners’-appellants’ point of origin to include all of the City of Chesapeake, instead of Craney Island alone. The sole objection, made by the petitioners, is to the enlarging of the interveners’ points of origin so as to include all of the City of Chesapeake, including Craney Island. The petitioners obviously fear increased competition. They assert their ability to serve Craney Island adequately; reference is made in the petitioners’ (appellants’) brief to the facts that they collectively operate 128 pieces of equipment available for serving Craney Island and have always met the demand for service there, even during the Cuban crisis of 1962.
This leads to a consideration of the remaining question: whether the Commission, after notice and hearing, as required by § 56-338.34, made sufficient findings of public convenience and necessity to support the amendment of the outstanding certificates. In this connection, it is appropriate to refer to the considerations or rules relating to the granting of certificates of public convenience and necessity under the Petroleum Tank Truck Carriers’ Act. At the same time, we should bear in mind that this proceeding did not involve the original issuance of certificates, but the amendment of outstanding certificates. The Commission had found, before this proceeding was initiated, that the issuance of certificates to the petitioners and interveners, authorizing them to obtain products from suppliers within the area now under consideration, was consistent with the public convenience and necessity.
Certificates of public convenience and necessity issued under the Petroleum Tank Truck Carriers’ Act, unlike certificates issued under certain other acts involving public utilities, are often, probably usually, not exclusive in the territory or from the “point” described *233in the certificates.* Moreover, as pointed out in the majority opinion of the Commission in this proceeding, the issuance of a certificate naming an entire city as the point of origin does not mean that the new certificate holder can infringe upon the rights of other carriers. Each carrier (or the person for whom it transports products) must have a contract with the supplier from whom it desires to obtain petroleum products. A certificate issued by the Commission does not require, nor could it legally require, a supplier to do business with the certificate holder.
Furthermore, as pointed out in Atwood Transport Co. v. Commonwealth, 197 Va. 325, 88 S.E.2d 922, the fact that holders of existing certificates issued under the Petroleum Tank Truck Carriers’ Act might be able to provide the service from a given point of origin, or that such holders might suffer from competition, is not of material significance in deciding the question whether a certificate should be issued. The paramount consideration is public convenience and necessity. And these principles were confirmed in Transit Corporation v. Commonwealth, 202 Va. 716, 119 S.E.2d 494, involving the transfer, pursuant to Code § 56-338.34, of a certificate issued under the Act.
As evidenced by the following language of the majority opinion of the Commission in this case, the Commission considered the public convenience and necessity in reaching its conclusion:
“The need for the service of these carriers is not at the origin point or the actual location of the supplier of petroleum products, but the need is to serve those individual customers to whom such carriers are obligated to furnish petroleum, etc.....”
“.........The question always uppermost in the mind of the Commission when passing on these matters is the need of the public. This is the paramount concern of the Commission. It is obvious that the public is benefited when a carrier has the opportunity to secure petroleum products at more than one place.”
With respect to the Commission’s policy to name an entire city as the point of origin, this is said in the majority opinion:
“This policy has not only worked satisfactorily, but is definitely in the public interest with which the Commission should always be concerned, and, in the opinion of the Commission, is not in viola*234tion of the terms and conditions of the Tank Truck Carriers’ Act, which has been construed to be a liberal statute by the Supreme Court.”
In essence, the majority of the Commission found that its policy to designate an entire city, instead of one or more points within a city, as the point of origin was consistent with the public convenience and necessity. Implicit in this finding is the conclusion that the public convenience and necessity did not warrant any change of or exception to the policy, under present circumstances, in the case of the City of Chesapeake. The Commission found, by action of the majority, that all carriers certified to obtain petroleum products at any place within the City of Chesapeake should, consistently with the public convenience and necessity, be authorized to obtain the products from any point within the city. In our opinion, these findings are sufficient to justify the amendment of the outstanding certificates, as effected by the order appealed from.
For the reasons assigned, the order of the State Corporation Commission dated May 27, 1964 is
Affirmed.
Spratley, J., concurs in result.
(1) The creation of the City of Chesapeake had no effect on the identification of the areas “Craney Island” and “Broadmoor”; these areas are as readily identifiable after the consolidation, as before. The area of the City of South Norfolk should be likewise readily identifiable, though South Norfolk is no longer a municipal corporation; but, if not, the Commission could have interpreted the designation of the City of South Norfolk, as referring to the area enclosed within the boundaries of the city immediately before the consolidation.
(2) The Commission’s order may properly be interpreted as a declaratory judgment that all certificates involved in the proceeding should be amended so as to designate the City of Chesapeake as the point of origin — this declaration to be implemented by the ministerial act of issuing amended certificates.
“§ 56-338.34. Transfer, lease or amendment of certificate: Notice required.— (a) Any such certificate may be transferred, leased or amended if the Commission finds, after notice and hearing, that the transfer, lease or amendment will serve the public convenience and necessity, and the Commission may authorize the transfer or lease subject to such restrictions as the Commission finds will promote the public convenience and necessity.
“(b) No certificate shall be sold, transferred, or assigned until notice as required by subsection (c) of § 56-338.29 is properly made or served.”
According to the appellants’ brief, twenty-eight carriers held certificates issued under the Act at the time of the hearing by the Commission in this proceeding, and nineteen carriers held certificates designating South Norfolk or Broadmoor as the point of origin and five held certificates designating Craney Island.
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Buchanan, J.,
delivered the opinion of the court.
The appellant, Dickerson G. M. C., Inc., (petitioner), filed its petition in the court below under § 58-1130 of the Code, 1959 Repl. Vol., to correct an assessment of license taxes against it for the years 1959, 1960, 1961 and 1962, computed on a retail merchant license basis which it claimed to be erroneous.
Petitioner alleged that since 1956 it had operated its business under both a retail merchant license and a wholesale merchant license “because a large portion of said business is the sale of trucks at consider*340ably less than retail price to institutional, commercial or industrial users;” that petitioner had kept yearly records separating the latter sales from sales at retail, and paid license taxes accordingly; and that no additional license taxes were due from it because in making the assessments complained of no allowance was made to it for any of its truck sales as being made at wholesale “even though a large portion of same were sold at considerably less than retail price to institutional, commercial or industrial users” under § 58-304 of the Code. That section is in Article 6 of Chapter 7 of Title 58, providing for the licensing of wholesale merchants, and in its second paragraph provides:
“The term ‘wholesale merchant,’ as used in this article, means every merchant who sells to other persons for resale only or who sells at wholesale to institutional, commercial or industrial users.”
The trial court heard ore tenus the evidence offered by the parties and upon consideration thereof held that the assessments complained of were correct, denied the relief sought and dismissed the petition. On this appeal we resolve conflicts in the evidence and the just inferences therefrom in favor of the appellee, the Commonwealth. Furr v. Arnold, 202 Va. 684, 119 S.E. 2d 242.
For the petitioner a certified public accountant, employed by it, testified that in 1959 he pointed out to the petitioner that its truck sales were mostly to commercial and industrial users and could possibly be classified under § 58-304 as wholesale; “that a wholesale merchant is one who sells to an institutional, commercial, or industrial user;” that accordingly in 1959 application was made for two licenses,1 one retail, based on sales of labor in the shop and on a few cars which petitioner still had (it no longer deals in automobiles), and on truck sales to a few individuals. The other application was for a wholesale license based on the cost of sales of trucks sold to institutional, commercial or industrial users.2
As to the wholesale license applied for, the accountant testified that “parts to other dealers for resale, or possibly to commercial users for their own fleet of trucks, is wholesale, and those trucks, new or used, that went to commercial users such as contractors, other wholesalers, flour mill, retailers, and any business that might need a truck.” He further testified that while he had not inspected the records, he knew that the trucks were nearly always sold below the suggested *341list price. These were not the type of trucks ordinarily bought for personal use, he said, except possibly some small pickup trucks.
The accountant also said that he would think that any sale to a commercial consumer would be wholesale, and that the phrase “at wholesale” meant generally sales at a lower price than the list price, and in the case of these trucks “it is certainly lower than the list” and that was the way he went about making his determination in this case. He stated that the petitioner sold trucks singly and in lots, and if the sale was only one truck to a school board or dairy, he would classify it as wholesale if sold below the manufacturer’s list price, and no emphasis should be placed on quantity.
The assistant commissioner of revenue for the city of Roanoke was called by the petitioner as an adverse witness, but his testimony added nothing material to the petitioner’s claim. When questioned by the Commonwealth’s counsel he expressed the view, based on his studies, that to sell at wholesale means to sell in volume and that the selling price has nothing to do with it.
For the Commonwealth, one of its auditors of long experience testified that he examined petitioner’s records and determined that its method of reporting for license assessments was improper. He observed that practically all of petitioner’s truck sales to any purchaser were put in the wholesale column; that petitioner’s accountant stated to him that its sales were on a competitive basis, otherwise the consumer would buy elsewhere. He said that generally speaking a wholesale merchant sells to others for resale; that if he sells to a school or like user he might put that in his wholesale business; but if he is a retailer principally, he can do his wholesale business on his retail license, which is the way most automobile dealers operate. He agreed with the Roanoke assistant commissioner of revenue that the principal element in wholesale sales was volume and, he said, that the interpretation usually placed on § 58-304 of the Code by the State Tax Commissioner was that wholesale sales consisted of sales in wholesale quantity at wholesale prices.
“To sell by wholesale is to sell by large parcels, * #; to sell goods in gross to retailers, who sell to consumers. # * A sale at ‘retail’ and one at ‘wholesale’ are opposed to each other, one being a sale in small quantities, and the other in large quantities. * *” Black’s Law Diet., 3d ed., p. 1844. To the same effect is Webster’s Third New International Diet., p. 2611.
“There is a well-defined and clearly understood distinction between the words ‘retail’ and ‘wholesale’; they are used in opposition *342one to the other,, one being a sale in large quantities, the other in small quantities. Whether the sale is one by retail or wholesale will depend upon the facts of the particular transaction. * *” Kentucky Consumers Oil Co. v. Commonwealth, 192 Ky. 437, 233 S.W. 892, 893; Casebolt v. Kentucky-West Virginia Gas Co., 293 Ky. 178, 168 S.W. 2d 773. See also People v. Cain, 171 Mich. 279, 137 N.W. 159; Hughes v. Pittsburgh, 176 Pa. Super. 148, 106 A.2d 655; Commonwealth v. Bay State Milling Co., 312 Pa. 28, 167 A. 307; Associated Grocers of Alabama, Inc. v. Haden, 271 Ala. 654, 127 So. 2d 624; Fountain v. St. Joseph Water Co., 352 Mo. 817, 180 S.W. 2d 28; Commonwealth v. Greenwood, 205 Mass. 124, 91 N.E. 141; 77 C.J.S., Sales, § 1e., pp. 580-1.
The holding in Roland Elec. Co. v. Walling, 326 U.S. 657, 66 S. Ct. 413, 90 L. ed. 383, cited by petitioner, is not necessarily at odds with these definitions. The questions there were whether Roland’s employees were within the coverage of sections 6 and 7 of the Fair Labor Standards Act of 1938, and if so, whether they were excluded from the Act because engaged in “any retail or service establishment.” It was held that they were within the coverage and not so excluded. The court said that the language of the exclusion clause was capable of two interpretations, but when read in connection with its declared purpose, legislative history and administrative interpretation, it did not apply to Roland’s employees. The opinion quotes Webster to the effect that in general usage “retail” means the sale of commodities in small quantities as opposed to “wholesale” and then states:
“In the suggested use of the word ‘retail’ as opposed to the word ‘wholesale,’ a distinction appears not merely between the size and volume of the sales but between types of purchasers. For example — ” The examples then given are quotations from text writers to the effect that the distinguishing feature of the retail trade consists in selling merchandise to ultimate consumers, while wholesaling is said to cover sales “ ‘to a retailer, a wholesaler, or an industrial consumer so long as the purpose of the customer in buying such goods is to resell them in one form or another or to use them for business needs as supplies or equipment.’ ”
McComb v. Deibert, DC E.D. Pa., 117 F. Supp. 41, referred to by petitioner, followed Roland in construing the Fair Labor Standards Act but made the following finding of fact:
“It is a well-recognized concept in the automotive trade industry that sales of trucks in non-fleet quantities to persons for business or *343commercial use and not for resale purposes have always been regarded as retail; sales of trucks for resale or in fleet quantities are not considered retail.”
We are here concerned with the meaning of our own statute, § 58-304, which says that “wholesale merchant” as used therein means every merchant who sells to others for resale only (which petitioner does not claim to have done), or “who sells at wholesale to institutional, commercial or industrial users,” which petitioner claims entitled him to operate under wholesale licenses for the years here involved.
The Commonwealth’s auditor, as stated, testified that practically all of the petitioner’s truck sales, to whomever made, were listed as wholesale. Petitioner’s evidence does not show what sales of trucks were made to institutional, commercial or industrial users and what sales were made to individuals. It entirely failed to show that any such sales were wholesale transactions within the generally accepted meaning of that term. Petitioner’s theory, as advanced by its accountant, was that any and all sales made to institutional, commercial or industrial users were made at wholesale.
Petitioner’s contention would be correct if the words “at wholesale” were deleted from the statute so as to define a wholesale merchant as one “who sells to institutional, commercial or industrial users.” But the 1956 amendment to the statute, Acts 1956, c. 663, inserted after the word “sells” the words “at wholesale” and thereby classified as a wholesale merchant only those who sell to such users at wholesale.
The evidence does not show that petitioner’s truck sales were of that character and the judgment appealed from is accordingly
Affirmed.
Permitted by Code § 58-336.
Section 58-305 of the Code requires that a wholesale merchant’s license be based on purchases. A wholesale merchant ordinarily pays a lower license tax than a retail merchant.
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—Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the Police Department of the County of Nassau, dated December 14, 1987, denying a request by a member of the petitioner Patrolmen’s Benevolent Association of the Police Department of the County of Nassau, Inc., for permission to engage in off-duty employment as a security guard.
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
We note that the proceeding was improperly transferred since, absent a hearing, no issue arises as to the question of substantial evidence (CPLR 7804 [g]). Nevertheless, we treat *640the merits (see, Matter of Portugal v Webb, 91 AD2d 997), and dismiss the petition which is in the nature of mandamus to review because the Commissioner’s denial of a request by a police officer to engage in off-duty security-related employment was within the proper exercise of his discretion and based upon cogent reasons. Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur.
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01-13-2022
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—Proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Education of the Arlington Central School District, dated November 25, 1986, which, after a hearing, found the petitioner guilty of misconduct and terminated his employment.
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.
After a hearing, it was determined that the petitioner, a school bus driver-custodian, engaged in misconduct in that he was found in an enclosed area near his residence, where marihuana was being grown. The arresting officer testified that the petitioner admitted to being in control of the area. The findings of the Hearing Officer, as adopted by the respondents, are supported by substantial evidence in the record and, therefore, will not be disturbed (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176). Furthermore, in view of the petitioner’s sensitive position as a school employee and particularly his duty as a school bus driver, his dismissal was not so disproportionate to the misconduct charged, as to be shocking to one’s sense of fairness. Accordingly, we will not disturb the determination (see, Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Barr v Department of Consumer Affairs, 70 NY2d 821). Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.
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*966In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Division of Housing and Community Renewal dated April 28, 2010, which denied the petition for administrative review and confirmed the determination of the Rent Administrator dated July 14, 2009, denying the petitioner’s application for permission to modify services at its rent-regulated property, the petitioner appeals from a judgment of the Supreme Court, Kings County (Bayne, J.), entered May 6, 2011, which denied the petition and dismissed the proceeding.
Ordered that the judgment is affirmed, with one bill of costs.
The petitioner, Joralemon Realty NY, LLC (hereinafter the petitioner), is the owner of a rent-regulated apartment complex known as the Riverside Apartments, located at the southwest corner of Joralemon Street and Columbia Place in Brooklyn. In 2008, the petitioner filed an application with the New York State Division of Housing and Community Renewal (hereinafter the DHCR) for permission to modify services at the complex pursuant to section 2522.4 (e) of the Rent Stabilization Code (9 NYCRR 2522.4 [e]). The services that the petitioner sought to modify were provided by the courtyard of the complex; specifically, the petitioner sought to build an underground parking facility four feet below the courtyard, with 105 parking spaces that would be available to rent on a monthly basis. The plans provided that vehicle ingress to and egress from the parking facility would occupy 10% of the courtyard. Soil to the depth of approximately four feet would be placed on the roof of the parking facility to support the courtyard’s vegetation. Although 100-year-old trees would have to be removed from the existing courtyard to allow for the addition of the parking facility, they would be replaced with new trees, some of which would be mature at planting. The new courtyard would have more green space than the existing courtyard. Additionally, new benches, walkways, and plants, among other things, would be added to the courtyard.
The DHCR’s Rent Administrator denied the petitioner’s application, finding that the proposed parking facility and new courtyard would result in a decrease in services to the tenants and, thus, were not adequate substitutes for the current courtyard. The DHCR denied the petition for administrative review, affirming the Rent Administrator’s determination that the proposed changes would result in a decrease in services. The Supreme Court denied the petitioner’s CPLR article 78 petition and dismissed the proceeding. The petitioner appeals.
*967In this proceeding, in which the petitioner challenges an agency determination that was not made after a quasi-judicial hearing, we must consider whether the determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see CPLR 7803 [3]; Matter of London Leasing Ltd. Partnership v Division of Hous. & Community Renewal, 98 AD3d 668, 670 [2012]; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 770 [2005]). In such a proceeding, courts “examine whether the action taken by the agency has a rational basis,” and will overturn that action only “where it is ‘taken without sound basis in reason’ or ‘regard to the facts’ ” (Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280 [2010], quoting Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]; see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 232 [1974]), or where it is “arbitrary and capricious” (Matter of Deerpark Farms, LLC v Agricultural & Farmland Protection Bd. of Orange County, 70 AD3d 1037, 1038 [2010]). In reviewing the DHCR’s determination, “[t]he court may not substitute its judgment for that of the DHCR” (Matter of 85 E. Parkway Corp. v New York State Div. of Hous. & Community Renewal, 297 AD2d 675, 676 [2002]). “The DHCR’s interpretation of the statutes and regulations it administers, if reasonable, must be upheld” (id.).
Here, contrary to the petitioner’s contention, the DHCR’s determination that the Rent Administrator did not err in finding that the proposed modification did not constitute an adequate substitute for the courtyard was rational, and was not arbitrary and capricious. Although the proposal called for a new courtyard to be built in place of the current courtyard, there was evidence in the record to support the determination that such a courtyard would be inferior and, thus, not an adequate substitute for the current courtyard.
The petitioner’s remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding. Angiolillo, J.P., Leventhal, Lott and Austin, JJ., concur.
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*966In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Division of Housing and Community Renewal dated April 28, 2010, which denied the petition for administrative review and confirmed the determination of the Rent Administrator dated July 14, 2009, denying the petitioner’s application for permission to modify services at its rent-regulated property, the petitioner appeals from a judgment of the Supreme Court, Kings County (Bayne, J.), entered May 6, 2011, which denied the petition and dismissed the proceeding.
Ordered that the judgment is affirmed, with one bill of costs.
The petitioner, Joralemon Realty NY, LLC (hereinafter the petitioner), is the owner of a rent-regulated apartment complex known as the Riverside Apartments, located at the southwest corner of Joralemon Street and Columbia Place in Brooklyn. In 2008, the petitioner filed an application with the New York State Division of Housing and Community Renewal (hereinafter the DHCR) for permission to modify services at the complex pursuant to section 2522.4 (e) of the Rent Stabilization Code (9 NYCRR 2522.4 [e]). The services that the petitioner sought to modify were provided by the courtyard of the complex; specifically, the petitioner sought to build an underground parking facility four feet below the courtyard, with 105 parking spaces that would be available to rent on a monthly basis. The plans provided that vehicle ingress to and egress from the parking facility would occupy 10% of the courtyard. Soil to the depth of approximately four feet would be placed on the roof of the parking facility to support the courtyard’s vegetation. Although 100-year-old trees would have to be removed from the existing courtyard to allow for the addition of the parking facility, they would be replaced with new trees, some of which would be mature at planting. The new courtyard would have more green space than the existing courtyard. Additionally, new benches, walkways, and plants, among other things, would be added to the courtyard.
The DHCR’s Rent Administrator denied the petitioner’s application, finding that the proposed parking facility and new courtyard would result in a decrease in services to the tenants and, thus, were not adequate substitutes for the current courtyard. The DHCR denied the petition for administrative review, affirming the Rent Administrator’s determination that the proposed changes would result in a decrease in services. The Supreme Court denied the petitioner’s CPLR article 78 petition and dismissed the proceeding. The petitioner appeals.
*967In this proceeding, in which the petitioner challenges an agency determination that was not made after a quasi-judicial hearing, we must consider whether the determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see CPLR 7803 [3]; Matter of London Leasing Ltd. Partnership v Division of Hous. & Community Renewal, 98 AD3d 668, 670 [2012]; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 770 [2005]). In such a proceeding, courts “examine whether the action taken by the agency has a rational basis,” and will overturn that action only “where it is ‘taken without sound basis in reason’ or ‘regard to the facts’ ” (Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280 [2010], quoting Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]; see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 232 [1974]), or where it is “arbitrary and capricious” (Matter of Deerpark Farms, LLC v Agricultural & Farmland Protection Bd. of Orange County, 70 AD3d 1037, 1038 [2010]). In reviewing the DHCR’s determination, “[t]he court may not substitute its judgment for that of the DHCR” (Matter of 85 E. Parkway Corp. v New York State Div. of Hous. & Community Renewal, 297 AD2d 675, 676 [2002]). “The DHCR’s interpretation of the statutes and regulations it administers, if reasonable, must be upheld” (id.).
Here, contrary to the petitioner’s contention, the DHCR’s determination that the Rent Administrator did not err in finding that the proposed modification did not constitute an adequate substitute for the courtyard was rational, and was not arbitrary and capricious. Although the proposal called for a new courtyard to be built in place of the current courtyard, there was evidence in the record to support the determination that such a courtyard would be inferior and, thus, not an adequate substitute for the current courtyard.
The petitioner’s remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding. Angiolillo, J.P., Leventhal, Lott and Austin, JJ., concur.
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—In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Queens County (Gage, J.), dated July 15, 1986, which, upon a fact-finding order of the Family Court, Nassau County (Feiden, J.), dated February 28, 1986, made after a hearing, finding that the appellant had committed an act which, if committed by an adult, would have constituted the crime of petit larceny, adjudged him to be a juvenile delinquent and placed him on probation for a term of one year. The appeal brings up for review the fact-finding order dated February 28, 1986.
Ordered that the order of disposition is affirmed, without costs or disbursements.
The Family Court, Nassau County, found that the evidence adduced at a fact-finding hearing proved beyond a reasonable doubt that the appellant committed an act which, if done by an adult, would have constituted the crime of petit larceny. Upon our independent review of the evidence presented in this case, there is no reason to disturb the findings of the trier *641of fact, since only he had the opportunity to observe the demeanor of the witnesses and assess their credibility (see, Matter of Dennis N., 110 AD2d 703).
The appellant’s contention that his ability to re-cross-examine the complainant was stifled by the Judge in the Family Court, Nassau County, is without merit. Although several warnings were issued, at no time during the re-cross-examination were the appellant’s questions limited or prohibited as exceeding the bounds of the redirect examination.
Since the issue was not preserved, the appellant cannot now assert that he was deprived of his right to cross-examine his corespondent. In any event, the testimony of the corespondent was consistent with that of the appellant. Mangano, J. P., Bracken, Fiber and Harwood, JJ., concur.
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—In a proceeding pursuant to CPLR article 78 to review a directive of the respondent Mayor of the Incorporated Village of Hemp-stead, dated October 16, 1985, which prohibited solicitation by or on behalf of the petitioner Police Benevolent Association of the Village of Hempstead, the appeal is from a judgment of the Supreme Court, Nassau County (Roberto, J.), entered September 4, 1986, which granted the petition and annulled the directive prohibiting solicitation.
Ordered that the judgment is reversed, on the law, with costs, the determination is confirmed, and the proceeding is dismissed on the merits.
The Mayor had the authority to stop the fund drive because of his supervisory activity over the police (see, Village Law § 4-400 [1] [e]). In addition, New York courts have upheld bans on police solicitations as reasonable measures to protect police integrity (see, McGuire v Krone, 48 NY2d 661; Matter of Maraño v Incorporated Vil. of Lake Success, 86 Mise 2d 936; Matter of Patrolmen’s Benevolent Assn, v Kennedy, 25 Mise 2d 63). Finally, rule 12 of article VI of the Rules and Regulations of the Police Department of the Village of Hempstead prohibits direct or indirect solicitations by police officers. The affidavits produced by the petitioners in an attempt to prove a contrary intent are immaterial in light of the clear and unambiguous language of the rule (see, Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 565; *642Patrolmen’s Benevolent Assn, v City of New York, 41 NY2d 205, 208).
Therefore, in order to obtain the annulment of the Mayor’s directive, the petitioners had to show that his action did not have a rational basis, and they have not sustained this burden (Matter of Larkin Co. v Schwab, 242 NY 330, 334-335). Mangano, J. P., Bracken, Eiber and Harwood, JJ., concur.
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—In four proceedings for the judicial dissolution of three corporations and a partnership, the appeal is from an order of the Supreme Court, Nassau County (Roncallo, J.), entered April 27, 1987, which denied that branch of the appellants’ motion which was to compel the petitioners to execute and consummate a secured revolving line of credit with a credit facility.
Ordered, that the order is reversed, on the law and the facts, with costs, and that branch of the appellants’ motion which was to compel the petitioners to execute a secured revolving line of credit with a credit facility is granted and the petitioners are directed to execute the requisite documents necessary to enter into a $2,000,000 revolving line of credit under the terms offered by Chemical Bank pursuant to its proposal dated March 13, 1987.
On August 22, 1986, the petitioners brought these proceedings for the judicial dissolution of 3 closely held corporations and 1 New York partnership. The order to show cause commencing these proceedings contained a preliminary injunction directing those in control of the businesses to "take all steps reasonably necessary to protect and preserve [the assets of the businesses]”. By order of the Supreme Court, Nassau County (Roncallo, J.), dated January 29, 1987, the injunction was continued and a Referee appointed to ascertain the facts.
In response to the appellants’ request for an immediate hearing with respect to the need for a line of credit with a credit facility, evidentiary hearings were held on March 17, 1987, and March 18, 1987. The unrefuted evidence offered by the appellants indicated that the prior $2,500,000 line of *643credit from Citibank had been revoked when one of the petitioners informed Citibank of the pendency of the dissolution proceedings. The appellants were able to procure a proposal from Chemical Bank for a $2,000,000 revolving credit line; however, the petitioners refused to execute the requested documents.
Findings of fact were adduced that the profitability of the primary corporation had been negatively affected by the absence of a line of credit with a credit facility and the petitioners conceded that "long-term profits have been impacted by the absence of a credit facility”. Unable to involve itself in more lucrative long-term investments, the primary corporation was forced to make conservative short-term investments at a lower yield.
The Referee issued a first interim report dated April 14, 1987, which noted that the absence of a line of credit with a credit facility for a corporation whose annual sales volume was $200,000,000 was "inconceivable” and stated that pursuant to the injunction obtained by the petitioners to maintain the assets of the corporation "[t]he establishment of a line of credit is reasonably necessary to preserve the assets of the corporation”. The Referee recommended that the court exercise its discretionary power and order the petitioners to enter into the credit agreement.
On April 21, 1987, the appellants moved, inter alia, for an order pursuant to Business Corporation Law § 1113 directing the petitioners to execute the credit documents. Following oral argument the court denied the appellants’ motion indicating that it was inclined to grant the order but believed such relief was beyond its jurisdiction.
As the Supreme Court is vested with inherent plenary power with original jurisdiction in law and equity, it is authorized to render such relief as may be necessary to protect the rights of any party (NY Const, art VI, §7; Judiciary Law § 140-b). The hearing court erroneously concluded that it was powerless to order the petitioners to execute the credit facility documents. In keeping with the preliminary injunction requiring that those in control of the operations of the businesses "shall take all steps reasonably necessary to protect and preserve” the assets of the businesses, the relief sought by the appellants was in furtherance of the preservation of assets pending the dissolution proceedings. Therefore, the relief should have been granted.
*644The petitioners’ belated request for an undertaking is raised for the first time on appeal and has not been preserved for review (American Indus. Contr. Co. v Travelers Indem. Co., 54 AD2d 679, affd 42 NY2d 1041, rearg denied 43 NY2d 835). In any event, since the appellants herein moved under Business Corporation Law § 1113 for an exercise of the court’s equity powers and not for a preliminary injunction under CPLR 6301 we find no undertaking is required under the facts of this case. Bracken, J. P., Kunzeman, Eiber and Harwood, JJ., concur.
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*968Proceeding pursuant to Executive Law § 298 to enforce a determination of the Commissioner of the New York State Division of Human Rights dated January 22, 2007, which adopted the recommendation and findings of an administrative law judge dated June 26, 2006, made after a hearing, finding that the complainant was subjected to a hostile work environment because of her sex in violation of Executive Law § 296, and awarded the complainant damages in the principal sums of $5,263 for back pay, plus interest at the rate of 9% per year from December 1, 2003, and $50,000 in compensatory damages for mental anguish and humiliation, plus interest at the rate of 9% per year from January 22, 2007.
Adjudged that the petition is granted, on the law, with costs payable by the respondent Steven Fielman, to the extent of enforcing so much of the determination as found the respondent Steven Fielman liable for a violation of Executive Law § 296, and awarded the complainant damages in the principal sums of $5,263 for back pay, plus interest at the rate of 9% per year from December 1, 2003, and $50,000 in compensatory damages for mental anguish and humiliation, plus interest at the rate of 9% per year from January 22, 2007, the petition is otherwise denied, the proceeding is otherwise dismissed, and the respondent Steven Fielman is directed to pay the complainant the principal sums of $5,263 for back pay, plus interest at the rate of 9% per year from December 1, 2003, and $50,000 in compensatory damages for mental anguish and humiliation, plus interest at the rate of 9% per year from January 22, 2007.
There is substantial evidence in the record that the complainant was subjected to unwelcome sexual advances by her manager, the respondent Steven Fielman, that altered the conditions of the workplace and, thus, was subjected to a hostile work environment (see Matter of Columbia Sussex Corp. v New York State Div. of Human Rights, 63 AD3d 736 [2009]; Matter of State Div. of Human Rights v Koch, 60 AD3d 777 [2009]). However, the Commissioner of the New York State Division of Human Rights (hereinafter the Commissioner) improperly imposed liability on the respondent ABS Electronics, Inc. (hereinafter ABS). Under the Human Rights Law, an “employer cannot be held liable for an employee’s discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it” (Matter of Totem Taxi v New York State Human Rights Appeal Bd., 65 NY2d 300, 305 [1985]; see Matter of State Div. of Human Rights v St. Elizabeth’s Hosp., 66 NY2d 684, 687 [1985]; Matter of Medical Express Ambulance Corp. v *969Kirkland, 79 AD3d 886 [2010]). Here, the evidence presented at the hearing does not support a finding that ABS knew or should have known of the improper conduct of Fielman, and encouraged, approved, or condoned the improper conduct by failing to take remedial action (see Doe v State of New York, 89 AD3d 787, 788-789 [2011]).
The Commissioner, however, properly imposed liability on Fielman individually. An individual will not be subject to liability under the Human Rights Law unless he or she is shown to have an ownership interest or any power to do more than carry out personnel decisions made by others (see Patrowich v Chemical Bank, 63 NY2d 541, 542 [1984]). Here, there is substantial evidence in the record that, although a manager of ABS, Fielman had the authority “to do more than carry out personnel decisions made by others” (Patrowich v Chemical Bank, 63 NY2d at 542; see Carrea v Imagimed, LLC, 74 AD3d 860, 862 [2010]; Cirillo v Muss Dev. Co., 278 AD2d 353, 354 [2000]).
Furthermore, there is no reason to disturb the award of damages. “Deference must be accorded to the agency’s assessment of damages in view of its special experience in weighing the merit and value of mental anguish claims” (Matter of New York State Div. of Human Rights v Caprarella, 82 AD3d 773, 775 [2011]). The award of $50,000 in compensatory damages for mental anguish and humiliation is reasonably related to the wrongdoing, is supported by substantial evidence, and is similar to comparable awards for similar injuries (see Matter of New York State Div. of Human Rights v Ben Rottenstein Assoc., Inc., 89 AD3d 852, 853 [2011]; Matter of Columbia Sussex Corp. v New York State Div. of Human Rights, 63 AD3d 736 [2009]; Matter of State Div. of Human Rights v Koch, 60 AD3d 777, 777-778 [2009]). The back pay award is also supported by substantial evidence and is appropriate (see Executive Law § 297 [4] [c]; Matter of New York State Div. of Human Rights v Ben Rottenstein Assoc., Inc., 89 AD3d at 854; Matter of State Div. of Human Rights v Koch, 60 AD3d at 778). Mastro, J.P., Angiolillo, Dickerson and Hall, JJ., concur.
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Contrary to the defendant’s present contention, the record demonstrates that his 1976 guilty plea to the crime of attempted manslaughter in the second degree was knowingly and voluntarily made after a valid waiver of his constitutional rights; hence, the use of this conviction as the basis for adjudicating the defendant a second felony offender was proper (see, People v Harris, 61 NY2d 9). Furthermore, inasmuch as the defendant was permitted to fully adduce evidence in support of his contention that the prior conviction was unconstitutionally obtained, we find the claim that he was *386denied an appropriate hearing to be without merit. Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur.
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—In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Transit Authority dated August 9, 1983, terminating the petitioner’s employment, Robert Kiley, Chairman of the Metropolitan Transportation Authority, David Gunn, President of the New York City Transit Authority, and the New York City Transit Authority, appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Kings County (Dowd, J.), entered July 2, 1986, as, upon denying the appellants’ cross motion to dismiss the proceeding as against them, granted the petition.
Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, and the appellants’ cross motion to dismiss the proceeding as against them is granted.
Effective August 8, 1983, the petitioner was summarily discharged without a hearing from his position as car inspector with the appellant New York City Transit Authority due to his, unsatisfactory performance during his probationary period. Thereafter, pursuant to the grievance procedure provided under the petitioner’s collective bargaining agreement, a grievance was presented and all stages completed on behalf of the petitioner by the Transport Worker’s Union Local 100. Thereafter, a request for arbitration was made. The issue presented was whether the petitioner was a permanent employee at the time of his discharge and accordingly entitled to a hearing prior thereto. In an opinion and award dated April 16, 1984, the arbitrator found that the petitioner was a probationary employee at the time of his discharge and resolved the complaint in favor of the appellants.
In or about July 1984 the petitioner commenced the instant *645proceeding challenging the appellants’ determination terminating his employment and presenting essentially the identical claim that he was improperly discharged without a hearing because at that time he was a permanent employee. Since the identical claim was presented to, argued before and resolved essentially by the arbitrator in the appellants’ favor, the relitigation of the petitioner’s claim in a proceeding pursuant to CPLR article 78 is barred under the doctrines of res judicata and collateral estoppel (see, Matter of Crowley v Board of Educ., 128 AD2d 871). Mangano, J. P., Bracken, Eiber and Harwood, JJ., concur.
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*968Proceeding pursuant to Executive Law § 298 to enforce a determination of the Commissioner of the New York State Division of Human Rights dated January 22, 2007, which adopted the recommendation and findings of an administrative law judge dated June 26, 2006, made after a hearing, finding that the complainant was subjected to a hostile work environment because of her sex in violation of Executive Law § 296, and awarded the complainant damages in the principal sums of $5,263 for back pay, plus interest at the rate of 9% per year from December 1, 2003, and $50,000 in compensatory damages for mental anguish and humiliation, plus interest at the rate of 9% per year from January 22, 2007.
Adjudged that the petition is granted, on the law, with costs payable by the respondent Steven Fielman, to the extent of enforcing so much of the determination as found the respondent Steven Fielman liable for a violation of Executive Law § 296, and awarded the complainant damages in the principal sums of $5,263 for back pay, plus interest at the rate of 9% per year from December 1, 2003, and $50,000 in compensatory damages for mental anguish and humiliation, plus interest at the rate of 9% per year from January 22, 2007, the petition is otherwise denied, the proceeding is otherwise dismissed, and the respondent Steven Fielman is directed to pay the complainant the principal sums of $5,263 for back pay, plus interest at the rate of 9% per year from December 1, 2003, and $50,000 in compensatory damages for mental anguish and humiliation, plus interest at the rate of 9% per year from January 22, 2007.
There is substantial evidence in the record that the complainant was subjected to unwelcome sexual advances by her manager, the respondent Steven Fielman, that altered the conditions of the workplace and, thus, was subjected to a hostile work environment (see Matter of Columbia Sussex Corp. v New York State Div. of Human Rights, 63 AD3d 736 [2009]; Matter of State Div. of Human Rights v Koch, 60 AD3d 777 [2009]). However, the Commissioner of the New York State Division of Human Rights (hereinafter the Commissioner) improperly imposed liability on the respondent ABS Electronics, Inc. (hereinafter ABS). Under the Human Rights Law, an “employer cannot be held liable for an employee’s discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it” (Matter of Totem Taxi v New York State Human Rights Appeal Bd., 65 NY2d 300, 305 [1985]; see Matter of State Div. of Human Rights v St. Elizabeth’s Hosp., 66 NY2d 684, 687 [1985]; Matter of Medical Express Ambulance Corp. v *969Kirkland, 79 AD3d 886 [2010]). Here, the evidence presented at the hearing does not support a finding that ABS knew or should have known of the improper conduct of Fielman, and encouraged, approved, or condoned the improper conduct by failing to take remedial action (see Doe v State of New York, 89 AD3d 787, 788-789 [2011]).
The Commissioner, however, properly imposed liability on Fielman individually. An individual will not be subject to liability under the Human Rights Law unless he or she is shown to have an ownership interest or any power to do more than carry out personnel decisions made by others (see Patrowich v Chemical Bank, 63 NY2d 541, 542 [1984]). Here, there is substantial evidence in the record that, although a manager of ABS, Fielman had the authority “to do more than carry out personnel decisions made by others” (Patrowich v Chemical Bank, 63 NY2d at 542; see Carrea v Imagimed, LLC, 74 AD3d 860, 862 [2010]; Cirillo v Muss Dev. Co., 278 AD2d 353, 354 [2000]).
Furthermore, there is no reason to disturb the award of damages. “Deference must be accorded to the agency’s assessment of damages in view of its special experience in weighing the merit and value of mental anguish claims” (Matter of New York State Div. of Human Rights v Caprarella, 82 AD3d 773, 775 [2011]). The award of $50,000 in compensatory damages for mental anguish and humiliation is reasonably related to the wrongdoing, is supported by substantial evidence, and is similar to comparable awards for similar injuries (see Matter of New York State Div. of Human Rights v Ben Rottenstein Assoc., Inc., 89 AD3d 852, 853 [2011]; Matter of Columbia Sussex Corp. v New York State Div. of Human Rights, 63 AD3d 736 [2009]; Matter of State Div. of Human Rights v Koch, 60 AD3d 777, 777-778 [2009]). The back pay award is also supported by substantial evidence and is appropriate (see Executive Law § 297 [4] [c]; Matter of New York State Div. of Human Rights v Ben Rottenstein Assoc., Inc., 89 AD3d at 854; Matter of State Div. of Human Rights v Koch, 60 AD3d at 778). Mastro, J.P., Angiolillo, Dickerson and Hall, JJ., concur.
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—In a proceeding pursuant to CPLR article 78 to review a determination of a Disciplinary Hearing Officer dated February 22, 1985, that the petitioner had violated two rules of the correctional facility, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Green, J.), entered May 14, 1985, which dismissed the proceeding.
Ordered that the judgment is affirmed, without costs or disbursements.
The Supreme Court properly dismissed the proceeding. The disciplinary proceedings fully complied with the dictates of due process and the applicable State rules and regulations (7 NYCRR part 250 et seq.; Wolff v McDonnell, 418 US 539; Pino v Dalsheim, 605 F Supp 1305). The petitioner’s claim that the Hearing Officer’s determination was not supported by substantial evidence is raised for the first time on appeal and therefore is not properly before us. In any case, the Hearing Officer’s determination was based upon substantial evidence (see, People ex rel. Vega v Smith, 66 NY2d 130, 139). In this case, the correction officer who filed the report of misbehavior against the petitioner testified at the hearing. The essential issue was credibility, and the Hearing Officer was entitled to credit the charging officer’s version of the events (see, Matter of Perez v Wilmot, 67 NY2d 615, 616).
The petitioner’s remaining claim, that the Supreme Court deprived him of his right to present evidence in support of his CPLR articlé 78 petition, is unsupported by the record which indicates that the petitioner was given sufficient opportunity to present his case. The petitioner did not offer any further evidence nor request an opportunity to do so. Both the disci*646plinary proceeding and the proceeding pursuant to CPLR article 78 were conducted in a fair and impartial manner. Accordingly, we affirm. Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.
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—In a proceeding pursuant to CPLR article 78 to (1) compel the respondent Mayor of the City of Beacon to reopen a disciplinary hearing to permit the petitioner to present additional testimony, (2) vacate the respondent Mayor’s determination terminating the petitioner as a police officer, and (3) compel the respondent Mayor to pay the petitioner back pay, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Rosenblatt, J.), dated September 11, 1986, which dismissed the petition on the merits.
Ordered that the judgment is affirmed, with costs.
The petitioner, who had been employed by the respondent City of Beacon Police Department as a police officer, was discharged from her employment for misconduct following a hearing pursuant to Civil Service Law § 75 conducted in April 1983. Upon review by this court, the determination of the petitioner’s misconduct was confirmed. However, the penalty of dismissal was vacated on the ground that the respondent, in imposing the dismissal penalty, relied upon the petitioner’s entire employment record, which included two prior incidents of misconduct, without providing the petitioner with notice that those prior incidents would be considered. Accordingly, the matter was remitted to the respondent Mayor for a de novo determination of the appropriate sanction to be imposed after affording the petitioner an opportunity for a written responsive submission (Matter of Smith v Tomlinson, 111 AD2d 245).
Following this court’s decision, the petitioner was afforded an opportunity to review her personnel records and submit any necessary information relevant to the issue of the imposition of an appropriate sanction. During this period, the petitioner’s counsel communicated with the respondent Mayor and requested that the fault phase of the proceeding be reopened to permit the petitioner an opportunity to present testimony of the petitioner’s physician. A letter from the petitioner’s physician was also submitted. Counsel also provided written material in regard to the issue of an appropriate sanction and urged that the penalty of dismissal was disproportionate to the offense.
*647By letter dated August 26, 1985, the respondent Mayor denied the petitioner’s request to reopen the fault phase of the proceeding and determined that based on the entire record, the sanction of dismissal was appropriate.
Thereafter, the petitioner commenced the instant proceeding challenging the respondent Mayor’s determination or, in the alternative, requesting that in the event the dismissal determination was upheld, she be awarded back pay for the period covering her initial termination date until the dismissal decision of the respondent Mayor. The Supreme Court dismissed the petition, in its entirety, on the merits. We affirm.
In the first instance, we agree with the Supreme Court’s finding that the respondent Mayor did not act improperly in refusing to reopen the fault phase of the proceeding. The issue of fault had been litigated and decided at the hearing held pursuant to Civil Service Law § 75 two years earlier and the determination was confirmed by this court (see, Matter of Smith v Tomlinson, supra). Thus, the petitioner is not entitled to relitigate that issue (see, Pauk v Board of Trustees, 68 NY2d 702). Moreover, the proposed testimony of the petitioner’s physician did not fall within the ambit of "newly discovered evidence” which would warrant the reopening of the hearing (see, Romeo v Romeo, 39 AD2d 559, 560).
Secondly, we agree that the imposed penalty of dismissal was neither arbitrary nor capricious or such as would shock one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222). The present misconduct charge was the third such incident involving the petitioner during her employment as a police officer. In view of this repeated course of conduct which necessarily impaired the good order and efficiency of the police department, the petitioner’s dismissal was not inappropriate (see, Matter of Michailides v Schembri, 112 AD2d 235).
Finally, we conclude that the petitioner’s request for back pay was properly denied in view of this court’s decision in Matter of Cromwell v Bates (117 AD2d 667).
We have reviewed the petitioner’s remaining contentions and find them to be without merit. Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.
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—Proceeding pursuant to CPLR article 78 to review a determination of the respondent *648Commissioner of the New York State Department of Environmental Conservation, dated June 12, 1985, which, after a hearing, granted a permit to Jayne Vozeulas to construct a single-family house and septic system, subject to certain special conditions recommended in the hearing report.
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
We find that the Department of Environmental Conservation (hereinafter the department) thoroughly examined and evaluated all possible environmental concerns, and amply satisfied the requirement that it take a "hard look” at such concerns and give a "reasoned elaboration” for its determination (Aldrich v Pattison, 107 AD2d 258, 263-265; Horn v International Business Machs. Corp., 110 AD2d 87, 93, Iv denied 67 NY2d 602). In addition, the respondent Commissioner correctly conditioned the grant of the permit on the applicant’s obtaining approval from the Suffolk County Department of Health Services for the septic system proposed to be located on her property (cf., Matter of Tehan v Scrivani, 97 AD2d 769, 770).
We have considered the petitioners’ remaining arguments and find them to be without merit. Mangano, J. P., Bracken, Eiber and Harwood, JJ., concur.
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In a proceeding pursuant to CFLR article 78, inter alia, to challenge the election of officers to the board of directors of a *970cooperative apartment building and to set aside a certain contract purportedly entered into by the cooperative, the petitioners appeal from a judgment of the Supreme Court, Kings County (Partnow, J.), entered May 2, 2011, which, upon a decision of the same court (Sunshine, J.H.O.) dated April 12, 2011, made after a hearing, denied the petition and dismissed the proceeding.
Ordered that the judgment is modified, on the law, by deleting the provision thereof, in effect, denying that branch of the petition which was to set aide the contract between the subject cooperative and the respondent Del Mar Management Services, Inc., and substituting therefor a provision granting that branch of the petition; as so modified, the judgment is affirmed, without costs or disbursements.
The petitioners, Juan Ortiz and Mayra Santiago, reside in two of the six units of 370 Hooper Street Housing Development Fund Corporation (hereinafter the Co-op), a cooperative apartment building located in Kings County. In 1983 Ortiz was elected president of the Co-op Board of Directors (hereinafter the Board), and has held that position until the events which are the subject of this appeal took place. The respondents are Enrique Garcia, the current Board president, Washington Hernandez, the current Co-op treasurer, Efraim Gonzalez, the current Co-op secretary, who were all elected at a special meeting of Co-op members held on April 12, 2010, Del Mar Management Services, Inc. (hereinafter Del Mar), a building management company, and Gladys Torres, an employee of Del Mar.
The petitioners commenced this proceeding seeking, inter alia, to set aside the election of officers conducted on April 12, 2010, on the ground that the meeting at which the election took place was not scheduled in compliance with the Co-op’s bylaws. The petitioners also sought to set aside a management services contract which the Co-op had entered into with Del Mar on March 10, 2010, on the ground that the contract was not properly executed in accordance with the Co-op’s bylaws. In a referral order dated November 16, 2010, the Supreme Court directed a hearing “to hear and determine . . . the issue of board membership, board members, and election validity.” After an extensive hearing, the Judicial Hearing Officer (hereinafter JHO) issued a decision, dated April 12, 2011, wherein she stated that the members of the Co-op were Ortiz, Garcia, Gonzalez, and Hernandez, the election held on April 12, 2010, was valid, and “the officers are Garcia-Pres, Hernandez-Treasurer, Gonzalez-Sect’y.” Additionally, she stated that “the contract entered into with [Del Mar] dated 3/10/10 is valid.” In a judg*971ment entered May 2, 2011, the Supreme Court denied the petition and dismissed the proceeding.
Based on the evidence submitted at the hearing, the Supreme Court properly found that the April 12, 2010, special meeting was scheduled in compliance with the Co-op bylaws, and that the resulting election of officers was valid (see Board of Mgrs. of Park Regent Condominium v Park Regent Unit Owners Assoc., 58 AD3d 589 [2009]; Matter of Stile v Antico, 272 AD2d 403 [2000]; Matter of Rock Church v Milani, 256 AD2d 255 [1998]). The April 12, 2010, special members meeting was called by the Board at its April 2, 2010, meeting, which was attended by Garcia and Hernandez, who were then secretary and vice-president of the Board, respectively. On April 2, 2010, Ortiz was more than two months behind in his maintenance payments, and according to the Co-op bylaws, such delinquency disqualified Ortiz from being a voting member of the Co-op or from being elected to the Board. Accordingly, on April 2, 2010, Garcia and Hernandez represented a majority of the Board, and as such they were entitled to call a special meeting of the members in order to elect Board directors. The fact that a written notice sent by Garcia, dated April 2, 2010, incorrectly stated that the April 12, 2010, special meeting was being called “at the written request of more than two members” did not invalidate the special meeting, since it had been properly scheduled at the April 2, 2010, Board meeting. Moreover, Ortiz admitted at the hearing that he appeared at the April 12, 2010, meeting. Accordingly, the April 12, 2010, special meeting was properly scheduled. The record also supports the conclusion that the election of officers which took place at that meeting was proper and in accordance with Co-op bylaws.
However, the petitioners correctly argue that the management services contract entered into between the Co-op and Del Mar was not valid. Initially, we note that while the question of the validity of the Del Mar contract was not referred to the JHO, the parties argued this issue at the hearing, and in the decision dated April 12, 2011, the JHO specifically found that the contract was valid. Thus, this issue is properly before us on this appeal. The Co-op bylaws specifically state that all contracts “shall be executed on behalf of the [Co-op] by either the [Board] President or the Vice President.” Here the Del Mar contract, which was entered into on March 10, 2010, was only executed on behalf of the Co-op by Garcia, who was Secretary of the Board at that time. Moreover, Garcia only signed the contract in his capacity as a Co-op member. Accordingly, the contract was invalid (see generally Odell v 704 Broadway Condominium, 284 *972AD2d 52 [2001]; Paragon Restoration Group, Inc. v Cambridge Sq. Condominiums, 14 Misc 3d 1236[A], 2006 NY Slip Op 52579DJ] [2006], mod 42 AD3d 905 [2007]). Eng, P.J., Angiolillo, Sgroi and Hinds-Radix, JJ., concur.
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Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Scancarelli, J.), rendered May 2, 1985, convicting him of robbery in the first degree (four counts), robbery in the second degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The evidence adduced at trial viewed in the light most favorable to the prosecution and given the benefit of every reasonable inference to be drawn therefrom (see, People v Giuliano, 65 NY2d 766, 768), is legally sufficient to support the defendant’s conviction. Upon the exercise of our factual review power we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]). In fact, the proof of guilt was overwhelming.
The defendant’s contention that the testimony of Detectives *649Kaminski and Nolan, which recounted the witness Edgar Cleveland’s prior showup identification of the defendant was impermissible bolstering, is without merit. Cleveland observed the defendant at the time of the robbery, and viewed him again at a police showup shortly thereafter, at which time he identified the defendant as one of the men who robbed him. However, at the defendant’s trial, which took place five years after the robbery because the defendant could not be located for that period of time, Cleveland could not positively identify the defendant as a participant in the robbery.
Testimony by a witness concerning another witness’s prior identification of a defendant is permissible when the eyewitness has stated that he viewed the defendant during the commission of the crime, and on a subsequent occasion at a legally permissible identification procedure, and cannot at present state that the defendant is the person he previously identified (see, CPL 60.25). Here, the testimony of Cleveland supports the statutory requirements of the Criminal Procedure Law. Further, contrary to the defendant’s contention, the prompt on-the-scene showup conducted by the police was not improper (see, People v Turner, 120 AD2d 628, 629) and may serve as the identification procedure utilized to fulfill the second prong of the requirements of CPL 60.25 (see, People v Gonzalez, 46 NY2d 1011, 1012).
The defendant’s charge that the prosecutor improperly injected his beliefs into the summation was not preserved for review on appeal. Although the defendant did move for a mistrial after the prosecutor had concluded his summation, and a motion for a mistrial may be sufficient to preserve an issue for review by this court (see, People v Medina, 53 NY2d 951, 953; People v Jalah, 107 AD2d 762, 763), in this case the motion was untimely. In order to preserve this issue for appellate review, a motion for a mistrial or objection must be made at the time of the impropriety and a belated motion which does not give the trial court opportunity to remedy the error complained of will fail to preserve the issue (see, CPL 470.05; People v Narayan, 54 NY2d 106, 112; People v Price, 120 AD2d 690). Here, the belated motion by the defendant failed to preserve this issue.
In any event, any error in the prosecutor’s summation was harmless (see, People v Wood, 66 NY2d 374, 379-380). Mollen, P. J., Kunzeman, Eiber and Spatt, JJ., concur.
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In a proceeding pursuant to CFLR article 78, inter alia, to challenge the election of officers to the board of directors of a *970cooperative apartment building and to set aside a certain contract purportedly entered into by the cooperative, the petitioners appeal from a judgment of the Supreme Court, Kings County (Partnow, J.), entered May 2, 2011, which, upon a decision of the same court (Sunshine, J.H.O.) dated April 12, 2011, made after a hearing, denied the petition and dismissed the proceeding.
Ordered that the judgment is modified, on the law, by deleting the provision thereof, in effect, denying that branch of the petition which was to set aide the contract between the subject cooperative and the respondent Del Mar Management Services, Inc., and substituting therefor a provision granting that branch of the petition; as so modified, the judgment is affirmed, without costs or disbursements.
The petitioners, Juan Ortiz and Mayra Santiago, reside in two of the six units of 370 Hooper Street Housing Development Fund Corporation (hereinafter the Co-op), a cooperative apartment building located in Kings County. In 1983 Ortiz was elected president of the Co-op Board of Directors (hereinafter the Board), and has held that position until the events which are the subject of this appeal took place. The respondents are Enrique Garcia, the current Board president, Washington Hernandez, the current Co-op treasurer, Efraim Gonzalez, the current Co-op secretary, who were all elected at a special meeting of Co-op members held on April 12, 2010, Del Mar Management Services, Inc. (hereinafter Del Mar), a building management company, and Gladys Torres, an employee of Del Mar.
The petitioners commenced this proceeding seeking, inter alia, to set aside the election of officers conducted on April 12, 2010, on the ground that the meeting at which the election took place was not scheduled in compliance with the Co-op’s bylaws. The petitioners also sought to set aside a management services contract which the Co-op had entered into with Del Mar on March 10, 2010, on the ground that the contract was not properly executed in accordance with the Co-op’s bylaws. In a referral order dated November 16, 2010, the Supreme Court directed a hearing “to hear and determine . . . the issue of board membership, board members, and election validity.” After an extensive hearing, the Judicial Hearing Officer (hereinafter JHO) issued a decision, dated April 12, 2011, wherein she stated that the members of the Co-op were Ortiz, Garcia, Gonzalez, and Hernandez, the election held on April 12, 2010, was valid, and “the officers are Garcia-Pres, Hernandez-Treasurer, Gonzalez-Sect’y.” Additionally, she stated that “the contract entered into with [Del Mar] dated 3/10/10 is valid.” In a judg*971ment entered May 2, 2011, the Supreme Court denied the petition and dismissed the proceeding.
Based on the evidence submitted at the hearing, the Supreme Court properly found that the April 12, 2010, special meeting was scheduled in compliance with the Co-op bylaws, and that the resulting election of officers was valid (see Board of Mgrs. of Park Regent Condominium v Park Regent Unit Owners Assoc., 58 AD3d 589 [2009]; Matter of Stile v Antico, 272 AD2d 403 [2000]; Matter of Rock Church v Milani, 256 AD2d 255 [1998]). The April 12, 2010, special members meeting was called by the Board at its April 2, 2010, meeting, which was attended by Garcia and Hernandez, who were then secretary and vice-president of the Board, respectively. On April 2, 2010, Ortiz was more than two months behind in his maintenance payments, and according to the Co-op bylaws, such delinquency disqualified Ortiz from being a voting member of the Co-op or from being elected to the Board. Accordingly, on April 2, 2010, Garcia and Hernandez represented a majority of the Board, and as such they were entitled to call a special meeting of the members in order to elect Board directors. The fact that a written notice sent by Garcia, dated April 2, 2010, incorrectly stated that the April 12, 2010, special meeting was being called “at the written request of more than two members” did not invalidate the special meeting, since it had been properly scheduled at the April 2, 2010, Board meeting. Moreover, Ortiz admitted at the hearing that he appeared at the April 12, 2010, meeting. Accordingly, the April 12, 2010, special meeting was properly scheduled. The record also supports the conclusion that the election of officers which took place at that meeting was proper and in accordance with Co-op bylaws.
However, the petitioners correctly argue that the management services contract entered into between the Co-op and Del Mar was not valid. Initially, we note that while the question of the validity of the Del Mar contract was not referred to the JHO, the parties argued this issue at the hearing, and in the decision dated April 12, 2011, the JHO specifically found that the contract was valid. Thus, this issue is properly before us on this appeal. The Co-op bylaws specifically state that all contracts “shall be executed on behalf of the [Co-op] by either the [Board] President or the Vice President.” Here the Del Mar contract, which was entered into on March 10, 2010, was only executed on behalf of the Co-op by Garcia, who was Secretary of the Board at that time. Moreover, Garcia only signed the contract in his capacity as a Co-op member. Accordingly, the contract was invalid (see generally Odell v 704 Broadway Condominium, 284 *972AD2d 52 [2001]; Paragon Restoration Group, Inc. v Cambridge Sq. Condominiums, 14 Misc 3d 1236[A], 2006 NY Slip Op 52579DJ] [2006], mod 42 AD3d 905 [2007]). Eng, P.J., Angiolillo, Sgroi and Hinds-Radix, JJ., concur.
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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). Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur.
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—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Owens, J.), rendered August 21, 1985, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing concurrent sentences of 25 years to life and IV2 to 15 years, respectively.
Ordered that the judgment is modified, on the law, by reducing the sentence on the conviction of criminal possession of a weapon to 5 to 15 years. As so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the defendant, the court properly refused to charge extreme emotional disturbance (see, People v Walker, 64 NY2d 741). The defendant failed to present sufficient evidence that he in fact acted under the influence of extreme emotional disturbance and that there was a reasonable explanation for the emotional disturbance (cf, People v Moye, 66 NY2d 887).
Concededly, the sentence on the criminal possession of a weapon count must be reduced from IV2 to 15 years’ imprisonment to 5 to 15 years’ imprisonment because the minimum term of this sentence cannot exceed one third of the maximum term (see, Penal Law § 70.02 [1] [b]; [3] [b]; [4]; § 265.03). The sentence imposed is, however, not otherwise excessive (see, People v Suitte, 90 AD2d 80).
The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.
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—Appeal by the defendant from a judgment of the County Court, Westchester County (Rosato, J.), rendered April 16, 1985, convicting him of robbery in the *652third degree, grand larceny in the third degree and petit larceny, after a nonjury trial, and imposing sentence.
Ordered that the judgment is modified, on the law, by reversing the conviction of petit larceny, vacating thé sentence imposed thereon, and dismissing that count of the indictment. As so modified, the judgment is affirmed.
The evidence supports the hearing court’s finding that the showup identification which occurred within a block and a half of the scene of the crime, approximately five minutes after the robbery, was appropriately and lawfully conducted in the interest of securing a prompt and reliable identification of the perpetrator of the crime (see, People v Brnja, 70 AD2d 17, affd 50 NY2d 366).
In any event, there was an independent basis for the in-court identification. The complainant was able to observe the defendant throughout the two-minute robbery in good lighting conditions and was able to convey a detailed and accurate description to the police officer immediately following the incident.
The defendant’s conviction for petit larceny, based on the theft of the same property from the victim as his conviction for grand larceny in the third degree, is an inclusory concurrent count of the latter and must be dismissed (CPL 300.40 [3] [b]). Bracken, J. P., Kunzeman, Eiber and Harwood, JJ., concur.
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In a child support proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Suffolk County (Hoffmann, J.), dated March 26, 2012, which denied her objections to an order of the same court (Raimondi, S.M.), dated January 13, 2012, which, upon findings of fact also dated January 13, 2012, made after a hearing, directed the father to pay the sum of only $2,615 for arrears for college expenses for the subject child for the period from August 2010 through December 2011.
Ordered that the order dated March 26, 2012, is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof denying the mother’s objection to so much of the order dated January 13, 2012, as directed the father to pay the sum of $2,615 for arrears for college expenses, and substituting therefore a provision granting that objection to the extent of directing the father to pay the sum of $15,187 for arrears for college expenses for the period from August 2010 through December 2011, and vacating that portion of the order dated January 13, 2012; as so modified, the order is affirmed, with costs to the mother.
The parties, who are the parents of one child, were divorced by judgment entered October 30, 1997. The judgment of divorce provided, in relevant part, that “pursuant to the stipulation dated July 1, 1996, both the Plaintiff and the Defendant agree to contribute not more than 50% of the cost of a SUNY tuition fees and miscellaneous expenses that would ensue if the child were to attend a State University School. This is not to restrict the child to attendance of a State University school, but is meant only to put a cap on the respective parties!'] obligation to contribute to the cost of that child’s college education.”
The parties’ son enrolled in a private university in August of 2010. The cost to attend the subject university was approximately $46,394 for the 2010-2011 school year, and $49,463 for the 2011-2012 school year. The child was awarded a scholarship and grants. To cover the balance of tuition, the child secured several loans, and the mother made additional payments.
*973In May 2011, the mother commenced this proceeding alleging a violation of the support provisions of the judgment of divorce, and seeking a direction that the father, inter alia, pay his share of the child’s college expenses. The Family Court, after a hearing, found that the father’s share of college expenses from August 2010 through December 2011 was $2,615.
Under the circumstances of this case, the father’s share of college expenses for the child should be based on the total cost of tuition, room and board, college fees, and books and miscellaneous expenses as estimated by the university attended by the child, less only the sum of all nonrepayable scholarships, grants, and work-study payments or credits (see Matter of Yorke v Yorke, 83 AD3d 951, 952 [2011]; Matter of Kent v Kent, 29 AD3d 123, 134 [2006]; cf. Matter of Korosh v Korosh, 99 AD3d 909 [2012]; Reback v Reback, 73 AD3d 890 [2010]), limited only by the cost of tuition to attend a SUNY school. Based on the evidence submitted at the hearing, the father is obligated to pay the principal sum of $15,187, which represents his pro rata tuition obligation accrued from August 2010 through December 2011. Angiolillo, J.P., Dickerson, Hall and Austin, JJ., concur.
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—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lakritz, J.), rendered July 11, 1984, convicting him of attempted murder in the second degree, criminal possession of a weapon in the second degree and assault in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant and the complainant began fighting in a pool room and later resumed the altercation in a McDonald’s parking lot. Shortly thereafter, the defendant showed up at *654the complainant’s house and told him he was going to kill him and his brothers. When the complainant came outside with his mother, the defendant fired six shots, hitting the complainant twice. The defendant, who lived three doors away and who had known the complainant for 1 or 2 years, testified that he did not go to the complainant’s home on the night in question and that the complainant blamed him for the shooting because of "bad blood” between the two families.
When viewed in a light most favorable to the People, the evidence was legally sufficient to support the defendant’s conviction of the crimes charged (see, People v Contes, 60 NY2d 620). The jury was presented with both the complainant’s and the defendant’s version of the facts. The credibility of the witnesses was a matter reserved for the jury and its determination should not be lightly overturned (see, People v Gruttola, 43 NY2d 116; People v Ortiz, 135 AD2d 664; People v Mustafa, 126 AD2d 674, Iv denied 69 NY2d 831). Moreover, upon the exercise of our factual review power, we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
The trial court did not abuse its discretion in its ruling on the defendant’s Sandoval motion since ne court limited the questioning of the defendant to only 1 of his 8 prior convictions and provided the jury with cautionary instructions as to the proper use the jury was to make of such prior conviction (see, People v Pavao, 59 NY2d 282; People v Kehn, 109 AD2d 912).
The defendant was not denied a fair trial by the comments made by the prosecutor in his opening address to the jury and in his summation (see, People v Gines, 36 NY2d 932; People v Galloway, 54 NY2d 396). Moreover, the trial court’s evidentiary rulings were proper. The prosecutor’s questioning of the defendant as to what he told the officers upon being arrested did not violate his privilege against self-incrimination since it was the defendant who initiated the conversation and who elected not to exercise his privilege (People v Savage, 50 NY2d 673, cert denied 449 US 1016).
Upon viewing the evidence in a light most favorable to the defendant, we agree with the trial court that the evidence adduced in this case fails to support a charge of assault in the second degree as a lesser included offense of assault in the first degree (see, People v Glover, 57 NY2d 61; People v Mejia, 119 AD2d 771).
*655The defendant was properly adjudicated a predicate felon (see, People v McGrath, 43 NY2d 803) and the sentence he received was neither harsh nor excessive in light of the calculated, intentional shooting of the complainant (see, People v Suitte, 90 AD2d 80).
We find the defendant’s remaining contentions, including those raised in his supplemental pro se brief, to be either unpreserved for appellate review or without merit. Mangano, J. P., Bracken, Eiber and Harwood, JJ., concur.
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594 F.3d 577 (2010)
Jeffery Mark OLSON, on behalf of himself and a class of those similarly situated, Plaintiff-Appellant,
v.
Tracy BROWN, in his official capacity as Sheriff of Tippecanoe County, Defendant-Appellee.
No. 09-2728.
United States Court of Appeals, Seventh Circuit.
Argued November 10, 2009.
Decided February 4, 2010.
*578 Gavin M. Rose (argued), ACLU of Indiana, Indianapolis, IN, for Plaintiff-Appellant.
Douglas J. Masson (argued), Hoffamn, Luhman & Mason, Lafayette, IN, for Defendant-Appellee.
*579 Before POSNER and FLAUM, Circuit Judges, and DERYEGHIAYAN, District Judge.[*]
FLAUM, Circuit Judge.
A putative class of plaintiffs, represented by Mark Olson, filed a complaint against the Sheriff of Tippecanoe County, Tracy Brown, alleging several First Amendment violations and violations of Indiana law in the Tippecanoe County Jail. Olson filed for class certification at the same time he filed the complaint. Shortly after Olson filed the complaint and motion for class certification, the Indiana Department of Correction transferred him out of Tippecanoe County Jail. Because the transfer took place before class certification, the district court dismissed the suit as moot. Olson appeals the dismissal on the ground that this case is inherently transitory for any possible named plaintiff and therefore falls within the exception to the mootness doctrine announced in Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). We find that this case fits within the exception to the mootness doctrine carved out for inherently transitory cases and therefore we reverse the district court's dismissal.
I. Background
Tippecanoe County Jail ("TCJ") is a temporary detention center that houses inmates awaiting trial, release on bail, or transfer to the Indiana Department of Correction, or serving sentences of less that one year. The parties stipulate that the following statistics regarding the inmate population as of February 20, 2009 represent a typical portrait of the inmate population at any given time: TCJ housed 529 inmates; 128 inmates had been incarcerated for less than 30 days; 119 inmates had been incarcerated between 30 and 90 days; 130 inmates had been incarcerated between 90 and 180 days; 121 inmates had been incarcerated between 180 and 365 days; 41 inmates had been incarcerated for more than 365 days; and the average length of stay for the 529 inmates was 139 days. Coincidentally, Olson was incarcerated at TCJ for exactly 139 daysfrom August 29, 2008 through January 15, 2009.
TCJ employs a grievance policy to address inmate concerns. Once an inmate files a grievance, the jail is responsible for responding to the grievance within seven days. If the inmate does not agree with the decision, he or she may appeal. The jail then has fifteen days to respond to the appeal. While incarcerated at TCJ, Olson filed twenty-one grievances and twenty-one grievance appeals. The jail never responded to any of them. Olson maintained a journal recounting the precise language of each grievance and each grievance appeal. Olson's grievances included two grievances regarding jail staff opening his legal mail outside of his presence, one regarding a denial of access to the law library, and one regarding the jail's failure to respond to grievances.
On January 2, 2009, while incarcerated at TCJ, Olson filed this complaint and a motion for class certification. Olson's complaint set forth claims for injunctive relief against the Sheriff of Tippecanoe County with respect to four basic conditions of his confinement: (1) an inadequate grievance procedure, in violation of Indiana law; (2) inadequate access to the law library, in violation of Indiana law; (3) inspection of mail from the courts outside of his presence, in violation of the First and Fourteenth Amendments of the United *580 States Constitution and Indiana law; and (4) inspection of mail from attorneys outside his presence, in violation of the First and Fourteenth Amendments of the United States Constitution and Indiana law. With the motion for class certification, Olson included affidavits of fifty-three inmates detailing their experiences with jail staff opening their legal mail outside of their presence, denying them access to the law library, and failing to respond to their grievances. Thirteen days after Olson filed this complaint and his motion for class certification, the Indiana Department of Correction transferred Olson to a new facility.
Brown removed this cause of action to federal court on January 20, 2009. On February 2, 2009, Brown filed his answer to the complaint. On March 13, 2009, Brown filed his Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The district court heard oral argument on Olson's Motion for Class Certification on March 18, 2009, but reserved its ruling on the class certification issue pending a ruling on Brown's Motion for Judgment on the Pleadings. On June 23, 2009, 171 days after the initial filing of this cause of action, the district court granted Brown's motion for Judgment on the Pleadings holding that Olson's transfer away from TCJ rendered this cause of action moot.
This appeal follows.
II. Discussion
Whether a case is moot is a question of law which we review de novo. Franzoni v. Hartmarx Corp., 300 F.3d 767, 771 (7th Cir.2002). A case is moot when "the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." United States Parole Commission v. Geraghty, 445 U.S. 388, 396, 100 S. Ct. 1202, 63 L. Ed. 2d 479 (1980).
It is without question that this case would be moot if Olson had brought his claims individually. Olson only sought injunctive relief and is no longer subject to the conditions that formed the basis of his complaint. Therefore, the controversy is resolved in relation to Olson. However, Olson filed for class certification while he was a party to a live controversy. This fact would generally not save a cause of action from becoming moot upon the termination of the named plaintiff's claims prior to the certification of the class. However, timely filing for class certification can save a cause of action if it falls within the exception to the mootness doctrine announced in Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). The issue before this court is whether Olson's claim is so "inherently transitory" that it is uncertain that any member of the class would maintain a live controversy long enough for a judge to certify a class. If so, then this case is not moot for the purpose of class certification.
In Gerstein, the Court addressed the issue of class certification for Florida prisoners seeking a declaratory judgment that they had a constitutional right to a probable cause hearing for pretrial detention. Before reaching the substantive issues, the Court addressed whether it had jurisdiction to hear the claim. Faced with a situation where it was likely that none of the named plaintiffs had a live claim at the time of the class certification decision, the Gerstein Court specifically addressed the problem of mootness for class claims brought by pre-trial detainees. The Court found that the case was not moot, reasoning,
At the time the complaint was filed, the named respondents were members of a class of persons detained without a judicial *581 probable cause determination, but the record does not indicate whether any of them were still in custody awaiting trial when the District Court certified the class. Such a showing ordinarily would be required to avoid mootness under Sonsa. But this case is a suitable exception to that requirement. The length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or conviction after trial. It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class. Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain. The attorney representing the named respondents is a public defender, and we can safely assume that he has other clients with a continuing live interest in this case.
420 U.S. at 111, n. 11, 95 S. Ct. 854 (internal citations omitted). A number of subsequent Supreme Court cases have reiterated and clarified the exception to the mootness doctrine announced in Gerstein. See, e.g., Swisher v. Brady, 438 U.S. 204, 98 S. Ct. 2699, 57 L. Ed. 2d 705 (1978); County of Riverside v. McLaughlin, 500 U.S. 44, 51-52, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991). In Swisher, the Court affirmed a district court's decision to certify a class of juveniles involved in the juvenile court system despite the fact that the named plaintiff's claims were moot at the time of the decision. The Court in Swisher relied on Gerstein's predecessor, Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975), to find:
There may be cases in which the controversy involving the named plaintiff is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such instances, whether certification can be said to "relate back" to the filing of the complaint may depend on upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review.
Swisher, 438 U.S. at 213, n. 11, 98 S. Ct. 2699. In McLaughlin, the Court relied on the "inherently transitory" exception to find, "that the class was not certified until after the named plaintiffs' claims had become moot does not deprive [the Court] of jurisdiction," in a case challenging the denial of a prompt probable cause hearing for inmates in the county jail. 500 U.S. at 52, 111 S. Ct. 1661.
Although we have yet to apply the Gerstein line of cases to a case involving jail inmates in this circuit, the Second Circuit directly addressed this issue in Zurak v. Regan, 550 F.2d 86 (2d Cir.1977). In Zurak, a class of inmates at Rikers Island filed suit against the New York State Board of Parole alleging a violation of their due process rights regarding their conditional release. 550 F.2d at 90. All of the class members were serving a sentence of ninety-days or more. Id. At the time the district court certified the class, all of the named plaintiffs had already been released from Rikers Island. Id. The defendants appealed the district court's ultimate decision on the merits by arguing that the case was moot at the time of class certification and therefore the district court acted without proper jurisdiction. Id. However, the Second Circuit found that this case was not moot at the time of class certification because it fit squarely within the exception carved out by Gerstein. Id. The court reasoned that the exception for inherently transitory claims applied in this situation because, "the relatively short periods of incarceration involved and the possibility *582 of conditional release [created] a significant possibility that any single named plaintiff would be released prior to certification, although this possibility was less substantial than it was in Gerstein. As in Gerstein, however, the constant existence of a class of persons suffering the alleged deprivation is certain and the court may safely assume that counsel has other clients with a continuing live interest in the issues." Id. at 91-92 (citing Gerstein v. Pugh, 420 U.S. 103, 110 n. 11, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975)).
We agree with the Second Circuit's determination that the Gerstein line of cases require a claim to meet two main elements for the "inherently transitory" exception to apply: (1) it is uncertain that a claim will remain live for any individual who could be named as a plaintiff long enough for a court to certify the class; and (2) there will be a constant class of persons suffering the deprivation complained of in the complaint. Gerstein, 420 U.S. at 110 n. 11, 95 S. Ct. 854; Zurak, 550 F.2d at 91-92. Olson's claim meets both requirements.
First, based on the stipulated facts, it is uncertain that any potential named plaintiff in the class of inmates would have a live claim long enough for a district court to certify a class. As Gerstein and Zurak both explicitly point out, the length of incarceration in a county jail generally cannot be determined at the outset and is subject to a number of unpredictable factors, thereby making it inherently transitory. While the ultimate length of confinement does affect the applicability of the "inherently transitory" exception, the essence of the exception is uncertainty about whether a claim will remain alive for any given plaintiff long enough for a district court to certify the class. In Banks v. NCAA, 977 F.2d 1081, 1086 (7th Cir. 1992) and Trotter v. Klincar, 748 F.2d 1177 (7th Cir.1984), we specifically addressed the fact that the crux of the "inherently transitory" exception is the uncertainty about the length of time a claim will remain alive. In both cases we found that the "inherently transitory" exception did not apply because in both cases the named plaintiffs knew, from the outset, exactly how long their claims would remain alive but chose to wait to file for class certification until the claim was nearly moot or already moot. In Banks, the plaintiff knew from the outset that his claim would become moot 120 days from the onset of the controversy, but he purposefully chose to wait 112 days before filing his complaint. 977 F.2d at 1086. We relied on this intentional delay in filing to find that the plaintiff was precluded from benefitting from the "inherently transitory" exception to the mootness doctrine. Id. ("Had Banks been diligent in filing his claim shortly after discovering that he had failed to be selected for the draft or as a free agent, and still been unable to obtain class certification, he might have been able to make an argument for the class that he had standing for the purpose of pursing a ruling on class certification even though his own individual claim had become moot."). In Trotter, the named plaintiff had a live claim for seventy days but never filed for class certification. The plaintiff still attempted to rely on the "inherently transitory" exception for class actions when the court ruled that his case was moot. 748 F.2d at 1184-85. Similar to our reasoning in Banks, we found that the "inherently transitory" exception was inapplicable in Trotter because the plaintiff knew that his cause of action would soon become moot but chose not to file for class certification.
Brown attempts to read Banks and Trotter to create a bright-line rule that we cannot apply the "inherently transitory" *583 exception to a claim that has been alive beyond a given number of days. Brown argues that the "inherently transitory" exception should not apply here because Olson's delay in filing this suit is the same as the one-hundred-and-twenty-day delay in Banks and the seventy-day delay in Trotter. This analogy is misguided in two respects. First, no such bright-line rule exists. Unlike the plaintiffs in Banks and Trotter, Olson did not know when his claim would become moot. The duration of his claim was at the discretion of the Indiana Department of Correction. An individual incarcerated in a county jail may be released for a number of reasons that he cannot anticipate. Olson's transfer by the Indiana Department of Correction just thirteen days after he filed for class certification in this suit illustrates one such unpredictable occurrence that could unexpectedly moot a claim for a county jail inmate. This uncertainty is precisely what makes the "inherently transitory" exception applicable in this case. Second, because Olson was required to exhaust his administrative remedies before filing this suit, the period of time between the first possible day he could file and the day he actually filed was only fifty-two daysa significantly shorter period of time than was at issue in Banks or Trotter.
The case at bar also meets the second requirement for the inherently transitory exceptionthere will be a constant class of persons suffering the deprivation. Contrary to Brown's argument, the "inherently transitory" exception to the mootness doctrine is distinct from the "capable of repetition yet evading review" exception. When the claim is inherently transitory, as it was in Gerstein and as it is in this case, the plaintiff must show that there will likely be a constant class of persons suffering the deprivation complained of in the complaint. This is different from when a plaintiff invokes the "capable of repetition yet evading review" exception, where the plaintiff must show that the claim is capable of repetition as to the named plaintiff. A close reading of United States Parole Commission v. Geraghty, 445 U.S. 388, 398-99, 100 S. Ct. 1202, 63 L. Ed. 2d 479 (1980), makes this distinction clear. In Geraghty, the Court first acknowledged that a plaintiff must have a reasonable expectation of being subjected to the offending behavior in the future to avail himself of the "capable of repetition yet evading review" exception to the mootness doctrine. However, the Court then turned to Gerstein and found that the "inherently transitory" exception does not require any indication that the named plaintiff would be subject to the complained-of situation in the future but just that the claim is capable of repetition. Geraghty, 445 U.S. at 398-99, 100 S. Ct. 1202. Our own precedent also supports this distinction. In Banks, we treated "inherently transitory" and "capable of repetition yet evading review" as two separate lines of argument by the plaintiff for why the case was not moot. 977 F.2d at 1085-86.
Because Olson asks this court to apply the "inherently transitory" exception, not the "capable of repetition yet evading review" exception, the Supreme Court's recent holding in Alvarez v. Smith, 588 U.S. ___, 130 S. Ct. 576, ___ L.Ed.2d ___ (2009), is not applicable to this case. In Alvarez, the Court held that the plaintiffs could not rely on the "capable of repetition yet evading review" principle to avoid mootness because they could not show that they were likely to be subjected to the complained-of state procedures again. Alvarez, at 581-83. As discussed above, the "inherently transitory" exception does not require such a showing. Additionally, the district court in Alvarez denied the plaintiffs' motion for class certification. The plaintiffs never appealed that decision. *584 Significantly, this case is in a different procedural posture. Here, Olson seeks to keep the claim alive beyond his individual claim to certify the class. If the district court certifies the class, the case can proceed to the merits for the certified class of plaintiffs. The Alvarez plaintiffs, through their inaction in response to the denial of class certification, conceded that their claims should not extend beyond the life of their individual claims. The difference in procedural postures of the two cases makes Alvarez inapplicable to the case at hand.
Since we find that the claim "is of the kind that is unlikely to be able to certified before it becomes moot," and thereby meets the first requirement of Gerstein, all Olson must show is that the claim is likely to recur with regard to the class, not that the claim is likely to recur with regard to him. The pervasive nature of these claims, as evidenced by the fifty-three affidavits outlining problems similar to those complained of by Olsen, makes it likely that TCJ's alleged practices of opening inmates' legal mail, denying inmates access to the law library, and failing to respond to inmates' grievances will continue. Therefore, this case meets the second requirement of the inherently transitory exception.
As a final argument, Brown urges us to affirm the dismissal of the suit on the ground that it fails to state a claim for which relief may be sought. However, the district court did not reach this issue before dismissing the case for lack of jurisdiction. Therefore, we do not reach the issue of whether the pleadings state a claim for which relief may be sought.
Additionally, Olson asks that we address the issue of class certification. We decline this invitation. A district court has broad discretion to determine whether certification of a class action lawsuit is appropriate. Mira v. Nuclear Measurements Corp., 107 F.3d 466, 474 (7th Cir. 1997). Therefore, we remand to the district court to determine whether class certification is appropriate in this case.
III. Conclusion
For the above stated reasons, we REVERSE the district court's dismissal of the complaint as moot. We REMAND for consideration of the plaintiff's motion for class certification and defendant's motion for dismissal for failure to state a claim.
NOTES
[*] Hon. Samuel Der-Yeghiayan, District Judge for the Northern District of Illinois, is sitting by designation.
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10-30-2013
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915 F.2d 1566Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Theodore ROBINSON, Defendant-Appellant.
No. 90-5465.
United States Court of Appeals, Fourth Circuit.
Submitted Aug. 1, 1990.Decided Oct. 16, 1990.
Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert E. Maxwell, Chief District Judge. (CR-89-169)
Jeffrey W. McCamic, McCamic & McCamic, Wheeling, W.V., for appellant.
William A. Kolibash, United States Attorney, Lisa A. Grimes, Assistant United States Attorney, Wheeling, W.V., for appellee.
N.D.W.Va.
AFFIRMED.
Before ERVIN, Chief Judge, and K.K. HALL and PHILLIPS, Circuit Judges.
PER CURIAM:
1
Theodore M. Robinson appeals the district court's order denying his motion for judgment of acquittal on the basis that the government failed to make, as a matter of law, the requisite showing of specific intent for conviction of misapplication of student loan funds as required by 20 U.S.C. Sec. 1097(a). We have reviewed the briefs of counsel and the record in this case, and we dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. The evidence, viewed as it must be in the light most favorable to the government, supports the district court's conclusion that a reasonable jury could find defendant had the specific intent to misappropriate student loan funds. Accordingly, we affirm.
2
* Robinson was indicted by a Federal Grand Jury for the Northern District of West Virginia for violating the mail fraud statute, 18 U.S.C. Sec. 1341, and misapplication of student loan funds, 20 U.S.C. Sec. 1097(a). He was acquitted by a jury on the mail fraud charge, but was convicted on the misapplication of funds charge, for which he was ordered to pay a fine of $3,550 and sentenced to three years imprisonment. The charges stem from Robinson's application for and receipt of a loan to take two courses, Human Relations and "some management course," at West Virginia Northern Community College (WVNCC) in the fall 1984 semester. It is not disputed that in completing the application, Robinson signed a promissory note on July 17, 1984, in which he certified that the proceeds of any loan would be used for educational purposes at WVNCC and that he was responsible for any funds received. Robinson received a loan check in the amount of $2,332.81 and cashed the check on August 17, 1984. College enrollment figures show, and Robinson has not disputed, that Robinson attended only one class, the first meeting of the Human Relations course, and attended class no more. Thereafter, pursuant to WVNCC policy, Robinson was administratively withdrawn or dropped from the rolls for these two classes due to non-attendance. Robinson's own testimony indicates that he used the loan proceeds not to attend school, since he had been dropped, but rather for "general maintenance"--a new furnace, utilities, and food while defendant was not working.
3
Robinson was given ample opportunity to repay the loan. In July of 1985, the bank that made the loan sought payment from him, but was unsuccessful. Then, the United States attempted to collect, but also to no avail. Finally, the loan was declared in default, and the bank sought payment from the United States in accordance with the Guaranteed Student Loan Program. In January of 1989, the United States Attorney's Office sent Robinson a certified letter advising him that he was being investigated for federal crimes and offering him an opportunity to discuss the matter, and to explain mitigating circumstances, before the information was presented to a Grand Jury. Defendant did not answer the letter, and was indicted on July 18, 1989. At that time, Robinson contacted the United States Attorney's Office to discuss the matter. At the interview he alleged, as he testified at trial, that he had been unable to attend the classes due to a medical condition that required hospitalization at Ohio Valley Medical Center. At trial, the government put on the director of medical records from the Medical Center, who testified that there is no record of Robinson's receiving any treatment--let alone hospitalization for a week--during August or September 1984.
II
4
Section 1097(a) makes it a crime for "[a]ny person who knowingly and willfully embezzles, misapplies, steals, or obtains by fraud, false statement, or forgery any funds, assets, or property provided or insured under" the Guaranteed Student Loan Program. Robinson correctly argues, and the government agrees, that specific intent is an element of the crime of misapplication of funds. The district judge carefully and accurately so instructed the jury. Robinson contends that the district court erred in denying his motion for judgment of acquittal because the evidence was insufficient to prove that he "knowingly and willfully" misapplied loan funds.
5
The test for deciding a motion for acquittal at the close of the government's case, made pursuant to Rule 29, Fed.R.Crim.P., is whether there is sufficient direct or circumstantial evidence which, reviewed to give the government the benefit of all reasonable inferences, United States v. Rodriguez, 812 F.2d 414, 416 (8th Cir.1987), would sustain a jury finding that the defendant was guilty beyond a reasonable doubt. United States v. MacCloskey, 682 F.2d 468, 473 (4th Cir.1982). In testing the sufficiency of the evidence, a reviewing court must "give[ ] full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson v. Virginia, 443 U.S. 307, 319 (1979). The evidence need not exclude every hypothesis, but need only be sufficient that "any rational trier of facts could have found the essential elements of the crime beyond a reasonable doubt." Id. (emphasis in original); see also Rodriguez, 812 F.2d at 416.
6
Assessing the evidence here under the appropriate standard, we are satisfied that a reasonable jury could find that Robinson "knowingly and willfully" misapplied federally insured funds. As indicated, it was not disputed that Robinson received a student loan check after promising to use the money for school, did not attend school (but for one class), and applied the money for food, utilities, and a new furnace. Robinson's only explanation as to why he did not attend class was his medical excuse, but that testimony was thoroughly discredited by the lack of any admission records from the Ohio Valley Medical Center. In addition, Robinson testified that since the "illness" interfered with his attending school in the fall, he would apply the funds to the spring semester. Though this shifting of funds from one semester to the next is not permitted by the loan program, see J.A. at 139-41, had it occurred here it certainly would bolster Robinson's claim that his misapplication of the funds was not willful. However, Robinson made no attempt to reenroll for the spring semester. And, more significantly, he made no attempt to repay any part of the loan. All of this evidence makes reasonable a conclusion that defendant had the requisite intent when he misapplied government-insured funds for his own private use.
7
While from this evidence conflicting inferences certainly could be drawn as to Robinson's specific intent in obtaining and applying the student loan funds, a properly instructed jury--as was the jury here--reasonably could have found from the evidence that beyond a reasonable doubt he did so with the specific intent to misapply the funds. The district court therefore did not err in denying his motion for acquittal on this basis.
8
AFFIRMED.
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08-23-2011
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Dwight, J.:
This appeal is not well brought. The order appealed from was granted ex parte or, so far as appears, on the court’s own motion. No,papers are presented to us which purport to have been used in obtaining the order appealed from. The papers printed in the appeal book are those used on the original application for the order which was set aside, and an affidavit which appears to Lave been made for the purpose of this appeal, and is now first presented to any court.
No, such practice is recognized. An appeal can be heard only *637on the papers used in obtaining the order appealed from. And it seems that an appeal cannot be taken at all from an order granted ex parte. (Code of Civil Procedure,-§§ 1347, 2087.)
The remedy is by motion at Special Term, on notice and the proper papers, to set aside the ex parte order objected to, and if such motion is denied, an appeal from the order of denial will present the case to the appellate court as it was presented to the1 court making the order.
This appeal should be dismissed.
All concur.
Appeal dismissed, with ten dollars costs and disbursements.
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01-03-2023
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02-04-2022
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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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ORDER & REASONS
ELDON E. FALLON, District Judge.
Before the Court are a Motion for Declaratory Relief (Rec. Doc. No. 18), filed by Defendant City of New Orleans, and Motions for Preliminary Injunction (Rec. Doc. No. 31) filed by Plaintiffs. The Court, having reviewed the submitted memoranda and the applicable law and having heard testimony from a number of witnesses, is ready to rule. For the following reasons, the Defendant’s Motion for Declaratory Relief is granted in part and denied in part, and Plaintiffs’ Motion for Preliminary Injunction is granted in part and denied in part.
I. BACKGROUND OF LITIGATION
This case consists of three separate lawsuits — Dennis Melancon, Inc. et al. v. City of New Orleans, Monroe Coleman, et al. v. City of New Orleans, and Cedric Richard, et al v. City of New Orleans— consolidated under the name Dennis Melancon, Inc. et al. v. City of New Orleans. This dispute arises out of city ordinances affecting taxicabs passed by the New Orleans City Council on April 19, 2012. These ordinances target the following areas: Section 162-58 bans the use of law enforcement vehicles, vehicles previously used as taxis in other jurisdictions, and “salvaged,” “reconditioned,” or “rebuilt” vehicles as taxicabs;1 Section 162-59 declares that driver’s permits and Certificates of Public Necessity and Convenience (“CPNCs”) “are privileges and not *813rights”;2 Section 162-321 was amended to make transfers discretionary and to prohibit the transfer of a CPNC when a suspension or revocation is pending against a CPNC owner;3 Section 162-380 was re-ordained to establish the standards for the inspection of for-hire vehicles;4 Section 162-609 requires all taxicabs to maintain two years of trip sheets and other company records;5 Section 162-657 requires taxicabs to have a taximeter with Passenger Information Monitor (PIM) device, which generates detailed printed receipts and prohibits the use of handwritten receipts;6 Section 162-659 requires all taxicabs have credit/debit card acceptance machines;7 Section 162-660 requires all taxicabs to be equipped with security systems;8 Section 162-661 requires all taxicabs to be fitted with global positions systems (GPS);9 and Section 162-613 places an age limit of eleven model years on vehicles used as taxicabs beginning August 1, 2012, and seven model years beginning January 1, 2014.10
The plaintiffs in each of the three consolidated suits, all owners or possessors of CPNCs, contest the validity and legality of these ordinances. The Melancon Plaintiffs filed suit in this Court against the City of New Orleans, alleging that several of these ordinances violate the takings clause of the Fifth Amendment of the United States Constitution, and seek a declaratory judgment recognizing CPNCs as property rights and declaring Sections 162-59 and 162-321 of the Code of New Orleans unconstitutional and unenforceable. In the alternative, Plaintiffs seek damages as compensation for the loss of value of their CPNCs or as compensation for the amount required to comply with relevant sections of the Code of the City of New Orleans.
The Coleman Plaintiffs filed suit in the Civil District Court for Orleans Parish against the City of New Orleans. The Coleman Plaintiffs allege Fifth Amendment takings, but have also asserted claims for violation of the 14th Amendment Equal Protection Clause, invasion of privacy, unreasonable financial burden, and excessive government regulations.
The Richard Plaintiffs also filed suit in the Civil District Court for Orleans Parish against the City of New Orleans. The Richard Plaintiffs have asserted claims for Fifth Amendment takings, breach of contract, and Equal Protection Clause violations.
On July 20, 2012, the Civil District Court for Orleans Parish issued a Temporary Restraining Order in the Coleman case, preventing Defendant from enforcing the ordinances at issue for ten days. The CDC also scheduled a preliminary injunction hearing for July 30, 2012, when the TRO was due to expire. On July 23, 2012, *814however, Defendant removed the case to this Court. On July 27, 2012, Defendant filed a Motion for Declaratory Relief, seeking a declaration that the TRO ordered on July 20, 2012, would expire on July 30, 2012. This Court consolidated these cases and extended the TRO until Friday, August 3, 2012, and set a hearing on the motions for that date. On July 31, 2012, all parties agreed to continue the hearing until August 14, 2012, to allow them to conduct some limited discovery. The TRO was extended until the Court rules on the motions.
II. HISTORY OF TAXICAB INDUSTRY
In order to fully understand the context of the ordinances at issue, it is helpful to first briefly review the history of the taxicab industry in this country. At the end of the 19th century, automobiles began to appear on city streets throughout the country. It was not long before a number of these cars were hiring themselves out in competition with horse-drawn carriages. By 1899, there were nearly one hundred taxicabs on the streets of New York City. By the 1910s, New York had half a dozen large fleets, and thousands of independent owner/drivers.
As business grew, however, so did the need for enforceable regulations. The taxicab industry was plagued by problems, including unfair labor practices, price gouging, and unsafe conditions. In 1937, the mayor of New York City, Fiorello H. La Guardia signed the Haas Act, which introduced New York’s first official taxi licenses and the medallion system that remains in place today. Medallions are small plates attached to the hood of a taxi, certifying it for passenger pick-up. By providing a limited number of medallions, the government could keep a closer watch on the quality of the taxicabs in the city. Over the ensuing decades, medallion-type regulatory systems were introduced in cities across the country.
In New Orleans, there has been an operating taxicab industry within the city limits for over one hundred years. During the 1950s, the City took steps to codify its practices and create a regulatory framework within which the taxis could operate. These regulations are set forth in the Orleans Parish Code of Ordinances (the “Municipal Code”) at Chapter 162, “Vehicles for Hire,” sections one through 1669. Section 162-181, passed in 1956, created the requirement that a vehicle must be registered to a CPNC in order to operate it as a taxicab, and, until April 23, 2009, section 162-186 limited the number of CPNCs to be issued to 1600. As a result, since the 1950s, owners of CPNCs have traded, alienated, conveyed, encumbered, mortgaged, and liened their interest in CPNCs.
On the state level, the Public Passenger Motor Vehicle Responsibility Law (La.Rev.Stat. Ann. § 45:200.1, et seq.) was enacted by the Louisiana legislature in 1962. According to the statute, the findings and declaration of policy by the legislature recognized that there had been a substantial increase in the number of public carrier vehicles (defined as motor vehicles seating less than ten passengers and used to transport passengers for hire over any streets by a route or to a destination controlled by the passenger), and that there had been a consequent increase in the hazards from which the general public needed to be protected. The legislature further found that it was “imperative that effective, uniform, reasonable, and just supervision, regulation, and control be exercised over the operation of such vehicles____” La.Rev.Stat. Ann. § 45:200.1 (1962).
In 1984, the Louisiana state legislature also passed Act No. 518, which addressed *815“[r]egulation by municipalities or other local governing authorities of private for hire vehicles, however propelled, providing passenger transportation services.” The statute contains provisions that empower a municipality to regulate various aspects of the taxicab industry, including the entry into the business of providing taxicab service and “[a]ny other requirement adopted to ensure safe and reliable passenger transportation service even if it is anticompetitive in effect.” La.Rev.Stat. 33:4792 (1984).
On April 19, 2012, the New Orleans City Council passed the above-described series of ordinances that are at issue in this case. The ordinances add new regulations and amend certain ordinances already in force. The ordinances raise the issue of whether the regulations are consistent with the authority created by the Public Passenger Motor Vehicle Responsibility Law and Act No. 518, and whether they are allowable as a legal exercise of the City’s inherent police power, or whether they overstep these boundaries such that federal and state laws or constitutions have been violated.
III. PRESENT MOTION: PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
In the Coleman case, the TRO granted by the state court has been allowed to remain in effect after the case was removed to this Court. On July 27, 2012, Defendant City of New Orleans filed a Motion for Declaratory Relief, asking the Court to dissolve the TRO pursuant to Federal Rule of Civil Procedure 65(b)(4). The Court reasoned that a hearing on the TRO would be functionally the same as a hearing on a motion for preliminary injunction, and set a hearing on the issue for August 14, 2012. On August 13, 2012, Plaintiffs filed a formal Motion for Preliminary Injunction (Rec. Doc. No. 31), and both Plaintiffs and Defendants filed pretrial memoranda (Rec. Doc. Nos. 30, 35). The Court heard testimony during a two-day hearing beginning on August 14, 2012, and ending on August 15, 2012. The Court now issues the following ruling.
IV. LAW AND ANALYSIS
A. Required Showing for Preliminary Injunction
A preliminary injunction is an extraordinary remedy that is issued only when a party does not have an adequate remedy at law. A preliminary injunction may be issued by this Court under Rule 65 if the plaintiff establishes four criteria: 1) irreparable injury, 2) substantial likelihood of success on the merits, 3) a favorable balance of hardships (equity), and 4) no adverse effect on the public interest. See Black Fire Fighters Ass’n v. Dallas, 905 F.2d 63, 65 (5th Cir.1990). Generally, a movant must satisfy each of the four criteria in order to be entitled to a preliminary injunction. Id.
The regulations at issue may generally be divided into two groups: (1) the ordinances declaring CPNCs to be privileges and making their transfer discretionary, and (2) the ordinances requiring certain upgrades and setting maximum vehicle age limits.11 The Court will analyze the motion for preliminary injunction with respect to each of these two groups in turn.
B. CPNCs as “Privileges” and Restrictions on their Transfer
In this category, the Court groups the following ordinances: Section 162-59 (declaring that CPNCs are privileges, rather than rights), and the amended Section 162-321 (making transfers discretionary *816and prohibiting the transfer of a CPNC when a suspension or revocation is pending against a CPNC owner). The Plaintiffs submit that all four criteria have been satisfied, and that they are entitled to a preliminary injunction. The Defendant denies this assertion.
1. Substantial Likelihood of Success
The various Plaintiffs have asserted two claims regarding the Defendant’s ordinances affecting their CPNCs. Plaintiffs have filed claims alleging: (a) an unconstitutional taking; and (b) that the regulations are an unconstitutional enactment of laws that are ex post facto and that interfere with the contract between the government and Plaintiffs. The Court will analyze each in turn as to their likelihood of success.
a. Unconstitutional taking
In order to evaluate Plaintiffs’ likelihood of success on their unconstitutional taking claim, the Court must first decide whether Plaintiffs have a protectable property right in their CPNCs, and then determine whether Plaintiffs have presented a plausible claim for either a per se or a regulatory taking.
i. Protectable property right
In order to determine whether a taking has occurred, a court must first ascertain whether a claimant has alleged a property right that is protected by the Fifth Amendment; if no property right exists, the taking claim fails. Conti v. United States, 291 F.3d 1334, 1339 (Fed.Cir.2002). In this case, Defendant cites the Louisiana Supreme Court opinion in Hutton v. City of Baton Rouge, 217 La. 857, 47 So.2d 665, 666 (1950), in support of its position that CPNCs are privileges rather than rights.12
In Hutton, a bus driver applied for a CPNC to operate his business within the Baton Rouge city limits, and was denied. The plaintiff then brought an action for mandamus against the City of Baton Rouge, arguing that he had a protected property right in the CPNC, and demanding that he be issued one. The trial court dismissed the plaintiffs claim, and the Louisiana Supreme Court affirmed that decision, reasoning that plaintiff was not entitled to the relief sought because the CPNC at issue is “in the nature of a personal privilege or license,” rather than a right. Id. at 668.
The Hutton decision would appear to be the simple answer to the question before the Court, however, the opinion interpreted the City of Baton Rouge municipal code related to bus CPNCs, not a Louisiana state law. The City of New Orleans created its own CPNC regulations in Chapter 162, and the Hutton opinion’s interpretation of CPNCs in Baton Rouge does not address the City of New Orleans’ particular system. Furthermore, as Plaintiffs point out, the regulatory system in Baton Rouge is not a direct analogue to the system in place in New Orleans. Although the City of Baton Rouge requires a CPNC to operate a bus line within Baton Rouge, one must acquire a franchise as well. Indeed, the court in Hutton explained that because plaintiff did not have a city franchise, even if the court compelled the city to issue a CPNC, the plaintiff would not have been entitled to operate his bus. In describing the difference between a privilege and a franchise, the court stated,
*817“a franchise to use the streets in its usual sense is the right to use or occupy the streets for a stated period of time, for which a valuable consideration is paid, and contemplates a contract between the municipality and the individual to whom granted, and vests in the holder thereof a limited property right to use the public streets.”
Id. at 668-69. Plaintiffs assert that New Orleans does not place such dual requirements on its cab drivers. In New Orleans, the CPNC, alone, allows access or use of the streets as a taxicab. The Municipal Code section requiring CPNCs uses similar language to the Hutton court’s description of a franchise to describe a CPNC in New Orleans (“No person shall own and operate or permit any other person to operate ... a taxicab ... offered for hire and engaged in the business of transporting passengers for hire on the streets of the city____” Orleans Parish, La., Code Of Ordinances § 162-151 (emphasis added)). In addition, the Louisiana First Circuit case, Washington-St. Tammany Elec. Coop., Inc. v. St. Tammany Parish Police Jury, 612 So.2d 773, 777 (La.App. 1 Cir.1992), contained a discussion of the difference between franchises and licenses. The court stated,
“A license is usually a personal privilege granted for the purpose of regulation, and is less extensive in duration and incidents than a franchise ... A grant by the government which is neither personal nor for a temporary purpose, but which clothes the grantee with rights and privileges not held by citizens generally, will be deemed a franchise and not a license.”
Id. at 777 (internal citations omitted). Plaintiffs contend that because they have had the ability to transfer, encumber, and alienate their CPNCs, they are not “personal.” Plaintiffs also allege that, although they are required to renew their CPNCs every year, the process has always been merely a formality, and therefore the CPNCs are not granted for a “temporary purpose.” Accordingly, Plaintiffs argue, New Orleans CPNCs are more analogous to Baton Rouge’s franchises, and are therefore a protected property right rather than a privilege.
With respect to this issue, the evidence produced shows that the characteristics of CPNCs in New Orleans tend to fall more into the “franchise” than the “license” category, as those terms are described by the Hutton and Washingtom-St. Tammany Elec. Co-op. courts. Although the annual renewal process at first blush does lend the CPNCs a degree of temporariness, the evidence supports the conclusion that this process is only perfunctory and has been so for the past 60 years. Furthermore, CPNCs are limited in number and not “held by citizens generally,” and when a CPNC is transferred from one person to another, the City of New Orleans issues a “Change of Ownership” certificate. Pis’ Ex. 15. These are all property attributes not applicable to licenses.
To test this conclusion, the Court looks to the historic benefits of CPNCs. As related above, since the codification of the taxicab regulations in the 1950s, taxicab drivers have been able to sell, encumber, lease, and alienate their CPNCs, benefits central to property rights owners, but not license holders. On April 19, 2012, the City Council announced a change in the nature of CPNCs. Chapter 162-59, for the first time, states that a CPNC is a privilege rather than a right. Nevertheless, as the Chief Justice of the United States Supreme Court recently demonstrated in the opinion upholding the individual mandate of the Affordable Care Act as a tax, see National Federation of Independent Business v. Sebelius, — U.S. *818—, 132 S.Ct. 1958, 182 L.Ed.2d 768 (2012), the fact that a legislature calls a CPNC a privilege does not necessarily make it so. In other words, if a government’s grant to a citizen has demonstrated characteristics inherent to a property right, such as the ability to transfer, encumber, lease, or sell, for nearly sixty years, it may not convert it to a privilege by simply characterizing it as such.
The Northern District of Illinois reached a similar conclusion in Flower Cab Company v. Petitte, 658 F.Supp. 1170 (N.D.Ill. 1987). In Flower Cab Company, the plaintiffs, Chicago taxicab companies, contested an ordinance prohibiting the sale, transfer, or assignment of the taxicab licenses. See id. at 1175. The City argued that the fact that Illinois law characterized a taxicab license as a personal privilege precluded a finding that the taxicab licenses were protectable property interests. The court, however, disagreed. After finding that “[t]he ordinance provides that the license holder is the exclusive owner of the license, that he may assign it with few qualifications, and that he is entitled to renewal of the license absent revocation or suspension,” the court held that these characteristics demonstrated that the licenses were “securely and durably” the licensees’. Therefore, the court rejected the city’s argument that the law’s characterization of the license as a privilege was dispositive, and found that the plaintiffs had a protectable property interest in the licenses.
In New Orleans, the city has long recognized CPNC owners’ ability to sell, encumber, and bequeath their interests. In the city’s application to transfer a CPNC, the current owner is instructed to list all persons with an “equitable interest” in the CPNC, including any beneficiary in the case of the CPNC owner’s death or divorce. Pis.’ Ex. 16, at 6. Yolanda Brownfield, the office manager of the New Orleans Ground Transportation Bureau, testified that she was aware of a situation in which a CPNC was a part of a divorce action, and that she had transferred CPNCs to heirs after receiving judgments of possession identifying a new owner. Furthermore, Ms. Brownfield stated that she was aware of CPNCs being used as collateral for Small Business Association loans. The ability to alienate or encumber is central to the concept of a property right. Therefore, the Court finds that the evidence supports the conclusion that Plaintiffs have a protectable property interest in CPNCs, for the purposes of this analysis. The Court will now determine whether an unconstitutional taking has occurred.
ii. Per se/regulatory takings
Takings, as prohibited by the Fifth Amendment, have been divided into two categories: per se and regulatory. On one hand, uncompensated per se takings are prohibited by the plain language of the Fifth Amendment. See U.S. Const. amend. V (“[N]or shall private property be taken for public use, without just compensation.”). These governmental actions involving condemnations and physical invasions have a long legal history and generally require the straightforward application of per se rules. See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 322, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002).
Regulatory takings jurisprudence, on the other hand, is a relatively recent development with no comparable reference in the text of the Constitution. Id. It is characterized by “ ‘essentially ad hoc, factual inquiries’ designed to allow ‘careful examination and weighing of all the relevant circumstances.’ ” Id. (citing *819Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), and Palazzolo v. Rhode Island, 533 U.S. 606, 636, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (O’Connor, J„ concurring)). In Penn Central, the seminal case on this issue, the Supreme Court created a multi-factor test to determine whether a regulatory taking has occurred. According to the Penn Central framework, courts should consider three factors: (1) the character of the governmental action, (2) the economic impact on the claimant, and (3) the extent to which the regulation has interfered with the property owner’s reasonable investment backed expectations. Id. at 124-25, 98 S.Ct. 2646.
In the instant case, Plaintiffs allege that the ordinances passed by Defendant amount to a deprivation of the Plaintiffs’ property rights in their CPNCs. Plaintiffs do not allege that the City of New Orleans has either physically invaded or condemned their property. Therefore, the Court finds that Plaintiffs have not presented a prima facie case for a per se taking. The Court will next analyze whether there has been a regulatory taking using the Penn Central test.
Regarding the first Penn Central factor, the character of the government action, Defendant again asserts that the regulations at issue were enacted in order to promote the health, safety, and welfare of the community. Although the Court recognizes the validity of these goals with respect to the required taxi upgrades, as described below, this justification does not appear to be applicable here. There is no evidence indicating that declaring CPNCs to be privileges promotes the health, safety, and welfare of the community. Nor does Defendant explain how placing the issuance and transfer of CPNCs at the sole and complete discretion of the Director of Safety and Permits promote health, safety, or welfare. Chapter 162 already contains lengthy prerequisites— including detailed application, background check, and drug test — for a person who seeks to receive a CPNC. If applicants are already denied CPNCs for failing to pass these prerequisites, it is unclear how allowing the Director to exercise his or her discretion is even necessary to protect the public interest. Indeed, it may have an adverse effect.
With respect to the second Penn Central factor, the economic impact on the claimant, Plaintiffs argue that the restrictions on transfer of CPNCs have greatly diminished their value. Plaintiffs assert that, historically, taxicab drivers have been considered high credit risks and so have utilized the equity value of the CPNC in order to finance a vehicle or make required upgrades. Plaintiffs argue, and the testimony of Joseph Lange supports the assertion, that with the passing of the ordinances at issue, the City has reduced the property value of the CPNC to zero. Furthermore, Plaintiffs allege the City has demonstrated that even the actions of a driver leasing a CPNC from an owner can be imputed to the CPNC owner to justify revocation. As a result, it is unlikely that a typical financing agency "will now take on the risk of accepting a CPNC as leverage. Plaintiffs assert that they will no longer be able finance new vehicles or make any required upgrades.
In response, Defendant cites the Supreme Court for its holding that “[a] reduction in economic benefits, even to the extent where the government regulations prevent the most profitable use of a claimant’s property, does not constitute a taking.” Andrus v. Allard, 444 U.S. 51, 66, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979). It is unclear in whose favor the second factor falls. Plaintiffs have presented evidence of severe economic impact as a result of the *820restriction on transfer of CPNCs. For example, the only lender to taxicabs in the city, Mr. Lange, testified that he is now unable to assume the risk of providing financial assistance to CPNC owners when Sections 162-59 and 162-321 declare CPNCs to be licenses and make then-transfer dependant on the sole discretion of the Director of Taxicab Bureau. Mr. Lange further testified that if he is unable to continue providing financial assistance to CPNC owners, he believes that they will be unable to maintain their businesses as well. This evidence was not refuted by the City. According to Defendant, however, this is not enough to constitute a taking, because Plaintiffs still retain the economic benefit from day-to-day use of the CPNC.
The Andrus holding is not as clear as the Defendant believes. In Andrus, the plaintiffs challenged two federal statutes that prohibited commercial transaction in parts of birds legally killed before the passage of the Eagle Protection Act and the Migratory Bird Treaty Act. The plaintiffs attempted to sell two Indian artifacts partially composed of feathers of protected birds, and challenged the constitutionality of the statutory provisions limiting transfer. The Supreme Court held that the statutory provisions did not constitute an unconstitutional taking, and upheld the Acts. In explaining its holding, the Court stated that “[a]t least where an owner possesses a full “bundle” of property rights, the destruction of one “strand” of the bundle is not a taking, because the aggregate must be viewed in its entirety .... It is crucial that appellees retain rights to possess and transport their property, and to donate or devise the protected birds.” Id. at 65-66, 100 S.Ct. 318.
In the instant case, Defendant has not only destroyed one “strand” of the Plaintiffs’ property right, it has enacted an ordinance proclaiming that Plaintiffs retain no property rights at all — that, in fact, Plaintiffs hold a mere license. Indeed, the Andrus court’s statement that a “reduction in economic benefits” is allowable does not apply to a case in which the government’s action would revoke all property interest that Plaintiffs have in the CPNCs and destroy all of the CPNC’s economic value.
Finally, regarding the third Penn Central factor, the extent to which the regulation has interfered with the property owner’s reasonable investment-backed expectations, Plaintiffs argue that CPNC owners invest heavily in their businesses, and some use the CPNC as a sort of 401(k), selling it at the end of their careers in order to help fund their nonworking years. Plaintiffs contend that Defendant’s ordaining that a CPNC is no longer a property right effectively destroys the value of their investment. Defendant, on the other hand, relies on the holding of Forest Properties, Inc. v. United States, that a takings plaintiff in a highly regulated industry lacks a reasonable investment-backed expectation. Forest Properties, Inc., 39 Fed.Cl. 56, 76 (Fed.0.1997).
Defendant, however, mischaracterizes the Forest Properties holding. In discussing the investment-backed expectation requirement, the opinion stated that “[a] regulatory scheme affecting the property at issue at the time of purchase can significantly discount an owner’s investment-backed expectations with respect to their property.” Id. (emphasis added). The court went on to note that “numerous courts” had found that regulatory structures had entirely removed an owner’s investment-backed expectations. The Forest Properties opinion did not state that plaintiffs in highly regulated industries will always lack reasonable investment-backed expectations. Instead, the opinion recognized that courts have come to various *821conclusions on a case-by-case basis after reviewing the facts particular to each case. That method is how the Court will proceed in the instant case.
After reviewing the evidence, the Court concludes that Plaintiffs’ investment-backed expectations are severely diminished, if not abrogated entirely. As a result of the regulations at issue, Plaintiffs are losing their property interests in what is often their only investment that has any value. Compared to a CPNC, the other large investment that taxicab drivers make in their vehicles is relatively small and, unlike their CPNC, decreases in value over time. Similarly, taxicab companies that own CPNCs would lose a large part of their capital if CPNCs were no longer considered property. Both taxicab drivers and companies have invested a significant part of their life as well as large amounts of money in CPNCs, and, for decades, have been allowed to expect a future return on such investments. Mr. Lange testified that due to the regulations, he is unable to enter contracts to provide financial assistance to taxicab drivers. Mr. Lange stated that if he is unable to maintain his business, he expects that taxicab owners will be unable to maintain theirs as well. Mr. Lange is the only lender of the type in the city. With Defendant’s ordinances declaring CPNCs to be “privileges” and making their transfer discretionary, an entire industry has been gutted of a large amount of its capital and deprived of a means of funding needed upgrades. As a result, it appears that Defendant’s regulations have interfered significantly with the reasonable investment-backed expectations of Plaintiffs.
In sum, the facts and evidence on the record supports the conclusion that Plaintiffs have a substantial likelihood of success on their unconstitutional taking claim with respect to the ordinances declaring CPNCs to the privileges and making their issuance and transfer discretionary,
b. Ex post facto laws violation of the Contracts Clause
The Richard Plaintiffs allege that the passage of the new ordinances, “by breaching the contract between the governments (state and city) and plaintiffs, amounts to an unconstitutional enactment of laws that are ex post facto and that interfere with such contracts.” Citing Russell v. Sebastian, 233 U.S. 195, 34 S.Ct. 517, 58 L.Ed. 912 (1911), Plaintiffs assert that the statutory scheme created by the State of Louisiana and the City of New Orleans, including 45:200.1, constituted an offer to enter into the taxicab business subject to clearly understood conditions. In addition, Plaintiffs allege that the purchase of CPNCs by each of the Plaintiffs and their predecessors in title, along with their subsequent operation of their CPNCs and vehicles, constituted an acceptance of that offer that together formed a contract. According to Plaintiffs, the regulations at issue breach that contract, and Defendant is liable for the resulting damages.
In Russell v. Sebastian, the Supreme Court considered a provision of the California State Constitution of 1879, as amended in 1885, which gave “any individual or any company duly incorporated for such purpose ... the privilege of using the public streets and thoroughfares [of certain municipalities] and of laying down pipes ... and connections ... as may be necessary for ... supplying such city ... with gaslight ... or with fresh water .... ” Sebastian, 233 U.S. at 198, 34 S.Ct. 517. In 1911, that section was amended to provide, in pertinent part, that “[p]ersons or corporations may establish and operate works for supplying the inhabitants with such services upon such conditions and under such regulations as the municipality may prescribe under its organic law....” *822Sebastian, 283 U.S. at 198-99, 34 S.Ct. 517. The Court held that there could be no dispute “[t]hat the grant, resulting from an acceptance of the state’s offer, constituted a contract, and vested in the accepting individual or corporation a property-right, protected by the Federal Constitution,” and concluded that “the constitutional amendment of 1911, and the municipal ordinances adopted in pursuance thereof, were ineffectual to impair this right----” Sebastian, 233 U.S. at 204, 210, 34 S.Ct. 517.
The principle of law explained in Sebastian continues today. See, e.g., Phelps Dodge Corp. v. Arizona Elec. Power Co-op., Inc., 207 Ariz. 95, 83 P.3d 573, 579 (Ariz.App. Div. 1, 2004). The opinion should not, however, be taken as a broad holding that every piece of legislation allowing action by a person or corporation is an offer from which a binding contract may be formed. In the instant case, unlike in Sebastian, there has been no absolute grant of terms related to the taxicab industry that may be construed as an offer. In fact, Section 200.1, the only statute that Plaintiffs specifically cite in their contracts claim, asserts that it is “imperative” that “effective, uniform, reasonable, and just supervision, regulation and control” be exercised over the taxicab industry. La. Rev.Stat. Ann. § 200.1. The section goes on to mandate that the legislation allowing regulation of taxicabs “should be construed liberally and enforced strictly in favor of the public.” Id. Furthermore, unlike in Sebastian, when the state made an offer while seeking private involvement in a public service for the benefit of the citizens, the State of Louisiana passed Section 200.1 in order to ensure order and safety in the already-existing taxicab industry. Finally, the precedent set by Sebastian has been applied almost exclusively in the area of public utilities. See, e.g., Callais Cablevision v. Houma Cablevision, Inc., 451 So.2d 6, 9 (La.App. 1 Cir.1984) (cable); Pacific Tel. & Tel. Co. v. City of Los Angeles, 270 P.2d 903, 914 (Cal.App. 2 Dist.1954) (telephones); Traverse City v. Consumers Power Co., 340 Mich. 85, 64 N.W.2d 894, 900 (1954) (electricity). In all of the cases in which cities have enacted legislation requiring upgrades to taxicabs, no court has held the laws unconstitutional based on the Contracts Clause. See, e.g., Alexandre v. New York City Taxi and Limousine Commission, 2007 WL 2826952 (S.D.N.Y. September 28, 2007) (upholding New York City’s regulations requiring eredit/debit, text messaging for emergencies, automatic trip data collection, GPS).
In summary, neither the state nor the city made an offer to the taxicab industry that could have been accepted to form a binding contract. Therefore, it does not appear that Plaintiffs have a substantial likelihood of success on this breach of contract claim.
2. Irreparable Harm
Plaintiffs argue that they will suffer irreparable harm if the regulations declaring CPNCs to be privileges and restricting their transfer are enforced. According to Plaintiffs, these ordinances deprive them of their Fifth Amendment property rights.
Defendant, on the other hand, argues that Plaintiffs will not suffer any actual injury if these ordinances are enforced. Defendant asserts that the ordinance declaring that CPNCs are privileges rather than rights has been accepted since at least April 25, 2012. In support of this view the Defendant notes that Plaintiffs Coleman and Lange, in their depositions, stated that their lease agreements and payments have not changed since April. As a result, Defendant contends that this demonstrates that Plaintiffs would not be affected by the enforcement of the ordi*823nances, and will therefore suffer little harm if the regulations continue to be enforced in the future.
When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary. See, e.g., Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (finding irreparable injury shown when a plaintiffs’ First Amendments rights were threatened or impaired); Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C.Cir.2006) (finding per se irreparable injury in United States Navy’s alleged violation of the Establishment Clause); Doe v. Mundy, 514 F.2d 1179 (7th Cir.1975) (finding per se irreparable injury in an alleged deprivation of plaintiffs’ fundamental privacy right). In this case, Plaintiffs allege that the ordinances declaring CPNCs to be privileges and making their transfer discretionary are a violation of their Fifth Amendment rights to property. Because the Court finds that Sections 162-59 and 162-321 deprive the Plaintiffs of their property rights and are, therefore, per se irreparable harm.
3. Favorable Balance of Hardships
Plaintiffs argue that if the regulations declaring that CPNCs are privileges and restricting their transfer are enforced, they will suffer substantial harm, while Defendant will suffer little harm if the preliminary injunction is granted. According to Plaintiffs, these regulations not only jeopardize their ability to procure financing and new vehicles, but also potentially prevent some taxicab drivers from exiting the business with any funding for their retirement. Defendants, on the other hand, assert that the regulations at issue have been in force since their passage, in April of this year. In addition, Defendants note that Plaintiffs Coleman and Lange, in their depositions, stated that their lease agreements and payments have not changed since April. As a result, Defendant contends that Plaintiffs will suffer little harm if the regulations are enforced during the litigation.
From the evidence and testimony provided, it appears that Plaintiffs would suffer more severe hardship if the preliminary injunction were denied as to the ordinances at issue than Defendants would suffer if it were granted. Mr. Lange testified on the record that, as a result of Section 162-59, he is unable to consider entering into any additional lease-purchase agreements (the funding mechanism) for CPNCs. According to Mr. Lange, Section 162-59 has rendered a CPNC valueless on the market. Furthermore, as mentioned above, he testified that because his business is the only one he is aware of that provides financial assistance to CPNC owners, if his business closes down, many CPNC owners will be unable to continue their businesses.
Defendants, on the other hand, have not provided evidence of any harm they will suffer if the regulations declaring that CPNCs are privileges and restricting their transfer are enjoined. As a result, the Court finds that the Plaintiffs have established that the balance of hardships weighs in their favor.
4. Lack of Adverse Effect on the Public Interest
Plaintiffs argue that the regulations at issue will have a substantial adverse effect on the public interest. Plaintiffs assert that these regulations put the status of their CPNCs in question and jeopardize their ability to finance the required upgrades. If Plaintiffs do not comply with the upgrade requirements, they will be unable to operate their taxicabs, and the public will be denied the usual *824fleet of taxis servicing New Orleans. Defendants have not made an argument related to the effect of the CPNC regulations on the public.
The Court finds that it does not appear that a preliminary injunction would have an adverse effect on the public. In fact, here, the opposite is true; a preliminary injunction would have a beneficial effect. It would allow CPNC owners a mechanism to finance the upgrades called for by the City.
As discussed above in the unconstitutional takings claim analysis, it is not clear how the Defendant’s regulations in this area promote the health and safety of the public. In fact, it is unclear what effect these regulations would have on the public at all. Therefore, the Court concludes that a preliminary injunction would not have an adverse effect on the public interest.
5. Summary
In sum, Plaintiffs have established the four criteria necessary for the grant of a preliminary injunction regarding the nature and status of the CPNCs, and the provision making their transfer discretionary. Accordingly, the Court grants the Plaintiffs’ Motion for Preliminary Injunction and enjoins the enforcement of Sections 162-59 and 162-321, and denies Defendant’s Motion for Declaratory Relief, with respect to Sections 162-59 and 162-321 of the Municipal Code of New Orleans.
C. Taxicab Upgrade Ordinances
The upgrade ordinances present a different issue than the ordinances dealing with CPNCs. In this category, the Court groups the following ordinances: Section 162-58 (declaring that certain vehicles may not be used as taxicabs), Section 162-380 (establishing the vehicle inspection standards), Section 162-609 (requiring all taxicabs to maintain two years of trip sheets and other company records), Section 162-657 (requiring taxicabs to have a taximeter with PIM), Section 162-659 (requiring all taxicabs to have credit/debit card acceptance machines), Section 162-660 (requiring all taxicabs to be equipped with security systems), Section 162-661 (requiring all taxicabs to be fitted with GPS), and Section 162-613 (placing certain age limits on vehicles used as taxicabs). These ordinances focus on the appearance, efficiency, convenience, and safety of taxicabs.
1. Irreparable Injury
Plaintiffs argue that if no preliminary injunction is granted, they will be irreparably injured due to the high cost of complying with Defendant’s ordinances that require significant upgrades to taxicabs. Plaintiffs presented testimony that compliance will cost each CPNC owner $25,000 to $40,000 per vehicle. Plaintiffs argue that as a result of Section 162-59, which declares that CPNCs are privileges rather than rights, no reputable financing organization will lend them money to use to pay for the cost of the required upgrades. As a result, Plaintiffs allege, taxicab drivers must choose between procuring financing through some other, possibly dangerous, means in order to comply with the required upgrades, or not operating their businesses while the ordinances are in force. The city, on the other hand, has produced evidence indicating that the cost of the upgrades is closer to $2,000, and not the amounts suggested by Plaintiffs.
Whether or not Plaintiffs’ costs in complying with the regulations are significant, Plaintiffs have not demonstrated that their injuries will be irreparable. In Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328 (5th Cir.1981), the Fifth Circuit explained that “[a]n injury is ‘irreparable’ only if it cannot be undone through monetary remedies.” Id. at 338; see also Spiegel v. City of Houston, *825636 F.2d 997 (5th Cir.1981); Parks v. Dunlop, 517 F.2d 785, 787 (5th Cir.1975). The Fifth Circuit’s opinion in Deerfield provided examples of irreparable injuries, such as loss of First Amendment rights and invasion of privacy.13 In Morgan v. Fletcher, 518 F.2d 236 (5th Cir.1975), the Fifth Circuit further explained that “[mjere injuries, however substantial, in terms of money, time, and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Id. at 240.
In this case, Plaintiffs argue that if the Court does not institute a preliminary injunction, they will be forced to spend thousands of dollars on new vehicles and equipment upgrades, possibly without the ability to finance the transactions with their CPNCs. The Court in this opinion has concluded that CPNCs are property. Thus CPNC owners have a mechanism to finance these upgrades. Even if the Plaintiffs’ cost estimate is accurate, the fact that the costs of the upgrades may be high is not alone sufficient to create an irreparable injury. The Fifth Circuit has held that some degree of financial harm does not constitute an irreparable injury because plaintiffs have recourse to recover the amounts expended in subsequent civil suits. As a result, Plaintiffs have not shown “irreparable injury” for the purposes of this analysis.14
2. Substantial Likelihood of Success
The various Plaintiffs have asserted multiple claims regarding the Defendant’s taxicab upgrade ordinances. Altogether, the Plaintiffs have filed claims alleging: (a) an unconstitutional taking; (b) violation of the 14th Amendment Equal Protection Clause; (c) invasion of privacy; (d) unreasonable financial burden; (e) excessive government regulations; (f) violation of the Contracts Clause and Louisiana Revised Statute § 45:200.1. Because the Court concluded that no contract had been formed, and that § 45:200.1 has not been violated, it will not repeat its analysis here. The remainder of the claims will be discussed in turn.
To summarize, it appears that Plaintiffs do not have a substantial likelihood of success on any of their claims related to the required taxicab upgrades. The Court will address each claim’s likelihood of success, in more detail, in turn.
a. Unconstitutional taking
As established above, the Court has determined that Plaintiffs have a protectable property interest in their CPNCs, and that Plaintiffs have not presented a valid claim for a per se taking. Therefore, the Court will now turn to the Penn Central test to analyze the claim of an unconstitutional taking with respect to the required taxicab upgrade ordinances.
The first Penn Central factor, the character of the government action, weighs against the Court concluding that a taking has taken place. Defendant claims that the required taxicab upgrades were enacted in order to promote the health, safety, and welfare of the community. The testimony and evidence on the record support *826Defendant’s assertion that taxicab riders would benefit from the ability to pay with credit or debit cards, the additional security provided by installed cameras, the improved service resulting from a GPS system, and the use of modern vehicles in the taxicab fleet. In addition, Defendant presented credible evidence that driving a taxicab is a very dangerous profession, and that the installation of cameras and the use of credit/debit cards will reduce the risk faced by taxicab drivers every day. Finally, the testimony of both Malachi Hull and Michelle Thomas established that the required upgrades support the welfare of the community because they place the city in better competition with other major cities for large conventions. Because New Orleans generates a substantial portion of income from the conventions held within its borders, it is in the city’s interest to provide the same amenities as other major convention cities. For example, New York and Chicago have already implemented similar upgrade requirements, such as taxicabs with credit/debit card machines and GPS devices. Accordingly, the Court finds that the evidence indicates that the City undertook the action at issue in order to promote the health, safety, and welfare of New Orleans residents, tourists, and taxicab drivers, and that it is within the City’s power to enact these upgrade ordinances.
Regarding the second Penn Central factor, the economic impact on the claimant, both sides present strong arguments. On one hand, Plaintiffs claim that the cost of compliance with the upgrades would be significant. They have presented evidence indicating that costs of these upgrades will be $17,000 to $40,000 per taxicab. On the other hand, Defendant has presented evidence indicating that the total costs of these upgrades to be closer to $2,000, a tolerable price when compared with the public good that comes from the regulations. Defendant cites the Fifth Circuit’s statement that “some adverse effect on economic value will be tolerated in the interest of promoting the health, safety, welfare, or morals of a community.” Tex. Manufactured Hous. Ass’n, Inc. v. City of Nederland, 101 F.3d 1095, 1106 (5th Cir.1996). The court in Texas Manufactured Housing Association, went on to explain that the plaintiff in that case “fail[ed] to show ... any diminution of the property’s value.” Id. Similarly, in this case, Plaintiffs have not shown that complying with the required upgrade regulations will diminish the value of their CPNCs or taxicab businesses. In fact, there was testimony that the upgrades will result in more people using taxicabs for transportation, thereby increasing the value of a CPNC as well as the revenue earned by the driver. The Court finds that although Plaintiffs have shown some potential economic impact, even if it did occur, it is outweighed by the interest in promoting the health, safety, and welfare of the community.
The third Penn Central factor, the extent to which the regulation has interfered with the property owner’s reasonable investment backed expectations, tends to fall in Defendant’s favor as well. In the instant case, Plaintiffs are taxicab drivers or owners in the City of New Orleans. The taxicab industry has been the subject of substantial state and municipal regulation since the 1950s, when Chapter 162 was first passed. Over the ensuing decades, the regulations pertaining to taxicab drivers have been expanded and amended, including the rules related to drivers’ dress15 and fares,16 and the addition of *827passengers’ rights.17 Therefore, Plaintiffs, participants in a highly regulated industry, reasonably should have expected that the value of their investments may be somewhat affected by further regulatory changes. And, as the Court of Federal Claims has held, “[a] takings plaintiff lacks a reasonable investment-backed expectation when the property at issue is subject to government control and regulation.” Forest Properties, Inc. v. United States, 39 Fed.Cl. 56, 76 (1997). By participating in an industry that is subject to government control and change, a property owner reasonably should have expected that the value of the investment may be somewhat diminished by regulatory changes. See Burns Harbor Fish Co., Inc. v. Ralston, 800 F.Supp. 722, 726 (S.D.Ind.1992).
In sum, an analysis of the Penn Central factors with respect to the taxicab upgrades reveals that although there will be some cost to the Plaintiffs, they have a financial mechanism for meeting it, and their costs are outweighed by the benefit that will be realized by the regulations. Therefore, the Court concludes that Plaintiffs do not have a substantial likelihood of success with respect to their unconstitutional takings claims regarding the required taxicab upgrades,
b. Equal Protection Clause violation
Both the Coleman and the Richard Plaintiffs assert equal protection violations. The Coleman Plaintiffs assert that the maximum age limits on taxicabs serve no legitimate purpose and violate the Equal Protection Clause because the age requirements do not apply to limousines, shuttle buses, shuttle vans, tour buses, tour vans, and courtesy vans. The Richard Plaintiffs assert that the new ordinances requiring certain taxicab upgrades violate the Equal Protection Clause because they compel drivers to “unreasonably and unjustly expend funds for the purpose of acquiring new or newer vehicles and maintaining various equipment.”
The Equal Protection Clause requires that all persons similarly situated be treated alike. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). The general rule for testing official action on equal protection grounds focuses on three elements: (1) a classification, (2) the purpose of the classification, and (3) the fit between the classification and the purpose. See Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir.1997). When the regulation does not involve any discernable fundamental interest or affect with particularity any protected class, the test of constitutionality is whether the regulation has a rational relation to a legitimate state interest. See Hester v. Rizzo, 454 F.Supp. 537, 543 (E.D.La.1978).
Plaintiffs do not argue, and it does not appear, that they are a part of any protected class. Therefore, their claims would be subject to rational basis review, which only requires that the regulation have some rational relationship to a valid state interest. The “rational relation” analysis was outlined in City of New Orleans v. Dukes, as follows:
When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. See, e.g., Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973). Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect dis*828tinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude. Legislatures may implement their program step-by-step, Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), in such economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations. See, e.g., Williamson v. Lee Optical [Inc.] Co., 348 U.S. 483, 488-89, 75 S.Ct. 461, 99 L.Ed. 563 (1955). In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines, see, e.g., DayBrite Lighting, Inc. v. Missouri, 342 U.S. 421, 423, 72 S.Ct. 405, 96 L.Ed. 469 (1952), in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment. See, e.g., Ferguson v. Skrupa, 372 U.S. 726, 732, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963).
427 U.S. 297, 303-04, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976).
While the new taxicab regulations do not apply to limousines, shuttle busses, and the like, the unique nature of the taxicab business does seem to justify this distinction. For example, in American V.I.P. Limousines, Inc. v. Dade County Board of County Commissioners, the district court for the Southern District of Florida rejected the limousine business owners’ equal protection claims that new regulations treated limousines and taxicabs unequally, recognizing that the taxicab business is “quite different” than the services provided by limousines. 757 F.Supp. 1382, 1395 (S.D.Fla.1991). In essence, the taxicabs are “on demand” vehicles, while tour buses and limousines are “reservation only” vehicles.
Furthermore, the new regulations are rationally related to addressing the state’s interest and duty in regulating the taxicab industry. Other courts have found that cities have a rational basis for implementing required upgrades to the taxicabs operating within their borders. For example, the district court for the Eastern District of Pennsylvania found that Philadelphia’s regulations requiring all taxicabs to be equipped with a GPS tracking device promoted the public good “since it [was] pursuant to a state legislative act to promote hospitality and tourism in Philadelphia.” MCQ’s Enters., Inc. v. Phila. Parking Auth., 2007 WL 127728 at *1 (E.D.Pa. 1/11/2007).
In the instant case, Defendant has presented significant testimony and evidence establishing a rational basis between the required taxicab upgrades and Defendant’s interest in regulating its taxicab industry, ensuring the safety of its citizens and visitors, and promoting hospitality and tourism in New Orleans. Mr. Hull related Defendant’s interest in the safety of taxicab riders and drivers to the ordinance setting maximum vehicle ages, testifying that newer vehicles tend to break down less often and have more standard safety features. Also, as noted above, the testimony of both Mr. Hull and Ms. Thomas *829established that the upgrade ordinances are related to Defendant’s interest in promoting New Orleans as a destination for major conventions.
Mr. Hull further testified that the ordinances at issue were not applied to other for-hire vehicles for several reasons. First, Mr. Hull testified that the maximum vehicle age regulation was only applied to taxicabs because they are used more often, both in terms of frequency and mileage, than other for-hire vehicles. Second, Mr. Hull testified that other for-hire vehicles, such as shuttles and limousines, are not available on an on-demand basis. These other types of for-hire vehicles are generally reserved in advance, and riders often are able to pay with the credit card used for the reservation. According to Mr. Hull’s testimony, taxicab drivers are more vulnerable because they mostly receive payment in cash. Requiring credit and debit card acceptance would make drivers less vulnerable to assault and theft and bring taxicabs in line with what other for-hire vehicles generally already do, as well as what other cities already do.
In sum, Plaintiffs equal protection claim is evaluated using rational basis review. Defendant has established a rational basis between the upgrade regulations and its interest in promoting the health, safety, and welfare of New Orleans, Therefore, Plaintiffs do not have a substantial likelihood of success on their equal protection claims.
c. Invasion of privacy
The Constitution protects individuals against invasion of privacy by the government. Whalen v. Roe, 429 U.S. 589, 598-602, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). The liberty interest in privacy encompasses two notions: the freedom from being required to disclose personal matters to the government, and the freedom to make certain decisions without government interference. Id. at 599-600, 97 S.Ct. 869. The government cannot inquire into matters in which it does not have a legitimate and proper concern. Id. at 600-02, 97 S.Ct. 869. But the U.S. Constitution is violated only by invasions of privacy involving the most intimate aspects of human affairs. See Ramie v. City of Hedwig Village, 765 F.2d 490, 492 (5th Cir.1985). A plaintiff must demonstrate a reasonable expectation of privacy.
The United States Supreme Court has recognized that “[a]n expectation of privacy in commercial premises ... is different from ... a similar expectation in an individual’s home. This expectation is particularly attenuated in commercial property employed in ‘closely regulated’ industries.” See New York v. Burger, 482 U.S. 691, 699, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (internal citations omitted). The Court continued, “Certain industries have such a history of governmental oversight that no reasonable expectation of privacy could exist.” Id.
In the instant case, the Coleman and Richard Plaintiffs have asserted invasion of privacy claims. Plaintiffs argue that requiring them to install GPS devices, taximeters, credit/debit card machines, and security cameras violates their right to privacy and constitutes an illegal search and seizure of taxicab drivers. Privacy claims similar to these were rejected by the court in Alexandre v. New York City Taxi and Limousine Commission, 2007 WL 2826952 (S.D.N.Y. 9/28/2007). In that case, the plaintiffs argued that New York’s regulation requiring a GPS in all taxicabs violated their right to privacy, but the court found that plaintiffs’ claims were not likely to succeed because there is “no legitimate expectation of privacy.” Id. at *9.
Like New York City, New Orleans has a highly regulated taxicab industry. Plain*830tiffs, taxicab drivers and CPNC owners, do not have a legitimate expectation of privacy on the commercial premises of their vehicles. Therefore, Plaintiffs do not have a substantial likelihood of success with respect to their invasion of privacy claims related to the required upgrades.
d. Unreasonable financial burden, excessive government regulation
The Richard Plaintiffs allege that they have “a constitutional right to pursue an honest living in their chosen occupation free from undue financial burdens and unreasonable governmental restrictions.” The Richard Plaintiffs further allege that the “trip sheet requirement” created by Section 162-661 is unconstitutional because it is “completely unreasonable and impractical” to require fleets or companies to maintain two years of trip sheets for drivers who are not their employees. Plaintiffs have not cited, either in their Complaint or in their pre-trial memoranda, a specific provision of the Constitution, statute, or case as a basis for their claims. To the extent these allegations have been evaluated under the guise of another claim, such as the Fifth Amendment takings claim, the Court reiterates its conclusions. Otherwise, the Court finds that Plaintiffs have not asserted sufficient facts and allegations or produced sufficient evidence in support of these claims for the Court to find that Plaintiffs have a substantial likelihood of success.
3. Favorable Balance of Hardships
Plaintiffs argue that the potential harm they will suffer if the required upgrade regulations are enforced is substantial. As detailed above, Plaintiffs presented testimony that it could cost as much as $40,000 for each car to come into compliance with the ordinances. Furthermore, Plaintiffs argue that granting a preliminary injunction would cause only minimal harm to Defendant. Plaintiffs argue that Defendant will incur no additional cost if its ordinances are not enforced until the conclusion of litigation. Therefore, Plaintiffs argue, there will be a favorable balance of hardships if a preliminary injunction is granted.
The credible evidence, however, does not support Plaintiffs’ contention. First of all, Defendant produced evidence that the cost to Plaintiffs would be much lower than they allege. Mr. Hull testified that, after speaking with cab company owners and equipment retailers, he estimated that it will cost $2,011.95 per car to be in compliance with the regulations. Furthermore, Mr. Hull testified that because his department had planned a phase-in enforcement protocol, all taxicabs would not need to be in compliance the first day that the ordinances are enforced. As a result, many taxicab owners would have time to comparison shop or group together to buy in bulk in order to save on the equipment and installation costs.
Furthermore, contrary to Plaintiffs’ assertion, Defendant will suffer some harm if the regulations are not enforced. Defendants have stated that they enacted the ordinances in 2012 so that the taxicab industry might be in full compliance prior to the busy festival season and the 2013 Superbowl, being held in New Orleans. If the preliminary injunction is granted, but the permanent injunction is later denied, Defendant may only have a short period of time to enforce the ordinances before the goal dates, an occurrence that could cost Defendant additional resources, both in terms of finances and employee hours.
4. Lack of Adverse Effect on the Public Interest
Plaintiffs argue that if the Court grants the preliminary injunction enjoining the *831upgrades, there will be no adverse effect to the public interest. Plaintiffs point out that New Orleans currently has a functional taxicab industry, and that the public will not suffer if the status quo is maintained. In fact, Plaintiffs argue, the public will benefit from a preliminary injunction because no taxicabs will be forced out of commission due to inability to comply with the new ordinances.
Defendant contends that a preliminary injunction will cause significant harm to the public interest. Defendant alleges that it passed the upgrade ordinances in order to ensure the health and safety of residents and visitors in New Orleans. Furthermore, Defendant asserts that allowing New Orleans taxicabs to continue to lack features such as credit/debit card machines and GPS systems effectively requires taxicab users in New Orleans to use low-quality, unreliable transportation and denies the City an ability to compete with other cities for conventions and special events. Moreover, Defendant argues that it planned to institute the ordinances on August 1, 2012, in order to ensure an upgraded taxicab fleet when the Superbowl takes place in New Orleans in early 2013.
The evidence supports the conclusion that there would be a significant adverse effect on the public if the preliminary injunction were granted as to the upgrade ordinances. The City of New Orleans has stated that its purpose in passing the upgrade regulations was to ensure the health and safety of citizens and visitors. The evidence presented supports the conclusion that taxicabs in New Orleans are currently dangerous for both drivers and riders: Mr. Hull testified that four New Orleans taxicab drivers have been murdered in the last 25 months, and that six sexual assaults of riders have occurred since 2010. Mr. Hull testified that in cities with the types of upgrades mandated by the ordinances at issue, these rates are significantly lower.
Furthermore, the Court finds that regulations that require newer vehicles have a direct effect on the public welfare. Section 162-613, which places an age limit on vehicles used as taxicabs, Section 162-58, which limits the types of vehicles that may be used as taxicabs, and Section 162-380, which establishes taxicab inspection standards, ensure that taxicabs in New Orleans are in working order and are more likely to have advanced safety features, to the benefit of the public.18 Although Plaintiffs argue that the status quo would be satisfactory, the evidence supports the conclusion that the Defendant performed significant research into the practices of other cities and the taxicab industry’s “best practices” related to safety regulations.19 The Court finds that this research *832shows that the current state and condition of the taxicabs is, in fact, detrimental to the public safety and welfare. Therefore, the Court concludes that granting the preliminary injunction as to the upgrade ordinances would have an adverse effect on the public interest.
5. Summary
In sum, Plaintiffs have not established that the four criteria necessary for a court to grant a preliminary injunction enjoining the upgrade ordinances have been met. Accordingly, the Court denies Plaintiffs Motion for Preliminary injunction as to the upgrade ordinances, and grants Defendant’s Motion for Declaratory Relief as to the upgrade ordinances.
V. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendant’s Motion for Declaratory Relief (Rec. Doc. No. 18) is hereby GRANTED IN PART AND DENIED IN PART, as set forth above. The Court hereby grants a preliminary injunction enjoining the enforcement of Sections 162-59 and 162-321 of the Municipal Code of Ordinances. Furthermore, the Court hereby denies the preliminary injunction and dissolves the Temporary Restraining Order as to Sections 162-58, 162-380, 162-609, 162-657, 162-659, 162-660, 162-661, and 162-613 of the Municipal Code of Ordinances.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Preliminary Injunction (Rec. Doc. No. 31) is hereby GRANTED IN PART AND DENIED IN PART, as set forth above.
. Orleans Parish, La., Code of Ordinances § 162-58.
. Orleans Parish, La„ Code of Ordinances § 162-59.
. Orleans Parish, La„ Code of Ordinances § 162-321.
. Orleans Parish, La., Code of Ordinances § 162-380.
. Orleans Parish, La., Code of Ordinances § 162-609.
. Orleans Parish, La., Code of Ordinances § 162-657.
. Orleans Parish, La, Code of Ordinances § 162-659.
. Orleans Parish, La., Code of Ordinances § 162-660.
. Orleans Parish, La., Code of Ordinances § 162-661.
. Orleans Parish, La„ Code of Ordinances § 162-613.
. The Melancon Plaintiffs, for example, have divided their claims into these two categories.
. Defendant also cites the Louisiana Supreme Court opinion in AAA Cooper Transportation v. Louisiana Public Service Commission, 623 So.2d 1262 (La.1993), in support of its contention that CPNCs are privileges rather than rights. This opinion, however, lacks a discussion of the issue, instead simply citing Hutton as well as two non-binding cases from Delaware and Michigan. As a result, the Court will focus on the Hutton opinion.
. Plaintiffs have asserted an invasion of privacy claim, however, as discussed below, they do not appear to have a substantial likelihood of success on it.
. Because all four criteria must be met for a court to grant a preliminary injunction, the Court need not analyze the three remaining factors. Nevertheless, the Court will continue its analysis for the record.
. Orleans Parish, La., Code of Ordinances § 162-449.
. See, e.g., Orleans Parish, La., Code of Ordinances §§ 162-741, 745, 747.
. Orleans Parish, La„ Code of Ordinances § 162-455.
. Plaintiffs argued that a taxicab's mileage and condition, rather than its model year, are better indicators of vehicle quality with respect to safety and passenger comfort. While this may be true, the choice of measurements is the city’s decision as the lawmaking body. Furthermore, the city’s chosen method has the advantage of simple enforcement, rather than creating a gray area in which one person must determine when a vehicle’s condition has deteriorated to the point that it should be permanently removed from service.
. Although Plaintiffs spent considerable time at trial criticizing Defendant’s process in enacting these ordinances and eliciting feedback from the public, those allegations are irrelevant to this analysis. It is not the place of the judicial branch to delve into the processes of the law-making branches in order to declare what is reasonable or proper; as long as the formal requirements for the enactment of a municipal ordinance have been met, the Court will not further inquire into the legislative process. Our democratic political system affords those unhappy with an administra*832tion's methods another means of airing grievanees: the ballot box.
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01-03-2023
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11-26-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901710/
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—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Maraño, J.), rendered May 10, 1984, convicting him of rape in the first degree, sexual abuse in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress identification testimony and his statements to the police.
Ordered that the judgment is affirmed.
Viewing the evidence adduced at the trial in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to support the defendant’s conviction of the crimes charged (see, People v Lewis, 64 NY2d 1111; People v Gruttola, 43 NY2d 116). Moreover, upon the exercise of our factual review power, we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
The defendant’s contention that his arrest was not based upon probable cause is wholly without merit. Only a reasonable suspicion is required to briefly detain a suspect for identification purposes (People v Hicks, 68 NY2d 234). Reasonable suspicion arose here when the complainant’s mother pointed to the defendant who was standing in a nearby crowd and the defendant fit the description given by the complainant. The defendant was arrested only after the complainant identified him as the man who had raped her. The showup identification was permissible since its purpose was to expediently confirm that the proper person was being arrested (see, People v Gissendanner, 48 NY2d 543; People v McCrimmon, 131 AD2d 598).
We find that the trial court acted correctly in permitting inquiry into the defendant’s prior conviction for criminal possession of stolen property in the third degree as such was not unduly prejudicial (see, People v Sandoval, 34 NY2d 371). Nor was the court’s decision to allow further questioning based on the underlying facts thereof in error. The scope of cross-examination is within the trial court’s discretion (see, People v Greer, 42 NY2d 170, 176) and the court may "permit further questioning for the purpose of determining, at least in general terms, what conduct gave rise to the conviction” (see, People v Bennette, 56 NY2d 142, 149).
We find no merit to defendant’s allegation of prosecutorial *657misconduct. The prosecutor’s discussion of the credibility of the People’s witnesses was appropriate given the fact that the defense had put the credibility of the People’s witnesses in issue (see, People v Freeman, 123 AD2d 784). In essence, the defense having "opened the door” to the issue of credibility, the comments criticized by the defendant were a fair response by the prosecutor (see, People v Saylor, 115 AD2d 671). Moreover, the court sustained objections where appropriate and charged that counsel’s statements were not to be considered evidence. The combination of these factors should be construed as a proper amelioration of possible prejudice (see, People v Arce, 42 NY2d 179, 190). The defendant’s other contentions regarding prosecutorial misconduct were not preserved for appellate review (see, CPL 470.05 [2]).
We have reviewed the defendant’s remaining contentions, including those raised in his pro se supplemental brief, and find them to be either unpreserved for appellate review or without merit. Mangano, J. P., Bracken, Kunzeman and Eiber, 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/5901711/
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—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Schneier, J.), rendered August 7, 1985, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Although it was improper for the prosecutor to attempt to question the defendant about his membership in a named youth gang (see, e.g., People v Connally, 105 AD2d 797; People v Stewart, 92 AD2d 226), the trial court sustained the objection and instructed the jury to disregard the question. The trial court is deemed to have corrected the error to the defendant’s satisfaction in the absence of a request by the defendant for further curative instructions (see, e.g., People v Williams, 46 NY2d 1070; People v Seaton, 119 AD2d 600; cf., People v Santiago, 52 NY2d 865). In any event, the prosecutor’s conduct was not so prejudicial as to deprive the defendant of a fair trial. The record indicates that the prosecutor’s question about the defendant’s gang membership was unanswered, and there was no further reference to this group during the trial (see, e.g., People v Beatty, 134 AD2d 602; People v Boxill, 111 AD2d 399, affd 67 NY2d 678).
The sentence imposed was not excessive (see, People v Suitte, *65890 AD2d 80). 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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—Appeal by the defendant from a judgment of the Supreme Court, Queens County (O’Dwyer, J.), rendered August 28, 1986, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant’s conviction of the crime of assault in the second degree arose out of an incident which occurred during the early morning hours of September 21, 1985. The complainant testified that the defendant hit him on the head with a beer bottle while his back was turned.
A witness for the defense, one Mitchell Lewis, who observed the incident, gave a different, and exculpatory version of the incident. During cross-examination of this witness, the prosecutor asked, over objection, why the witness had not related this version of the incident to the police immediately after the incident occurred.
On the instant appeal, the defendant argues, inter alia, that the prosecutor failed to lay a proper foundation for this cross-examination, as required by People v Dawson (50 NY2d 311).
Reversal of the defendant’s judgment of conviction is not warranted on this ground. The record indicates that the defense counsel’s objection at trial to this cross-examination was based on the ground that the prosecutor was "arguing with the witness” and was not based on any violation of the principles enunciated in People v Dawson (supra). In People v Kitt (126 AD2d 669, 670), this court stated: "The Court of Appeals, in the Dawson case (supra, at p 324) noted that * * * a limited objection was not sufficient by itself to preserve a claim that the safeguards announced in that case had not been observed”. Accordingly, the defendant’s argument on this issue has not been preserved for appellate review. In any event, the defendant’s argument must be rejected on the merits. There was no need for the People to lay a formal foundation, as required by People v Dawson (supra, at 321), prior to the cross-examination of Lewis, since he was an alleged eyewitness to the incident, who allegedly remained at the scene until the police and an ambulance arrived.
We have examined defendant’s remaining arguments and find them to be either without merit (see, People v Sandoval, 34 NY2d 371; People v Batista, 113 AD2d 890), or unpreserved *659for appellate review. Mangano, J. P., Brown, Lawrence and Sullivan, JJ., concur.
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01-13-2022
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595 F.3d 750 (2010)
Steven J. THOROGOOD, Plaintiff-Appellant,
v.
SEARS, ROEBUCK AND COMPANY, Defendant-Appellee.
No. 09-3005.
United States Court of Appeals, Seventh Circuit.
Submitted January 6, 2010.
Decided February 12, 2010.
*751 Clinton A. Krislov (submitted), Krislov & Associates, Chicago, IL, for Plaintiff-Appellant.
Philip M. Oliss (submitted), Squire, Sanders, & Dempsey, Clevelend, OH, for Defendant-Appellee.
Before POSNER, KANNE, and EVANS, Circuit Judges.
POSNER, Circuit Judge.
This appeal is a sequel to an earlier appeal by the plaintiff that we decided against him. See 547 F.3d 742 (7th Cir. 2008). The plaintiff, a Tennessean, had bought a Kenmore-brand clothes dryer from Sears Roebuck (Kenmore is a Sears brand name). The words "stainless steel" were imprinted on the dryer, but part of the dryer's drum was made of another material. He filed a class action suit in an Illinois state court on behalf of himself and the other purchasers, scattered across 28 states plus the District of Columbia, of the half million or so Kenmore dryers represented in the labeling and advertising of the dryers as containing stainless steel drums. The suit claimed that the representation was false and violated the Tennessee Consumer Protection Act, Tenn. Code. §§ 47-18-101 et seq., and similarly worded state consumer protection statutes in the states of the other members of the class. The suit was removed to federal district court under the Class Action Fairness Act, 28 U.S.C. §§ 1332(d), 1453, 1711-1715, and the district judge certified the class. We accepted the defendant's appeal from the order of class certification, Fed. R.Civ.P. 23(f), and reversed, ordering the class decertified.
We called the suit "a notably weak candidate for class treatment. Apart from the usual negatives, there are no positives: not only do common issues of law or fact not predominate over the issues particular to each purchase and purchaser of a `stainless steel' Kenmore dryer, as Rule 23(b)(3) of the Federal Rules of Civil Procedure requires, but there are no common issues of law or fact, so there would be no economies from class action treatment." 547 F.3d at 746-47 (emphasis in original). Because there is no "reason to believe that there is a single understanding of the significance of labeling or advertising clothes *752 dryers as containing a `stainless steel drum,'" id. at 748, evaluation of the class members' claims would require individual hearings; each class member would have to testify to what he understood by such a label or advertisement. We also expressed great skepticism of the merits of the plaintiff's individual claim.
With the case on remand reduced to that claim, and the parties in agreement that the maximum damages that the plaintiff could recover under Tennessee law were $3,000, the defendant made an offer of judgment under Rule 68 of $20,000 inclusive of attorneys' fees. The district judge, believing that the plaintiff should receive no attorneys' fees (the Tennessee Consumer Protection Act makes an award of attorneys' fees in a suit under the Act discretionary, Tenn.Code § 47-18-109(e)(1); see also Tenn. Sup.Ct. R. 8; Killingsworth v. Ted Russell Ford, Inc., 104 S.W.3d 530, 533-37 (Tenn.App.2002)), dismissed the suit for want of subject-matter jurisdiction. The offer exceeded the amount in controversy and so the case was moot. Greisz v. Household Bank (Illinois), N.A., 176 F.3d 1012, 1014-15 (7th Cir.1999); Rand v. Monsanto Co., 926 F.2d 596, 597-98 (7th Cir.1991); O'Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567, 576 (6th Cir.2009).
The plaintiff argues that the district court lost jurisdiction under the Class Action Fairness Act when we decertified the class, and so the case should have been remanded to the state court in which it began, as in any other case that is improperly removed. That contention was rejected in Cunningham Charter Corp. v. Learjet, Inc., 592 F.3d 805 (7th Cir.2010), which did recognize an exception for cases in which the claim that the suit can be maintained as a class action is frivolousbut the claim in this case was not (quite) frivolous.
The plaintiff argues in the alternative that the district court was wrong to think him entitled to no award of attorneys' fees. (Notice that if the judge was right, the offer of judgment gave the plaintiff a $17,000 windfall.) The plaintiff incurred attorneys' fees of $246,000 and even though they exceeded the value of the relief he received by a factor of 82, he contends that the fees were a worth-while investment and the defendant should be required to reimburse him for them. The defendant offered him a sum equal to the maximum damages (and more) that he could have obtained for his individual claim after the district court rejected the defendant's motion for summary judgment based on the statute of limitations and on other grounds, and he argues that his theory of liability was therefore vindicated and its vindication will help other purchasers of "stainless steel" Kenmores should they file individual suits.
The award of attorneys' fee in excesseven far in excessof the relief a plaintiff obtained can be reasonable if the suit conferred value above and beyond that relief. City of Riverside v. Rivera, 477 U.S. 561, 574-80, 106 S. Ct. 2686, 91 L. Ed. 2d 466 (1986) (plurality opinion); Molnar v. Booth, 229 F.3d 593, 605 (7th Cir.2000); Hyde v. Small, 123 F.3d 583, 585-86 (7th Cir.1997); Lowry ex rel. Crow v. Watson Chapel School District, 540 F.3d 752, 764-65 (8th Cir.2008). That is the federal rule and the rule in Tennessee as well. E.g., Keith v. Howerton, 165 S.W.3d 248, 251-53 (Tenn.App.2004); Killingsworth v. Ted Russell Ford, Inc., supra, 104 S.W.3d at 534-37. But ordinarily it must be relief ordered by a court rather than relief provided by a settlement. That is the usual federal rule, Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. 598, 604-05 and n. 7, 121 S. Ct. 1835, 149 *753 L.Ed.2d 855 (2001); Bingham v. New Berlin School District, 550 F.3d 601, 602-03 (7th Cir.2008) (for an exception, however, see Cornucopia Institute v. U.S. Dept. of Agriculture, 560 F.3d 673, 677 (7th Cir. 2009)), and again it is the Tennessee rule as well; the Tennessee Consumer Protection Act expressly requires "a finding that a provision of [the Act] has been violated" for attorneys' fees to be awarded. Tenn. Code § 47-18-109(e)(1).
The relief that the plaintiff received was not ordered by a court. The district judge ruled that as a matter of law the plaintiff could not recover damages in excess of $3,000 and that he was not entitled to any award of attorneys' fees. The defendant's offer was thus far in excess of the plaintiff's maximum entitlement. It is true that a defendant cannot defeat a valid claim of attorneys' fees by making an offer of judgment that covers merely the plaintiff's damages and arguing that therefore the case is moot. In order to moot the case, the offer must include a reasonable attorney's fee, Marek v. Chesny, 473 U.S. 1, 5-7, 9, 105 S. Ct. 3012, 87 L. Ed. 2d 1 (1985); O'Brien v. Ed Donnelly Enterprises, Inc., supra, 575 F.3d at 575-76; see Thompson v. Southern Farm Bureau Casualty Ins. Co., 520 F.3d 902, 904 (8th Cir.2008) (per curiam) (although it need not do so explicitly, Marek v. Chesny, supra, 473 U.S. at 5-7, 105 S. Ct. 3012), if as in this case the entitlement to such a fee is a part of the plaintiff's claim. But the district judge was within his discretion in deciding that no fee should be awarded. The plaintiff's individual claim, as we indicated in our previous opinion, was notably weak, his understanding of Sears's "stainless steel" representation being almost certainly unreasonable. 547 F.3d at 747. The defendant's offer of $20,000 was intended to get rid of a nuisance claim. The making of the offer was not a vindication of the plaintiff's theory of liability, an acknowledgment that it had some potential merit.
Furthermore, the $246,000 in fees that the plaintiff seeks to be reimbursed for were incurred in attempting to maintain the suit as a class action; no sane person incurs fees in that amount to prosecute a claim worth at most $3,000. The plaintiff's effort to exalt his meager claim into a sprawling nationwide class action was a flop. Sears should not have to bear the entire cost of the flop. See O'Brien v. Ed Donnelly Enterprises, Inc., supra, 575 F.3d at 576; Barfield v. New York City Health & Hospitals Corp., 537 F.3d 132, 152-53 (2d Cir.2008).
The plaintiff could not be permitted to litigate a claim for $3,000 tops (no attorneys' fee) when the defendant was offering him $20,000. He didn't have to accept the offer, but he couldn't turn it down and continue litigating, except that he could (and did) appeal.
In the remote event that, no offer of judgment being made, the plaintiff would have gone on to win $3,000 at trial, the district court might have awarded him something more than $17,000 in attorneys' fees. "One purpose of allowing an award of attorneys' fees to a prevailing plaintiff is to disable defendants from inflicting with impunity small losses on the people whom they wrong." Orth v. Wisconsin State Employees Union Counsel 24, 546 F.3d 868, 875 (7th Cir.2008); see also Fletcher v. City of Fort Wayne, 162 F.3d 975, 976 (7th Cir.1998) (citation omitted) ("a plaintiff with a small claim who achieves a complete recovery is entitled to fees, because civil rights laws entitle victims of petty violations to relief. The cumulative effect of minor transgressions is considerable, yet they would not be deterred if fees were unavailable"). Maybe no competent lawyer would handle a suit worth at most *754 $3,000 for as little as $17,000, especially since, given the weakness of the claim, its expected value was much less. But the defendant's offer of $20,000 cannot be taken as an acknowledgment that the plaintiff was entitled to any award of attorneys' fees, let alone an acknowledgement of the merits of the plaintiff's claim; the offer as we said was intended to terminate a nuisance suit costly to defend against.
Anyway the plaintiff doesn't argue that his "success" in obtaining relief on his individual claim justified an attorney's fee of more than $17,000. He stakes his all on the proposition that his efforts conferred a benefit on the class worth at least $246,000. The district judge did not abuse his discretion in assessing the benefit to the class that we resoundingly ordered be decertified at $0.
AFFIRMED.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/5904773/
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Ordered that the judgments are affirmed (see, People v Pellegrino, 60 NY2d 636; People v Harris, 61 NY2d 9; People v Kazepis, 101 AD2d 816). Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur.
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01-03-2023
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01-13-2022
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