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122 F.3d 1265
97 Cal. Daily Op. Serv. 7026, 97 Daily JournalD.A.R. 11,336UNITED STATES of America, Plaintiff-Appellee,v.Jose Luis GARCIA-CAMACHO, Defendant-Appellant.
No. 96-50605.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Aug. 8, 1997.Decided Aug. 29, 1997.
Christopher P. Tenorio, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.
Yvonne E. Campos, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California; Rudi M. Brewster, District Judge, Presiding, D.C. No. CR-96-00718-1-RMB.
Before: BROWNING, BRUNETTI, and TROTT, Circuit Judges.
TROTT, Circuit Judge:
Overview
1
Jose Luis Garcia-Camacho ("Appellant") appeals his sentence, imposed following his guilty-plea conviction for assault on a federal officer, in violation of 18 U.S.C. § 111, aiding and abetting escape, in violation of 18 U.S.C. §§ 751(a) and 2, and illegal entry, in violation of 11 U.S.C. § 1325. The district court applied USSG § 2A2.2, the guideline for aggravated assault, in sentencing Appellant.
2
Appellant argues that the district court erred in applying USSG § 2A2.2 instead of USSG § 2A2.4, the guideline for obstructing or impeding officers. He contends that his conduct during his arrest did not "involve" serious bodily injury, as required by section 2A2.2 because (1) he did not intend to injure Border Patrol Agent Manen (whose ankle was broken) and (2) his conduct did not directly result in Agent Manen's injury.
3
Appellant also contends that the district court erred in applying the enhanced penalty provision set forth in 18 U.S.C. § 111(b), which provides for a ten-year statutory maximum (rather than a three-year maximum under section 111(a)), because Appellant did not "inflict" bodily injury on Agent Manen.
4
Appellant lunged at and then struggled with Agent Manen; during the course of the struggle, Agent Manen's ankle was severely broken. The district court did not err in finding that Appellant's conduct "involved" serious bodily injury and thus did not err in applying section 2A2.2. Further, Appellant "inflicted" bodily injury on Agent Manen, and therefore the enhanced penalty provision of section 111(b) applies. Neither section 2A2.2 nor section 111(b) requires that the defendant specifically intend to cause injury.
Background
5
On March 17, 1996, Border Patrol Agents observed Appellant and his girlfriend, Guadalupe Guzman-Molina, jump the international boundary fence in the hills east of the Port of Entry at San Ysidro, California. Sometime after the sighting, Agent Manen observed Appellant and Guzman-Molina sitting in a ravine near the top of a hill. He approached them and determined that they were citizens of Mexico. He then directed them to walk toward his nearby border-patrol vehicle. Agent Manen followed approximately three feet behind the couple as they walked up a steep incline. Appellant then yelled "run, run" in Spanish to his girlfriend.
6
The parties dispute what happened next. At the sentencing hearing, the district court made the following findings:
7
[T]his was a case of pre-planned aggravated assault. The Defendant realized that he was about to be busted. He yelled at his accomplice, the person that accompanied him, to run for it. He turned and engaged the agent in a violent assault. They were in close locked combat. As a result of that combat, the agent was thrown to the ground and his ankle was broken. It was very seriously broken.
8
Appellant contested these factual findings. The court then invited Appellant and the Agent to testify in order to clarify what happened that night. Agent Manen testified as to the events immediately following Appellant's yelling "run, run":
9
At the same time, he lunged and attacked me. I was able to get him in a headlock. I was trying to put him down on the ground....
10
I was wanting, mainly, to get him away from my gun because he was on that side. I was afraid that, if he was able to get my gun, he might use it. So I was trying to get him on the ground and, during the struggle, I fell and heard my ankle pop. We went down on the ground anyway. I was holding on to him and I yelled, "Ten, ten," which means I need help. I couldn't get to my radio, but Agent Escalera heard. He was able to run up there and subdue the individual.
11
In response to a question regarding the level of force he encountered in the struggle, Agent Manen stated: "I would say it was a great deal. I had to really, I guess, torque on him--stress to get him to go down. It was--he was definitely struggling." Appellant did not testify.
12
The district court calculated Appellant's sentence according to section 2A2.2. Because of the "aggravated and serious nature of the assault," the district court imposed a sentence at the top of the applicable range.
Standard of Review
13
A district court's interpretation and application of the Sentencing Guidelines are reviewed de novo. United States v. Shrestha, 86 F.3d 935, 938 (9th Cir.1996). A district court's factual findings in the sentencing phase are reviewed for clear error. Id. This court gives "due deference to the district court's application of the guidelines to the facts." United States v. Shabani, 48 F.3d 401, 404 (9th Cir.1995).
Discussion
I. USSG § 2A2.2
14
Two guideline provisions apply to violations of 18 U.S.C. § 111: section 2A2.2, Aggravated Assault, and section 2A2.4, Obstructing or Impeding Officers. USSG App. A. Section 2A2.4 has a base offense level of six and provides for a three-level upward adjustment "if the conduct involved physical contact." USSG § 2A2.4(a) & (b). That section also contains a cross reference which provides: "If the conduct constituted aggravated assault, apply § 2A2.2." Id. § 2A2.4(c). Section 2A2.2 provides the following definition:
15
"Aggravated assault" means a felonious assault that involved (a) a dangerous weapon with intent to do bodily harm (i.e., not merely to frighten), or (b) serious bodily injury, or (c) an intent to commit another felony.
16
USSG § 2A2.2 comment. (n.1) (emphasis added).
17
Appellant argues that the district court erred in applying section 2A2.2 because his conduct did not "involve" serious bodily injury, as required by the guideline. Appellant reasons that section 2A2.2 must require either that a defendant "intend" to cause the injury or that a defendant's conduct "directly result" in the injury.
18
On its face, Section 2A2.2 does not require that a defendant "intend" serious bodily injury in order to commit an aggravated assault. Instead, it requires only that the assault "involve" serious bodily injury. See United States v. McInnis, 976 F.2d 1226, 1234 (9th Cir.1992) (concluding that section 2A2.2 applied because the defendant's "conduct did constitute a felonious assault and serious bodily injury clearly occurred"). "Involved" does not mean "intended." In fact, the absence of an intent requirement in section (b) of the aggravated assault definition stands in stark contrast to sections (a) and (c), where specific intent is required.
19
If no intent to cause bodily injury is required, Appellant contends, violations of section 111 become strict liability offenses whereby an unintended assault that simply results in serious bodily injury is an aggravated assault. Notably, assault on a federal officer, in violation of 18 U.S.C. § 111, is a general intent crime. United States v. Jim, 865 F.2d 211, 215 (9th Cir.1989). Moreover, because "[t]he law will presume that a person intended the natural and probable consequences of his voluntary acts," United States v. Loera, 923 F.2d 725, 728 (9th Cir.1991) (quotation omitted), holding Appellant accountable for the serious bodily injury which Agent Manen suffered as a consequence of Appellant's assault does not turn section 111 into a strict liability offense. Section 2A2.2 thus applies even where there is no finding that a defendant had the specific intent to cause serious bodily injury.
20
Appellant next argues that his conduct did not "involve" serious bodily injury, pursuant to section 2A2.2 because Agent Manen's injury was not the "direct result" of the Appellant's conduct. He asks the court first to read section 2A2.2 as requiring that the injury be the "direct result" of the defendant's action in order to avoid punishing defendants for injuries that are too attenuated from the defendant's conduct. He then contends that he did not directly cause Agent Manen's injury.
21
Although Appellant cites no case law supporting this interpretation of section 2A2.2, he makes a valid point that there may be circumstances where an injury is so attenuated that a defendant should not be held accountable. For example, if Agent Manen had tripped and twisted his ankle while walking a handcuffed and subdued Appellant back to the patrol car, then perhaps Appellant should not be held accountable for that injury.
22
However, we need not decide what level of causation is required in order for a defendant's assault to "involve" serious bodily injury. Here, Agent Manen was engaged in a struggle with the Appellant at the time he broke his ankle. The district court found that the injury was a "result of that combat." Moreover, Appellant admitted at his plea hearing that his conduct caused the agent to suffer a broken ankle.
23
Appellant nevertheless contends that "[t]he injury incurred was a direct result of the agent's conduct, not that of Mr. Garcia." He attempts to divide the episode into two separate events: first, Appellant's lunge; second, the agent's efforts to arrest Appellant. This scenario contradicts the district court's factual findings. The evidence does not support Appellant's theory that he was subdued and no longer struggling at the time of the agent's injury. Agent Manen's testimony clearly indicated that the struggle continued until another agent arrived and placed Appellant in handcuffs. Appellant presents no evidence that the district court's factual findings are clearly erroneous. Moreover, by distinguishing between the conduct he initiated (the initial struggle) and the conduct the agent initiated (the arrest), Appellant artificially attempts to turn a continuous action into a series of separate events.
24
Appellant's crass effort to characterize Agent Manen's injury as merely a "job hazard" is equally unavailing. In speculating that "the exact same injury could have resulted from physical contact that was initiated by the agent during the routine arrest of any person attempting illegal entry," Appellant ignores the fact that Agent Manen was not injured while handcuffing a passive defendant, but rather while engaged, in the district court's words, in "close locked combat." The fact that Appellant did not kick the agent's ankle or otherwise come into contact with it does not demonstrate that his behavior was not the cause of the injury.
25
Appellant committed an aggravated assault as defined in section 2A2.2, and section 2A2.4 directs the district court to apply section 2A2.2 in that circumstance. Giving due deference to the district court's application of the guidelines to the facts, the district court did not err in applying section 2A2.2.
II. 18 U.S.C. § 111(b)
26
Appellant asserts that the district court erred in applying the enhanced penalty provision, 18 U.S.C. § 111(b), because Appellant did not "inflict" bodily injury on Agent Manen. Section 111(b) provides the following enhanced penalty:
27
Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon or inflicts bodily injury, shall be fined under this title or imprisoned not more than ten years, or both.
28
(Emphasis added). Absent application of section 111(b), the penalty for violation of section 111(a) is one-year imprisonment for simple assault and three-years imprisonment in all other cases. Thus, by sentencing Appellant to 51 months, the district court necessarily invoked the section 111(b) enhanced penalty provision.
29
Appellant's arguments against the imposition of the section 111(b) enhanced penalty provision are similar to those regarding the application of USSG § 2A2.2. He asserts that section 111(b) must require either that a defendant "intend" to cause the injury or that there is a heightened causal relationship between a defendant's conduct and the injury. Appellant's arguments against the application of section 111(b) are equally unavailing. Section 111(b) contains no intent to injure requirement. Moreover, Appellant's efforts to argue that "to inflict" means more than "to cause" similarly fail. Webster's Third New International Dictionary (1976) defines "inflict" as: "to lay (a blow) on; [to] cause (something damaging or painful) to be endured." As demonstrated above, Appellant's conduct did directly cause Agent Manen's injury. Appellant therefore did "inflict" bodily injury on Agent Manen, and the district court did not err in imposing sentence under the section 111(b) enhanced penalty provision.
CONCLUSION
30
Neither USSG § 2A2.2 nor 18 U.S.C. § 111(b) require a specific intent to injure. Instead, section 2A2.2 requires only that a felonious assault "involve" serious bodily injury, and section 111(b) requires only that a defendant "inflict" bodily injury in the commission of an assault. Here, Appellant lunged at and engaged in a struggle with Agent Manen, during which Agent Manen's ankle was severely broken. The district court did not err in imposing sentence pursuant to section 2A2.2 and section 111(b). We therefore affirm.
31
AFFIRMED.
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04-17-2012
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Yesawich, Jr., J.
Appeal from a decision of the Workers’ Compensation Board, filed November 3, 1986, which ruled that claimant’s failure to seek the consent of his employer’s workers’ compensation carrier to settlement of a third-party action barred further awards.
Claimant sustained serious injuries in a 1977 two-car collision that occurred in Pennsylvania. In January 1978, he filed for workers’ compensation benefits in New York. The employer’s workers’ compensation carrier controverted the claim, contending that there was no employer/employee relationship and that the accident did not arise out of the course of employment. Before that dispute was resolved, however, claimant settled his third-party action in the Pennsylvania Federal District Court in August 1979 for $50,000, the extent of the other driver’s liability insurance coverage; although the injuries are said to have been such as to warrant a more substantial recovery, the settlement was accepted because the defendant in the third-party suit had no other assets available. In connection with the settlement, claimant compromised a Suffolk County medical expense lien, exceeding $100,000, for $18,175. Claimant neglected to notify the carrier that he was instituting a third-party action, as required by Workers’ Compensation Law § 29 (1), and failed to obtain the carrier’s consent to the settlement, as required by Workers’ Compensation Law § 29 (5).
*799On November 26, 1980, the Workers’ Compensation Board determined that claimant was entitled to receive compensation benefits, which the carrier began paying. The carrier did not receive notice of the third-party action until July 15, 1981, when claimant ostensibly represented that the matter had been resolved by a jury verdict. Due to claimant’s delay in complying with the Board’s request for a third-party closing statement, the carrier did not learn of the settlement until January 1984. The following month compensation payments were discontinued; at this point the carrier’s payments for lost time alone had reached $41,125. In June of that year claimant moved for a nunc pro tunc consent order in Supreme Court, New York County, but that motion was dismissed for lack of jurisdiction. An appeal from that order has not been perfected. Following a December 1985 hearing, a Workers’ Compensation Law Judge ordered resumption of compensation payments and directed the carrier to take a credit for the amount of claimant’s net recovery ($15,159) in the third-party action, on the ground that the carrier’s consent to the settlement could be implied from the fact that $50,000 was all that could have been obtained in that suit. The carrier appealed to the Board, which reversed the Workers’ Compensation Law Judge’s decision. Claimant now appeals. We affirm.
Failure to obtain the consent of the compensation carrier to the settlement of a third-party action or a compromise order from the court in which the action is pending bars further payments of compensation (see, Workers’ Compensation Law § 29 [5]; Matter of Burton v ITT Continental Baking Co., 93 AD2d 921). This rule protects carriers from their claimants’ imprudent settlements and ensures the priority of a carrier’s compensation lien (see, Matter of Meachem v New York Cent. R. R. Co., 8 NY2d 293, 297; see also, Workers’ Compensation Law § 29 [1]). A carrier is not required to forfeit this protection in order to contest the legitimacy of a claimant’s application for benefits.
The cases of Matter of Dalton v Journeymen, Plumbers & Apprentice Steamfitters (22 AD2d 745) and Matter of Moore v Metropolitan Suburban Bus Auth. (91 AD2d 768) are not to the contrary, for they stand for the proposition that a compensation carrier is estopped from relying on the consent rule if prior to or at the time of settlement it denies being the carrier or asserts that its consent is unnecessary. In the instant case, claimant incorrectly argues that the carrier’s challenge to a claim based on employer/employee relationship or course of employment should similarly estop it from participation in a *800third-party settlement. Furthermore, claimant has offered no convincing reason why the carrier was not informed of the third-party action nor offered the opportunity to participate in the settlement, or why an approval of the settlement pursuant to Workers’ Compensation Law § 29 (5) could not have been obtained from the United States District Court in Pennsylvania.
Decision affirmed, without costs. Mahoney, P. J., Kane, Casey, Yesawich, Jr., and Levine, JJ., concur.
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Harvey, J.
Appeal from a judgment of the County Court of Albany County (Harris, J.), rendered April 19, 1985, upon a verdict convicting defendant of the crime of attempted murder in the second degree.
On October 10, 1984, defendant repeatedly stabbed his estranged wife with a knife. Although suffering very serious injuries, his wife survived the attack. Defendant was subsequently charged with, inter alia, the crime of attempted murder in the second degree. At the ensuing trial, defendant did not deny that he stabbed his wife. He attempted, however, to establish that he was so intoxicated that he did not remember the events and thus did not possess the requisite intent to commit the crime. The People presented evidence from witnesses who had observed defendant near the time of the crime. Expert testimony was elicited regarding the effect of defendant’s alleged 40-day drinking binge on his capacity. The jury ultimately found defendant guilty of attempted murder in the second degree. Following sentencing, defendant appealed.
Defendant contends that County Court committed reversible error in allowing the People to introduce expert testimony regarding the effect of defendant’s alcohol consumption on his capacity to perform an intentional act. The admissibility of expert testimony is addressed to the discretion of the trial court (see, People v Keindl, 68 NY2d 410, 422; People v Neer, 129 AD2d 829, 830, Iv denied 70 NY2d 652). Among the factors considered in determining whether to admit such evidence is whether the expert has specialized knowledge which will benefit the jury (People v Cronin, 60 NY2d 430, 433). It is within the trial court’s discretion to admit expert evidence regarding a defendant’s ability to form the intent to *801commit a crime after drug and alcohol consumption (People v Donohue, 123 AD2d 77, 79, Iv denied 69 NY2d 879, 949). Here, defendant, testifying on his own behalf, stated that he had been drinking heavily for approximately 40 days prior to the commission of the crime. He further indicated that on the morning of the crime he had consumed "angel dust” or "acid”. He claims that, as a result of his consumption of alcohol and other substances, he did not recall any of the events surrounding the commission of the crime. County Court, in the exercise of its sound discretion, did not presume that the jury would have knowledge of the combined effect of alcohol and drug abuse over an extended period of time. We conclude that the admission of expert evidence on this issue was not an abuse of discretion mandating reversal.
Defendant’s remaining contentions have been considered and found either unpersuasive or unpreserved for appellate review, and not meriting reversal in the interest of justice.
Judgment affirmed. Mahoney, P. J., Weiss, Levine and Harvey, JJ., concur.
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01-13-2022
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Casey, J.
Appeal from a judgment of the County Court of Broome County (Monserrate, J.), rendered September 6, 1985, upon a verdict convicting defendant of the crimes of burglary in the first degree, attempted assault in the first degree, assault in the second degree and criminal trespass in the second degree.
Defendant’s convictions stemmed from events which occurred at the apartment of his former girlfriend in the Village of Johnson City, Broome County, on the night of May 3, 1985. At that time, defendant violently demanded entry to the apartment and when it was not afforded him, he broke down the locked door and threw the girlfriend, who was on the phone summoning the police, to the floor, shouting, "You’re going to die; I’m going to kill you.” In the ensuing struggle, defendant choked the girlfriend, seized a bread knife and stabbed her in the neck and in her finger. The police arrived during the struggle and subdued and handcuffed defendant. As a consequence, a five-count indictment was returned against defendant by the Grand Jury, charging him with attempted murder in the second degree, two counts of burglary in the first degree, attempted assault in the first degree and assault in the second degree.
At trial, in order to clarify its charge to the jury in regard to certain lesser included offenses, County Court divided all of *802the offenses to be charged into four groups, each group containing one greater and one lesser included offense. The first group contained the crimes of attempted murder in the second degree and attempted assault in the first degree, both of which were charged in the indictment. The jury convicted defendant of attempted assault in the first degree only. The second group contained the crime of assault in the second degree as charged in the indictment and the crime of assault in the third degree as the lesser included uncharged crime of that group. As to this group the jury convicted defendant of assault in the second degree. Group three contained the offenses of burglary in the first degree as charged in the second count of the indictment and the lesser included uncharged crime of criminal trespass in the second degree. The jury convicted defendant only of the lesser crime of this group. Group four contained the charge of burglary in the first degree as charged in the third count of the indictment and the lesser included uncharged crime of criminal trespass in the second degree. As to this group the jury convicted defendant of burglary in the first degree only. Defendant was given prison sentences of 1 year for criminal trespass, 3 to 6 years each for attempted assault in the first degree and assault in the second degree, and 10 to 20 years for burglary in the first degree, all sentences to run concurrently.
Defendant claims on this appeal that the verdicts, especially in regard to the conviction of burglary in the first degree, are repugnant and inconsistent since he was also acquitted of burglary in the first degree. Defendant argues that the jury necessarily found that he lacked the requisite intent for burglary in the first degree when they acquitted him of that charge and that, therefore, he could not be convicted under a separate count of burglary in the first degree (see, People v Tucker, 55 NY2d 1). This issue has not been preserved for appellate review due to defendant’s failure to register any protest prior to the discharge of the jury when the infirmity in the verdict, if any, might have been remedied by resubmission to the jury (see, People v Satloff, 56 NY2d 745; People v Stevens, 109 AD2d 856, 857). Nor do we see any basis for exercising our discretion in the interest of justice pursuant to CPL 470.15 (6) (a). County Court charged two counts of burglary under separate or alternate theories and the jury clearly accepted one and rejected the other.
We find that defendant’s claim of excessiveness of his sentences lacks merit. Considering the circumstances surrounding defendant’s crimes and his previous felony conviction, the *803sentences imposed were appropriate. Accordingly, we affirm the judgment of conviction.
Judgment affirmed. Kane, J. P., Casey, Yesawich, Jr., and Levine, JJ., concur.
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Weiss, J.
Appeal, by permission, from an order of the Supreme Court (Conway, J.), entered March 25, 1987 in Albany County, which, in a proceeding pursuant to CPLR article 78, denied respondents’ motion to dismiss the petition.
The underlying facts are set forth in our prior determination dismissing petitioner’s challenge to a "request for proposal” (RFP) for exhaust emission analyzers for the 1987-1992 contract period issued by the Department of Motor Vehicles (DMV) in conjunction with the Department of Environmental Conservation (see, Matter of Allen Group [Allen Testproducts Div.J v Adduci, 123 AD2d 91, 93, Iv denied 69 NY2d 610). While that appeal was pending, petitioner commenced the instant CPLR article 78 proceeding, in which the Attorney-General and Comptroller were added as respondents, seeking (1) to prevent any award of a new six-year contract under the RFP and (2) to compel removal of the previous holder of the contract, Hamilton Test Services (Hamilton), from the list of eligible bidders on the ground of alleged improper conduct of a DMV Deputy Commissioner and an official of a service station association who was a member of the RFP evaluation committee. Supreme Court denied respondents’ motion to dismiss the petition, holding that substantial questions of fact as to issues of fraud and conspiracy had been raised, and ordered respondents to serve an answer. Instead of answering, respondents obtained permission on June 2, 1987 from a Justice of this court for leave to appeal the order. In the interim, on May 11, 1987 respondents announced the withdrawal of the contested RFP, soliciting bids for new emission system analyzers only.
Initially, we observe that by virtue of respondents’ withdrawal of the contested RFP, petitioner’s first prayer for relief relative to the RFP has been rendered moot (see, Matter of Bush Term. Roofing & Contr. v Board of Educ., 91 AD2d 662). Mandamus is simply not available to determine a moot question (see, Cosgrove v Hanson, 58 AD2d 911). Nor are we persuaded that an exception to the mootness doctrine compels us to review this aspect of the petition (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714).
*804Insofar as petitioner seeks the removal of Hamilton as an eligible bidder, however, the petition remains viable and must be addressed (see, Cornell Univ. v Bagnardi, 68 NY2d 583, 592). Respondents’ assertion that this challenge is precluded on the basis or res judicata or collateral estoppel is not persuasive. The record indicates that when petitioner initiated the first proceeding, it did not possess the facts necessary to assert the instant claims of fraud. Thus, the former judgment does not serve to bar these claims (see, Smith v Russell Sage Coll, 54 NY2d 185; see also, Siegel, NY Prac §447 [1987 supp]). Nor does the failure to join Hamilton as a necessary party necessitate the automatic dismissal of the petition (see, CPLR 3211 [a] [10]; 2 Weinstein-Korn-Miller, NY Civ Prac If 1003.05). Nonetheless, petitioner’s claim lacks substantive merit for mandamus does not lie to compel the performance of an act, the exercise of which is discretionary (see, Klostermann v Cuomo, 61 NY2d 525, 539). The determination of who is and who is not a responsible bidder unquestionably involves the exercise of discretion (see, Mason Stationery Prods, v State of New York, 65 AD2d 859). We note that respondents can and should consider any past conduct in making their decision as to whether Hamilton is a responsible bidder (see, Matter of Callanan Indus, v White, 118 AD2d 167, 169-170). Accordingly, the petition must be dismissed.
Order reversed, on the law, without costs, motion granted and petition dismissed. Mahoney, P. J., Weiss, Levine and Harvey, JJ., concur.
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Weiss, J.
Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Education Law § 6510-a [4]) to review a determination of respondent Commissioner of Education which suspended petitioner’s license to practice medicine in New York for three years, with a stay of the last two years of the suspension.
Petitioner is a 78-year-old psychiatrist who, by order of the Commissioner of Health dated September 23, 1980 made after a hearing, was found guilty of several violations of Public Health Law article 33. The charges were based upon improper prescribing of controlled substances, improper writing and postdating of prescriptions for controlled substances, prescribing a controlled substance for habitual users of the drug, prescribing quantities of a controlled substance in excess of a 30-day supply, and prescribing controlled substances for pa*805tients without conducting physical examinations and without medical clearance from referring physicians (see, Public Health Law § 3331 [1], [2]; § 3332; 10 NYCRR 80.67 [c]). His right to prescribe controlled substances was suspended for three years and a fine of $50,000 imposed.
On April 3, 1985, the State Board for Professional Medical Conduct charged petitioner with 19 specifications of professional misconduct consisting of practicing the profession fraudulently, practicing with negligence, practicing with gross negligence and with unprofessional conduct by issuing numerous prescriptions for controlled substances to five patients not in good faith and not in the regular course of practice (see, Education Law § 6509 [2], [9]; 8 NYCRR 29.1 [b]). In addition, he was charged with unprofessional conduct based on the 1980 violations of Public Health Law article 33. The Commissioner of Health modified the findings and recommendations of a Hearing Panel and recommended that petitioner be found guilty of all specifications of the charges of fraudulent practice, negligence, gross negligence, unprofessional conduct and improper record keeping, and recommended a three-year license suspension with a stay of the last two years. Thereafter, the Regents Review Committee recommended to respondent Board of Regents that the Commissioner of Health’s recommendation be accepted, with the exception that the charges of unprofessional conduct premised on the 1980 Public Health Law article 33 violations be limited to acts committed after October 1, 1977 (see, Education Law § 6509 [9]; 8 NYCRR 29.1 [b] [1] [eff Oct. 1, 1977]). The 19th specification premised on moral unfitness was also rejected. The Board of Regents accepted this recommendation in its entirety, specifying that the findings of guilt were based on a preponderance of the evidence, and respondent Commissioner of Education executed an order suspending petitioner’s license accordingly. This proceeding ensued.
The determination should be confirmed. While petitioner raises numerous objections, his main premise is that his methods of treatment and prescribing practices were in accord with the standards and procedures of the profession, and constituted a proper exercise of professional judgment. In contrast, the State’s expert witness essentially testified that petitioner’s prescription and record-keeping practices were grossly inappropriate and without a legitimate medical basis. This conflict in testimony and the appropriate inferences to be drawn from the evidence presented was for the Board of Regents to resolve (see, Matter of Mruthyunjaya v State of *806New York Educ. Dept., 127 AD2d 881, Iv denied 70 NY2d 605). Upon review of the instant record, we find ample support for respondents’ conclusion that petitioner’s guilt was established by a preponderance of the evidence (supra; Education Law § 6510-a [1]; Public Health Law § 230 [10] [f]). Respondents could properly utilize the 1980 violations of Public Health Law article 33 as a basis for establishing unprofessional conduct (see, Matter of Saleem v Commissioner of Educ., 133 AD2d 953; cf., Matter of Abraham v Ambach, 135 AD2d 921). Moreover, the Statute of Limitations attendant medical malpractice actions does not apply (Matter of Fischman v Ambach, 98 AD2d 854, 855, appeal dismissed 63 NY2d 768). We have examined but find little substance to petitioner’s remaining objections.
Finally, we find the penalty, which amounts to a one-year suspension of petitioner’s license, to be neither harsh nor excessive. Despite his advanced age, financial difficulties and family problems, we cannot say that the sanction imposed is so disproportionate to the offenses as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Sasson v Commissioner of Educ., 127 AD2d 875, 876).
Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Weiss, Yesawich, Jr., and Harvey, JJ., concur.
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Spain, J.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered September 1, 2010, upon a verdict convicting defendant of the crime of rape in the first degree.
This case, which began with a consensual relationship and ended in defendant’s indictment on a single count of rape in the first degree (see Penal Law § 130.35 [1]), presents a classic he-said she-said credibility determination. After a jury trial, defendant was convicted and sentenced as a second felony offender to a prison term of 22 years and five years of postrelease supervision. Defendant appeals and we now affirm.
We turn first to defendant’s argument that the verdict was against the weight of the credible evidence, necessitating a full review of the testimony adduced at trial. Many details are undisputed. Defendant, then 40 years old, first met the victim—an 18-year-old woman with an extensive history of psychiatric problems—at a bus stop in the City of Albany in April 2009. They talked extensively about various topics, including sex, while walking together until they eventually visited a recreational vehicle that belonged to a friend of defendant. The victim testified that, while inside the vehicle, defendant gave *1001the victim a back massage, but nothing else happened of an intimate nature. Defendant’s version of these events differed only in that he testified that, following the massage, the victim engaged in oral sex with him. Upon parting that night, the victim gave defendant her telephone number and they spoke on the telephone a few times in the weeks ahead. On May 26, 2009, defendant called the victim and invited her out for the evening. The victim’s mother drove her to defendant’s residence, where the victim met members of defendant’s family, and she then dropped the pair off on Lark Street. They walked around for a while and stopped at the home of defendant’s friend, Marvin Calhoun, where they visited with Calhoun and his family. The victim admits that she exchanged sexual innuendos with defendant during this visit. After a few hours, the couple left, ending up at the apartment of another one of defendant’s friends, Kevin Johnson, where they engaged in consensual kissing and fondling.
It is at this point that the testimony of defendant and the victim sharply diverges. The victim testified that after about 15 minutes, defendant wanted to have intercourse but she refused, telling him it was too soon in their relationship. When defendant continued to insist, she became angry with him and left the apartment. Defendant caught up with her on a street outside the apartment and apologized to her. She stated that they continued to argue while they walked, but that she tired of walking so they sat down. The victim stated that, while seated, they witnessed police officers draw their weapons on a young female with a baseball bat. She explained that this incident made both her and defendant laugh, and she no longer felt angry with him.
Defendant testified that the victim had unsuccessfully asked Calhoun if they could use a bedroom to have sex while visiting Calhoun’s family and, once at Johnson’s apartment, she initiated sex and it was he who refused to have intercourse there because he thought it was not appropriate to have sex on the couch with his friend in the next room. He testified that they left the apartment together in search of another place to have sex, and that the victim was willing even to have sex outside in the bushes. Defendant further stated that the victim was not angry with him when they left Johnson’s apartment and that they never witnessed the police encounter with the female with the baseball bat.
By both accounts, the couple eventually ended up at an abandoned house located at 595 Clinton Avenue in Albany, where the victim followed defendant through the backyard into *1002the house. At this point, the accounts of the victim and defendant again diverge. The victim testified that defendant backed her up against a wall and started to forcibly kiss and grind against her. She testified that she pushed him away and told him to stop, but that he continued, telling her, “You are going to give it to me or I’m going to take it.” The victim stated that they struggled; she punched defendant in the face, near his jaw or chin, and defendant hit her in the face several times and choked her. While he was choking her from behind, the victim testified, she was able to bite his forearm. After an extended struggle, during which the victim tried to make noise to draw attention and begged for her life, she gave up and submitted to sexual intercourse with defendant. The victim stated that, when it was over, defendant did not prevent her from leaving, but told her, “Don’t go out there looking like that.” The victim stated that she wiped the tears and blood off of her face onto her shirt, then went out the same way they had entered. She further testified that she got caught on a fence while trying to leave, and ripped her shirt. She came upon a pay telephone and called 911. Police officers arrived and she was brought to the hospital for examination. The victim’s torn shirt and photographs of her bruised face were admitted in evidence at trial.
By contrast, defendant testified that the couple had consensual intercourse once inside the abandoned building. He explained that after they were through and he asked the victim if she wanted to go home, she suddenly demanded money from him and, when he refused, grabbed his pants and began to leave. Defendant stated that he then tackled the victim to prevent her from leaving and her face struck the floor as they fell. They then struggled as he attempted to pry his money—which the victim had by then extracted from the pocket of his pants— from her hand and, during the struggle, she bit his arm. According to defendant, he eventually managed to squeeze the victim’s hand open and retrieve his cash, at which point the victim got up and left the building.
Defendant then went to the home of his friend, James Close, where, according to Close, he pounded on the door, yelling for admittance. Close testified that defendant looked like he was being chased by someone and implied that he wanted to come inside because there was a female outside who was exposing herself to defendant. Defendant testified that he went to Close’s house because he wanted to tell him about his encounter with the victim but, suddenly realizing that the abandoned house he had been trespassing in might belong to Close, changed his mind and left. He explained that he might have referred to the *1003victim as “the girl [who] lifted her shirt up on Central Avenue that time” because he had told Close about his first meeting with the victim and that she had exposed herself on the street that night to some passers-by.
Based on this evidence, it would not have been unreasonable for the jury to believe defendant’s testimony that the sexual encounter was consensual.1 Thus, to determine if the verdict was against the weight of the evidence, we “ ‘must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” (People v Terry, 85 AD3d 1485, 1486 [2011], lv denied 17 NY3d 862 [2011], quoting People v Romero, 7 NY3d 633, 643 [2006]), while giving due deference to the credibility determinations of the jury (see People v Wright, 81 AD3d 1161, 1163 [2011], lv denied 17 NY3d 803 [2011]). Defendant, both in counsel’s brief and in his pro se submission, relies on inconsistencies in the victim’s testimony, her mental health history and his interpretation of the physical evidence and testimony adduced at trial to argue that the verdict is against the weight of the credible evidence. Examining all his arguments and the proof adduced at trial, we find no legal basis for substituting a different conclusion from that reached by the jury.
Defendant focuses on the fact that a hospital record states that the victim reported to medical personnel that the attack lasted three minutes, while she testified that they struggled for 30 to 45 minutes. A review of that record, however, suggests that the time reported may refer to the duration of the rape, as opposed to the entire struggle. Further, defendant emphasizes the fact that, according to a hospital record, the victim first reported that there was some consensual kissing at the abandoned house, but thereafter testified that the kissing was also against her will. We do not find this inconsistency to be evidence that the victim’s testimony is fundamentally unreliable; she was cross-examined on this at trial, thus putting the credibility determination squarely in front of the jury. Faced with inconsistencies, “the jury ‘was entitled to credit some of her testimony while discounting other aspects’ ” (People v Hoppe, *100496 AD3d 1157, 1159 [2012], lv denied 19 NY3d 1026 [2012], quoting People v Kuykendall, 43 AD3d 493, 495 [2007], lv denied 9 NY3d 1007 [2007]; see People v Alteri, 49 AD3d 918, 920 [2008]). Likewise, defendant’s assertion on appeal—that the victim’s testimony that they witnessed police officers draw their weapons on a female carrying a baseball bat was incredible—is a decision appropriately left to the trier of fact.
Defendant also argues that the victim’s credibility is undermined by her mental illnesses. Evidence was presented at trial that established that the victim had a long history of mental illness; she had been diagnosed with epilepsy, posttraumatic stress disorder, Tourette’s disorder and bipolar disorder and, as a result of these conditions, she had been hospitalized more than 10 times in her 18 years. It is well settled that an individual suffering from mental illness may be competent to provide evidentiary testimony at trial (see People v Gelikkaya, 84 NY2d 456, 460 [1994]; People v Rensing, 14 NY2d 210, 213-214 [1964]). No proof was presented that the victim was unable to appreciate the nature of her oath (see People v Gelikkaya, 84 NY2d at 460), and the jury was aware of the victim’s diagnoses and was free to determine that she was, nevertheless, more credible than defendant (see People v Plaisted, 2 AD3d 906, 909 [2003], lv denied 2 NY3d 744 [2004]).
Nor do we find that the victim’s testimony was necessarily contradicted by the physical evidence. The victim’s injuries, which consisted of a bruise on her face, a cut inside her cheek and a scratch near her lip, coupled with the teeth marks on defendant’s forearm, were not so insubstantial as to render the victim’s description of the struggle implausible. The victim’s testimony was not incredible as a matter of law; rather, the conflicting testimony “presented ‘a classic credibility issue’ for the jury to resolve” (People v Mitchell, 57 AD3d 1308, 1309 [2008], quoting People v Allen, 13 AD3d 892, 894 [2004], lv denied 4 NY3d 883 [2005]; see People v Blackman, 90 AD3d 1304, 1308 [2011], lv denied 19 NY3d 971 [2012]).2
We turn next to defendant’s contention that County Court erred in refusing to turn over all of the victim’s mental health *1005records. In general, mental health records are confidential and will not be discoverable where sought as “a fishing expedition searching for some means of attacking the victim’s credibility” (People v Brown, 24 AD3d 884, 887 [2005], lv denied 6 NY3d 832 [2006]; see People v Gissendanner, 48 NY2d 543, 550 [1979]; People v Bush, 14 AD3d 804, 805 [2005], lv denied 4 NY3d 852 [2005]). Access will be provided, however, where a defendant can demonstrate a good faith basis for believing that the records contain “data relevant and material to the determination of guilt or innocence,” a decision which will rest “largely on the exercise of a sound discretion by the trial court” (People v Gissendanner, 48 NY2d at 548; see People v Plaza, 60 AD3d 1153, 1154-1155 [2009], lv denied 12 NY3d 919 [2009]). Here, defendant requested all of the victim’s mental health records, based on the disclosure by the People that the victim has a history of mental illness, had been the victim of sexual abuse on at least three prior occasions and had attempted suicide in the months leading up to the trial.
Under these circumstances, County Court appropriately conducted an in camera review of the victim’s records and partially granted defendant’s request by turning over those records that the court found were pertinent to the case. In this manner, the court properly balanced defendant’s 6th Amendment right to cross-examine an adverse witness and his right to any exculpatory evidence against the countervailing public interest in keeping certain matters confidential (see People v Gissendanner, 48 NY2d at 549-551; People v Boyea, 222 AD2d 937, 938-939 [1995], lv denied 88 NY2d 934 [1996]; see also People v Fuentes, 12 NY3d 259, 263-265 [2009]). We have reviewed the victim’s voluminous mental health records and conclude that the court provided an appropriate sample of documents that covers all of the victim’s relevant and material mental health issues.
The dissent, in performing its review of the victim’s mental health records, has unearthed some documents that were not disclosed to defendant and are relevant to the victim’s competence to testify, in particular, references to short-term memory loss, such as her inability to recall events after she has had a temper tantrum, and a suggestion that she forgets good experiences with a person if they are succeeded by a negative experience. We find, however, that it was not an abuse of discretion for County Court to fail to disclose these documents. Indeed, given the limited impact these additional relevant records have when compared to the amount of material that was disclosed to the defense regarding the victim’s hallucinations, various *1006diagnosed conditions, medications, preoccupation with sex, poor judgment, dangerous behaviors, self-abuse, violent outbursts, etc., we cannot find that County Court so failed in its diligent efforts to cull through thousands of pages of mental health records to balance the victim’s rights against defendant’s rights such as would constitute an abuse of discretion.3
Other documents that the dissent asserts should have been disclosed were redundant in light of those records that were disclosed. For example, additional documents relating to the victim’s poor perception and insight were properly withheld because the sample documents disclosed contain multiple references to her poor impulse control and lack of judgment, especially in sexual interactions and Internet exchanges. Likewise, the victim’s experiences with seizures and flashbacks were disclosed in documents turned over to the defense. An incident where the victim was found wandering on a highway and not able to remember how she got there was also noted in one of the documents that was disclosed.
Additionally, it was not necessary for County Court to disclose those few references in the victim’s mental health records that suggest that she may have falsely accused her father of sexually abusing her when she was 13. Assuming that the records contain enough information to suggest a false allegation,4 this evidence would not be admissible under New York’s Rape Shield Law because it is far too different and attenuated from the circumstances of the present allegation of rape to “ ‘suggest a pattern casting substantial doubt on the validity of the charges made by the victim’ or ‘indicate a significant probative relation to such charges’ ” (People v Blackman, 90 AD3d at 1310 [citations omitted]; see People v Mann, 41 AD3d 977, 978-979 n *1007[2007], lv denied 9 NY3d 924 [2007]). We detect no pattern of behavior by comparing this remote, alleged false claim of sexual abuse by the victim against her alcoholic, physically abusive father, with her assertion that she was date-raped by defendant (see People v Mandel, 48 NY2d 952, 953 [1979] [prior false allegations of rape inadmissible where “no showing was made that the particulars of the complaints, the circumstances or manner of the alleged assaults or the currency of the complaints were such as to suggest a pattern casting substantial doubt on the validity of the charges made by the victim in this instance”], appeal dismissed and cert denied 446 US 949 [1980]; People v McKnight, 55 AD3d 1315, 1316 [2008] [insufficient proof that alleged prior false accusations of sexual abuse were “suggestive of a pattern that casts doubt on the validity of, or bore a significant probative relation to, the instant charges” (internal quotation marks and citations omitted)], lv denied 11 NY3d 927 [2009]; compare People v Hunter, 11 NY3d 1, 6 [2008] [noting the similarities between recent, allegedly false accusations and those alleged against the defendant]). When determining whether a trial court abused its discretion, we must necessarily consider whether or not the document, if turned over, could have had any impact on the trial. Here, there can be no abuse of discretion as the information contained in the documents would not have been admissible, and we cannot envision how such information might have led to other material and admissible evidence.
Defendant also argues that County Court committed reversible error by precluding him from examining the victim about her hypersexuality. When defense counsel asked the victim on cross-examination if, at some point in time, she had been diagnosed as hypersexual, the court sustained the People’s objection as to form and directed counsel to rephrase the question. Counsel was unable to do so in a way to avoid objection and moved on. “Evidence of a victim’s sexual conduct shall not be admissible in a prosecution for [a sex] offense” unless it meets one of the enumerated statutory exceptions (CPL 60.42). Here, the victim’s mental health records indicate that she exhibits hypersexual behavior in that she is inappropriately focused on sex in conversation with others, and that such behavior is a symptom of her bipolar disorder. Defendant did not introduce medical evidence or expert testimony to establish that hyper-sexuality is a mental illness that would impact the victim’s credibility or control her behavior; indeed, all references to the victim’s “hypersexuality” in her medical history are to her wholly voluntary inappropriate, promiscuous behavior—conduct intentionally designed to shock and draw attention—which is *1008precisely the kind of evidence the Rape Shield Law prohibits (see CPL 60.42; People v Simonetta, 94 AD3d 1242, 1246 [2012], lv denied 19 NY3d 1029 [2012]). Under these circumstances, we discern no abuse of discretion in the court’s limitation on the scope of cross-examination of the victim (see People v Halter, 19 NY3d 1046, 1049 [2012]; People v Simonetta, 94 AD3d at 1246; People v Scott, 67 AD3d 1052, 1054 [2009], affd 16 NY3d 589 [2011]; People v Passenger, 175 AD2d 944, 946 [1991]).
In any event, defendant was permitted to introduce evidence of the victim’s hypersexuality on the record through the testimony of the victim’s mother, defendant and Calhoun.5 Accordingly, the jury had this information when assessing the evidence against defendant. We also hold that County Court’s refusal to permit defendant to cross-examine the victim’s mother regarding various events at which the victim exhibited undisciplined behavior, while permitting questions regarding the victim hearing voices, wandering around outside in her pajamas, sensing dead people and visualizing her deceased grandfather, demonstrated a sound exercise of discretion in controlling the scope of cross-examination (see People v Carter, 50 AD3d 1318, 1321 [2008], lv denied 10 NY3d 957 [2008]).
We turn next to defendant’s claim that he was deprived of the effective assistance of counsel and, in doing so, address several substantive arguments that defendant asserts on appeal that were not preserved by an appropriate objection at trial. To establish this claim, defendant must show that counsel failed to provide meaningful representation and that there is an “ ‘absence of strategic or other legitimate explanations’ for counsel’s allegedly deficient conduct” (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Rivera, 71 NY2d 705, 709 [1988]).
Defendant asserts that counsel should have objected to the introduction of testimony from police officers that the victim reported being sexually assaulted on the basis that these hearsay statements improperly bolstered the victim’s testimony (see People v Buie, 86 NY2d 501, 510-511 [1995]; People v Cuba, 66 AD3d 1121, 1123 [2009]). Significantly, defendant does not directly dispute that the admitted statements fall within the prompt outcry exception to the hearsay rule (see People v Rosario, 17 NY3d 501, 511 [2011]; People v Perkins, 27 AD3d 890, 892-893 [2006], lvs denied 6 NY3d 897 [2006], 7 NY3d 761 [2006]) but, instead, argues the prejudicial impact of this evidence in light of the number of prompt outcry statements admit*1009ted and County Court’s failure to provide a limiting instruction as to its relevance. Inasmuch as the outcry testimony was accurately limited to the fact that a complaint was made and the court gave an appropriate prompt outcry instruction in its charge to the jury (see CJI2d[NY] Prompt Outcry; People v Bernardez, 85 AD3d 936, 938 [2011], lv denied 17 NY3d 857 [2011]), we discern no significant error in counsel’s decision not to object to this testimony or ask for a limiting instruction.
Likewise, defense counsel did not err in failing to object to the introduction of evidence of the victim’s statements to medical personnel. These statements squarely fall within the medical records exception to the hearsay rule because they were germane to diagnosis and treatment (see People v Wright, 81 AD3d 1161, 1164 [2011], lv denied 17 NY3d 803 [2011]; People v Thomas, 282 AD2d 827, 828 [2001], lv denied 96 NY2d 925 [2001]; see also CPLR 4518; CPL 60.10). Accordingly, the testimony and records pertaining to the victim’s emergency room visit on the night of the rape were properly admitted (see People v Ortega, 15 NY3d 610, 617 [2010]; People v Wright, 81 AD3d at 1164).
We also discern no error in defense counsel’s failure to object to the introduction of evidence of defendant’s criminal history inasmuch as a Sandoval hearing was held prior to trial where County Court precluded inquiry into 22 of the 27 prior offenses proffered by the People. Additionally, the People did not exceed the scope of the court’s limited Sandoval ruling during defendant’s cross-examination, and the court informed the jury that it could only consider the crimes with regard to his credibility (see People v Nash, 87 AD3d 757, 759 [2011], lv denied 17 NY3d 954 [2011]). Likewise, although defense counsel did not object to the People’s use of defendant’s statement for the first time during his cross-examination, such objection would have been fruitless as the statement was admissible to impeach him (see People v Martin, 8 AD3d 883, 886 [2004], lv denied 3 NY3d 677 [2004]).
Defendant makes numerous other, specific objections to defense counsel’s choices in representing him. We have considered them carefully and find each to be the product of a legitimate trial strategy, or to concern matters outside the record, and, therefore, are more properly reviewed on a motion pursuant to CPL article 440 (see People v McCray, 96 AD3d 1160, 1161 [2012], lv denied 19 NY3d 1104 [2012]). Counsel zealously advocated for defendant, made appropriate pretrial motions, pursued a reasonable defense theory, thoroughly cross-examined witnesses and made appropriate evidentiary objections; thus, viewing the record as a whole, defendant received meaningful *1010representation (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Evans, 81 AD3d 1040, 1041 [2011], lv denied 16 NY3d 894 [2011]).
Many of defendant’s remaining contentions on appeal do not warrant extended discussion. His claim that bail was improperly denied is moot in light of his conviction and subsequent incarceration (see Matter of Varela v Stein, 37 AD3d 1001, 1001 [2007]). His contentions that County Court improperly denied his second request for new counsel, and that deficiencies existed in the grand jury proceedings, the felony complaint, the indictment and the presentence report lack a factual basis in the record. Defendant’s allegations of prosecutorial misconduct do not demonstrate a “ ‘flagrant and pervasive pattern’ of misconduct” warranting reversal (People v Hunt, 39 AD3d 961, 964 [2007], lv denied 9 NY3d 845 [2007], quoting People v McCombs, 18 AD3d 888, 890 [2005]).
Finally, we turn to defendant’s request that we modify his sentence on the basis that it is unduly harsh and excessive. Given the violent nature of this crime against a particularly vulnerable victim, defendant’s extensive criminal history— including three prior felonies and a prior sexual offense—and the fact that defendant’s own conduct prevented any argument for leniency to be made as he refused to permit counsel to speak on his behalf at sentencing or to address County Court himself, we cannot find “an abuse of discretion or extraordinary circumstances warranting reduction” (People v Walker, 266 AD2d 727, 728 [1999], lv denied 96 NY2d 909 [2001]; see People v Jones, 39 NY2d 694, 697 [1976]). Nor are we persuaded that the disparity between the ultimate sentence imposed and a very favorable plea offered prior to trial necessitates the conclusion that defendant was penalized for exercising his right to a trial where, as here, the attractive plea offer is easily justified by the fact that the People’s proof largely rested on the credibility of the victim, who was a troubled, emotional young woman (see People v Blond, 96 AD3d 1149, 1153-1154 [2012], lv denied 19 NY3d 1101 [2012]; People v Maldonado, 205 AD2d 933, 933 [1994] lv denied 84 NY2d 908 [1994]; compare People v Williams, 40 AD3d 1364, 1367 [2007], lv denied 9 NY3d 927 [2007]).
We have considered defendant’s remaining contentions and find them to be without merit.
Stein and Gariy, JJ., concur.
. A defendant is guilty of the crime of rape in the first degree “when he or she engages in sexual intercourse with another person: [b]y forcible compulsion” (Penal Law § 130.35 [1]). As no dispute exists that defendant and the victim engaged in sexual intercourse, the issue here devolves to whether such intercourse was consensual or by forcible compulsion, which may be by “use of physical force” or “a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person” (Penal Law § 130.00 [8]).
. In his pro se brief, defendant also challenges the legal sufficiency of the evidence. Although this argument was not preserved by his general motions to dismiss for failure to present a prima facie case (see People v Terry, 85 AD3d at 1486), we “ ‘necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant’s challenge regarding the weight of the evidence’ for which there is no preservation requirement” (People v Newkirk, 75 AD3d 853, 855 [2010], lv denied 16 NY3d 834 [2011], quoting People v Caston, 60 AD3d 1147, 1148-1149 [2009] [citation omitted]).
. The vast majority of the documents disclosed were dated, revealing a picture of the victim’s mental health between the ages of 13 and 18. One of the documents disclosed contains an assessment of the victim taken on the day of the rape.
. The victim’s mental health records reveal a very troubled relationship with her father, who physically abused her during a limited amount of time during the victim’s lifetime—approximately six months when the victim was 13—when he resided with the family. The full extent of details of the abuse alleged by the victim are that he “tried to rape her,” describing that he “pinned her up against the wall in a sexual position and she can not recall how she got away.” Her mental health records do not contain any other details from the victim pertaining to sexual abuse or that she ever recanted her statements. The only suggestions that the allegation was false come from a mental health worker at a local childcare institution that was treating the victim when she was 13 who noted, without elaboration, that the allegation was “unfounded” and the mother’s reported opinion that the father never sexually abused the victim.
. Calhoun was even permitted to provide a layperson’s definition, explaining that hypersexual means “she [is] very hot in the pants.”
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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/5901876/
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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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Kane, J. P.
Appeal from an order of the Supreme Court (Hughes, J.), entered February 20, 1987 in Albany County, which, inter alia, granted defendant’s motion to dismiss the complaint as barred by res judicata.
In a prior action, plaintiff sought damages from defendant for breach of contract arising out of management consulting services provided to defendant by plaintiff. The complaint contained three separate causes of action, one for the actual breach and others for compensatory and punitive damages flowing therefrom. Defendant timely moved to dismiss the complaint pursuant to CPLR 3211 (a) (3), (5), (7) and (8) for lack of personal jurisdiction, lack of capacity to sue, payment, Statute of Frauds, and the failure to state a cause of action as to the second and third causes of action in the complaint. The notice of motion contained the further notice that pursuant to *814CPLR 2214 (b), answering affidavits were required to be served seven days prior to the return day of the motion. Concededly, the answering affidavits were not timely served and were returned by defendant’s attorneys upon being hand delivered three days prior to the return day. Supreme Court granted defendant’s motion in all respects and dismissed the complaint with prejudice; the court found no timely opposition to the motion and insufficient excuse for the late service of answering affidavits, citing Dominski v Firestone Tire & Rubber Co. (92 AD2d 704). Judgment was entered accordingly. There was no appeal by plaintiff or application to vacate the default. The within action was thereafter commenced by plaintiff for breach of contract and damage to his reputation resulting from defendant’s breach thereof. Defendant thereupon again moved to dismiss the complaint pursuant to CPLR 3211 (a) (3), (5) and (7), which included the ground that the doctrine of res judicata barred the second action since it was based upon the same breach of contract cause of action as the prior action, which because of plaintiff’s default, resulted in a determination that the Statute of Frauds was a bar to any action on the alleged contract.
We affirm. The prior action was properly dismissed (see, Dominski v Firestone Tire & Rubber Co., supra) and the dismissal with prejudice, as a result of the default, was a determination on the merits as to the issues raised therein (see, Smith v Russell Sage Coll., 54 NY2d 185, 194; Firedoor Corp. v Merlin Indus., 86 AD2d 577; see also, Siegel, NY Prac § 276, at 332).
Order affirmed, with costs. Kane, J. P., Casey, Yesawich, Jr., and Harvey, JJ., concur.
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Yesawich, Jr., J.
Appeal from an order of the Supreme Court (Dier, J.), entered December 30, 1986 in Warren County, which partially granted a motion by defendant Marshall Barrett Construction Company, Inc., compelling plaintiffs to provide a further bill of particulars.
Plaintiffs brought suit to recover damages for breach of a contract to reconstruct and renovate their home. Dissatisfied with plaintiffs’ response to its demand for a bill of particulars, defendant Marshall Barrett Construction Company, Inc. (hereinafter Marshall), one of three defendants alleged to have been engaged in the construction work, moved for a further *815bill of particulars. Plaintiffs’ appeal from that aspect of Supreme Court’s order directing them to provide further particulars as to items Nos. 12, 13, 16, 20, 21 and 22 is well taken, for insofar as these demands have not already been answered, they call for evidentiary information, matter that is more properly the subject of disclosure (see, Clark v Vicinanzo, 108 AD2d 984, 985; Holland v St. Paul Fire & Mar. Ins. Co., 101 AD2d 625). A bill of particulars does not serve that function; its purpose is to amplify pleadings, limit proof and prevent surprise at trial (McLaughlin v Charles, 91 AD2d 1119).
As for item No. 11, plaintiffs represent that the items of expense which they will incur in the future to replace the alleged damage and destruction caused by Marshall’s negligence and unworkmanlike performance is unascertainable at this time. However, the order to be entered hereon should provide that when that information becomes available and, in any event, at a reasonable time before the trial of this action is had, plaintiffs shall furnish that information to Marshall.
Since general damages are sought, demand item No. 18 calling upon plaintiffs to itemize their claimed damages of $250,000 need not be answered (see, Brugman v County of Nassau, 41 AD2d 653, 654; 3 Weinstein-Korn-Miller, NY Civ Prac fl 3041.16, at 30-753).
Order modified, on the law, without costs, by reversing so much thereof as granted the motion with respect to items Nos. 11, 12, 13, 16, 18, 20, 21 and 22; motion denied with respect to said items, and plaintiffs are directed to furnish a further bill of particulars with respect to item No. 11 in accordance with this court’s decision; and, as so modified, affirmed. Kane, J. P., Casey, Yesawich, Jr., and Levine, JJ., concur.
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Yesawich, Jr., J.
Appeal from an order of the Supreme Court (Ellison, J.), entered May 29, 1987 in Tompkins County, which denied defendant Tompkins County Trust Company’s motion to dismiss the complaint against it for failure to state a cause of action.
Plaintiffs intestate allegedly was struck and fatally injured by a van while she was traversing the parking lot of defendant Tompkins County Trust Company (hereinafter the Bank) en route to the Bank itself for the purpose of cashing her paycheck. Money damages are sought from the owner, operator and manufacturer of the van, as well as the Bank.
Plaintiffs complaint, insofar as it is directed at the Bank, avers: "29. That the defendant tompkins county trust company was negligent in that it failed adequately to design the parking area so as to provide safe ingress and egress from the bank facilities * * *. Said defendant failed to provide adequate parking, failed to design and maintain adequate walkways and crosswalks, failed to provide warnings to pedestrian traffic and vehicular traffic, and failed adequately to provide for the safe flow of pedestrian and vehicular traffic upon the premises.” In response to the Bank’s demand for a bill of particulars seeking information as to the alleged improper design, construction or maintenance of the parking lot, plaintiff merely referred back to the allegations in the complaint. Although discovery had not yet been had, the Bank, following receipt of the bill of particulars, moved to dismiss the complaint for failure to state a cause of action (CPLR 3211 [a] [7]). The Bank contends that the claims against it are general and conclusory and, therefore, insufficient in law, and further that the design of the parking lot did not in any way contribute to the happening of the accident. Supreme Court’s denial of the Bank’s motion prompted this appeal; we affirm.
A pleading is sufficiently particular if it furnishes the parties and the court with adequate notice of the nature and material elements of the pleader’s claim (CPLR 3013; see, Foley v D’Agostino, 21 AD2d 60, 62-63). Here plaintiff has stated a cognizable claim that the Bank negligently designed and maintained its parking lot in such a way that its customers are required to walk through an area of vehicular traffic, yet the Bank provided neither adequate walkways or warnings nor for the safe passage of its pedestrian patrons. Given that on a CPLR 3211 (a) (7) motion the pleadings are to be *818liberally construed in favor of the complainant (see, e.g., Reifenstein v Allstate Ins. Co., 92 AD2d 715, 716), Supreme Court rightly concluded that a legally sufficient cause of action was stated (see, e.g., Kolb v George, 17 NY2d 837); whether this claim is ultimately provable need not be demonstrated at this juncture.
As for the Bank’s second argument, it does nothing more than raise a fact issue which cannot be resolved until after the facts have been fully developed, as was the case in Margolin v Friedman (43 NY2d 982), relied upon by the Bank.
Order affirmed, with costs. Kane, J. P., Casey, Yesawich, Jr., and Levine, JJ., concur.
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Casey, J.
Cross appeals from an order and judgment of the Supreme Court (Brown, J.), entered October 31, 1986 in Albany County, which, in a proceeding pursuant to EDPL 402, determined the compensation due claimant as a result of petitioner’s acquisition of real property.
In this proceeding pursuant to EDPL article 5, claimant seeks just compensation arising from the acquisition by the City of Albany of claimant’s real property under EDPL 402. Both parties appeal from the order and judgment entered by Supreme Court following a nonjury trial. We affirm.
Claimant’s property consists of a parcel of land improved by a three-story, three-family building and a two-car garage. The three apartments have been rented by claimant since he acquired the property in 1950. Utilizing the capitalization of income method, claimant’s expert concluded that the property had a value of approximately $73,000. On cross-examination this expert conceded that he had made certain mathematical errors and he revised his valuation to $48,500. The city’s appraiser, utilizing three methods of valuation (market data approach, capitalization of income approach and the replacement cost approach), valued the property at $19,900. Supreme Court concluded that the capitalization of income approach was the appropriate method for valuing claimant’s rental property, and based upon its own calculation, determined the fair market value to be $45,500.
The city contends that Supreme Court erred in using the capitalization of income method to value claimant’s property since fair market value is generally determined by reference to the sales price of similar parcels in the area (see, Matter of *819City of New York [Shorefront High School—Rudnick] 25 NY2d 146, 148). "However, where there is no reliable market data, other methods are available such as the capitalization of income method which is utilized in valuing rental property” (Matter of Great Atl. & Pac. Tea Co. v Kiernan, 42 NY2d 236, 240). In fact, "[t]he income capitalization approach is generally regarded as the preferred method for determining the value of income-producing property” (41 Kew Gardens Rd. Assocs. v Tyburski, 70 NY2d 325, 331). In the case at bar, the property was income-producing rental property and Supreme Court expressly found no comparable sales upon which to base the market data approach, a finding supported by the record. Supreme Court’s use of the capitalization of income method of valuation was, therefore, proper.
Since the income capitalization method can be effective only with thorough data, including accurate actual income (see, supra), the city contends that Supreme Court erred in using a gross annual rental figure of $9,000 when the actual annual rental figure for claimant’s three apartments was just over $6,000. Actual rents often provide the best indicator of fair market rental, but where the actual rents are shown to be too high or too low, another figure may be adopted (Kommit v State of New York, 60 AD2d 945; see, Matter of Merrick Holding Corp. v Board of Assessors, 45 NY2d 538, 543). The rents received by claimant herein were fixed by the Department of Social Services since the tenants were welfare recipients, and claimant’s expert testified that, based upon his survey of rental property in the area where claimant’s property was located, the actual rents received by claimant were too low. This expert testified that he looked for and found several apartments in the same area of approximately the same size and in the same general condition as the subject property. Based upon the rentals from these apartments, the expert offered his opinion as to the economic rent or fair market rent for claimant’s apartments. Since the figure adopted by Supreme Court was reasonable and within the range of the evidence, there is no basis for disturbing the award (see, Kommit v State of New York, supra). The city argues that the comparable rentals presented by claimant’s expert were not in fact comparable and that, therefore, without adequate adjustments and explanations, the evidence should have been rejected. As noted above, however, the expert selected the comparable rentals due to their substantial similarity to the subject property in terms of location, size and condition. Accordingly, there was ample proof from which *820Supreme Court could conclude that the rentals were comparable.
The city’s argument that Supreme Court erred in finding that the garage located on the subject property had a fair market rental value of $40 per month is also rejected. There was proof in the record that the garage could be used for storage and that $40 per month was a reasonable rental figure.
Claimant argues that Supreme Court erred in refusing to permit claimant to recall his expert for the purpose of clarifying certain errors and/or miscalculations by the expert. Viewing the record as a whole, and considering that it was a nonjury trial, we find no basis for reversing and ordering a new trial.
Order and judgment affirmed, without costs. Kane, J. P., Casey, Yesawich, Jr., and Harvey, JJ., concur.
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Levine, J.
Appeal from two judgments of the Supreme Court (Bryant, J.), entered November 20, 1986 and December 12, 1986 in Cortland County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Zoning Board of Appeals of the City of Cortland denying petitioner’s request for a special use permit.
Petitioner is the contract-vendee of real property located within the City of Cortland, Cortland County. Several years ago petitioner began operating a tavern/restaurant/dancehall known as the Peppermill on this lot. In addition, six apartment units were recently constructed over the Peppermill. In February 1986, petitioner applied to the city’s Zoning Board of Appeals (hereinafter the Board) for a special use permit to build and operate a car wash on this same parcel. At a public hearing on his application petitioner’s traffic expert was unavailable to testify, so petitioner withdrew his application and resubmitted it in April 1986. A hearing was then held on June 9, 1986. At the Board’s next meeting on June 25, 1986, petitioner’s application was denied on the ground that the addition of a car wash on the Peppermill lot would violate a provision of the city’s Zoning Ordinance which allows only certain accessory uses in conjunction with a lot’s primary use. Petitioner commenced this CPLR article 78 proceeding to review the Board’s determination. Supreme Court confirmed the Board’s decision and dismissed the petition. This appeal ensued.
*821At the outset, we reject petitioner’s contention that the Board’s decision denying him the special use permit was arbitrary and capricious. According to petitioner, since nothing in the city’s Zoning Ordinance prohibits multiple primary uses, the Board erred in denying his application solely upon the ground that the proposed use was not an allowable accessory one under section 17-90 (b) (46) of the city’s Zoning Ordinance, which provides that: "Only the following accessory uses will be permitted: those accessory uses customarily incidental to the principal uses and including customary services within the building, provided that such services are for patrons of the principal use of the building and there is no external evidence of such services or signs advertising the same.” The Board determined that where a primary use was already in place on a lot, any additional uses requiring approval of the Board were to be limited to allowable accessory uses. Construing the Zoning Ordinance to permit multiple primary uses through resort to the special permit provisions of the ordinance would effectively nullify the provision pertaining to accessory uses. Where, as here, the Board’s determination reflects a reasonable interpretation of the Zoning Ordinance, it will be upheld (see, e.g., Matter of Acton v Wallace, 112 AD2d 581, 583, affd 67 NY2d 953; Matter of Cathedral of Incarnation v Glimm, 97 AD2d 409, 410, affd 61 NY2d 826). Thus, the fact that petitioner might otherwise qualify for a special use permit does not entitle him to the proposed combination of uses on this lot. We also reject petitioner’s contention that the Board’s decision must be annulled because it failed to set forth sufficient findings of fact or the rationale underlying its decision.
In our view, however, petitioner is entitled to an annulment of the Board’s decision and a new hearing on the ground that the hearing held on his application was not before a quorum of Board members. The Board was required to hold a public hearing on petitioner’s application for a special use permit (City of Cortland Zoning Ordinance § 17-231 [b]; see, 12 NY Jur 2d, Buildings, Zoning, and Land Controls, § 318, at 339). In addition, section 17-202 of the city’s Zoning Ordinance requires five members to be present "for the conduct of business before the Board”. In holding a hearing on petitioner’s application, the Board was clearly conducting business. It is undisputed, however, that at the commencement of petitioner’s hearing on June 9, 1986, respondent Peter Lalla, the Board’s chairman, disqualified himself and departed, leaving only four Board members in attendance. The Board’s failure *822to provide the quorum required by the city’s own ordinance entitled petitioner to a new hearing on his application.
Judgments reversed, on the law, without costs, determination annulled, and matter remitted to the Zoning Board of Appeals of the City of Cortland for further proceedings not inconsistent with this court’s decision. Mahoney, P. J., Weiss, Levine and Harvey, JJ., concur.
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Harvey, J.
Appeal from an order of the Supreme Court (Ford, J.), entered May 6, 1987 in Saratoga County, which denied defendants’ motion for summary judgment dismissing the complaint.
Plaintiff Hubert A. Loeffler was injured when the automobile in which he was a passenger collided with two horses on Route 29 in the Town of Milton, Saratoga County. The horses belonged to defendants, who owned a nearby farm. Loeffler and his wife subsequently brought this action for damages alleging causes of action based upon strict liability and negligence. Following discovery, defendants moved for summary judgment. The motion was denied and this appeal ensued.
Turning first to the negligence cause of action, plaintiffs contend that the unattended presence of the horses on the highway gives rise to an inference of negligence and, thus, that Supreme Court correctly denied summary judgment as to that cause of action. We agree. An inference of negligence arises under the doctrine of res ipsa loquitur when the plaintiff establishes that the event does not ordinarily occur in the absence of negligence and that the agency or instrumentality causing the injury is within the exclusive control of the defendant (see, e.g., Abbott v Page Airways, 23 NY2d 502, 510; Richardson, Evidence § 93, at 68 [Prince 10th ed]). Here, defendants were in exclusive control of the horses and the fences surrounding the pasture where they were kept. Further, horses do not generally wander unattended on public streets in the absence of negligence (see, Furlong v Winne & McKain Co., 166 App Div 882; Jones v Chalaire, 85 Misc 2d 767). The facts underlying the occurrence of this incident, although not compelling a finding of negligence, give rise to an inference of negligence and, thus, create a question of fact for the jury (see, Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226; De Simone v Lutheran Med. Center, 34 AD2d 660). Although the inference created by res ipsa loquitur does not mandate that defendants come forward with rebuttal proof (see, Davis v Goldsmith, 19 AD2d 514), defendants have "the burden of explanation” (Galbraith v Busch, 267 NY 230, 234) and should present evidence for the jury to weigh, against the inference of negligence, which tends to show that the presence of their horses on the highway was not the result of negligence (see, Restatement [Second] of Torts § 518 [b] [1977]).
Next, we consider whether defendants should have been *825granted summary judgment as to the strict liability cause of action. In order to sustain an action for strict liability against the owner of a domestic animal, there must be evidence that the animal had a vicious propensity and that the owner had knowledge of or reason to know of that propensity (see, Russell v Lepre, 99 AD2d 489; Buchholz v Shapiro, 48 AD2d 694; see also, Arbegast v Board of Educ., 65 NY2d 161, 164). There is no evidence in the record indicating any vicious propensity on the part of the horses of which defendants should have had or actually had knowledge. Hence, summary judgment should have been granted as to the cause of action based upon the theory of strict liability.
Order modified, on the law, without costs, by reversing so much thereof as denied the motion for summary judgment as to the cause of action based upon the theory of strict liability; defendants granted partial summary judgment dismissing said cause of action; and, as so modified, affirmed. Mahoney, P. J., Weiss, Levine and Harvey, JJ., concur.
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Mahoney, P. J.
Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered August 16, 1982, upon a verdict convicting defendant of the crime of robbery in the second degree.
On October 27, 1981, two teen-age males, defendant and Michael Vorst, were stopped by the State Police several miles from where a bank robbery had occurred in the Town of Rosendale, Ulster County. Vorst and defendant were subsequently indicted for the crime of robbery in the second degree. Prior to trial, Vorst pleaded guilty to the charged crime.
At trial, Vorst testified that he and defendant decided that Vorst would go inside the bank while defendant waited in the car. Vorst also testified that defendant had purchased the ski mask that he would wear and, further, that he and defendant *827agreed that Vorst would enter the bank with a pistol stuck in the waistband of his pants and wearing a jacket.
Defendant denied any prior knowledge that Vorst was going to rob the bank or that there was any weapon in the car or in Vorst’s possession. It was defendant’s position at trial that Vorst had asked him to ride with him to the bank to pick up loan money for the purchase of a car. Defendant, believing that Vorst’s application for a car loan had been approved, not only agreed to accompany Vorst to the bank but also to put his motor vehicle plate on Vorst’s new sports car because it was not yet registered or insured. Defendant also testified that he had not seen a ski mask or pellet gun before Vorst went into the bank.
Defendant’s trial testimony coincided with the statement he made to the State Police shortly after his arrest. Vorst’s trial testimony conflicted with his statement at the time of arrest that defendant had nothing to do with the robbery. The jury returned a verdict of guilty and defendant was subsequently sentenced to an indeterminate prison term of 2 to 6 years. This appeal ensued.
Initially, we reject defendant’s contention that the People failed to establish beyond a reasonable doubt the elements of robbery in the second degree. Penal Law § 160.10 provides in relevant part that:
"A person is guilty of robbery in the second degree when he forcibly steals property and when: * * *
"2. In the course of the commission of the crime * * *».* * *
"(b) Displays what appears to be a pistol”.
In the instant case, the bank manager testified that ”[i]n [Vorst’s] right hand he was holding something * * * I could see something black and shiny which looked to be the barrel of a gun”. The Court of Appeals in People v Baskerville (60 NY2d 374, 381) held that "display of anything that appears to be [a firearm], though held inside a coat or otherwise obscured” satisfies the requirement of "display” in Penal Law § 160.10 (2) (b). Since the trial testimony supports the jury’s finding that Vorst displayed a gun, we conclude that the People established beyond a reasonable doubt the elements of robbery in the second degree.
Next, we disagree with defendant’s allegation that cumulative errors of his trial attorney violated his right to the effective assistance of counsel. Defendant recites a litany of alleged errors including counsel’s lack of familiarity with *828relevant principles of law that caused him to conduct ineffective cross-examination of the People’s witnesses and to fail to call any witnesses, although available, to vouch for defendant’s good reputation for honesty and veracity. Further, defendant also claims that counsel made no meaningful requests to charge and that his exceptions to County Court’s charge were inept.
A careful review of the record reveals that many of the errors exhaustively recited by defendant are mischaracterized. In our view, counsel exhibited a familiarity with the case, presented a vigorous defense and displayed a good working knowledge of the applicable principles of criminal law (see, People v Berard, 112 AD2d 470). In fact, counsel elicited testimony from witnesses that would have supported defendant’s contention of innocence if the jury had chosen to believe it (see, People v Dominy, 116 AD2d 851, Iv denied 67 NY2d 942). Accordingly, we conclude that defendant’s attorney was well prepared and vigorously advocated defendant’s cause (see, People v Jock, 111 AD2d 941, 942-943, Iv denied 66 NY2d 615).
Next, we reject defendant’s invitation to take judicial notice that it is uniform practice for the People to enter into agreements with defendants for imposition of lesser sentences in exchange for guilty pleas and testimony against accomplices. Therefore, we cannot agree with defendant’s position that such an agreement was made herein and that the People violated their duty to disclose such exculpatory evidence (see, Brady v Maryland, 373 US 83). Defendant’s reliance on People v Cwikla (46 NY2d 434) is misplaced. In Cwikla, the principal prosecution witness admitted that he had requested the People to write to the Parole Board on his behalf, but denied any promise of leniency for his cooperation. Defense counsel made an application to the court for the production of any correspondence between the District Attorney’s office and the Parole Board concerning said witness. The Court of Appeals found that the District Attorney’s refusal to produce such materials or to indicate whether such correspondence existed approached the level of prosecutorial misconduct. When the materials sought were produced upon appeal, the correspondence did create an inference of the expectation of leniency which should have been presented to the jury for its consideration. Here, however, the record is void of any such materials or correspondence that could lead to an inference of the expectation of leniency. Accordingly, where, as here, there is absolutely no proof that the People are in possession of *829material evidence that is exculpatory in nature, no duty of disclosure arises (see, Brady v Maryland, supra).
Finally, we find that County Court correctly instructed the jury on accomplice testimony (see, People v Glasper, 52 NY2d 970, 971) and as to the form of the verdict. Defendant’s remaining contentions are without merit and require no discussion.
Judgment affirmed. Mahoney, P. J., Weiss, Levine and Harvey, JJ., concur.
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Casey J.
Appeal from a judgment of the County Court of Clinton County (Goldman, J.), rendered February 26, 1985, upon a verdict convicting defendant of the crime of discharging a firearm across a public highway.
Following three hours of bear hunting in the morning of October 26, 1984, defendant picked up his friend Brian Shank, with whom he had been drinking on the previous night, and again visited a couple of bars. Defendant admits to having two beers in each of the two bars. They then went for a ride in defendant’s new truck and decided to test the truck’s four-wheel drive capacity on a steep hill adjacent to Interstate Route 87 (hereinafter the Northway). The truck blew a tire during the climb, went down the hill and became stuck in a ditch next to the Northway. Defendant was unable to move it out of the ditch and Shank left the vehicle to summon a tow truck. During the wait, defendant decided to target practice with his rifle and took two shots at the metal guardrails, hitting his target both times. The third bullet missed the guardrail and struck a car that was traveling south on the Northway, causing it considerable damage. The driver of the car, Sherrie Cross, and her husband reported the incident to the State Police station and three Troopers were dispatched to the scene. They found defendant seated in his truck. He denied having heard any shots or having observed anyone shooting. The Troopers discovered two spent cartridge casings on the ground which matched defendant’s rifle. Defendant was arrested for driving on the Northway mall, or median, and when he exited the truck a third cartridge was discovered where he had been seated. After receiving his Miranda warnings at the State Police barracks, defendant gave a statement admitting his responsibility for the shootings.
Defendant was subsequently indicted for one count of reckless endangerment in the first degree, one count of criminal *830mischief in the fourth degree, and one count of discharging a firearm across a public highway in violation of ECL 11-0931 (4) (a) (1). After a trial by jury, defendant was convicted only of the third count, discharging a firearm across a public highway. Defendant was sentenced to 60 days in jail, and he also received a fine of $200, plus the mandatory $40 surcharge for a misdemeanor.
Defendant’s chief contention on this appeal is the refusal of County Court to charge the corroborative requirement of CPL 60.50. This statute provides that "[a] person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed”. It is defendant’s position that there is no evidence other than his own statement to establish that he actually fired the shots. We disagree. The statute requires proof of the corpus delicti (People v Anderson, 80 AD2d 33, 37) in addition to defendant’s confession or admission. However, corroboration under CPL 60.50 "need only be of circumstances ' "calculated to suggest the commission of crime, and for the explanation of which the confession furnishes the key” ’ ” (People v Jackson, 65 NY2d 265, 273, quoting People v Murray, 40 NY2d 327, 332, cert denied 430 US 948). Here, there is no dispute with the testimony of the Crosses that the shooting did in fact take place and that such shooting caused damage to their vehicle. Defendant was found at the very location where the shooting occurred. He was in a truck with a rifle that was matched to two shell casings found on the ground and a third that fell from his seat when he got out of the truck. In the circumstances, the record clearly contains the requisite "corroborative evidence”. Therefore, we find no error in the court’s refusal to charge CPL 60.50.
The statute which is the basis of defendant’s conviction (ECL 11-0931 [4] [a] [1]) contains the words "discharge”, "public highway” and "load”. Defendant argues error in County Court’s failure to define these terms for the jury. However, defendant never requested or excepted to the charge as given. Accordingly, this contention has not been preserved for our review (see, CPL 470.05 [2]; People v Allah, 126 AD2d 778, 781, Iv denied 69 NY2d 876) and we find that the terms are so fairly common as not to require our intervention in the interest of justice.
Defendant next argues that the verdict is repugnant to his acquittal of reckless endangerment in the first degree and criminal mischief in the fourth degree. Again, however, defendant is precluded from raising this issue on appeal when he *831failed to do so before the jury was discharged (see, People v Satloff, 56 NY2d 745, 746; People v Stevens, 109 AD2d 856, 857). Furthermore, we find no merit to defendant’s claim of repugnancy. Intent is not an element of ECL 11-0931 (4) (a) (1) (see, People v Goodfriend, 64 NY2d 695, 697).
Lastly, we find no abuse in the sentence imposed by County Court. The circumstances of the crime clearly support such sentence. The judgment of conviction should, therefore, be affirmed.
Judgment affirmed. Mahoney, P. J., Kane, Casey, Weiss and Yesawich, Jr., JJ., concur.
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Kane, J.
Appeal from a judgment of the County Court of Franklin County (Plumadore, J.), rendered February 28, 1985, upon a verdict convicting defendant of the crime of murder in the second degree.
The instant case involves a shooting incident which occurred early in the morning on September 2, 1984 and resulted in the death of Bernard Lyon. The facts surrounding the incident as gleaned from pretrial and trial testimony are as follows. The night before the shooting, defendant had brought a small keg of beer to a camp in the Town of Franklin, Franklin County, where two of his friends, Kevin Barboza and Mark Stroyny, were living. Lyon was also there and the four men drank beer and played cards for the evening. Defendant had never met Lyon before. Testimony indicated that Lyon was very intoxicated. Defendant also testified that Lyon kept telling stories of violence which included his being convicted of a violent felony. At one point, Lyon and Barboza got into a wrestling match which Stroyny broke up. Later on, after Stroyny refused to give Lyon any more beer, defendant testified that Lyon advanced toward Stroyny with a knife and that Stroyny fired a shot toward Lyon. Defendant also testified that he then attempted to grab the knife and Lyon again went after Stroyny, at which point defendant retrieved a shotgun and shot Lyon twice. Expert testimony indicated that it was the last shot that killed Lyon. Defendant was charged with and subsequently found guilty after a jury trial of murder in the second degree. This appeal by defendant ensued.
Initially, defendant contends that County Court improperly denied his motion to suppress certain statements he made to the police. After the shooting, defendant drove to a nearby town and called the State Police from a phone booth at about *8325:30 a.m. He told them he had "just killed a man in self-defense”. The call was tape-recorded pursuant to police procedure. State Troopers Robert De Witt and King Simms, Jr., were sent to investigate. Once at the phone booth, De Witt asked defendant to ride in the police car and direct them to the camp. Defendant agreed. En route to the camp, De Witt asked defendant if he could give them "any information as to what had transpired” and if he knew the identity of decedent. Defendant gave a brief description of the incident. Both officers testified that those were the only questions they asked. However, after a period of time, defendant then made certain statements concerning the shooting. Later, after having investigated the scene, the officers took defendant to the police station. Once at the station, defendant was read his Miranda rights for the first time by Investigator George Jacques, who testified that defendant said he understood them. Defendant also admitted that he was read his rights and told that he had a right to an attorney. Defendant then made a statement which was typed and, after he made some corrections, defendant signed it.
With respect to the statements made by defendant to the police while en route to the camp, regardless of whether defendant was in custody, the questions did not constitute interrogation but were merely threshold inquiries designed to clarify the nature of the situation (see, People v Huffman, 41 NY2d 29, 34). As to the other statements made by defendant, they were clearly spontaneous and were not prompted by police questions (see, People v Man Lee Lo, 118 AD2d 225, 230-231). As to the statement given to Jacques, the record supports County Court’s conclusion that defendant was properly advised of his rights and that he knowingly and voluntarily waived these rights (see, People v Brainard, 122 AD2d 299, Iv denied 68 NY2d 913).
Defendant next argues that County Court erred in failing to remove a juror who felt ill after viewing graphic evidentiary photos of Lyon. It was within the court’s discretion to determine whether the juror was capable of continuing to serve (see, People v Pierce, 97 AD2d 904; see also, CPL 270.35). After two recesses, the juror was asked how he felt and he replied that "[t]ime will tell”. He was instructed to bring it to the court’s attention if he again felt ill. The issue was never raised again. Based on the record before us, we do not find any error in the juror’s being permitted to continue to serve (see, People v Cuevas, 133 AD2d 504).
We also reject defendant’s contention that he should have *833been permitted to introduce into evidence the circumstances surrounding Lyon’s prior felony arrest and conviction. This concerned defendant’s defense of justification and his state of mind at the time of the shooting. Defendant’s testimony established that his actual knowledge consisted of only the conviction and not of the circumstances surrounding it. Therefore, County Court properly exercised its discretion in limiting defendant to showing only the conviction (see, Matter of Robert S., 52 NY2d 1046, 1048; People v Miller, 39 NY2d 543).
As to defendant’s contention that the prosecution violated the Rosario rule by failing to provide him with a tape recording or transcript of a return telephone call to defendant in the phone booth (see, People v Rosario, 9 NY2d 286, cert denied 368 US 866), we deem this to be without merit. A review of the record reveals that police procedures called only for the taping of incoming calls. Having failed to articulate any factual basis for his assertion that tapes were made of outgoing calls, or that the prosecution was refusing to disclose such tapes, we find no violation of the Rosario rule (see, People v Poole, 48 NY2d 144, 149).
With respect to defendant’s claim that County Court substantially misstated the charge on justification, we need only note that a proper objection to the charge was not made and, therefore, the alleged error was not properly preserved for our review (see, People v Murphy, 128 AD2d 177, 185, Iv granted 70 NY2d 659; People v Comfort, 113 AD2d 420, 426, Iv denied 67 NY2d 760). In any event, any possible error in the questioned charge was corrected when County Court gave a second reading of the charge to the jury.
We have reviewed defendant’s remaining contentions and find them to be without merit.
Judgment affirmed. Mahoney, P. J., Kane, Casey, Levine and Harvey, JJ., concur.
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Weiss, J.
Appeal from an order of the Family Court of Chemung County (Danaher, Jr., J.), entered March 14, 1986, which, inter alia, denied petitioner’s application, in a proceeding pursuant to Family Court Act article 6, for custody of her natural child.
This appeal involves a 19-year-old natural mother’s attempt to regain physical custody of her child born out of wedlock on August 12, 1985. Prior to the child’s birth, petitioner determined to surrender the child to the nonparent respondents for purposes of a private adoption. On August 15, 1985, petitioner *834signed a temporary guardianship agreement giving respondent Michelle L. guardianship of the baby until such time as an adoption could be arranged. The child has continually resided with respondents since that time. In late September or early October 1985, petitioner contacted respondents for purposes of initiating visitation with the child. When the overture was refused, petitioner filed the instant custody petition on October 9, 1985. Thereafter, petitioner was accorded visitation privileges, commencing the first week of December 1985. Following a hearing, Family Court concluded that extraordinary circumstances existed warranting a continuation of physical custody with respondents. Significantly, the court concluded that an ultimate resolution of the custody issue was premature, and directed that petitioner be allowed continued supervised visitation. Petitioner has appealed.
We affirm. It is firmly established that as between a natural parent and a third person, parental custody may not be precluded absent a threshold showing of extraordinary circumstances (Matter of Male Infant L., 61 NY2d 420, 426-427; Matter of Bennett v Jeffreys, 40 NY2d 543, 544; Matter of Callahan v Denton, 114 AD2d 663, 664; see, Matter of Ronald FF. v Cindy GG., 70 NY2d 141, 144). Until this premise is satisfied, the question of the child’s best interest is simply not reached (supra).
Our review of the hearing minutes confirms that both prior to and after the child’s birth, petitioner opted to turn custody of the child over to respondents for purposes of adoption, ostensibly because she had no place to stay. A hospital social worker testified that after the child’s birth, there was little maternal bonding. A senior caseworker from the Chemung County Department of Social Services testified that after receiving a "hotline” report from the hospital, she explained various options and services that would be available to petitioner if she decided to keep the child, but petitioner indicated that "she did not want the child”. While petitioner denied that any assistance was offered, Family Court credited the caseworker’s testimony. It is further evident that petitioner failed to faithfully exercise her visitation privileges (cf., Matter of Male Infant L., supra, at 426-427). On December 17, 1985, petitioner was hospitalized overnight for the surgical removal of warts and did not resume visitation with her child until January 14, 1986. Family Court rejected petitioner’s excuse that she was bedridden, noting that she was a frequent visitor at a local bar during this time frame. Nor did petitioner make any inquiry as to the child’s condition. Through*835out this period, petitioner remained unemployed and continued to receive public financial assistance.
In view of the foregoing, we find that the record fully supports Family Court’s conclusion that extraordinary circumstances were present. The. various credibility issues were for Family Court to resolve and we perceive no basis to interfere with the assessments made. Moreover, Family Court’s determination to withhold resolution of the permanent custody question was eminently reasonable, considering the child’s tender age and the fact that petitioner evidenced a desire to raise her child. The opportunity to prove her sincerity was properly extended to petitioner. Accordingly, the order of Family Court continuing physical custody of the child with respondents should be affirmed.
Order affirmed, without costs. Mahoney, P. J., Weiss, Levine and Harvey, JJ., concur.
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Casey J.
Appeals (1) from a judgment of the Supreme Court (Klein, J.), entered November 19, 1985 in Albany County, which, in a proceeding pursuant to CPLR article 78, inter alia, granted respondents’ motion to dismiss the petition in proceeding No. 1, and (2) from a judgment of said court, entered May 14, 1987 in Albany County, which, in a proceeding pursuant to CPLR article 78, inter alia, granted respondents’ motion to dismiss the petition in proceeding No. 2.
Petitioner, an employee of the State court system, filed an application for accidental disability retirement benefits based upon injuries sustained in incidents which occurred on October 5, 1978, January 31, 1984 and August 9, 1984. Respondent Comptroller disapproved the application, concluding that two of the incidents did not constitute accidents and that the other incident was not an accident sustained in the performance of petitioner’s duties. The cover letter accompanying the disapproval advised petitioner that "[u]nder the provisions of the Retirement and Social Security Law governing the situation, you or your counsel may within four months from date hereof serve a written demand upon the Comptroller for a hearing and redetermination of your claim”.
Instead of demanding a hearing, petitioner commenced proceeding No. 1, seeking CPLR article 78 review of the *836Comptroller’s disapproval of her application. Respondents moved to dismiss the proceeding based upon petitioner’s failure to exhaust available administrative remedies. Supreme Court granted the motion and denied petitioner’s request that the matter be remanded to the Comptroller for a hearing, concluding that the latter relief could not be granted since the statutory four-month period within which to demand a hearing had passed. Upon reargument, Supreme Court adhered to its original decision.
Petitioner took an appeal to this court from the judgment in proceeding No. 1 and thereafter filed another application for accidental disability retirement benefits based upon the same injuries sustained in the same three incidents upon which the prior application was based. Respondent New York State Employees’ Retirement System refused to process petitioner’s second application due to the disapproval of the prior identical application and the expiration of the four-month period for administrative review of that disapproval. Petitioner’s request for a hearing on the refusal to process her application was denied due to the pending appeal in proceeding No. 1. Petitioner then commenced proceeding No. 2, pursuant to CPLR article 78, seeking to compel respondents to process, consider and accept petitioner’s second application. Supreme Court granted respondents’ motion to dismiss the petition in proceeding No. 2.
In her appeal in proceeding No. 1, petitioner contends that respondents should be estopped from asserting petitioner’s failure to exhaust administrative remedies. Petitioner bases her estoppel claim on the notice contained in the cover letter accompanying the Comptroller’s disapproval of her initial application. According to petitioner, the notice is misleading and legally insufficient since it used the word "may” instead of "must” and failed to advise petitioner that judicial review was conditioned upon her exhaustion of available administrative remedies. The doctrine of estoppel is not applicable in these circumstances (see, Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88, 94, n 1). Had petitioner followed the procedure described in the notice which she contends was inadequate, she would have avoided the procedural roadblock to judicial review which resulted in the dismissal of proceeding No. 1. We conclude that the notice adequately advised petitioner of her right to a hearing if she made a timely demand (see, Matter of Carassavas v New York State Dept, of Social Servs., 90 AD2d 630), and her failure to pursue an available administrative remedy precludes resort to article 78 *837relief (see, Young Men’s Christian Assn, v Rochester Pure Waters Dist., 37 NY2d 371, 375; Matter of Ward v Chesworth, 125 AD2d 912, 914, Iv denied 69 NY2d 610).
In proceeding No. 2, Supreme Court viewed the petition as another attempt to obtain judicial review of the initial disapproval by the Comptroller and, therefore, granted respondents’ motion to dismiss for failure to exhaust administrative remedies. We disagree. In proceeding No. 2, petitioner seeks to compel respondents to process her second application, and as to this second application it appears that petitioner did exhaust her administrative remedies by requesting a hearing after the Retirement System refused to process her application. Nevertheless, we conclude that dismissal of the petition is appropriate. In order to obtain the relief she seeks, petitioner must show a clear legal right to have her application processed (see, Matter of Blase v Axelrod, 67 NY2d 642, 644), and this she has failed to do. The relevant statutory provisions (Retirement and Social Security Law §§ 63, 74) do not require respondents to accept and process successive applications seeking identical relief based upon identical facts and circumstances. Construing the statutes as containing such a requirement would effectively abrogate the statutory four-month limitations on administrative review (see, Retirement and Social Security Law § 74 [d]) and judicial review (see, CPLR 217). Petitioner contends that her second application should have been accepted and processed because a change in the law affecting her entitlement to accidental disability retirement benefits occurred subsequent to the disapproval of her prior application. This argument cannot prevail, however, since the case upon which she relies as changing the law (Matter of McCambridge v McGuire, 62 NY2d 563) was handed down several months prior to the Comptroller’s disapproval of petitioner’s initial application.
The judgments dismissing each of the two petitions should therefore be affirmed.
Judgments affirmed, without costs. Kane, J. P., Casey, Yesawich, Jr., and Levine, JJ., concur.
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Harvey, J.
Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Education Law § 6510-a [4]) to review a determination of respondent Commissioner of Education which revoked petitioner’s license to practice medicine in New York.
*838Petitioner conducted a solo private practice of medicine in the City of Albany and was affiliated with St. Peter’s Hospital. In 1984, the Office of Health Systems Management received an anonymous telephone call reporting that petitioner was practicing medicine at St. Peter’s Hospital with the smell of alcohol on his breath. An investigation ensued and petitioner was subsequently charged with two specifications of professional misconduct. The first specification charged that petitioner practiced while his ability was impaired by alcohol and the second specification charged petitioner with being habitually drunk. The material facts asserted in support of the specifications were as follows:
"(a) [Petitioner] consumes alcohol during evening hours on a daily basis and has done so for many years.
"(b) On numerous occasions, from at least November 1980 to the present, [petitioner] has treated patients at St. Peter’s Hospital, Albany, New York with the odor of alcohol on his breath.
"(c) From November 13, 1982 to the present, [petitoner] has been on the covered medical service at St. Peter’s Hospital due to concern over his alcohol consumption.”
Petitioner admitted the factual allegations and then moved to dismiss the charges upon the ground that the admitted facts were insufficient to constitute professional misconduct. The motion was denied and a lengthy hearing ensued.
At the hearing, petitioner admitted that his daily alcohol intake included approximately four cans of beer and one third to one half a liter of whiskey. An expert in the field of alcoholism and substance abuse, Dr. Valerie W. Yandow, stated that petitioner evidenced signs of chronic alcoholism. She testified that she had never known of anyone with the extent of liver disease impairment evidenced by petitioner who did not have some nervous system impairment as well. Also testifying at the hearing was Dr. Anthony Tartaglia, chief of medicine at St. Peter’s Hospital from 1975 until 1984. He stated that he had three official meetings with petitioner regarding complaints that he smelled of alcohol while practicing at the hospital. After the first meeting, he placed petitioner’s patients at the hospital on "covered service”, whereby the patients would be watched closely by the hospital staff. Tartaglia testified that he would have suspended petitioner if he had been aware of the quantity of petitioner’s nightly intake of alcohol.
The Hearing Panel initially concluded that petitioner was *839not guilty of the charged specifications. Upon administrative review, however, respondent Board of Regents ultimately determined that petitioner was guilty of both specifications. The Board voted to revoke petitioner’s license, with revocation to be stayed upon his entry into the "Impaired Physicians Program”, and five years of probation. Respondent Commissioner of Education issued an order in accordance with the Board’s determination. This proceeding was thereafter initiated in this court to review said determination.
Petitioner contends that the material facts alleged against him were insufficient to support the charges of professional misconduct and that the consideration of other evidence violated due process. Public Health Law § 230 (10) (b) provides that "[t]he charges shall state the substance of the alleged professional misconduct and shall state concisely the material facts but not the evidence by which the charges are to be proved”. While the charges put a petitioner on notice and afforded an opportunity to prepare a defense, actual evidence of misconduct is adduced at the hearing through, inter alia, testimony of expert witnesses and from exhibits. The charges here put petitioner on notice that evidence of his alleged abuse of alcohol would be considered in determining whether he was guilty of professional misconduct. He was sufficiently apprised of the activities which would be considered and was afforded an adequate opportunity to prepare and defend against the allegations. Accordingly, we conclude that he was not denied due process.
Petitioner further contends that the evidence was insufficient to support the determination. Initially, petitioner urges that deference should be given to the Hearing Panel’s findings of not guilty since it had the opportunity to observe the witnesses. However, the determination of guilt in a professional misconduct administrative adjudication is for the Board (Education Law § 6510-a; see, Matter of Di Marsico v Ambach, 48 NY2d 576, 581). This court’s consideration of the Board’s determination is limited to review pursuant to CPLR article 78 (Education Law § 6510-a [4]). We find sufficient evidence in the record to support the determination. As a sole practitioner, petitioner was essentially on call 24 hours per day. Yet, there is evidence that he consumed substantial quantities of alcohol daily, and had done so for numerous years. The probable effect of this level of consumption was detailed by an expert and it was not an abuse of discretion for the Board to credit this testimony. The fact that petitioner’s impaired condition did not actually result in harm to a patient does not *840preclude a finding of professional misconduct (see, Matter of Meshel v Board of Regents, 110 AD2d 976, Iv denied 65 NY2d 608).
Petitioner’s remaining contentions have been considered and found unpersuasive.
Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Weiss, Yesawich, Jr., and Harvey, JJ., concur.
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155 Conn. 205 (1967)
GABRIEL MALAFRONTE ET AL.
v.
PLANNING AND ZONING BOARD OF THE CITY OF MILFORD ET AL.
Supreme Court of Connecticut.
Argued April 6, 1967.
Decided June 8, 1967.
KING, C. J., ALCORN, HOUSE, COTTER and THIM, JS.
*207 Pasquale Young, with whom, on the brief, were Robert I. Berdon and David D. Berdon, for the appellants (plaintiffs).
Robert Kapusta, with whom, on the brief, was Dennis F. Harrigan, for the appellee (named defendant); with him also, on the brief, was George J. Jaser, for the appellee (defendant Milford housing authority).
COTTER, J.
The plaintiffs have appealed from a judgment of the Court of Common Pleas sustaining the actions of the named defendant, hereinafter referred to as the board,[1] in unanimously granting the petitions of the Milford housing authority, which is also a defendant in this action, for (1) a change of zone of a certain parcel of land from an R-10 to an R-MF classification, to allow its use for a public housing project, and (2) a special permit, under chapter 4, § 13, of the Milford zoning regulations (1961, as amended), authorizing the proposed project on the property in question. A separate, full public hearing was held by the board, in regard *208 to each petition, on July 13, 1965. Earlier the same evening, a public hearing was held on the board's own proposal to amend the plan of development of the parcel in question from medium-density residence to high-density residence. This change in the plan of development was approved unanimously at an executive meeting.
Under the Milford zoning regulations, an R-10 classification is a medium-density zone permitting one-family dwelling units on a minimum lot of 12,500 square feet with a minimum frontage of 100 feet, while R-MF is a residential zone in which multifamily dwellings are allowed by special permit on a minimum lot of 20,000 square feet with a minimum frontage of 100 feet and a density of not less than 2500 square feet per family unit.
The property in question is approximately 4.58 acres of undeveloped land bounded on the east by Harrison Avenue, on the south by Stone Street, and on the other two sides by lots of private property owners. The property is within 370 feet of a partially completed urban renewal project which includes neighborhood businesses and other high-density uses. There is an existing business zone to the west, and another high-density residential area is across the street. A great many of the neighboring properties are nonconforming to the R-10 zone because their lots do not meet the 12,500 square feet density limitation. The houses on a number of these properties are quite closely spaced, as a result of which there is a higher actual density for the area than is provided for under the R-10 classification.
I
When enacting or amending its regulations, a local zoning authority acts in a legislative capacity.
*209 It must therefore be free to modify its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change. Pierrepont v. Zoning Commission, 154 Conn. 463, 468, 226 A.2d 659; Young v. Town Planning & Zoning Commission, 151 Conn. 235, 243, 196 A.2d 427. A legislative body is not necessarily bound by the rule which prohibits administrative boards, such as a zoning board of appeals, from reversing earlier decisions without a change in circumstances. Young v. Town Planning & Zoning Commission, supra; Corsino v. Grover, 148 Conn. 299, 310, 170 A.2d 267; see 1 Yokley, Zoning Law and Practice (3d Ed.) § 7-3. The discretion of a legislative body, because of its constituted role as a formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function. Thus, although we have said that a zoning commission should not ordinarily alter the classification of a certain area in the absence of changed conditions, it is clear that this rule, which is a restriction on the principle of legislative discretion, will only be applied in those rare instances where the zoning amendment is patently arbitrary. A less strict rule would require the court to exercise a legislative judgment. See Andrew C. Petersen, Inc. v. Town Plan & Zoning Commission, 154 Conn. 638, 642, 228 A.2d 126; Pierrepont v. Zoning Commission, supra; Winslow v. Zoning Board, 143 Conn. 381, 390, 122 A.2d 789.
Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment. Luery v. Zoning Board, 150 Conn. 136, 145, 187 A.2d 247; Clark v. Town
*210 Council, 145 Conn. 476, 483, 144 A.2d 327. The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission. Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion.
The property in the instant case was zoned R-10 by the board in 1960, having previously been included in a zone allowing one-family dwellings on lots of 7500 square feet. The change to R-MF, which is the subject of the present appeal, took place on July 14, 1965. One of the reasons given by the board was an increased need for housing to accommodate families being displaced by the urban renewal project, which extends to within 370 feet of the site in question. There was evidence before the board that the renewal project was already in progress at the time of the public hearing and that the taking of land for this project had begun about a year earlier. The impact of the renewal program, which had not yet been felt when the subject property was previously rezoned in 1960, was not limited in its scope to the immediate area of the actual condemnation. The new conditions created by the project affected the surrounding area and entitled the board, under its broad legislative powers, to revise the zonal classification of the property in question.
II
It is also urged by the plaintiffs that the action of the board constituted spot zoning. "To constitute spot zoning, in the sense of an illegal exercise of power on the part of the zoning authority, a change *211 of zone must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole.... If the change is in accordance with the comprehensive plan and the predominating purpose in making the change is to benefit the community as a whole rather than the owner of the land, the action of the commission is not unreasonable or arbitrary and does not constitute spot zoning, although the owner may receive an incidental benefit." DeMeo v. Zoning Commission, 148 Conn. 68, 73, 74, 167 A.2d 454; see 1 Rathkopf, Law of Zoning and Planning, c. 26. The evidence before the board was to the effect that much of the surrounding area was devoted to one-family residences on nonconforming lots ranging from 3500 square feet to 6300 square feet, even though the rezoning of 1960 restricted new construction to lots of 12,500 square feet. The amendment of July, 1965, allowing multifamily dwellings of not more than three stories and a density of not less than 2500 square feet per family unit, does not encroach on the residential character of the area. The fact that the board, on the same evening, granted a special permit for a two-story, forty-five unit development, with a per family density of approximately 4500 square feet, and the thorough consideration which it gave to the proposed project at the public hearings, and in its executive sessions, indicate an intention on the part of the board to authorize multifamily housing which would not be out of harmony with the surrounding area. In considering the existing uses in the neighborhood, the needs and growth of the town, and the desire to provide for the best interests of all the community in the foreseeable future, the board demonstrated that it carefully thought out its decision in amending the *212 zonal classification. Under all these circumstances, it cannot be said that the action of the board constituted spot zoning or was inconsistent with the town's comprehensive plan. See Miss Porter's School, Inc. v. Town Plan & Zoning Commission, 151 Conn. 425, 430, 198 A.2d 707; Zandri v. Zoning Commission, 150 Conn. 646, 649, 192 A.2d 876.
III
The plaintiffs urge two further points as grounds for reversal. The first is that the board was influenced, not by sound principles of zoning, but rather by a moral obligation to provide housing for families being displaced by the redevelopment project. It is apparent that this change of zone was designed to dovetail with the city's redevelopment and public housing programs. The board's expressed reasons include a desire to "promote the health and general welfare of the whole community by providing a site to adequately house residents of the urban renewal area." This does not necessarily indicate that the action of the board was tainted with illegality. The purpose of zoning is to serve the interests of the community as a whole, and one of those interests is to provide adequate housing. A change of zone predicated on such an interest, if otherwise consistent with the accepted principles of zoning, is a reasonable exercise of the board's discretionary powers. When a new zoning regulation has a real or reasonable relation to the general welfare, health, morals, or safety of the community, an auxiliary motivation will not render the change in classification nugatory. Stoner McCray System v. Des Moines, 247 Iowa 1313, 1319, 78 N.W.2d 843; 58 Am. Jur. 957, Zoning, § 27. There was considerable evidence that a different classification was *213 justified by the character of the neighborhood surrounding the property in question and its adaptability to the needs of the community. The plaintiffs have not shown that the board abused its powers in this case. Zandri v. Zoning Commission, supra, 650.
Finally, the plaintiffs claim that the board disregarded a section of the zoning regulations which requires that special permits be based on a finding that the specific permitted use will not be hazardous, inconvenient or detrimental to the character of the neighborhood. Milford Zoning Regs., c. 4 § 13(B) (1) (1961, as amended). The minutes of the executive session, however, indicate that "the board found that the proposed use conformed to all of the requirements of the special permit regulations." It was not necessary for the board to make this finding in the exact language of the regulations. See Couch v. Zoning Commission, 141 Conn. 349, 358, 106 A.2d 173. The evening prior to its executive session, the board had conducted a five-hour public hearing on these applications, which revealed, among other things, that the proposed project had been approved, in terms of safety, by both the fire department and the police department. The schematic drawings presented to the board in furtherance of the award of the special permit indicate a careful consideration of the development of the property in question. Unusual safeguards were imposed by the regulations and the vote of the board which afforded reasonable, "ample protection to anyone who may be immediately affected by a particular application." Summ v. Zoning Commission, 150 Conn. 79, 82, 83, 88, 186 A.2d 160. The board was careful to provide that utilities, sewers, landscaping, parking, building-site location, traffic *214 safety, and screening be adequate and available to promote the best interests of the town.[2] The finding of the board and the record on which it is based were sufficient to satisfy the prerequisites of the zoning regulations.
There is no error.
In this opinion the other judges concurred.
NOTES
[1] Although the named defendant is designated a "board" in Milford, usually such a body authorized to enact zoning regulations, as this one is, has been legally designated a "commission." See General Statutes §§ 8-1, 8-4a; Sullivan v. Town Council, 143 Conn. 280, 288, 289, 121 A.2d 630; Kuehne v. Town Council, 136 Conn. 452, 457, 72 A.2d 474.
[2] Some of the conditions, and stipulations attached to the special permit were obviously advisory, but those of controlling importance were enforceable by the board. Milford Zoning Regs., c. 4 § 13 (D) (1961, as amended).
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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/4156756/
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No. 14 March 9, 2017 187
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
BELL MURPHY ANDERSEN,
Respondent on Review.
(CC C111600CR; CA A150872; SC S063169)
On review from the Court of Appeals.*
Argued and submitted January 12, 2016.
Susan G. Howe, Assistant Attorney General, Salem,
argued the cause and filed the briefs for petitioner on review.
Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Paul L. Smith, Deputy Solicitor General.
Ingrid MacFarlane, Chief Deputy Defender, Salem,
argued the cause and filed the brief for respondent on review.
Also on the brief was Ernest G. Lannet, Chief Defender,
Office of Public Defense Services.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, and Brewer, Justices.**
KISTLER, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
Walters, J., concurred and filed an opinion.
______________
** On appeal from the Washington County Circuit Court, Steven L. Price,
Judge. 269 Or App 705, 346 P3d 1224 (2015).
** Nakamoto, J., did not participate in the consideration or decision of this
case.
188 State v. Andersen
Case Summary: Defendant moved to suppress evidence that police officers
discovered during a search of her car while investigating a possible drug sale.
The trial court denied defendant’s motion, reasoning that the automobile excep-
tion to Article I, section 9, justified the warrantless search. A jury found defen-
dant guilty of unlawful possession and unlawful delivery of 10 grams or more of
methamphetamine. The Court of Appeals reversed, concluding that the automo-
bile exception did not apply because defendant’s car was not moving when the
officers first saw it. Held: (1) it was not necessary for officers to visually observe
the vehicle moving because the officers listened to a running account of the car’s
progress and arrival; (2) the trial court reasonably could have found that defen-
dant had stopped her car only momentarily; (3) the court declined defendant’s
invitation to overrule the automobile exception on the basis that exigency no lon-
ger justifies the exception.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is affirmed.
Cite as 361 Or 187 (2017) 189
KISTLER, J.
Under the automobile exception to Article I, section 9,
officers may search a car if they have probable cause to
believe that the car contains evidence of a crime and the car
is mobile at the time they stop it. State v. Brown, 301 Or 268,
274, 721 P2d 1357 (1986). The automobile exception does not
apply, however, if the car is “parked, immobile and unoc-
cupied at the time the police first encounte[r] it in connec-
tion with the investigation of a crime.” State v. Kock, 302 Or
29, 33, 725 P2d 1285 (1986). In this case, two officers were
waiting for defendant’s car to arrive at a WinCo parking lot
to complete a drug sale. One officer was out of sight of the
parking lot but listened as defendant’s passenger explained
over his cell phone that he and defendant were arriving at
the parking lot. The second officer left one part of the park-
ing lot to see if defendant had arrived at a different part of
the lot. When he did not see defendant’s car, he returned
to where he had been a minute earlier and saw defendant’s
car parked across several parking spaces. Defendant was
sitting in the driver’s seat with the engine running as two
passengers stepped out of the car and were walking towards
the area where the drug sale was supposed to occur.
The trial court held that, although defendant’s car
momentarily had come to rest before the second officer saw
and stopped it, the car was mobile for the purposes of the
automobile exception. The court accordingly denied defen-
dant’s motion to suppress the evidence that the officers
found when they later searched the car and its contents.
The Court of Appeals reversed. State v. Andersen, 269 Or
App 705, 346 P3d 1224 (2015) (en banc). In its view, the
automobile exception applied only if defendant’s car was
moving when the officer first saw it. Because defendant’s
car momentarily had come to rest before the officer saw it,
the Court of Appeals held that the automobile exception did
not apply. We allowed the state’s petition for review and now
reverse the Court of Appeals decision and affirm the trial
court’s judgment.
In 2011, Officer McNair of the Beaverton City
Police Department arranged a methamphetamine purchase
through a confidential reliable informant. Specifically, on
190 State v. Andersen
July 25, 2011, around 4:00 p.m., the informant contacted
Compton, a known “player” around Beaverton, to ask about
buying a half ounce of methamphetamine. Initially, Compton
said that he did not know anyone who had that much meth-
amphetamine on them. However, around 8:00 p.m., the
informant spoke with Compton again, who said that he had
found a seller. Compton identified the seller as “his girl” and
said that she would be driving a silver Jeep. The informant
and Compton agreed that the sale would take place near the
WinCo store on Cedar Hills Boulevard in Beaverton.
After the informant and Compton arranged the
sale, they exchanged a series of text messages and phone
calls. The informant asked when Compton and the seller
were coming, which was followed by a series of messages
from Compton saying that they were leaving soon and
that he would call “when we’re on our way.” “[E]ventually,
[Compton] called [the informant sometime before 11:00 p.m]
and said that they were on their way, and at that time they
said something about a red four-door car.”1 As the informant
and Compton exchanged calls and text messages, the loca-
tion for the sale changed several times. The parties ulti-
mately settled on a Plaid Pantry across the street (Cedar
Hills Boulevard) from the WinCo parking lot. Compton was
going to park in the WinCo parking lot and walk across the
street to the Plaid Pantry. The informant was going to be
coming from a house behind the Plaid Pantry, where he and
Compton would complete the sale.
As Compton and defendant were approaching the
WinCo parking lot, Compton was on his cell phone talking
with the informant while Officer McNair was listening to
their conversation. “[J]ust when [Compton and defendant]
were arriving” at the parking lot, Compton told the infor-
mant (and McNair) over the phone, “We’re pulling in.”
Compton then said over the cell phone, “I’m—I’m here. I’m
arriving.” Compton asked the informant, “Where are you
at?” The informant replied, “I’ll be walking up” to the Plaid
Pantry from the nearby house to complete the sale. Because
McNair and the informant were parked out of sight of the
1
It turned out that Compton was a passenger in the car defendant was
driving.
Cite as 361 Or 187 (2017) 191
WinCo lot, McNair did not see defendant’s car arrive at the
WinCo parking lot. However, he heard Compton’s running
account of the car’s arrival.
McNair had arranged for other officers to be around
the WinCo parking lot and told them “that they should be
either looking for the silver Jeep that had been described
earlier, or some red four-door” car. McNair also told the offi-
cers to be looking for Compton, whom they knew. One of the
officers, Officer Henderson, was parked at the east end of the
WinCo parking lot, next to Cedar Hills Boulevard, waiting
for defendant’s arrival. As defendant’s car was approaching
the parking lot, Henderson left the east end of the parking
lot and drove to the side of the WinCo store to look for a sil-
ver Jeep or a red four-door car.2 Henderson did not see either
car parked there, and he returned to the east end of the
parking lot approximately a minute later. When he did, he
saw a silver Jeep “parked within a few hundred—or maybe
100 feet of Cedar Hills Boulevard.” The Jeep had not been
there when Henderson left a minute earlier. The Jeep was
not parked in a parking spot but was instead “parked cross-
ing over the lines.” Defendant was sitting in the driver’s seat
with the engine running.
When Henderson saw the Jeep, he noticed that
there were several people inside. He also saw a person whom
he recognized as Compton walking away from the Jeep in
the direction of the Plaid Pantry. Compton was talking with
another man. As Henderson watched, both men turned
around and walked back to the Jeep. The other man got in
the front passenger seat of the Jeep. Compton spoke to the
man through the car window and then “leaned in the vehi-
cle, putting most of his torso in the vehicle. It appeared to
[Henderson] as though [Compton] was reaching across [the
other man].” Based on what he saw and what he had learned
from McNair about the proposed drug sale, Henderson con-
cluded that he had probable cause to believe that there were
drugs inside the Jeep and that he also had probable cause
“to believe that Mr. Compton had come to the location with
the intent to distribute.”
2
The WinCo store was located at the west end of the parking lot. The east
end of the parking lot borders Cedar Hills Boulevard.
192 State v. Andersen
At that point, Henderson and other officers
approached the Jeep. When they did so, the “vehicle was
running, with the keys in the ignition with [defendant] * * *
behind the wheel.” The Jeep, however, “was not actually in
physical motion.” The officers stopped the Jeep until a drug
detection dog arrived, which initially alerted on the outside
of the Jeep and later on defendant’s purse, which the officers
found inside the Jeep. Inside defendant’s purse, the officers
found approximately 14 grams of methamphetamine.
The state charged defendant with possession and
delivery of 10 or more grams of methamphetamine. Before
trial, defendant moved to suppress the evidence that the offi-
cers had found in her vehicle. Among other things, defendant
argued that the automobile exception to Article I, section 9,
did not apply because the car was not mobile when the offi-
cers first encountered it. The trial court was not persuaded.
It found “that this was a mobile vehicle, as that term is
meant in the vehicle exception. So that does justify search-
ing the vehicle, if there’s probable cause.” The trial court
determined that Henderson had probable cause to believe
that the Jeep contained evidence of a crime, and it held that
the search of the Jeep and its contents came within the
automobile exception to Article I, section 9. Based in part on
the evidence discovered in the Jeep, a jury found defendant
guilty of unlawful possession and unlawful delivery of 10
grams or more of methamphetamine.
On appeal, defendant argued that the trial court
erred in ruling that the automobile exception to Article I,
section 9, applied.3 On that issue, defendant did not dis-
pute that the officers had probable cause to believe that the
Jeep contained methamphetamine. She argued, however,
that “the automobile exception requires an actual stop of
a moving vehicle.” (Emphases in original.) She reasoned
that, because the officers “never saw [her] car moving” and
because the officers did not contact her “until her car was
parked,” the automobile exception did not apply. The Court
of Appeals agreed. After reviewing our automobile excep-
tion cases, the Court of Appeals concluded that Oregon’s
3
Defendant has not argued on appeal or review that the officer’s search of
the Jeep and her purse violated the Fourth Amendment.
Cite as 361 Or 187 (2017) 193
automobile exception “requires officers to see [a] car being
driven when they first encounter it.” Andersen, 269 Or App
at 715. Because defendant’s Jeep had arrived at the WinCo
parking lot and had momentarily come to rest before the
officers first saw it, the court concluded that the Jeep was
not “moving” but was merely “movable.” Id. It followed, the
Court of Appeals reasoned, that Oregon’s automobile excep-
tion did not apply, and the officers’ warrantless search of the
Jeep violated Article I, section 9. Id.
Judge DeVore dissented. In his view, the majority
was “overcorrect[ing]” in response to State v. Kurokawa-
Lasciak, 351 Or 179, 263 P3d 336 (2011), which reversed
a Court of Appeals decision holding that the automobile
exception applied whenever a car is “operable.” Andersen,
269 Or App at 727 (DeVore, J., dissenting). Judge DeVore
reasoned that the mere fact that a parked car is “operable”
does not mean that it is mobile for the purposes of the auto-
mobile exception. Conversely, he reasoned, seeing a car in
motion is not the sine qua non of mobility. Id. at 729. Rather,
the dissent would have held that it is sufficient if the offi-
cers reasonably could infer based on their perceptions that
the Jeep had come to a momentary stop and would have
resumed moving had they not stopped it. Id. at 733. The
dissent concluded:
“To be precise, if a vehicle is still operating, with a driver
at the steering wheel and the engine running, and police
have objective evidence that the vehicle has moved recently
or will move imminently, then that vehicle ‘remains mobile’
[for the purposes of Oregon’s automobile exception].”
Id. at 733-34. We allowed the state’s petition for review to
consider that issue.4
4
The state did not argue in the Court of Appeals that the search in this case was
permissible under the search-incident-to-arrest exception to Article I, section 9.
See State v. Caraher, 293 Or 741, 759, 653 P2d 942 (1982) (holding that a search
incident to arrest under Article I, section 9, is not limited to “considerations of
the officer’s safety and [the] destruction of evidence” but also “permit[s] a search
when it is relevant to the crime for which [the] defendant is being arrested and
so long as it is reasonable in light of all the facts”). Because the state lost in the
Court of Appeals, that issue is not before us, and we express no opinion on it. See
State v. Ghim, 360 Or 425, 442, 381 P3d 789 (2016) (a party challenging a Court
of Appeals decision is ordinarily limited to the grounds that the party raised in
the Court of Appeals).
194 State v. Andersen
Thirty years ago, this court recognized an auto-
mobile exception to the warrant requirement of Article I,
section 9, “provided (1) that the automobile is mobile at the
time it is stopped by police or other governmental author-
ity, and (2) that probable cause exists for the search of the
vehicle.” Brown, 301 Or at 274. As this court explained in
Brown, the exigency that permits officers to conduct a war-
rantless search of a mobile vehicle arises from the fact that
“ ‘the vehicle can be quickly moved out of the locality or juris-
diction in which the warrant must be sought.’ ” Id. at 275
(quoting Carroll v. United States, 267 U.S. 132, 153, 45 S. Ct.
280, 69 L. Ed. 2d 543 (1925)). The court was careful to make
clear, however, that the mere fact that a vehicle is opera-
ble does not mean that it is mobile for the purposes of the
Oregon automobile exception. See id. at 277 (distinguishing
the search of a parked car). Similarly, the court observed
in a companion case that, in recognizing an Oregon auto-
mobile exception, “we do not reach the issue of warrantless
searches of unoccupied, parked or immobile vehicles.” State
v. Bennett, 301 Or 299, 304, 721 P2d 1375 (1986).
Three months after this court decided Brown and
Bennett, it addressed the issue that it had noted but not
decided in those cases—whether the Oregon automobile
exception applies when officers engage in a warrantless
search of a parked car. Kock, 302 Or at 31-32. In Kock, the
defendant had parked his car at his workplace. Midway
through his shift, he took merchandise from the store where
he worked, put it in his parked car, and then returned to
work. Id. Given those facts, this court held that Oregon’s
automobile exception did not apply. It explained “that any
search of an automobile that was parked, immobile and
unoccupied at the time the police first encountered it in con-
nection with the investigation of a crime must [either] be
authorized by a warrant” or come within some other excep-
tion to the warrant requirement. Id. at 33. In placing that
limitation on the Oregon automobile exception, this court
noted that it sought to give officers “clear guidelines” for
their actions and that it “ch[o]se not to stretch the auto-
mobile exception [under Article I, section 9,] as far as the
Supreme Court of the United States has done in interpret-
ing the Fourth Amendment.” Id.
Cite as 361 Or 187 (2017) 195
Brown and Kock arose out of factual situations that
fell at either end of a spectrum. In Brown, officers stopped a
car as it drove on a highway based on reasonable suspicion
that the driver had committed a crime. By contrast, in Kock,
the defendant had parked his car at work during his shift.
The car was operable but it was not in transit; the defen-
dant’s car was, in the court’s words, “parked, immobile and
unoccupied at the time that the police first encountered it in
connection with the investigation of a crime.” Id.
Although Brown and Kock sought to provide guid-
ance to officers and citizens, neither case had occasion to
consider factual situations that fall somewhere between the
facts in those two cases. More recently, this court has con-
sidered two such cases. See Kurokawa-Lasciak, 351 Or at
181-85; State v. Meharry, 342 Or 173, 149 P3d 1155 (2006).
In Meharry, a local fire chief saw the defendant driving
erratically and reported his observations to a local police
officer, who came out of the police station. When he did, he
saw the defendant drive past him and park her van at a
convenience store before he could stop her on suspicion of
driving under the influence of intoxicants. The officer pulled
his car behind the defendant’s parked van, stopping it from
leaving, and searched her van for evidence of intoxicants
after developing probable cause that the defendant had been
driving under the influence.
In holding that the officer’s search came within
the automobile exception recognized in Brown, this court
observed initially that the officer “first encountered [the]
defendant’s van in connection with a crime when he saw
her drive by the police station. At that point, the van was
mobile.” See id. at 179. Additionally, the court rejected the
argument that the defendant’s car was not mobile when the
officer stopped it because the defendant had already parked
the car and gone into the convenience store. As the court
framed the question, the issue was whether stopping “an
otherwise mobile car from resuming its journey,” as the offi-
cer had done in Meharry, differed for the purposes of the
Oregon automobile exception from causing a moving car to
come to a stop, as the officer had done in Brown. Id. at 180.
As the court explained, the fact that the officer “did not have
196 State v. Andersen
time to effectuate a stop before [the] defendant pulled into
the [convenience store] parking lot but instead effectuated
a stop by preventing [the] defendant from continuing her
journey d[id] not make her van any less mobile, nor d[id]
it make it any less likely that her van—and any evidence
inside the van—could have been moved once [the officer]
relinquished control over it.” Id. at 180-81. The court accord-
ingly held that the automobile exception applied to a vehicle
that momentarily had come to rest.
In Kurokawa-Lasciak, the facts fell on the other side
of the line that the court had drawn in Brown and Kock.
In Kurokawa-Lasciak, the defendant was gambling at the
Seven Feathers Casino when casino employees began to
suspect that he was laundering money. 351 Or at 181. The
casino prohibited the defendant from engaging in further
cash transactions for 24 hours and posted his photograph in
its cashiers’ cages. Id. Early in the morning, the defendant
attempted to engage in a cash transaction and, in the course
of that attempt, reached into the cashier’s cage and grabbed
his photograph. Approximately 10 minutes later, he left the
casino, got into his van, and drove to a gas station. Fifteen
minutes after that, he returned to the casino, parked his
van, got out, and began walking back towards the casino.
Id. at 182. After he had gotten approximately 30 feet from
his van, an officer saw defendant walking towards the
casino and stopped him on suspicion of money laundering.
Id. Neither that officer nor another officer who arrived later
saw the defendant drive his van. Id. However, the officers
relied on the automobile exception to search the defendant’s
parked van, where they found evidence of illegal drug use
and approximately $48,000 in cash. Id. at 184-85.
In Kurokawa-Lasciak, this court adhered to the line
that it had drawn in Brown and Kock. It explained that, con-
trary to the Court of Appeals decision, this court had not
held in Meharry that Oregon’s automobile exception applies
whenever a car is “operable.” Id. at 192-93. Rather, the court
reiterated that “the vehicle that the police search must be
mobile at the time that the police encounter it in connection
with a crime.” Id. at 192. Applying that standard, the court
noted that the trial court had found that, “when [the officer]
Cite as 361 Or 187 (2017) 197
stopped [the] defendant, [the] defendant was approximately
30 feet from his van, which was parked, immobile, and unoc-
cupied, and that, when [the other officer] questioned [the]
defendant, [the] defendant was no longer near the van.” Id.
at 194. In reaching that conclusion, the court accepted the
state’s admission that “there was no evidence from which
the trial court could have found that [the] defendant’s van
was mobile when [either officer] encountered it in connection
with a crime.” Id.
In both Meharry and Kurokawa-Lasciak, this court
adhered to the line that it drew in Brown and Kock. We do so
here as well. That is, we reaffirm that the Oregon automo-
bile exception applies if the automobile is mobile when the
officers first encounter it in connection with the investiga-
tion of a crime. We also reaffirm that the exception does not
apply if the car is parked, unoccupied, and immobile when
officers encounter it. After explaining why those decisions
lead us to affirm the trial court’s judgment in this case, we
explain why we decline defendant’s invitation to overrule
our decisions.
In this case, defendant’s Jeep momentarily had
come to rest in the WinCo parking lot when the officers
stopped it from resuming its journey. The Court of Appeals
reasoned that, because the officers had not seen the Jeep
in motion before they stopped it, the Jeep was not mobile
when the officers first encountered it. The Court of Appeals’
reasoning is difficult to square with our decision in Meharry.
More specifically, the Court of Appeals took an unnecessar-
ily restrictive view of the kind of evidence that will establish
that a car is mobile when officers first encounter it.
As discussed above, Compton had told the informant
(and Officer McNair) that defendant was driving either a
Jeep or a red sedan to the WinCo parking lot to complete
a drug transaction. More importantly, McNair overheard
Compton give the informant a running account of the car’s
progress as it approached and entered the WinCo parking
lot. Compton told the informant and McNair over his cell
phone, “I’m here. I’m arriving,” and “We’re pulling in[to]”
the lot.
198 State v. Andersen
It is true, as the Court of Appeals noted, that
McNair did not see defendant’s Jeep pull into the WinCo
parking lot. And it may be that, in many cases, officers will
determine that a car is mobile when they first encounter it
by seeing the car in motion. However, Compton’s running
account of the car’s progress and arrival at the WinCo park-
ing lot provided McNair with as clear a confirmation of the
Jeep’s mobility as did the officer’s sighting of the defendant
driving her van erratically past the police station in Meharry
or the officer’s view of the car’s movement in Brown. Put
differently, the fact that McNair learned aurally what the
officer in Meharry learned visually—that the car that was
the subject of each officer’s investigation was mobile when
the officer first encountered it—provides no principled basis
for distinguishing this case from either Meharry or Brown.
One other issue deserves brief mention. Defendant’s
Jeep had come to rest before the officers stopped it. The trial
court, however, reasonably could have found that defendant
had stopped her car only momentarily—just long enough to
complete the drug transaction—before resuming her trip.
Defendant’s momentary pause in her trip is no different
from the defendant’s momentary stop at the convenience
store in Meharry before resuming her journey. Indeed, in
Meharry, the defendant had turned off the engine, stepped
out of her van, and stepped into the convenience store. In
this case, defendant remained in the driver’s seat of her Jeep
with the engine running while Compton stepped out of the
Jeep to complete the drug transaction. If the defendant’s van
in Meharry remained mobile for the purposes of Oregon’s
automobile exception, then it is difficult to see why defen-
dant’s Jeep was not also mobile. When the officers stopped
her Jeep, it was not “parked, immobile, and unoccupied” as
the defendants’ cars were in Kock and Kurokawa-Lasciak.
Because we perceive no meaningful distinction
between this case and Meharry, we uphold the trial court’s
ruling that defendant’s Jeep was mobile when the officers
first encountered it in connection with their investigation
of the drug sale. Because defendant does not dispute that
the officers also had probable cause to believe that her Jeep
contained methamphetamine, it follows that the trial court
correctly held that the officers’ warrantless search of the
Cite as 361 Or 187 (2017) 199
Jeep and its contents came within the automobile exception
to Article I, section 9. See Brown, 301 Or at 274.
We address one final issue. Defendant argues that,
if we conclude that the search in this case comes within the
automobile exception, as our cases have described it, then
we should overrule those cases. We have considered the var-
ious grounds that defendant has asserted for overruling our
automobile exception cases, and we write to address one of
them. This court explained in Brown that the “[m]obility
of the vehicle at the time of the stop, by itself, creates the
exigency.” Id. at 276. The court also recognized, however,
that changes in technology could eliminate the exigency
that underlies the automobile exception. Id. at 278 n 6.
Brown accordingly held out the possibility that technologi-
cal and other changes might permit warrants to be obtained
“within minutes,” with the result that the automobile excep-
tion might no longer be justified. Id. Defendant argues that
we should overrule Brown because warrants can now be
obtained within minutes.
We question the premises on which defendant’s
argument rests. As an initial matter, the length of time that
it takes to write a warrant application and obtain a warrant
is a factual issue for the trial court, and not all warrants
will take the same amount of time. Depending on the com-
plexity of the circumstances that give rise to probable cause
and the significance of the case, some warrants will require
a longer time to prepare and obtain than others. In this
case, the only evidence in the record is that it would have
taken hours, not minutes, to prepare a warrant application
and obtain a warrant. Officer McNair testified without con-
tradiction that, “[j]ust [to get a warrant] for a cell phone
it takes me several hours to write a search warrant, and
go get that approved by a DA.” The officer also explained
that, if the district attorney had suggestions or corrections,
it could take another hour to add those corrections to the
warrant application. Not only did the trial court implicitly
credit the officer’s testimony, but defendant identifies no con-
trary evidence in the record.
Beyond that, defendant’s argument appears to
assume that the only impediment to obtaining a warrant
200 State v. Andersen
quickly is the time that it takes to transmit a completed
warrant application to a magistrate and have the magis-
trate review and act on the application. While technology
has made it easier to prepare and transmit completed appli-
cations, the testimony in this case illustrates what our cases
have recognized. An officer must prepare the warrant appli-
cation before submitting it to a magistrate for approval,
and the process of preparing a warrant application can
sometimes entail a substantial amount of time. Affidavits
submitted in support of a warrant are subject to technical
requirements that are intended to protect citizens’ privacy.
When the affiant lacks personal knowledge of the facts that
give rise to probable cause and relies instead on information
from other persons, the affidavit must demonstrate the rea-
sons why the affiant finds the informant credible or reliable,
and the affidavit must be written with sufficient specific-
ity to ensure that the resulting warrant does not authorize
searches and seizures of people or places for which probable
cause has not been established.5
Ultimately, not only must search warrant applica-
tions be sufficient to satisfy issuing magistrates, but they
also must withstand scrutiny in later motions to suppress if
evidence discovered while executing the warrant leads to a
criminal prosecution. As in this case, district attorneys may
review warrant applications drafted by officers who may be
experienced in criminal matters but untrained in the law.
Without that review, warrant applications might fail to com-
ply with the technical specifications our cases have required.
Those human efforts can sometimes entail substantial expen-
ditures of time despite technological advances.
We do not foreclose the possibility that Brown held
out—that changes in technology and communication could
5
For example, if probable cause is based on statements from one or more
informants, the application must establish the basis of each informant’s knowl-
edge and the credibility or reliability of that informant. See State v. Alvarez, 308
Or 143, 149, 776 P2d 1283 (1989) (describing relationship between two unnamed
informants and why the affidavit provided sufficient facts to establish that
each informant was credible or reliable). Moreover, the places and people to be
searched must be identified with sufficient particularity. See State v. Reid, 319 Or
65, 71, 872 P2d 416 (1994) (authorization to search “persons present” at residence
too broad because that authorization could include persons who had no connec-
tion to illegal activity); State v. Ingram, 313 Or 139, 143, 145, 831 P2d 674 (1992)
(warrant authorizing officers to search “all vehicles determined to be associated
with the occupants of said premises” overbroad).
Cite as 361 Or 187 (2017) 201
result in warrants being drafted, submitted to a magis-
trate, and reviewed with sufficient speed that the automo-
bile exception may no longer be justified in all cases. Nor
do we foreclose a showing in an individual case that a war-
rant could have been drafted and obtained with sufficient
speed to obviate the exigency that underlies the automobile
exception. See State v. Machuca, 347 Or 644, 657, 227 P3d
729 (2010) (explaining that, under Article I, section 9, the
exigency arising from the dissipation of alcohol ordinarily
will permit a warrantless blood draw while recognizing that
the particular facts in an individual case may show other-
wise); cf. Missouri v. McNeely, 569 US ___, 133 S. Ct. 1552,
185 L. Ed. 2d 696 (2013) (rejecting the state’s argument that
the exigency resulting from the dissipation of alcohol will be
present in every case).
Ordinarily, the speed with which a warrant reason-
ably could be obtained is, in the first instance, a factual ques-
tion for the trial court. Cf. State v. Wagner, 305 Or 115, 153-
54, 752 P2d 1136 (1988) (declining to rely for the first time
on appeal on reports and facts found in other cases), vac’d
on other grounds sub nom Wagner v. Oregon, 492 U.S. 914,
109 S. Ct. 3235, 106 L. Ed. 2d 583 (1989). As noted above, the
only evidence in this record, which the trial court implicitly
credited, was that it would have taken hours, not minutes,
to obtain a warrant. Given that record and the trial court’s
resolution of defendant’s motion, we decline to overrule the
automobile exception in all cases, as defendant urges, or
to conclude that it is inapplicable in this case. Rather, we
affirm the trial court’s conclusion that the automobile excep-
tion applied here.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.
WALTERS, J., concurring.
I write to emphasize an important point that the
majority makes and with which I agree: The Oregon auto-
mobile exception permits a showing, in an individual case,
“that a warrant could have been drafted and obtained with
sufficient speed to obviate the exigency.” State v. Andersen,
361 Or 187, 201, ___ P3d ___. Thus, although the majority
does not overrule State v. Brown, 301 Or 268, 721 P2d 1357
202 State v. Andersen
(1986), the majority recognizes that the exception created in
that case is and must be aligned with other Oregon exigency
exceptions to the warrant requirement.
This court has long held that Article I, section 9,
does not require a warrant when exigent circumstances
exist; that exigent circumstances exist when the facts
demonstrate that the police must “act swiftly to prevent
danger to life or serious damage to property, or to forestall
a suspect’s escape or the destruction of evidence”; and that
whether exigent circumstances exist must be determined
based on the particular facts presented, and not on a cat-
egorical basis or pursuant to a per se rule. State v. Snow,
337 Or 219, 223-25, 94 P3d 872 (2004) (internal quotation
marks omitted) (stating rule and finding that facts demon-
strated exigent circumstances); State v. Stevens, 311 Or 119,
126-30, 806 P2d 92 (1991) (same); State v. Bridewell, 306 Or
231, 235-36, 759 P2d 1054 (1988) (facts did not demonstrate
exigent circumstances); State v. Jimenez, 357 Or 417, 426,
353 P3d 1227 (2015) (refusing to adopt per se rule recogniz-
ing exigent circumstances in all instances); State v. Cocke,
334 Or 1, 9, 45 P3d 109 (2002) (declining to recognize per
se exception to warrant requirement for “protective sweep,”
but permitting use where particular circumstances justify
it); State v. Guggenmos, 350 Or 243, 258-59, 253 P3d 1042
(2011) (reviewing totality of the circumstances to deter-
mine whether officers’ “sweep” justified by officer safety con-
cerns); State v. Machuca, 347 Or 644, 656-57, 227 P3d 729
(2010) (refusing to recognize per se exigency rule and pro-
hibiting warrantless searches and seizures to obtain blood
alcohol evidence if facts of particular case establish that “ ‘a
warrant [could have been] obtained without sacrificing the
evidence’ ” (quoting State v. Milligan, 304 Or 659, 665-66,
748 P2d 130 (1988))); see also State v. Moore, 354 Or 493,
497 n 5, 318 P3d 1133 (2013), adh’d to as modified on recons,
354 Or 835, 322 P3d 486 (2014) (noting that Machuca is
consistent with federal constitutional law, which rejects a
per se exigency rule for alcohol dissipation (citing Missouri
v. McNeely, 569 US ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696
(2013))).
In permitting that same case-by-case analysis
when the state relies on the automobile exception to justify
Cite as 361 Or 187 (2017) 203
a warrantless search, the majority assures that, unless exi-
gent circumstances are actually present, a neutral magis-
trate, and not the individual who performs the search, will
determine whether there is probable cause to search. That
mode of analysis is essential to protect Oregonians’ right
to privacy. Any other rule would “improperly ignore the
current and future technological developments in warrant
procedures,” and “diminish the incentive for jurisdictions ‘to
pursue progressive approaches to warrant acquisition that
preserve the protections afforded by the warrant while meet-
ing the legitimate interests of law enforcement.’ ” McNeely,
133 S Ct at 1563 (quoting State v. Rodriguez, 570 Utah Adv
Rep 55, 156 P3d 771, 779 (2007)).
When this court created the Oregon automobile
exception in 1986, it expected that technological advances
would occur and that this state would pursue progressive
approaches to warrant acquisition. State v. Brown, 301 Or
at 278 n 6. Those advances have occurred, and state law
permits police departments to make use of them. ORS
133.545(8) authorizes the electronic transmission of pro-
posed warrants and affidavits to a judge, as well as the elec-
tronic transmission of the signed warrant back to the person
who made the application. In Multnomah County, warrant
affidavits can be submitted “in person, by telephone or by
email,” City of Portland Police Bureau Directives Manual,
ch 652.00, and, in State v. Machuca, 231 Or App 232, 245,
218 P3d 145 (2009), an officer “conceded that he could have
obtained a telephonic search warrant in one hour.”
Evidence from other jurisdictions suggests that
police officers should be able to obtain warrants in less than
one hour. In 1973, before the introduction of the first commer-
cially available cell phone,1 the San Diego District Attorney’s
Office estimated that 95 percent of warrants were obtained
in less than forty-five minutes. Comment, Oral Search
Warrants: A New Standard of Warrant Availability, 21 UCLA
L Rev 691, 694 n 23 (1973); see also People v. Blackwell,
195 Cal Rptr 298, 302 n 2 (Cal Ct App 1983) (citing same
1
See Zachary M. Seward, The First Mobile Phone Call Was Made 40 Years
Ago Today, The Atlantic, (Apr 3, 2013), available at http://www.theatlantic.com/
technology/archive/2013/04/the-first-mobile-phone-call-was-made-40-years-
ago-today/274611/ (accessed Mar 7, 2017).
204 State v. Andersen
estimate). In United States v. Baker, 520 F Supp 1080, 1084
(SD Iowa 1981), the district court concluded that the entire
process of obtaining a warrant by telephone would have taken
20 to 30 minutes. And, in 2015, the New Jersey Supreme
Court cited to a pilot program that examined 42 telephonic
automobile search warrant applications and found that
“[t]he average request for an automobile warrant took
approximately 59 minutes, from the inception of the call to
its completion.” State v. Witt, 223 NJ 409, 436, 126 A3d 850,
865-66 (2015).
However, the fact that that technology exists is just
one factor in the exigency analysis that this case permits.
If an officer testifies that, in the particular circumstances
presented, the time it reasonably would have taken to get a
warrant would have resulted in the destruction of evidence,
then that testimony may demonstrate that a warrantless
search was justified. See, e.g., Snow, 337 Or at 223 (holding
exigency exists when situation requires police to act swiftly
to prevent destruction of evidence). In this case, the officer
who conducted the search testified at trial that it would have
taken him three hours to write a warrant application and
two hours to get authorization from an on-call district attor-
ney to seek judicial approval, after which he would have had
to go to a judge’s residence to get the warrant signed. Those
are facts from which the trial court could have found an exi-
gency and that could have served as the basis for denial of
defendant’s motion to suppress.2 Although the trial court did
not expressly cite that evidence as a basis for its ruling, the
delay to which the officer testified could support it. I there-
fore concur with the result that the majority reaches and
would affirm the trial court’s judgment.
2
I do not mean to imply that that is the only conclusion that a trial court
could have reached. The delay that gives rise to an exigency must be reason-
able. See Stevens, 311 Or at 130 (noting that case was not one in which delay
was unreasonable). Washington County may not provide for telephonic or other
electronic search warrants, see State v. Sullivan, 265 Or App 62, 65, 333 P3d
1201 (2014) (officer testified that telephone warrants not available in Washington
County), and, in a future case, a trial court could find that an officer’s failure
to use statutorily-authorized and widely-available technology was unreasonable
and precluded a finding of exigent circumstances.
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01-03-2023
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03-30-2017
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https://www.courtlistener.com/api/rest/v3/opinions/6826219/
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OPINION
HORN, Judge.
This case is before the court on defendant’s motion for summary judgment.1 Plaintiff, Big Chief Drilling Company (Big Chief), brought this action under the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (1982). The jurisdiction of this court is uncontested under 41 U.S.C. § 609.
The complaint in this action was filed with the court on February 25, 1986. Plaintiff claims money damages resulting from the government’s omissions and actions during contract performance. Defendant filed an answer in which it requested dismissal of the complaint and filed the instant motion for summary judgment. Oral argument was heard, after submission of briefs by both parties.
After consideration of the papers submitted by both parties and the arguments presented orally to the court, for the reasons stated below, defendant’s motion for summary judgment is denied.
Background
The facts of this case appear to be as follows. In December, 1982, the Department of Energy (DOE) issued an invitation for bids (No. DE-FB-96-83-P010872) for a fixed-price, construction contract. The project consisted of drilling ten wells at the DOE Strategic Petroleum Reserve’s Big Hill, Oil Storage Facility in Jefferson County, Texas.
The Strategic Petroleum Reserve Project Management Office (SPRO) held a pre-bid conference on February 3, 1983, which representatives of Big Chief attended. The parties agree, and affidavits submitted by both parties confirm, that the bidders were informed at the pre-bid conference that the differing site conditions clause would be deleted from the proposed contract. The parties disagree, however, as to what else occurred regarding the deletion of the differing site conditions clause. Defendant claims that it informed the bidders at the conference, and confirmed in a subsequent letter to all bidders, that the deletion meant that the contractor would be responsible for all problems arising from unforeseen subsurface conditions, including lost circu*297lation. Defendant concedes, however, that no copy of this letter can be located.
Conversely, plaintiff contends that the DOE did not inform bidders that the deletion of the differing site conditions clause would make the contractor responsible for costs associated with lost circulation. Moreover, plaintiff states that none of its officers recall receiving a letter from defendant as to its responsibilities in the absence of the clause.
The contract was awarded to Big Chief on March 22, 1983. Nine out of the ten wells were completed without incident. This action concerns well number 108A. Work began on well number 108A on June 17, 1983.
The parties agree that the depth to the top of the caprock, which was located on June 19, 1983, was approximately 352 feet from the surface. They disagree, however, as to who determined the location of the caprock, who had the duty to make that determination under the contract and whether the determination was proper. The parties also disagree as to who was to establish the appropriate placement for the 30-inch casing shoe. Thus, substantial disagreements appear to remain as to what occurred and as to who had the duty to make key determinations during contract formation and during performance.
Defendant states that on June 20, 1983, Big Chief reached a drilling depth of 382 feet. Defendant further states that sand fell into the well hole on June 21 and 22, 1983, while Big Chief was trying to install the 30-inch casing. Plaintiff does not disagree with these facts. However, the parties disagree as to the depth at which the 30-inch casing became stuck. Defendant says it stuck at a depth of 358 feet; plaintiff says it became stuck at a depth of 356 feet. The parties agree that the 30-inch casing was set and cemented successfully on June 23, 1983, at a depth of 365 feet.
Big Chief encountered lost circulation on June 28,1983. The parties also disagree as to the depth at which lost circulation occurred. Defendant says it occurred between 688 and 815 feet; plaintiff says it occurred at a depth of 798 feet in a 12V4 inch hole. The parties also disagree about lost circulation in the 30-inch casing seat. Defendant contends that lost circulation in the vicinity of the casing seat first occurred on July 24, 1983. Plaintiff contends that it has never been established that lost circulation occurred at the 30-inch casing seat at all.
The parties agree that Big Chief performed a number of so-called “cement squeeze jobs,” a procedure which plaintiff defines as one in which cement is forced down the well hole and behind the casing shoe to restore the shoe. They disagree, however, as to the reason for performing such cement squeeze jobs and they disagree as to when the jobs were performed. Defendant contends that plaintiff performed these measures in an effort to combat lost circulation, and that these measures were performed prior to July 24, 1983 and without consultation with DOE officials. Plaintiff contends that it performed the squeeze jobs to remedy the failure of the casing shoe and that the procedure began after the casing shoe was lost on July 21, 1983. According to plaintiff, the casing shoe was restored on August 13, 1983. Also according to plaintiff, it engaged in redrilling until August 27, 1987 when the depth previously obtained before the loss of the casing shoe was achieved. As a result, plaintiff states, it incurred substantial expenses and loss of rig time from July 2, 1983 to August 27, 1983.
The parties also disagree about the occurrence of a pressure test. Defendant contends that on August 20, 1983, Big Chief conducted a pressure test of the 30-inch casing and that the test indicated a significant loss of pressure. Plaintiff denies that any such pressure test was conducted. Both parties agree that drilling of the well was completed on October 23, 1983.
On December 4, 1983, Big Chief filed a claim with the DOE requesting reimbursement in the amount of $906,525.93. This claim, which related only to well number 108A, requested reimbursement for expenses incurred as a result of the loss of *298the casing shoe and for expenses arising from lost circulation. Defendant contends that the December 4, 1983 claim constituted its first notice that plaintiff considered the government responsible for problems with well number 108A. Plaintiff, however, maintains that the government officials on the site were fully apprised of all the drilling activities, as well as other problems encountered at the site.
Based upon a meeting between the parties, on May 8, 1984, Big Chief submitted a revised claim on June 14, 1984. The resubmitted claim requested reimbursement in the amount of $646,801.77. This revised claim related only to the loss of the casing shoe and omitted the claim for lost circulation. Defendant contends that until June 14, 1984, it had no knowledge of any problems plaintiff had encountered with the casing shoe, and that the claim for reimbursement constituted a new theory for compensation. Plaintiff argues that defendant knew precisely what was occurring at the site, and, therefore, the casing shoe claim formed a proper basis to support its claim.
Defendant also argues to the court that had it been properly notified of problems at the site, it might have been able to take actions to mitigate potential damages. Plaintiff contends that defendant constantly monitored the drilling operations and, therefore, had the opportunity to question the actions taken by Big Chief and to suggest other actions.
On July 14, 1984, final payment on the contract was made and on April 1, 1985, the contracting officer issued a final decision, denying the contractor’s claims for additional compensation. Big Chief filed its complaint in this court on February 25, 1986.
Discussion
Rule 56 of the Rules of the United States Claims Court (RUSCC) and Rule 56 of the Federal Rules of Civil Procedure (Fed.R. Civ.P.) are similar in language. Indeed, Rule 56(c) of both rules provides in pertinent part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Moreover, Rule 56(f) of the Rules of the United States Claims Court and Rule 56(e) of the Federal Rules of Civil Procedure both include a provision which reads:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
Thus, the moving party bears the initial burden of showing that there is no genuine issue of material fact. If the moving party fails to carry its burden, then the nonmov-ing party need not “come forward with suitable opposing affidavits.” Adickes v. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 1610, 26 L.Ed.2d 142 (1970); see also Weide v. United States, 4 Cl.Ct. 432, 435 (1984), aff'd mem., 765 F.2d 157 (Fed.Cir.), cert. denied, 474 U.S. 822, 106 S.Ct. 74, 88 L.Ed.2d 61 (1985) (summary judgment appropriate only where there is no material issue of fact and moving party entitled to judgment as matter of law). If, however, the moving party carries its burden, then the nonmoving party must present “specific facts showing that there is a genuine issue for trial.” RUSCC 56(f) and Fed.R. Civ.P. 56(e); Balboa Ins. Co. v. United States, 775 F.2d 1158, 1163 (Fed.Cir.1985). Any inferences “to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Gregory Lumber Co. v. United States, 9 Cl.Ct. 503 (1986). According to Adickes, the nonmoving party must present materials showing that the *299inferences to be drawn are susceptible to different interpretations. Adickes, 398 U.S. at 160 n. 22, 90 S.Ct. at 1610 n. 22 (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569, reh’g denied, 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968)); cf. Crawford v. United States, 3 Cl.Ct. 323 (1983), aff'd mem., 732 F.2d 168 (Fed.Cir.), cert. denied, 469 U.S. 861, 105 S.Ct. 194, 83 L.Ed.2d 127 (1984) (mere hope that discovery may uncover some evi-dentiary basis for party’s version of the facts not sufficient to preclude grant of summary judgment). For summary judgment to be denied, all that need be present is sufficient evidence of differences to support the need for factual dispute to be resolved by a judge. First National Bank of Arizona, 391 U.S. at 288-89, 88 S.Ct. at 1592.
In three relatively recent cases, the United States Supreme Court has refined the long standing summary judgment guidelines outlined above. See generally Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 238 (1986).
The moving party certainly retains the burden of first showing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. However (especially where the nonmoving party will bear the burden of proof at trial on a dispositive issue), “the burden of the moving party may be discharged by ‘showing’ ... that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325,106 S.Ct. at 2554. Moreover, it appears that where the nonmoving party will bear the burden of proof at trial on a certain issue, the moving party may rely on the pleadings, depositions, answers to interrogatoriés, and admissions on file, in support of its motion. The Supreme Court has indicated that, contrary to then existing practice in many Federal courts, under its interpretation of Rule 56 Fed.R. Civ.P., the moving party in a summary judgment proceeding should not be required to present affidavits to support its motion regarding issues for which it does not bear the burden of proof at trial on the same issue. (See also RUSCC 56). The nonmoving party, on the other hand, may oppose the motion with depositions, answers to interrogatories and admissions on file, but may not rely on the “mere pleadings themselves.” Id. at 324, 106 S.Ct. at 2554. Thus, if the moving party does not bear the burden of proof on the issues for trial, then its burden on a motion for summary judgment decreases, while the non-moving party’s burden on the same issues increases. In such a situation, the nonmov-ing party must produce enough evidence to show that a genuine factual dispute exists.2
In determining whether a genuine factual issue exists, the judge’s “function is not himself [sic] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. Or as stated in a different way by the Anderson court, the standard is: “[w]hether the evidence presents a sufficient disagreement to require submission to a jury [or to a judge] or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52, 106 S.Ct. at 2512. Moreover, the evidence will be viewed “through the prism of the substantive evidentiary burden.” This means, for example, that if the substantive evidentiary burden at trial will be the “clear and convincing” standard, as it was in Anderson, then the clear and convincing standard applies to the motion for summary judgment. Id. at 252, 106 S.Ct. at 2512. See also Matsushita, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 238.
The refined summary judgment standard, therefore, eases the burden of the moving party if it will not bear the burden *300of proof at trial, and requires that the nonmoving party produce evidence such that the finder of fact could reasonably find in its favor on the merits of the case. On the other hand, “where the record taken as a whole would not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial’.” Matsushita at 587, 106 S.Ct. at 1357 (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 254, 88 S.Ct. 1575, 20 L.Ed.2d 569). If, in a plausible case, however, the nonmoving party produces sufficient evidence of disagreement, then the motion for summary judgment should be denied.
In the instant case, the parties even disagree as to how plaintiffs claim should be classified within government contract law. Plaintiff contends that the claim is a breach of contract claim based on a type of defective specification claim. Defendant argues in the alternative, that the claim should be considered a differing site conditions claim, but also argues its positions if the claim is classified as either a changes claim or a defective specifications claim.3 We note, however, that no matter how the claim is classified, under each of the theories offered, it seems that the contractor has the burden- of proof in order, ultimately, to recover. Although, the plaintiff appears to bear a heavy burden, the court cannot rule out the possibility of recovery.
In order to recover in the case, plaintiff will have to show a causal link between the damages claimed and the nature of the claim under which they are asserted. See generally G.M. Shupe, Inc. v. United States, 5 Cl.Ct. 662, 686 n. 13 (1984). To recover under a changes clause, for either an express or constructive change, the contractor must show that a change occurred and that it was ordered by a government officer having the requisite authority. See Shank-Artukovich v. United States, 13 Cl.Ct. 346, 355 (1987). To recover under a type I differing site conditions claim, a contractor must prove that conditions actually encountered differed materially from those outlined in the contract. See, Shank-Artukovich, 13 Cl.Ct. at 350; Foster Construction C.A. and Williams Brothers Co. v. United States, 193 Ct.Cl. 587, 597, 435 F.2d 873 (1970); Weeks Dredging & Contracting, Inc. v. United States, 13 Cl.Ct. 193 (1987). Moreover, where the government provides the contractor with performance specifications, as opposed to design specifications, the government does not warrant successful completion. See Utility Contractors, Inc. v. United States, 8 Cl.Ct. 42, 49 (1985), aff'd, 790 F.2d 90 (Fed.Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 104, 93 L.Ed.2d 53 (1986).
On the instant summary judgment motion, because it appears that defendant, the moving party, does not bear the burden of proof, defendant has a somewhat eased burden and plaintiff must produce evidence showing that a genuine issue of material fact remains in existence. The court finds that the plaintiff has presented sufficient evidence in the affidavits and the pleadings to demonstrate the existence of genuine issues of material fact still in dispute in the instant case. Among the genuine issues of material fact which appear to remain are different understandings of key terms included in the contract as well as different understandings as to the significance of clauses which- were specifically omitted from the contract.
Although interpretation of the words included and excluded in a contract is, in general, a question of law, questions of fact can arise as part of the analysis. D & S Universal Mining Co., Inc. v. United States, 4 Cl.Ct. 94, 97 (1983). The intention of the parties controls the interpretation of a contract. In ascertaining the intention of the parties, the contract should be construed as an entirety “so as to harmonize and give meaning to all its provisions.” Thanet Corp. v. United States, 219 Ct.Cl. 75, 82, 591 F.2d 629, 633 (1979); ITT Arctic Services, Inc. v. United States, 207 Ct.Cl. 743, 751-52, 524 F.2d 680 (1975), accord; Firestone Tire & Rubber Co. v. United *301States, 195 Ct.Cl. 21, 30, 444 F.2d 547, 551 (1971).
The language of a contract, moreover, must be given the meaning that would be derived from the contract by a “reasonably intelligent person acquainted with the contemporaneous circumstances.” Hol-Gar Manufacturing Corp. v. United States, 169 Ct.Cl. 384, 388, 351 F.2d 972, 975 (1965). The “unexpressed, subjective, unilateral intent of one party is insufficient to bind the other contracting party, especially when the latter reasonably believes otherwise.” Firestone, 195 Ct.Cl. at 30, 444 F.2d at 551; Singer-General Precision, Inc. v. United States, 192 Ct.Cl. 435, 446-47, 427 F.2d 1187, 1193 (1970). Where, however, one party enters into a contract knowing or having reason to know the meaning put upon a provision by his opposite number, he is bound by that interpretation if it can be shown that his acquiescence can be demonstrated by silence, actual consent, or other actions clearly evidencing acquiescence to the other party’s articulated understanding. Lockheed Aircraft Corp. v. United States, 192 Ct.Cl. 36, 44, 426 F.2d 322, 326 (1970); Cresswell v. United States, 146 Ct.Cl. 119, 127, 173 F.Supp. 805, 811 (1959). The conduct of the parties before the advent of controversy, thus, may be relied upon to discover the parties’ underlying intention. Julius Goldman’s Egg City v. United States, 697 F.2d 1051, 1058 (Fed.Cir.1983), cert. denied 464 U.S. 814, 104 S.Ct. 68, 78 L.Ed.2d 83 (1983); Macke Company v. United States, 199 Ct.Cl. 552, 556, 467 F.2d 1323, 1325 (1972).
When a disagreement is presented to the court, the interpretation of words included in a contract is a two-step process. The court must determine first whether an ambiguity exists. John C. Grimberg Co., Inc. v. United States, 7 Cl.Ct. 452, 456, aff'd, 785 F.2d 325 (Fed.Cir.1985). If an ambiguity is immediately apparent, it is sometimes referred to as a patent ambiguity, then the plaintiff is under a duty to seek clarification. George E. Newsom v. United States, 230 Ct.Cl. 301, 303, 676 F.2d 647, 650 (1982). Although a potential contractor may have some responsibility to inquire about a major patent discrepancy, omission or conflicts in the provisions, he is not normally required to seek clarification of “any and all ambiguities, doubts or possible differences in interpretation.” WPC Enterprises, Inc. v. United States, 163 Ct.Cl. 1, 6, 323 F.2d 874, 877 (1964) (disapproved on other grounds, United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 430-31 n. 6, 86 S.Ct. 1539, 1543 n. 6, 16 L.Ed.2d 662 (1966)). If the plaintiff, however, does not inquire about a clearly patent ambiguity, then the ambiguity will be construed against it. If, on the other hand, the ambiguity is not patent, then the non-patent ambiguity will be interpreted against the drafter of the contract, as long as the other party’s interpretation is a reasonable one. E.g., Perry & Wallis, Inc. v. United States, 192 Ct.Cl. 310, 316, 427 F.2d 722, 726 (1970). The alternative interpretation, however, must be within the “zone of reasonableness.” WPC Enterprises, Inc., 163 Ct.Cl. at 6, 323 F.2d at 877.
Where non-patent ambiguities exist, courts have traditionally allowed extrinsic evidence to be introduced in order to determine the intention of the parties at the time the contract was signed. For example, courts have allowed evidence of trade meaning, usage and custom to be employed to explain or define contract language, although though such evidence could not be used to vary or contradict contract language. Gholson, Byars & Holmes Construction Co. v. United States, 173 Ct.Cl. 374, 395, 351 F.2d 987, 999 (1965). Introduction of evidence of trade usage or custom has been allowed by the courts to show that “language which appears on its face to be perfectly clear and unambiguous has, in fact, a meaning different from its ordinary meaning.” Tibshraeny Bros. Const., Inc. v. United States, 6 Cl.Ct. 463, 470 (1984) (citing W.G. Cornell Co. of Washington, D.C., Inc. v. United States, 179 Ct.Cl. 651, 376 F.2d 299 (1967)). Finally, where one party seeks to employ evidence of trade usage, summary judgment is inappropriate because trade usage is a “factual issue which must be proven.” D & S Universal *302Mining Co., Inc. v. United States, 4 Cl.Ct. 94, 97 (1983).
The portion of the contract which has been identified by both parties as at the center of the dispute, is Section F, Part II, section 8.1 and 8.1.1, which provides:
8.1 The Contractor shall provide the following services in Wells A and B prior to casing installation:
8.1.1 From a depth of approximately 15' into the caprock up to the 42" conductor pipe, run ISF/GR/FDC/ SP/CNL & Sonic in Well A only.
The depth to the top of caprock will be determined by:
° a decline in the rate of drill bit penetration, and
0 cuttings which contain anhydrite, limestone or gypsum.
Concurrence of these factors must be obtained from the Contracting Officer or his designated representative.
Defendant contends that under this provision, plaintiff was to make all relevant determinations in accordance with the contract and plaintiff was to bear the burden for any problems encountered. At oral argument on the instant motion, defendant stated that the contract was a turnkey project under which the plaintiff was obligated to drill for caprock and defendant’s responsibility under the contract was merely to agree or disagree as to whether ca-prock had been reached. Defendant stated that while it confirmed whether caprock had been found in accordance with the terms of the contract, it was plaintiff’s obligation to determine the appropriate location to place the casing shoe. In support of its position, defendant relies on the supposed plain meaning of the word “concurrence” in subsection 8.1.1 of the contract, which it says was intended to mean agree, and nothing more.
Plaintiff, however, contends that under this same provision of the contract, subsection 8.1.1, defendant had the duty to locate, identify and designate competent caprock, while plaintiff was required to follow defendant’s designation of competent caprock when it set the casing shoe. Plaintiff takes the position that, in the industry, the term “concurrence”, does not connote a partnership effort. Instead “concurrence” means that the government representative on the site designates the caprock and the contractor places the casing shoe in accordance with that determination. While defendant’s argument also is based on its understanding of the plain meaning of the word “concurrence”, plaintiff argues that its interpretation of Section 8.1.1 of the contract is also based on trade usage and practice in the industry.
In the instant case, it also is unclear whether at the time the contract was signed, plaintiff understood and acquiesced in defendant’s understanding of the significance of the deletion of the differing site conditions clause from the general form contract.4 Plaintiff’s and defendant’s understandings of the conduct of the parties before the advent of the controversy appear not to coincide, owing to disputes about the letter, which allegedly addressed deletion of the differing site conditions clause, and which defendant claimed it sent to interested bidders.
Defendant argues that the effect of the deletion was that plaintiff was to be responsible for all problems and costs arising from unforeseen subsurface conditions. Yet, it is interesting that in spite of this deletion, defendant attempts to classify the claim as a classic type I, differing site conditions claim. Defendant also claims that it sent a letter to all bidders explaining the effect of the deletion, but defendant cannot find the letter and plaintiff claims it never received any such letter. Plaintiff, on the other hand, contends that DOE did not advise bidders that deletion of the clause would result in the government’s exculpation from all costs associated with lost circulation. Plaintiff further argues that the claim cannot be classified as a differing site conditions claim when there *303is no such clause in the contract. These disputes force the court to conclude that it should not rule on the legal effect of the deletion at this time, without further fact finding to clarify the intent of the parties.
In order to decide the motion for summary judgment, the court need not make a determination as to whether or not a contract term is ambiguous on its face. See Gholson, Byars & Holmes Construction Co., 173 Ct.Cl. at 395 n. 13, 351 F.2d at 999 n. 13. While the court finds no patent ambiguity in subsection 8.1.1 of the contract, the court declines at this time to decide whether or not various contract terms are ambiguous and whether plaintiff or defendant ultimately should prevail as to their differing interpretations in this case. Moreover, in the instant case, the court finds that summary judgment is inappropriate because plaintiff seeks to employ evidence of trade meaning or custom, which is a factual issue.
The court finds that another genuine issue of material fact present in the instant case involves the sufficiency and timely presentation of appropriate notice regarding possible claims plaintiff intended to pursue as a result of problems encountered during performance. Defendant maintains that notice was untimely and that the late notice caused prejudice to the defendant. Plaintiff claims that notice was timely and sufficient and argues, therefore, that no prejudice could have been suffered by the government. Whether notice was timely depends in part upon the classification of plaintiffs claim. Different notification requirements control for different types of claims. Whether notice was timely also depends upon whether the government received constructive or actual notice prior to formal written notice. Plaintiff claims that the defendant knew of problems encountered at the site by the plaintiff, before formal written notice was given. Defendant contends it knew nothing of a possible claim until formal written notice was received. See H.H.O. Company v. United States, 12 Cl.Ct. 147 (1987).
The clearly established law on notice requirements provides that “a contractor’s failure to adhere to the notice requirements of contract clauses can result in claims presented pursuant to said clauses being disallowed.” H.H.O. Co., 12 Cl.Ct. at 164 (citing Jo-Bar Mfg. Corp. v. United States, 210 Ct.Cl. 149, 156-57, 535 F.2d 62, 66 (1976); Eggers & Higgins v. United States, 185 Ct.Cl. 765, 785, 403 F.2d 225, 236 (1968); Specialty Assembling & Packing Co. v. United States, 174 Ct.Cl. 153, 179-80, 355 F.2d 554, 570 (1966); see also Mingus Constructors, Inc. v. United States, 10 Cl.Ct. 173, aff'd, 812 F.2d 1387 (Fed.Cir.1987)).
In order to prevail in a case in which notice has not been provided on a timely basis by the contractor, the government has the burden of proving that the untimeliness caused prejudice to its case. H.H.O. Co., 12 Cl.Ct. at 164; Gulf & Western Industries v. United States, 6 Cl.Ct. 742, 755 (1984).
The fact that the contracting officer is “aware of problems or contentions in performance is not the same as providing notice of a monetary claim against the government.” H.H.O. Co., 12 Cl.Ct. at 163 (citing Gulf & Western Industries, 6 Cl.Ct. at 750; Mingus Constructors, Inc., 10 Cl.Ct. 173). Conversely, notice requirements should not be applied too technically, when the government is aware of the problems. H.H.O. Co., 12 Cl.Ct. at 164. Notice requirements, moreover, are “subject to estoppel by an act of waiver depending on the facts of each case.” Roberts v. United States, 174 Ct.Cl. 940, 952-53, 357 F.2d 938, 946-47 (1977); H.H.O. Co. at 164.
The H.H.O. Co. case provides guidance to the case at bar on several relevant issues. In H.H.O. Co., plaintiff made claims under several sections of a contract: the “Changes,” “Differing Site Conditions,” “Suspension of Work,” and “Damages for Delay” clauses, each of which had separate notice requirements. The court found that the plaintiff had not filed written equitable adjustment claims until after the time required by the various contract clauses had passed. The plaintiff in the case presented excerpts from daily diaries, letters and other materials, together with affidavits from *304plaintiff’s business manager, to show that the defendant had received actual or constructive notice of the events and argued that such notice should be considered sufficient to meet the notice requirements of the various contract clauses, without prejudicing the defendant. H.H.O. Co., 12 Cl.Ct. at 163. In H.H.O. Co., defendant argued that because the claims were not timely presented and caused prejudice to the government, they should be dismissed, id., and that dismissal or summary judgment should be granted to the defendant. The H.H.O. Co. court evaluated the law and the facts and held that the plaintiff had submitted materials that raised questions as to whether the contracting officer was aware of the operating facts of each of the involved claims and whether his actions should be deemed a waiver of the notice requirements of the various contract clauses. The court, therefore, decided that dismissal or summary judgment was inappropriate in the case. Id. at 164.
In the case at bar, defendant’s motion for summary judgment must fail for several reasons. In the first place, there is even confusion about the classification of plaintiff’s claim, which' the court cannot resolve without the introduction of additional facts. At this time, there also remain factual disagreements as to whether written notice of the claim was timely or untimely, although once plaintiff’s claim is classified, it may be easier to resolve the timeliness question. If it is determined that formal notice was untimely, other contested notice issues will require factual resolution, such as whether defendant had actual or constructive notice and whether defendant waived notice requirements by any of its actions. Moreover, further, factual uncertainty remains regarding whether the government was prejudiced by plaintiff’s actions, and if so, in what manner. Thus, there is genuine disagreement as to the effect of contract provisions, as to notice of problems encountered and as to which party had the responsibility to give notice and/or take actions to cure or mitigate potential damages.
Summary judgment in the instant matter could be denied based on the existence of one of the above genuine issues of material fact. The absence of consensus on all the factual issues discussed above, bolsters this court’s conclusion that summary judgment is inappropriate in this case. For all of the reasons discussed above, defendant’s motion for summary judgment is, hereby, denied.
IT IS SO ORDERED.
. This case was transferred to Judge Horn after the retirement of another Judge.
. While the nonmoving party must rely on evi-dentiary material other than the pleadings themselves, the standard does not require that evidence conform to trial admissibility standards. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
. The court also declines to take a position on the classification of plaintiffs claim at this stage of the proceedings, prior to the introduction of additional facts.
. It is important to remember that the parties agreed to delete the clause; the remaining question involves the effect of the deletion.
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07-23-2022
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Appeal from a judgment of the Supreme Court (Feldstein, J.), entered December 5, 2011 in Franklin County, which partially granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in two misbehavior reports with smuggling and two counts of possessing unauthorized medication. A tier III disciplinary hearing was thereafter conducted on the charges contained in both reports. The hearing was held in petitioner’s absence due to his refusal to comply with restraint procedures for exiting his cell. At the conclusion of the hearing, the Hearing Officer found petitioner guilty of all charges and the determination was affirmed on administrative appeal with a modified penalty. Petitioner subsequently commenced this CPLR article 78 proceeding claiming, among other things, that the determination should be annulled because he was not provided with a copy of the written disposition. Noting that petitioner had been provided with a copy of the disposition during the course of the proceeding, Supreme Court partially granted the petition to the extent of directing respondent to process any further administrative appeal. Petitioner appeals.
Petitioner contends that the disciplinary determination should be annulled given the Hearing Officer’s failure to comply with the regulatory requirement that he be provided with a copy of the written disposition within 24 hours of the hearing (see 7 NYCRR 254.7 [a] [5]). We disagree. The deficiency was cured by *1019petitioner’s receipt of a copy of the written disposition during the pendency of the proceeding and he has not demonstrated that he was prejudiced. Notably, subsequent to Supreme Court’s decision, petitioner availed himself of a further administrative appeal, which was denied. Therefore, under the particular circumstances presented here, we do not find that expungement was required (see Matter of Vargas v Coughlin, 168 AD2d 917 [1990]).
Peters, P.J., Rose, Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs. [Prior Case History: 2011 NY Slip Op 33485(U).]
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Yesawich, Jr., J.
Appeal from a judgment of the Supreme Court (Leary, J.), entered April 8, 1987 in Washington County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
*841Petitioner, currently confined to the Washington Correctional Facility, contends that his conviction for various crimes was illegal on double jeopardy grounds. Prior to the instant proceeding, petitioner, by petition dated March 3, 1987, sought a writ claiming that his conviction for first and second degree robbery, second degree possession of stolen property and fourth degree possession of a weapon was obtained in violation of the constitutional prohibition against double jeopardy. This petition was denied for the reason that petitioner failed to set forth whether he had appealed his conviction and also because petitioner had the postconviction remedy of a CPL article 440 proceeding available to him. Thereafter, petitioner, reiterating his double jeopardy claim, initiated the instant proceeding for habeas corpus relief. Since this petition contained nothing new other than a recitation of the chronology of the appellate history of his conviction, which indicated that an appeal was still pending before the Court of Appeals, Supreme Court refused to issue the writ, prompting petitioner to appeal. We affirm.
As petitioner raised no issues in his later application which were not advanced and disposed of in his earlier petition, the application was properly dismissed (CPLR 7003 [b]; see, People ex rel. Madden v Mayone, 50 AD2d 1010). Furthermore, there being no reason of practicality or necessity forwarded by petitioner to justify a review of his judgment of conviction by habeas corpus while his appeal from that judgment is pending, granting the writ would have been inappropriate (see, People ex rel. Barnes v Smith, 70 AD2d 764, Iv denied 48 NY2d 602). Moreover, the substantive reason underlying denial of the earlier petition, the availability of other postconviction remedies, provides an additional basis for denying the instant petition. The fact that petitioner could have, if he has not already done so, put forward his double jeopardy argument on appeal and may do so yet by way of a CPL article 440 proceeding renders habeas corpus relief inappropriate (see, People ex rel. Green v La Vallee, 57 AD2d 675, Iv denied 42 NY2d 805).
Judgment affirmed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Yesawich, Jr., JJ., concur.
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Yesawich, Jr., J.
Appeal from an order of the Family Court of Clinton County (Feinberg, J.), entered September 8, 1986, *842which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 5, to adjudicate respondent as the father of a child born to Brenda UU.
Petitioner commenced this proceeding on behalf of a mother, who along with her child, is receiving public assistance. According to the mother, she had sexual relations with only two men during the period when the child was conceived. Blood tests established that one of the men was not the father; respondent is the other. Based upon the mother’s testimony, including her representation that she may not have always used contraceptive devices and that respondent never did, a human leucocyte antigen (HLA) blood tissue test of respondent that indicated a 95.8% relative chance of paternity, and respondent’s testimony that he had sexual intercourse with the mother in the probable period of conception, Family Court found respondent to be the father and ordered him to pay support. Respondent appeals; we affirm.
Respondent asserts that his paternity was not proven by clear and convincing evidence, citing inconsistencies in the evidence and the mother’s prior statements which impugn the mother’s veracity. Credibility issues are best resolved by Family Court, which received the testimony first hand (Matter of Margaret D. v Richard E., 102 AD2d 939, 940). Furthermore, to the extent that inconsistency does exist, it does not undermine the mother’s testimony, especially in light of the convincing evidence of respondent’s paternity; thus, there is no basis for disturbing Family Court’s assessment of the evidence (see, Matter of Commissioner of Saratoga County Dept, of Social Servs. v David Z., 133 AD2d 882).
Respondent also assigns error to Family Court’s refusal to admit into evidence notes allegedly taken by petitioner’s attorney during a conversation had with the mother while pursuing a previous paternity suit against the other possible father. The notes purportedly contained an admission by the mother that she last had intercourse with respondent on August 19, 1978. Family Court suppressed the evidence relying upon, inter alia, the attorney-client privilege and lack of foundation. It is unnecessary to address those evidentiary issues for the evidence so lacks probative value that its suppression, even if inappropriate, cannot be considered reversible error. August 19, 1978 was within the probable period of conception. The only value the statement had was to impeach the mother, which, as already noted, is not enough to confute the clear and convincing evidence of respondent’s paternity.
*843Order affirmed, without costs. Kane, J. P., Casey, Yesawich, Jr., and Levine, JJ., concur.
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Levine, J.
Appeals (1) from an order of the Supreme Court (Fromer, J.), entered October 1, 1986 in Albany County, upon a verdict rendered in favor of plaintiff against defendant Bloomfield Building Wreckers, Inc., (2) from the judgment entered thereon, and (3) from an order of said court, entered June 30, 1987 in Albany County, which denied the motion of defendant Bloomfield Building Wreckers, Inc., to set aside the verdict.
In 1980, defendant F. J. Zeronda, Inc. (hereinafter Zeronda), a general contractor, hired defendant Bloomfield Building Wreckers, Inc. (hereinafter Bloomfield) to demolish and re*845move a building adjacent to one owned by plaintiff in preparation for a State-owned parking lot Zeronda was to construct at the site. While the building was being demolished, plaintiff complained that the work was causing severe vibrations to its building. After Bloomfield had completed its part of the project, Zeronda constructed the parking lot by installing a gravel bed and two drainage catch basins and then paving the area.
Thereafter, plaintiff commenced this negligence action against defendants alleging that the heavy machinery used for demolition had damaged its building, particularly the common party wall, and that, in addition, the parking lot’s drainage system was inadequate. According to plaintiff, both of these factors caused water to collect in its basement following any heavy rainfall. Zeronda cross-claimed against Bloomfield for indemnification and contribution. In its reply, Bloomfield set forth a general denial of liability to Zeronda and, in a loosely pleaded and conclusory manner, may have asserted what it now contends was a cross claim against Zeronda.
At trial, plaintiff sought to prove, inter alia, that the parking lot’s gravel bed had created a "bathtub effect” which caused the building’s water problem. There was no evidence, however, to prove that the water that collected in the gravel actually seeped into plaintiff’s basement. At the conclusion of plaintiff’s case, both defendants moved for dismissal of the claims based on plaintiff’s failure to establish a prima facie case. Supreme Court granted Zeronda’s motion but denied Bloomfield’s. The trial proceeded against Bloomfield, resulting in a verdict awarding plaintiff $25,000. This appeal by Bloomfield ensued.
Bloomfield’s main contention on appeal is that Supreme Court erred in granting Zeronda’s motion to dismiss plaintiff’s claim at the close of plaintiff’s evidence because it thereby denied Bloomfield the opportunity to establish Zeronda’s liability to it for contribution and/or indemnification. Initially, we note that the record supports Supreme Court’s determination that plaintiff failed to adduce evidence that Zeronda’s alleged negligent construction of the lot was the proximate cause of the water seepage problem. Hence, we perceive no error in the granting of Zeronda’s motion to dismiss plaintiff’s claim against it pursuant to CPLR 4401.
Although Bloomfield contends that a cross claim was pending against Zeronda at the time of the dismissal, we need not decide whether Bloomfield’s reply was sufficient to state a cross claim for contribution and/or indemnification in order to resolve the issues raised in this appeal. Assuming that a cross *846claim was interposed by Bloomfield, its present objections pertaining to this claim were not preserved for our review because Bloomfield failed to raise them before Supreme Court. Specifically, at the time the court was considering Zeronda’s motion to dismiss, Bloomfield never argued that Zeronda should remain in the action by virtue of its cross claim. Moreover, Bloomfield never requested that the jury be charged on its cross claim and failed to interpose an objection based on the omission of such instructions. Hence, it appears that Bloomfield completely failed to pursue at trial the cause of action which underlies its present claim of error. Alternatively, if no cross claim was interposed, it is even clearer that Bloomfield’s contention is without merit. Without a cross claim, Bloomfield has no grounds to object to Zeronda’s dismissal from the action, as plaintiffs claim was the only cause of action pending against that party, and plaintiff had failed to establish a prima facie case.
Nor does the record demonstrate that dismissal of the complaint as to Zeronda prejudiced Bloomfield in defending itself against plaintiffs claim. As one aspect of Bloomfield’s defense, Bloomfield was entitled to prove that Zeronda was fully or partially at fault for the damage to plaintiffs building. Although Bloomfield contends that Supreme Court prevented it from establishing Zeronda’s fault, this contention is without merit. Bloomfield was permitted to introduce evidence that Zeronda had negligently created a "bathtub effect” which caused plaintiffs water problem. In our view, Bloomfield was given a full opportunity to establish that Zeronda was at fault for plaintiffs damages.
Bloomfield also contends that plaintiffs failure to call Harold Hahn, a State inspector supervising the project, entitled it to a "missing witness” charge which Supreme Court refused to give to the jury. In support of this contention, Bloomfield relies on the testimony of Wendell and Mary Williams, plaintiffs sole shareholders, that they were acquainted with Hahn by virtue of their common interest in raising sheep. This testimony, however, demonstrated only that the Williamses knew who Hahn was. There was no evidence indicative of friendship or loyalty between these individuals; hence, in our view, this evidence was insufficient to sustain Bloomfield’s threshold burden of showing that Hahn was under plaintiffs control such that he could be expected to testify in favor of plaintiff (see, People v Gonzalez, 68 NY2d 424, 427; see also, Cornell Pharmacy v Guzzo, 135 AD2d 1000). Supreme Court properly concluded that Hahn was not under plaintiffs con*847trol and was equally available to Bloomfield (see, Houlihan Parnes Realtors v Gazivoda, 106 AD2d 550).
Finally, we are unpersuaded that reversible error resulted from the response given by Bloomfield’s expert witness, when asked who was paying his fee, that he was to be paid by an insurance company. Where, as here, other evidence clearly establishes a defendant’s fault, an isolated reference to insurance coverage will not require a mistrial (see, Richardson, Evidence § 169, at 69-70 [Prince 10th ed, 1972-1985 Supp]; see also, Rush v Sears, Roebuck & Co., 92 AD2d 1072). Hence, Supreme Court did not err in denying Bloomfield’s motion for a mistrial.
Orders and judgment affirmed, with one bill of costs. Kane, J. P., Casey, Yesawich, Jr., and Levine, JJ., concur.
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Casey, J.
Appeal from an order of the Family Court of Montgomery County (Aison, J.), entered January 12, 1987, which, in proceedings pursuant to Family Court Act article 4, inter alia, denied respondent’s application for modification of support payments.
Respondent commenced a proceeding to modify an order fixing his child support obligation for his daughter. When the matter was adjourned, he unilaterally ceased making the weekly payments fixed by the prior order and thereafter petitioner instituted a violation proceeding. In both proceedings, respondent contends that he was relieved of the obligation to support his daughter by her emancipation following her 18th birthday. Respondent bases his claim of emancipation upon his daughter’s election to pursue full-time employment after several semesters of college. Respondent also claims that emancipation occurred pursuant to the terms of a stipulation which was incorporated into the parties’ divorce decree. The stipulation contained a provision governing certain bank accounts established for the parties’ children pursuant to the Uniform Gift to Minors Act (EPTL 7-4.1 et seq.), which provided that any withdrawal from the account prior to the beneficiary’s 21st birthday would be considered an emancipating event to the extent that respondent’s support obligation would be reduced by the amount withdrawn, unless the withdrawn funds were used for certain specified purposes including education expenses.
Following a joint hearing on respondent’s modification petition and petitioner’s violation petition, at which only the *848parties testified, the Hearing Examiner concluded that the parties’ daughter was emancipated as of September 1985 and found that respondent had failed to make required support payments during the period from September 1984 to September 1985. Family Court rejected respondent’s objections to the Hearing Examiner’s report and this appeal ensued.
Respondent’s main argument on appeal is that Family Court erred in its assessment of which party had the burden of proof at the hearing. On the issue of the daughter’s emancipation due to her pursuit of full-time employment instead of college, respondent, as the party asserting emancipation, bore the burden of proof (see, Gittleman v Gittleman, 81 AD2d 632, 633). Instead of calling his daughter as a witness, respondent chose to rely upon his own testimony and the bill of particulars provided by petitioner. Respondent conceded that he was unsure of the date that his daughter withdrew from college to become employed full time, and the bill of particulars is also unclear. Petitioner, however, testified that her daughter decided to pursue full-time employment instead of college in September 1985. We, therefore, see no basis for disturbing the fact finder’s decision to accept September 1985 as the date of emancipation.
On the issue of emancipation under the terms of the stipulation, respondent contends that once he introduced proof of withdrawals from the bank account established for his daughter, the burden shifted to petitioner to go forward with proof that the withdrawn funds were used for one of the specified purposes. It is conceded that the parties’ daughter withdrew $2,800 from the account. Respondent testified that he discussed the account with his daughter and told her to use it to pay educational expenses, including a car for commuting to college. Petitioner testified that her daughter used the funds withdrawn from the account to pay for educational expenses only. Respondent argues that petitioner was required to call the daughter to testify as to how the withdrawn funds were spent, but since petitioner testified without objection that they were spent for educational purposes, we conclude that there was ample proof in the record from which the fact finder could conclude that the withdrawals did not trigger the emancipation provision of the stipulation.
The remaining arguments raised by respondent are without merit and, therefore, Family Court’s order should be affirmed.
Order affirmed, with costs. Kane, J. P., Casey, Yesawich, Jr., and Levine, JJ., concur.
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01-13-2022
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Mahoney, P. J.
Appeal from a judgment of the Supreme Court (McDermott, J.), entered July 9, 1987 in Albany County, which granted petitioners’ application, in a proceeding pursuant to CPLR article 78, to, inter alia, declare that ECL 23-2703 preempts zoning ordinances of respondent Town of New Scotland and authorizes petitioners to operate their mine pursuant to their State permit.
Respondent Town of New Scotland in Albany County enacted a zoning ordinance in 1981 which authorized mining of fill, gravel and loam as a special use only in "residential forestry” zoning districts. In May 1984, the town amended the ordinance to additionally allow mining as a special use in "low density residential” and "industrial” districts. In October 1984, petitioner William M. Larned and Sons, Inc., acquired land in an industrial district and began to apply for the permits necessary to conduct a mining operation on the land. Petitioner Voorheesville Sand and Stone Company, Inc., applied to respondent Planning Board of the Town of New Scotland for a special use permit to mine Larned’s land. In March 1985, petitioners obtained a mining permit from the Department of Environmental Conservation (EnCon). On May 27, 1986, a public hearing on petitioners’ application for a special use permit commenced. The hearing was adjourned indefinitely, and before it was completed, the Town Board, on September 3, 1986, repealed the 1984 zoning ordinance amendment which had allowed mining as a special use in low density residential and industrial zones. On December 9, 1986, the Planning Board denied petitioners’ application for a special use permit on the ground that mining was no longer an authorized special use in an industrial district.
Petitioners commenced this hybrid CPLR article 78 proceeding/declaratory judgment action seeking, inter alia, a declaration that, because it holds a mining permit issued by EnCon, the town could not use its zoning ordinance to prohibit it from conducting a mining operation or, in the alternative, that the Planning Board be required to issue a special use permit. Certain individuals were allowed to intervene as respondents. Supreme Court granted petitioners’ application, holding that the mining permit issued by EnCon preempted the town’s zoning ordinance. This appeal by respondents and intervenors ensued.
*850ECL 23-2703 (2) states: "For the purposes stated herein, this title shall supersede all other state and local laws relating to the extractive mining industry; provided, however, that nothing in this title shall be construed to prevent any local government from enacting local zoning ordinances or other local laws which impose stricter mined land reclamation standards or requirements than those found herein.”
The Court of Appeals has recently held that this language does not prohibit local authorities from enacting zoning ordinances which forbid mining as a use in a particular zone (Matter of Frew Run Gravel Prods, v Town of Carroll, 71 NY2d 126, affg 125 AD2d 928). Thus, it is clear that the judgment appealed from must be reversed, and respondents are entitled to partial summary judgment in the form of a declaration that the provisions of the State statute did not prohibit the town from amending its zoning ordinance to disallow mining as a special use in an industrial district. Since petitioners raise a number of other challenges to the amendment of the zoning ordinance and the denial of petitioners’ application for a special use permit, the matter must be remitted to Supreme Court for resolution of such issues.
Judgment reversed, on the law, without costs, it is declared that the provisions of the Mined Land Reclamation Law (ECL art 23, tit 27) do not preempt provisions of the zoning ordinance of respondent Town of New Scotland which prohibit mining as a permitted or special use in an industrial district, and matter remitted to the Supreme Court for further proceedings not inconsistent with this court’s decision. Mahoney, P. J., Weiss, Levine and Harvey, JJ., concur.
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https://www.courtlistener.com/api/rest/v3/opinions/6129224/
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— Order affirmed on opinion of
Barrett, J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6714093/
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Petition by defendant for discretionary review pursuant to G.S. 7A-31 denied 5 February 1998.
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01-03-2023
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07-20-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901911/
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Appeal from a judgment of the Supreme Court (Gilpatric, J.), entered November 9, 2011 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Central Office Review Committee denying petitioner’s grievance.
While incarcerated at Great Meadow Correctional Facility in Washington County, petitioner was denied a package containing flavored cigars that was delivered to the package room. As a result, he filed a grievance claiming that the denial violated Department of Corrections and Community Supervision Directive No. 4911. Following an investigation, the Inmate Grievance Resolution Committee issued a split recommendation with the inmate representatives in favor of granting the grievance and the staff representatives opposed. The Superintendent of the facility ultimately denied the grievance. Petitioner appealed and the Central Office Review Committee (hereinafter CORC) upheld the denial. Petitioner then commenced this CPLR article 78 proceeding challenging CORC’s determination. Following joinder of issue, Supreme Court dismissed the petition, resulting in this appeal.
This Court has recognized that “correction officials are to be accorded wide latitude in taking measures to ensure the safety and security of correctional facilities, which extends to determining the property permitted in such facilities” (Matter of Abreu v Fischer, 97 AD3d 877, 878-879 [2012], appeal dismissed 19 NY3d 1096 [2012]; see Matter of Frejomil v Fischer, 59 AD3d 790, 791 [2009]). Decisions in this regard, however, must be *1020rationally based in order to be entitled to deference (see Matter of Eastwood v Fischer, 80 AD3d 1122, 1122 [2011]; Matter of Frejomil v Fischer, 68 AD3d 1371, 1372-1373 [2009]). Directive No. 4911, which governs property that may be received by inmates through correctional facility package rooms, specifically provides in Attachment D that inmates may receive cigars up to a maximum of 50 per month (see Dept of Corr & Community Supervision Directive No. 4911 [V] [Attachment D] [C] [d]). CORC denied petitioner’s grievance on the basis of this directive, as well as the fact that it had denied similar grievances in the past. Significantly, however, the directive does not contain a prohibition for cigars that are flavored. Moreover, in denying petitioner’s grievance, CORC did not articulate a safety or security justification for drawing this distinction, and we decline to perceive one. Accordingly, we must conclude under the circumstances presented that the denial of petitioner’s grievance was arbitrary and capricious and without a rational basis (see Matter of Eastwood v Fischer, 80 AD3d at 1123; Matter of Frejomil v Fischer, 68 AD3d at 1373; compare Matter of Davis v Fischer, 76 AD3d 1152 [2010]; Matter of Binkley v New York State Dept. of Correctional Servs., 64 AD3d 1063, 1064 [2009], lv denied 13 NY3d 886 [2009]).
Mercure, J.P., Lahtinen, Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is reversed, on the law, without costs, petition granted, determination annulled and matter remitted to respondent for further proceedings not inconsistent with this Court’s decision.
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Kane, J. P.
Appeal from an order of the Supreme Court (Prior, Jr., J.), entered June 10, 1987 in *854Albany County, which granted plaintiffs’ motion for summary judgment.
The instant dispute involves the lease of a parking lot located in the Town of Colonie, Albany County. The lease in question was executed on October 28, 1960 with Gertrude J. Carlson named as the lessor and Albany Public Market, Inc., named as the lessee. The lease granted to Albany Public and its assignees, inter alia, an option to renew as well as an option to purchase the parking lot for the sum of $125,000. The lease required that the option to purchase be exercised during the 12 months immediately preceding the expiration of the lease or during the last 12 months of any renewal period.
Subsequent to the execution of the lease, it was assigned several times, with the final assignment to plaintiffs in this action occurring in September 1983. Carlson (hereinafter decedent) had meanwhile died in 1973 and defendants in this action are her successors in interest.
The provision of the lease in dispute involves the original length of the lease term and states that it was: "for a term of twenty-five (25) years, commencing on the 1st day of January, 1961, and ending at midnight of the 31st day of December, 1986”.
However, if the 25-year term is measured from January 1, 1961, the lease actually concluded on December 31, 1985 and not on December 31, 1986. When plaintiffs sought to exercise the purchase option, they relied on the December 31, 1986 date. Defendants’ attorney rejected the exercise of the option claiming that it was untimely insofar as it occurred after the lease had terminated. Plaintiffs then commenced the instant suit seeking the conveyance of the parking lot to them for $125,000. After defendants answered, plaintiffs moved for summary judgment. Supreme Court granted the motion and defendants have appealed.
It is conceded that, at law, if a notice exercising an option is not given within the time specified in the lease, it is deemed ineffective (J. N. A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392, 396). Defendants claim that because the notice of intent to exercise the purchase option in this case came after the 25-year term (i.e., after Dec. 31, 1985), plaintiffs are precluded from exercising it. However, even if defendants’ claim was legally correct, that would not end the matter. A tenant is still entitled to equitable relief from forfeiture if the delay was not due to bad faith but rather occurred due to an honest mistake, excusable default or even where it was due to *855the tenant’s own inadvertence. To recover, the tenant must also have made substantial improvements on the premises and have a valuable interest in the leasehold. Finally, the landlord must have suffered no prejudice due to the delay (see, Fifty States Mgt. Corp. v Pioneer Auto Parks, 46 NY2d 573; J. N. A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392, supra; Godnig v Belmont Realty Co., 124 AD2d 701).
In the instant case, we agree with Supreme Court’s conclusion that plaintiffs satisfied the above requirements. Initially, contrary to defendants’ contention, the above rules apply with equal force to a purchase option as well as to an option to renew (see, United Skates v Kaplan, 96 AD2d 232, appeal dismissed 63 NY2d 944). Next, plaintiffs expended $205,166 for rehabilitation of the parking lot. They also purchased an entire shopping center next to the parking lot which is the only parking area servicing the shopping center. Thus, plaintiffs have sufficiently shown that they would suffer a substantial forfeiture if the terms of the lease were strictly enforced.
Plaintiffs have also shown that the exercise of the option was not done in bad faith (see, Sy Jack Realty Co. v Pergament Syosset Corp., 27 NY2d 449), and that they did not intentionally delay in exercising the option for the purpose of obtaining more favorable market conditions (see, J. N. A. Realty Corp. v Cross Bay Chelsea, supra, at 400). The delay was occasioned by their good-faith reliance on the date stated in the lease: December 31, 1986. Indeed, at an examination before trial, defendant Harry W. Carlson, executor of decedent’s estate, admitted that he also thought the lease expired on December 31, 1986 and that it was not until his attorney pointed it out to him that he realized the 25-year period ended on December 31, 1985. We concur in Supreme Court’s conclusion that the lease was ambiguous concerning the termination date and that the late notice was due to that ambiguity (see, Bank of N. Y. v Ulster Hgts. Props., 114 AD2d 431, 433-434).
Furthermore, we find nothing in defendants’ allegations which in any way indicate that they were prejudiced by plaintiffs’ reliance on the December 31, 1986 date (see, United Skates v Kaplan, 96 AD2d 232, supra). It was incumbent upon defendants to come forward with proof in evidentiary form to defeat plaintiffs’ motion and this they failed to do (see, Godnig v Belmont Realty Co., 124 AD2d 701, supra; Niagara Frontier Servs. v Thress, 109 AD2d 1089). Accordingly, Supreme Court properly granted plaintiffs’ motion for summary judgment.
We have examined defendants’ remaining contentions and find them to be without merit.
*856Order affirmed, without costs. Kane, J. P., Casey, Yesawich, Jr., and Harvey, JJ., concur.
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01-13-2022
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[Cite as State ex rel. Meilstrup v. Indus. Comm., 2017-Ohio-811.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. David G. Meilstrup, :
Relator, :
v. : No. 16AP-250
Industrial Commission of Ohio : (REGULAR CALENDAR)
and Intigral, Inc.,
:
Respondents.
:
D E C I S I O N
Rendered on March 7, 2017
On brief: Nager, Romaine & Schneiberg Co. L.P.A.,
Jerald A. Schneiberg, Jennifer L. Lawther, and Corey J.
Kuzma, for relator.
On brief: Michael DeWine, Attorney General, and
Andrew J. Alatis, for respondent Industrial Commission of
Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator David G. Meilstrup initiated this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order denying his request for a total loss of use award for his
left upper extremity and order the commission to find that he is entitled to that award.
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53
and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
No. 16AP-250 2
appended decision, including findings of fact and conclusions of law, recommending this
court deny Meilstrup's requested writ of mandamus.
{¶ 3} Meilstrup has filed objections to the magistrate's decision. Meilstrup's first
objection asserts the magistrate applied the wrong standard in determining that the
commission did not abuse its discretion in denying his application for a total loss of use
award for his left upper extremity. In his second objection, Meilstrup contends the
magistrate erroneously stated that he did not challenge the commission's reliance on the
June 27, 2012 report of John G. Nemunaitis, M.D. Generally, Meilstrup challenges the
magistrate's recommendation that this court deny his requested writ of mandamus.
Meilstrup's objections lack merit.
{¶ 4} Because Meilstrup has filed objections, we must independently review the
record and the magistrate's decision to ascertain whether "the magistrate has properly
determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d). In
order for this court to issue a writ of mandamus as a remedy from a determination of the
commission, the relator must show a clear legal right to the relief sought and that the
commission has a clear legal duty to provide such relief. State ex rel. Pressley v. Indus.
Comm., 11 Ohio St. 2d 141 (1967). A clear legal right to a writ of mandamus exists where
the relator shows that the commission abused its discretion by entering an order which is
not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm., 26
Ohio St. 3d 76 (1986). However, where the record contains some evidence to support the
commission's findings, there has been no abuse of discretion and mandamus is not
appropriate. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St. 3d 56 (1987).
{¶ 5} Here, the magistrate determined that because there is some evidence in the
record to support the commission's denial of Meilstrup's application for a total loss of use
award, he is not entitled to mandamus relief. The magistrate found that the November 9,
2012 report of Elizabeth Mease, M.D., constitutes some evidence supporting the
commission's denial. Additionally, the magistrate found that, even if Dr. Mease's report is
not considered, Dr. Nemunaitis' report independently constitutes some evidence
supporting the commission's denial. Meilstrup challenges these findings. According to
Meilstrup, Dr. Mease's report is not some evidence to support the commission's denial
because it does not address his "remaining practical functionality specific to his left upper
No. 16AP-250 3
extremity." (Nov. 3, 2016 Objs. to Mag. Decision at 5.) Meilstrup argues that
Dr. Nemunaitis' report, like Dr. Mease's report, is not some evidence to support the
commission's denial of his application because that report does not sufficiently address
his inability to use his left upper extremity.
{¶ 6} We agree with the magistrate's finding that Dr. Mease's report constitutes
some evidence. R.C. 4123.57(B) authorizes compensation to a claimant for the total loss
of a body part, such as the total loss of an arm. To qualify for compensation under R.C.
4123.57(B), the "claimant must demonstrate with medical evidence a total loss of use of
the body part at issue for all practical purposes." State ex rel. Varney v. Indus. Comm.,
143 Ohio St. 3d 181, 2014-Ohio-5510, ¶ 16, citing State ex rel. Alcoa Bldg. Prods. v. Indus.
Comm., 102 Ohio St. 3d 341, 2004-Ohio-3166. However, a claimant may qualify for a total
loss of use award under R.C. 4123.57(B) even if the body part retains some residual
function. Id., citing Alcoa.
{¶ 7} As the magistrate detailed, the physical findings of Dr. Mease indicate that
Meilstrup's left upper extremity retains use beyond residual function. Dr. Mease's report
indicates that Meilstrup had full range of motion of his left shoulder and nearly full range
of motion of his left elbow, with some loss of both flexion and extension in his left wrist.
In response to an inquiry as to whether Meilstrup's left upper extremity had lost practical
functionality, Dr. Mease answered in the negative and specifically opined that Meilstrup
had only mild loss of use of his left upper extremity. Although Dr. Mease did not
expressly state that Meilstrup had not lost the use of his left upper extremity "for all
practical purposes," her report provides evidentiary support for the commission's finding
that Meilstrup is not entitled to a total loss of use award for his left upper extremity. See,
e.g., State ex rel. Holderman v. Indus. Comm., 10th Dist. No. 12AP-32, 2012-Ohio-6022
(medical report relied on by the commission in denying loss of use award evidenced
compliance with the applicable standard even though the report did not use the phrase
"for all practical purposes" in concluding that the injured worker had not sustained a total
loss of use). Because Dr. Mease's report constitutes some evidence in support of the
commission's decision, we find it unnecessary to address the issue of whether
Dr. Nemunaitis' report also constitutes some evidence. Therefore, we do not adopt the
magistrate's analysis regarding Dr. Nemunaitis' report.
No. 16AP-250 4
{¶ 8} For these reasons, we overrule Meilstrup's first and second objections
insofar as he challenges the magistrate's determination that this court should deny his
requested writ of mandamus. To the extent Meilstrup's second objection challenges the
magistrate's findings concerning Dr. Nemunaitis' report, that objection is rendered moot.
{¶ 9} Following our independent review of the record pursuant to Civ.R. 53, we
find the magistrate correctly determined that Meilstrup is not entitled to the requested
writ of mandamus. The magistrate properly applied the pertinent law to the salient facts.
Accordingly, we adopt the magistrate's decision as our own, including the findings of fact
and conclusions of law contained therein, except we do not adopt the magistrate's
decision to the extent it analyzes Dr. Nemunaitis' report. We therefore overrule
Meilstrup's objections to the magistrate's decision and deny his request for a writ of
mandamus.
Objections overruled;
writ of mandamus denied.
SADLER and DORRIAN, JJ., concur.
No. 16AP-250 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. David G. Meilstrup, :
Relator, :
v. : No. 16AP-250
Industrial Commission of Ohio : (REGULAR CALENDAR)
and
Intigral, Inc., :
Respondents. :
MAGISTRATE'S DECISION
Rendered on October 20, 2016
Nager, Romaine & Schneiberg Co. L.P.A., Jerald A.
Schneiberg, and Corey J. Kuzma, for relator.
Michael DeWine, Attorney General, and Andrew J. Alatis,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 10} Relator, David G. Meilstrup, has filed this original action requesting that
this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied his request for a loss of use award for
his left upper extremity, and ordering the commission to find that he is entitled to that
award.
No. 16AP-250 6
Findings of Fact:
{¶ 11} 1. Relator sustained a work-related injury on June 7, 2005 and his
workers' compensation claim has been allowed for the following conditions:
Medial epicondylitis, left; lateral epicondylitis, left;
neuropathy left ulnar nerve; reflex sympathetic dystrophy
left upper limb; psychogenic pain; major depressive
disorder, single episode; reflex sympathetic dystrophy right
upper limb; food/vomit pneumonitis; acute deep venous
thrombosis embolism distal lower extremity left; pulmonary
embolism/infarction left.
{¶ 12} 2. Relator has undergone several surgical procedures as a result of his
work-related injury.
{¶ 13} 3. Relator also submitted the July 26, 2012 office notes from Dr.
Hochman, wherein Dr. Hochman briefly set out the history of relator's injuries and
made the following brief physical exam findings:
He is alert and oriented. He is in no distress. He has the scar
in the midline cervical region. He has discoloration,
allodynia, and hypersensitivity throughout both upper
extremities. He has the swelling throughout the left lower
extremity.
{¶ 14} Thereafter, Dr. Hochman set out his plan for relator, stating:
We have reviewed the history of injury. The patient has been
diagnosed with the above pathologies. He had the spinal cord
stimulator implanted by Dr. Stanton-Hicks. He completed
post-operative rehabilitation. He saw Dr. Machado. He had
the revision surgery performed on March 14, 2012. At the
time of the surgery, he was intubated. Soon after the surgery,
he developed shortness of breath and pneumonia. He was
seen at Medina General Hospital and diagnosed with
pneumonia. He was transferred to the Cleveland Clinic
where he had a video assisted thoracic surgery. He was
discharged. He developed swelling throughout his left lower
extremity and recurrent shortness of breath. He followed up
at the Cleveland Clinic and was diagnosed with DVT
associated with pulmonary embolism. More likely than not,
the aspiration pneumonia, the DVT, and the pulmonary
embolism are flow through conditions. I will address that.
The patient will continue with the Coumadin. He is now off
the Voltaren. He will continue with the Savella and Lyrica.
No. 16AP-250 7
He will remain under the care of the psychologist and
psychiatrist. He is unable to return to his previous position
of employment. A Medco14 and C84 will be updated. He will
return in six weeks.
{¶ 15} 4. In September 2012, relator filed a C-86 motion requesting an award for
the "loss of use of bilateral upper extremity." In support of his motion, relator included
the September 6, 2012 report of his treating physician Todd S. Hochman, M.D., who
opined that, for all intents and purposes, relator had lost functional use of his upper
extremities, specifically stating:
Despite multiple surgeries, prescription medications,
multiple courses of physical therapy, a spinal cord stimulator
implantation, and a revision spinal cord stimulator
implantation, Mr. Meilstrup continues with significant
bilateral upper extremity symptomatology. Mr. Meilstrup's
complaints continue to be associated with objective findings
on physical examination, consistent with the pathologies
recognized in Claim No. 05353480. For a summary of all
physical examination findings, please refer to the office
notes. At this time, Mr. Meilstrup has substantial upper
extremity disability. Mr. Meilstrup has difficulty performing
routine daily activities, including personal hygiene. It is my
medical opinion that, for all intents and purposes, Mr. David
Meilstrup has lost functional use of his upper extremities as
a result of the June 7, 2005, work injury, and the pathologies
recognized within Claim No. 05-353480.
{¶ 16} 5. An independent medical examination was conducted by Elizabeth
Mease, M.D. In her November 9, 2012 report, Dr. Mease set forth the allowed
conditions in relator's claim, identified the medical records which she reviewed, and set
forth the following relevant findings upon physical examination:
Right arm: allodynia, full range of motion of shoulder, elbow,
wrist.
Left arm: surgical scars to left elbow, full range of motion of
left shoulder, left elbow flexion to 130 degrees, full extension
left elbow, normal supination/pronation left elbow,
flexion/extension 50 degrees left wrist, mild limitation in
mild flexion contracture both fingers, with passive range of
motion, there is full extension of the fingers, mild allodynia.
No. 16AP-250 8
Observation: when he was undressing for the examination,
he was noted to unbutton his shirt — his wife completed the
task for him.
***
Current findings reveal * * * allodynia both upper
extremities, discoloration left upper extremity, normal range
of motion of right shoulder/elbow/wrist, normal range of
motion left shoulder, mild limitation left elbow/left wrist, no
atrophy of the upper extremity. He has 1 of the clinical
criteria for RSD right extremity. He has 2 of the clinical
criteria for RSD left upper extremity.
{¶ 17} Thereafter, Dr. Mease was asked whether or not, in her opinion, relator
had sustained a total loss of use. Dr. Mease responded in the negative and explained as
follows:
There is minimal loss of use of the right upper extremity.
There is mild loss of use of the left upper extremity. There is
no atrophy and his range of motion of the joints of both
upper extremities is relatively preserved. He was observed to
be able to un-button his shirt, albeit in a slow fashion.
{¶ 18} 6. The matter was heard before a district hearing officer ("DHO") on
January 16, 2013. At that time, relator's attorney withdrew the request for scheduled
loss of use of relator's right upper extremity. Thereafter, the DHO determined that
relator was entitled to a one-half loss of use of his left arm, stating:
The Injured Worker is awarded a one half loss of use of his
left arm. This is based on the 11/09/2012 report of Dr.
Mease, the 06/27/2012 report of Dr. Nemunaitis, and the
09/06/2012 report of Dr. Hochman.
{¶ 19} 7. The June 27, 2012 report of John G. Nemunaitis, M.D., referenced in
the DHO order, was prepared in response to relator's earlier application for permanent
total disability compensation. At that time, Dr. Nemunaitis made the following findings
on physical examination:
The Injured Worker was alert and oriented. He has normal
body build. Functionally, he was reasonably independent
today. The severity of his RSD symptoms were not at their
No. 16AP-250 9
maximum severity today. He described his pain today as a
Level 5 out of 10.
The Injured Worker was independent in all his ADL
activities today. Although he demonstrated pain with
dressing activities, especially on the left. He appeared to have
minimal antalgia on the right. He is right-handed. It should
be noted that the left upper extremity was mildly red. There
was no described bluish discoloration. There was no
cyanosis. Skin temperature was mildly cooler on the left as
compared to the right. There was no edema of either upper
extremity. There was no significant skin dryness, however
there was some mild moisture of the left upper extremity.
Skin texture appeared to be normal. There was no soft tissue
atrophy.
There was no evident joint stiffness of the hand, although
there was restricted extension of the left elbow. Nail changes
were not remarkable, nor was the hair growth. There was
minimal allodynia of the left upper extremity.
In the right upper extremity, the examination did not show
any swelling, skin discoloration, temperature changes,
edema, pseudomotor changes, or trophic changes on the
right. There was no restriction of joint mobility.
Examination of both shoulders showed normal shoulder
range of motion. Examination of both wrists and hands,
including all fingers and thumbs bilaterally, showed normal
joint range of motion.
Elbow range of motion on the right was normal, including
flexion, extension, pronation, and supination. Joint range of
motion measures on the left elbow was 0 to 120 degrees
flexion, and on the right it was 0 to 140 degrees. Supination
and pronation on left and right was 80 degrees. There was a
scar of the ulnar nerve and tendon surgery on the left. There
was no scarring on the right. There was no edema. There was
no swelling of either elbow joint. There was no swelling of
the forearm bilaterally. There was no swelling of the hands,
wrists, or finger joints. Skin color was slightly reddish on the
left, with mild mottling. There was no cyanosis. There were
no nail trophic changes bilaterally, no tissue atrophy noted.
There was slight allodynia on the left, none on the right. The
skin temperature was slightly cooler on the left as compared
No. 16AP-250 10
to the right. Hair growth appeared to be normal bilaterally,
as was skin turgor.
The Injured Worker did have a positive Tinel sign over the
left ulnar nerve. There was no significant ulnar nerve motor
atrophy, but there was approximately 10% weakness of the
ulnar muscles on the left. There was no motor weakness on
the right. There was no swelling of the wrist, finger, or hand
on the right, and no trophic changes.
Sensory examination bilaterally again was intact, except for
approximately 10% reduced sensation in a distribution of the
ulnar nerve on the left. There was mild grip strength
reduction on the left, and no specific motor weakness as part
of manual muscle testing bilaterally. Reflexes were normal in
both upper extremities, as well as both lower extremities
There was no swelling of either elbow joint.
The Injured Worker did demonstrate pain with functional
use of the left upper extremity, including mobility of the
shoulder, wrist, and elbow. There was a minimal degree of
pain in the right upper extremity.
There was no localized tenderness over either elbow. There
was no medial epicondylitis tenderness. Range of motion of
the wrists, including wrist stress, was normal. There were no
clinical findings to suggest current epicondylitis.
{¶ 20} Thereafter, Dr. Nemunaitis opined that relator had a 37 percent whole
person impairment as it relates to his reflex sympathetic dystrophy of his left upper
limb, medial and lateral epicondylitis, and neuropathy left ulnar nerve.
{¶ 21} 8. The Ohio Bureau of Workers' Compensation appealed and the matter
was heard before a staff hearing officer ("SHO") on February 25, 2013. After noting that
the request for an award for loss of use of the right upper extremity remained dismissed,
the SHO vacated the prior DHO order which had granted relator a one-half loss of use
award, and found that he had not presented persuasive evidence to support a total loss
of use of his left upper extremity, stating:
Staff Hearing Officer denies the request for the scheduled
loss of use of the left upper extremity finding that the weight
of the evidence does not support the injured worker's
contention that, for all intents and purposes, he has
No. 16AP-250 11
sustained a permanent and total loss of use of his left upper
extremity as a result of the allowed conditions in this claim.
This order is made based on the 11/09/2012 report and
opinions of Dr. Mease and is based on the 06/27/2012 report
and opinions of Dr. Nemunaitis which were found to be more
persuasive with regard to this issue than the opinions
expressed by Dr. Hochman in his report dated 09/06/2012.
{¶ 22} 9. Relator's appeal was refused by order of the commission mailed
March 19, 2013.
{¶ 23} 10. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 24} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
{¶ 25} The Supreme Court of Ohio has set forth three requirements which must
be met in establishing a right to a writ of mandamus: (1) that relator has a clear legal
right to the relief prayed for; (2) that respondent is under a clear legal duty to perform
the act requested; and (3) that relator has no plain and adequate remedy in the ordinary
course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St. 3d 28 (1983).
{¶ 26} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief
sought and that the commission has a clear legal duty to provide such relief. State ex
rel. Pressley v. Indus. Comm., 11 Ohio St. 2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St. 3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse
of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond
Foundry Co., 29 Ohio St. 3d 56 (1987). Furthermore, questions of credibility and the
weight to be given evidence are clearly within the discretion of the commission as fact
finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St. 2d 165 (1981).
{¶ 27} In order to qualify for a loss of use award, relator was required to present
medical evidence demonstrating that, for all intents and purposes, he had lost the use of
No. 16AP-250 12
his left upper extremity. State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 102 Ohio
St.3d 341, 2004-Ohio-3166.
{¶ 28} In Alcoa, at ¶ 10, the court set forth the historical development of
scheduled awards for loss of use under R.C. 4123.57(B) as follows:
Scheduled awards pursuant to R.C. 4123.57(B) compensate
for the "loss" of a body member and were originally confined
to amputations, with the obvious exceptions of hearing and
sight. In the 1970s, two cases—State ex rel. Gassmann v.
Indus. Comm. (1975), 41 Ohio St. 2d 64, 70 O.O.2d 157, 322
N.E.2d 660, and State ex rel. Walker v. Indus. Comm.
(1979), 58 Ohio St. 2d 402, 12 O.O.3d 347, 390 N.E.2d 1190—
construed "loss," as similarly used in R.C. 4123.58, to include
loss of use without severance. Gassmann and Walker both
involved paraplegics. In sustaining each of their scheduled
loss awards, we reasoned that "[f]or all practical purposes,
relator has lost his legs to the same effect and extent as if
they had been amputated or otherwise physically removed."
Gassmann, 41 Ohio St. 2d at 67, 70 O.O.2d 157, 322 N.E.2d
660; Walker, 58 Ohio St. 2d at 403-404, 12 O.O.3d 347, 390
N.E.2d 1190.
{¶ 29} In Alcoa, the claimant, Robert R. Cox, sustained a left arm amputation just
below his elbow. Due to continuing hypersensitivity at the amputation site, Cox was
prevented from ever wearing a prosthesis. Consequently, Cox filed a motion seeking a
scheduled loss of use award for the loss of use of his left arm.
{¶ 30} Through videotape evidence, Alcoa established that Cox could use his
remaining left arm to push open a car door and to tuck paper under his arm. In spite of
this evidence, the commission granted Cox an award for the loss of use of his left arm.
{¶ 31} Alcoa filed a mandamus action which this court denied. Alcoa appealed as
of right to the Supreme Court of Ohio.
{¶ 32} Affirming this court's judgment and upholding the commission's award,
the Supreme Court explained, at ¶ 10-15:
Alcoa urges the most literal interpretation of this rationale
and argues that because claimant's arm possesses some
residual utility, the standard has not been met. The court of
appeals, on the other hand, focused on the opening four
words, "for all practical purposes." Using this interpretation,
the court of appeals found that some evidence supported the
No. 16AP-250 13
commission's award and upheld it. For the reasons to follow,
we affirm that judgment.
Alcoa's interpretation is unworkable because it is impossible
to satisfy. Walker and Gassmann are unequivocal in their
desire to extend scheduled loss benefits beyond amputation,
yet under Alcoa's interpretation, neither of those claimants
would have prevailed. As the court of appeals observed, the
ability to use lifeless legs as a lap upon which to rest a book is
a function unavailable to one who has had both legs
removed, and under an absolute equivalency standard would
preclude an award. And this will always be the case in a
nonseverance situation. If nothing else, the presence of an
otherwise useless limb still acts as a counterweight—and
hence an aid to balance—that an amputee lacks. Alcoa's
interpretation would foreclose benefits to the claimant who
can raise a mangled arm sufficiently to gesture or point. It
would preclude an award to someone with the hand strength
to hold a pack of cards or a can of soda, and it would bar—as
here—scheduled loss compensation to one with a limb
segment of sufficient length to push a car door or tuck a
newspaper. Surely, this could not have been the intent of the
General Assembly in promulgating R.C. 4123.57(B) or of
Gassmann and Walker.
Pennsylvania defines "loss of use" much as the court of
appeals did in the present case, and the observations of its
judiciary assist us here. In that state, a scheduled loss award
requires the claimant to demonstrate either that the specific
bodily member was amputated or that the claimant suffered
the permanent loss of use of the injured bodily member for
all practical intents and purposes. Discussing that standard,
one court has written:
"Generally, the 'all practical intents and purpose' test
requires a more crippling injury than the 'industrial use' test
in order to bring the case under section 306(c), supra.
However, it is not necessary that the injured member of the
claimant be of absolutely no use in order for him to have lost
the use of it for all practical intents and purposes." Curran v.
Walter E. Knipe & Sons, Inc. (1958), 185 Pa.Super. 540, 547,
138 A.2d 251.
This approach is preferable to Alcoa's absolute equivalency
standard. Having so concluded, we further find that some
No. 16AP-250 14
evidence indeed supports the commission's decision. Again,
Dr. Perkins stated:
"It is my belief that given the claimant's residual hyper-
sensitivity, pain, and tenderness about his left distal forearm,
that he is unable to use his left upper limb at all and he
should be awarded for the loss of use of the entire left upper
limb given his symptoms. He has been given in the past loss
of use of the hand, but really he is unable to use a prosthesis
since he has had the amputation, so virtually he is without
the use of his left upper limb * * *."
{¶ 33} Relator challenges the commission's reliance on the report of Dr. Mease
arguing that Dr. Mease never indicated what he could do with his left upper extremity.
{¶ 34} Dr. Mease's physical findings indicated that relator had full range of
motion of his left shoulder and nearly full range of motion of his left elbow, and some
loss of both flexion and extension in his left wrist. Thereafter, Dr. Mease was asked to
identify and discuss her physical findings and she again indicated that relator had
normal range of motion of his left shoulder, mild limitation of his left elbow and left
wrist, and no atrophy of his upper extremity. Although relator informed Dr. Mease that
he only drives when he has to, that he watches tv, and her noting that his wife helped
him unbutton his shirt, Dr. Mease was not required to find that his self-reporting
constituted evidence that he was unable to use an arm which retained nearly complete
range of motion. This constitutes some evidence on which the commission could rely to
find that relator had not presented persuasive evidence that he had sustained a total loss
of use of his left upper extremity.
{¶ 35} Even if Dr. Mease's report was removed from evidentiary consideration,
the commission also relied on the report of Dr. Nemunaitis based on his evaluation,
which occurred one month before relator filed his request for a loss of use award. Dr.
Nemunaitis indicated that relator was independent in all of his activities of daily living
yet noted that he did demonstrate pain with dressing activities, especially on the left.
Dr. Nemunaitis found that relator had normal range of motion in his left shoulder, as
well as his left hand. Further, Dr. Nemunaitis found that relator's range of motion of his
left elbow was nearly normal and that his supination and pronation was essentially
normal. Dr. Nemunaitis did indicate that relator demonstrated pain with functional use
No. 16AP-250 15
of his left upper extremity, including mobility of the shoulder, wrist, and elbow;
however, relator was able to use his left upper extremity.
{¶ 36} Relator does not challenge the commission's reliance on the report of Dr.
Nemunaitis. As a result, even if this court were to find that the report of Dr. Mease did
not constitute some evidence on which the commission could properly rely to deny him
a total loss of use of his left upper extremity, the report of Dr. Nemunaitis does
constitute some evidence.
{¶ 37} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied his request for a
total loss of use award for his left upper extremity, and this court should deny relator's
request for a writ of mandamus.
/S/ MAGISTRATE
STEPHANIE BISCA
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).
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01-03-2023
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03-07-2017
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Levine, J.
Appeal from a judgment of the Supreme Court (Prior, Jr., J.), entered February 6, 1987 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Public Service Commission, inter alia, authorizing respondent Lawrence Park Heat, Light and Power Company to cease providing steam service to its customers without reimbursing them for the cost of converting to alternate sources of heat.
Until July 1, 1986, petitioner, an owner of rental property in respondent Village of Bronxville, Westchester County (Village), received both steam and electricity service from respondent Lawrence Park Heat, Light and Power Company (Lawrence Park). The latter served 470 electricity and 16 steam customers in the Village and was wholly owned by Berson Equities, Ltd. Petitioner, along with three other customers, was served by Lawrence Park’s Pondfield Road steam line.
Prior to the end of 1985, it became apparent that Lawrence Park’s continued provision of utility service was fraught with difficulties. Lawrence Park’s electricity customers suffered from power surges and outages and its steam plant leaked. Over the years, and with the approval of respondent Public *858Service Commission (PSC), Lawrence Park had abandoned certain portions of its steam system. In addition, the Village was very dissatisfied with the adequacy of Lawrence Park’s service and Lawrence Park was operating without liability insurance, which threatened renewal of the Village’s own coverage. It was even questionable whether Lawrence Park could pay its outstanding debts. Moreover, the prudence of Lawrence Park’s fuel purchase practices was also under PSC investigation.
On October 4, 1985, Lawrence Park filed a petition with the PSC seeking an emergency order permitting its immediate abandonment of service to petitioner and the other steam customers on the Pondfield Road line based on the fact that it would be too costly to repair the deteriorated line. Lawrence Park proposed to reimburse each steam customer for one half of the cost of conversion. However, after the customers responded in opposition to the discontinuance of the line and other developments occurred, the reimbursement offer was withdrawn.
Eventually, after protracted negotiations, Lawrence Park, the Village and the Department of Public Service staff reached a settlement agreement providing for the discontinuance of service by Lawrence Park. Lawrence Park was to discontinue utility service on July 1, 1986 and Consolidated Edison Company of New York, Inc. (Con Ed) was to take over service to the 470 electricity customers. Proceeds from the sale of Lawrence Park’s land and power plant building were to be used to pay off its various debts with the remainder accruing to its parent corporation, Berson Equities, Ltd. Lawrence Park was not required to pay any refunds that may be due its customers because of the possible imprudence of its fuel-buying practices. The agreed settlement would not be binding unless approved, in toto, by the PSC.
The outlines of this settlement emerged in the latter part of May 1986 and were subject to comment from Village citizens at a hearing held on May 30, 1986. The main opposition to the settlement came from petitioner and the three other customers served by the Pondfield Road steam line who had filed a complaint in March 1986 seeking to ensure that 50% of their conversion costs would be paid in any abandonment of the system. Accordingly, they objected at the hearing to an abandonment of the steam system without a provision for such contribution. However, the parties to the settlement agreement had been unable to identify a means to establish a fund to defray any portion of the conversion costs.
*859The Administrative Law Judge (ALJ) reviewing the stipulation concluded that since the settlement was in the best interests of the community it should not be rejected because of the "narrower interests” of the complaining steam line customers. Significantly, the AU pointed to the adverse consequences if the settlement was not approved. At its June 25, 1986 session, the PSC issued an order, over petitioner’s objections, approving the settlement. The PSC found that, on balance, the agreement would achieve substantial and significant public objectives which clearly outweigh any disadvantages. Subsequently, petitioner commenced the instant CPLR article 78 proceeding to review the PSC’s determination. Supreme Court confirmed the determination and dismissed the petition. This appeal followed.
Upon review of the issues presented on this appeal, we find that the judgment of Supreme Court confirming the determination of the PSC and dismissing the petition in this proceeding should be affirmed. Substantively, the PSC acted reasonably and in the public interest in permitting Lawrence Park to discontinue its steam service. Procedurally, the PSC’s decision to resolve Lawrence Park’s problems through a negotiated settlement rather than through evidentiary hearings was not an abuse of discretion.
Petitioner’s contention that the PSC unfairly discriminated against steam customers by failing to provide adequate consideration of, and provision for, their conversion costs in the settlement agreement is without merit. While utility customers are entitled to just and reasonable rates, they do not acquire any property interest in the utility or its funds (Matter of General Motors Corp. v Public Serv. Commn., 95 AD2d 876, 877, Iv denied 60 NY2d 557). Public Service Law § 83 authorizes the PSC to permit a steam corporation to abandon service, but does not require any compensation for customers who must convert (see, e.g., Matter of Incorporated Vil. of Val. Stream v State of New York Pub. Serv. Commn., 107 AD2d 856). Petitioner, in support of its argument, cites cases where the PSC has required some contribution from utilities for customer conversion costs upon abandonment. However, the subject utilities in those cases remained economically viable and were able to finance conversion costs. Lawrence Park was not in the same condition. It had already suffered financial losses and continuation of service became impractical. Lawrence Park’s offer to pay 50% of the conversion costs was withdrawn when ensuing circumstances made it more appropriate to cease providing service altogether.
*860When utility service is discontinued, the economic loss to the utility must be balanced against the public interest (supra, at 858). In light of Lawrence Park’s generally poor financial condition and the need to expeditiously reach a settlement, the PSC properly concluded that the settlement’s failure to provide a conversion contribution did not constitute a sufficient reason to reject the settlement. A decision not to have approved the stipulation before July 1, 1986 would have initiated disputes over the status of Lawrence Park’s franchise and who was responsible for serving Lawrence Park’s customers. Also of concern was the loss of the Village’s liability insurance. Considering all these factors, the PSC decision was rational and supported by the record (see, Matter of Campo Corp. v Feinberg, 279 App Div 302, 307, affd 303 NY 995).
Petitioner’s claim that it was discriminated against because electricity customers were able to receive service from Con Ed without conversion costs while the steam customers had to pay for their own conversion costs is refuted by the fact that Lawrence Park treated all customers equally since it assisted neither electricity nor steam customers. The electricity customers, however, were more fortunate in that Con Ed had a franchise and plant available to serve them, while no similar utility was available to serve the steam customers.
Petitioner’s argument that the PSC abused its discretion in allowing remaining funds to be paid to Lawrence Park’s parent company instead of establishing a fund for abandoned steam customers is without merit. Lawrence Park did not, in fact, profit when it sold its system. It had over $790,000 in operating losses between 1978 and 1985 and the owner lost a net $1.5 million before taxes on its investment in Lawrence Park. The PSC concluded that these losses made it appropriate for Person Equities, Ltd., to receive whatever proceeds remained after the outstanding bank loans were satisfied. In considering what return a steam corporation should receive on its investment, the PSC may consider all relevant factors (Public Service Law § 85) and it is "free to entertain or ignore any particular factor, or to assign whatever weight it deems appropriate” (Matter of Abrams v Public Serv. Commn., 67 NY2d 205, 212). Accordingly, the PSC’s determination in this regard is neither irrational nor without support in the record (supra, at 217-218).
Petitioner’s contention that the use of settlement negotiations by the PSC instead of evidentiary hearings violated due process is rejected. There is no statutory right to a hearing on service discontinuance (see, Public Service Law § 83). Accord*861ingly, the PSC’s determination whether to grant a hearing was discretionary and should only be overturned if arbitrary and capricious (see, Matter of Campo Corp. v Feinberg, 279 App Div 302, 308, supra). Further, petitioner cites no controverted matters of fact which would have required a hearing (cf, Mayo v Hopeman Lbr. & Mfg. Co., 33 AD2d 310, appeal dismissed 26 NY2d 612). Here, the PSC concluded that an expeditious and flexible solution was needed to solve the problems arising out of Lawrence Park’s continued existence. The record indicates that the PSC carefully evaluated the claims of the steam customers before adopting the settlement. Moreover, petitioner directly petitioned the PSC for reimbursement and even commented on the settlement before the ALJ. Thus, the PSC was aware of petitioner’s arguments.
Finally, petitioner’s contention that it was unfairly excluded from settlement negotiations lacks merit. Petitioner’s representative attended at least two settlement conferences and the ALJ specifically advised representatives to become involved in negotiations. Petitioner was therefore accorded due process.
Judgment affirmed, with costs. Mahoney, P. J., Weiss, Levine and Harvey, JJ., concur.
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01-13-2022
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Levine, J.
Appeal from an order of Supreme Court (Prior, Jr., J.), entered November 6,1986 in Albany County, which denied the motion by plaintiff and third-party defendants to dismiss defendant’s counterclaim and third-party complaint.
Plaintiff brought this action alleging legal malpractice on the part of defendant during the period from February 1985, when he was substituted as plaintiff’s counsel in her matrimonial action in place of her former (and subsequent) attorney, third-party defendant,* until September 1985, when he was relieved as attorney of record. Defendant served an answer in which he denied the substantive allegations of malpractice and interposed (1) a counterclaim against plaintiff and a claim against third-party defendant for the reasonable value of his services allegedly requested by them, for which defendant was not paid, and (2) an additional claim against third-party defendant, alleging that any damages plaintiff suffered were due to third-party defendant’s malpractice. Plaintiff and third-*862party defendant then moved to dismiss the counterclaim and both third-party causes of action. They appeal from the order denying the motion.
There should be affirmance. As to defendant’s claims for payment of the value of his legal services allegedly requested by plaintiff and third-party defendant, the main basis for dismissal asserted in the moving affidavit is that these claims were inconsistent with an affidavit of defendant in an unrelated legal action between defendant and third-party defendant concerning a dispute over financial arrangements when defendant took over numerous pending files during the period of third-party defendant’s six-month suspension from the practice of law (see, Matter of Capoccia, 107 AD2d 888, Iv denied 64 NY2d 606). It was asserted on the motion that defendant had stated in the affidavit that he had agreed to handle third-party defendant’s matrimonial files "for no fee”; hence, defendant’s claim for the value of legal services to plaintiff was without merit. Defendant disputes the apparent inconsistency. In any event, neither the stated ground for the motion nor the papers submitted in support thereof afford a basis for dismissal under CPLR 3211. Any conflict between defendant’s affidavit in an unrelated proceeding and his pleadings herein merely create an evidentiary issue. The pleading of his cause of action for legal work and services was otherwise sufficient (see, Mateo Elec. Co. v Plaza Del Sol Constr. Corp., 82 AD2d 979, appeal dismissed 55 NY2d 748).
Likewise, Supreme Court correctly denied the motion to dismiss the second third-party cause of action. Plaintiff’s pleading on damages merely alleges that, as a result of defendant’s malpractice, she "suffered expenses, emotional suffering, anxiety, harassment, annoyance and embarrassment”. Given the vagueness of these alleged injuries, defendant was entitled to plead and prove that plaintiff’s damages were caused by, contributed to or aggravated by the acts or omissions of third-party defendant in representing plaintiff both before and after defendant’s representation (see, Schauer v Joyce, 54 NY2d 1, 6).
Order affirmed, with costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.
There are two third-party defendants—Andrew F. Capoccia and Andrew F. Capoccia, P. C. For purposes of this appeal, they will be considered as one and referred to as "third-party defendant”.
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01-13-2022
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Kane, J. P.
Appeal from a *863judgment of the County Court of Broome County (Coutant, J.), rendered April 26, 1984, upon a verdict convicting defendant of the crime of robbery in the first degree.
The instant case concerns a robbery that occurred at about 8:30 p.m. on October 21, 1983 at a restaurant located in the City of Binghamton, Broome County. Defendant was identified as the perpetrator of the crime and after a jury trial was convicted of robbery in the first degree. He was sentenced as a second felony offender to an indeterminate term of imprisonment of 10 to 20 years.
On this appeal, we deal initially with defendant’s contention that the verdict was against the weight of the evidence. At the trial, Joann Monroe, a waitress at the restaurant, testified that on the night in question, she was standing at the take-out counter when defendant entered the restaurant. She greeted him and she saw him go into the men’s room. She then saw him emerge and go to the take-out counter where the cash register was located. Monroe testified that she approached him and asked if he needed assistance, to which he replied ”yes” and pulled out a gun. She immediately lowered her head because she did not want defendant to know that she could identify him. Defendant left as soon as Monroe gave him the money from the cash register. According to defendant, the three opportunities Monroe had to view the robber were insufficient for her to accurately identify defendant, especially since she testified that she deliberately averted her gaze. However, the jury had ample opportunity to evaluate Monroe’s demeanor and assess her credibility as a witness (see, People v Pasko, 115 AD2d 114, 115, Iv denied 67 NY2d 887). Monroe was an articulate witness and she positively identified defendant as the culprit. Viewing the evidence in the light most favorable to the People (see, People v Gaito, 98 AD2d 909, 910), we find the verdict supported by the weight of the evidence. Further, we also find it to have been supported by legally sufficient evidence.
We also reject defendant’s contention that, at the suppression hearing, County Court improperly ruled that Monroe would be permitted to make an in-court identification of defendant at trial and that the court improperly refused to exclude Monroe’s identification of defendant at a lineup inspection. Defendant claims both were tainted by an impermissibly suggestive pretrial photo identification. Although County Court found that a stack photo array conducted on October 25, 1983 was impermissibly suggestive, this did not preclude Monroe from making an in-court identification of defendant as *864long as she had an independent basis for making the identification (see, People v Adams, 53 NY2d 241, 248). We find that in this case, that requirement was satisfied (see, Neil v Biggers, 409 US 188, 199-200). The lighting conditions at the crime scene were excellent and Monroe observed defendant on three separate occasions. At one point, she stood face to face with him and spoke with him. Her description of defendant following the crime was very detailed with only minor variations thereafter. She identified the type of hat he wore and even the brand of jeans he was wearing. County Court properly labeled Monroe as an exceptional witness and its finding that an in-court identification by her would be reliable and untainted by the photo array found to be suggestive was supported by substantial evidence (see, People v Adams, supra, at 248, 252). Furthermore, the court’s findings were sufficient and supported by the record and there is no basis to disturb its determination that the in-court identification was based on an independent source (see, People v Dobranski, 112 AD2d 541, 542, Iv denied 66 NY2d 614).
Similarly, the lineup was not tainted by the suggestive photo array. Given that defendant’s strategy at trial was that Monroe misidentified him, County Court properly ruled pursuant to CPL 60.25 that, should Monroe’s identification be challenged at trial, her selection of defendant from the lineup could be used as evidence to support her testimony. Defendant also challenges the lineup itself because all the men in it wore colored shirts except for defendant, who wore a stark white shirt. This is the only error alleged by defendant with respect to the lineup and, as County Court noted: “Obvious care was taken to procure five (5) other subjects markedly similar to coloring, height, build and facial hair to that of the defendant. Each participant was provided with a blue baseball cap to wear. Each wore blue jeans.” Therefore, the court properly ruled it admissible. It should also be emphasized that the photograph of the lineup and Monroe’s testimony concerning same were admitted without objection at trial.
Next, we find from our review of the record that Monroe’s limited participation in the execution of the second search warrant was permissible. Contrary to defendant’s contention, civilian assistance in search warrants is not inherently improper (see, People v Cote, 124 AD2d 1000, Iv denied 69 NY2d 745; People v Boyd, 123 Misc 2d 634, affd 127 AD2d 1013, Iv denied 69 NY2d 877). Here, the police did not extend the scope of their search beyond that authorized by the warrant, nor did Monroe’s presence serve as an impermissible substi*865tute for the warrant’s requirement of particularity (see, People v Boyd, supra, at 637-638). Further, insofar as we have already found that Monroe had ample time to observe defendant at the time of the robbery, her presence at the search did not prejudice her subsequent identification of defendant at the lineup.
We have reviewed defendant’s remaining contentions and find them lacking in merit.
Judgment affirmed. Kane, J. P., Casey, Yesawich, Jr., and Levine, JJ., concur.
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01-13-2022
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Casey, J.
Appeal from a judgment of the County Court of Albany County (Harris, J.), rendered February 21, 1985, upon a verdict convicting defendant of the crime of rape in the first degree.
Defendant was indicted for the crimes of rape in the first degree, in violation of Penal Law § 130.35 (3), and sexual abuse in the first degree, in violation of Penal Law § 130.65 (3). Following the close of proof, County Court dismissed the second count of the indictment. The jury found defendant guilty of the crime of rape in the first degree as charged, and he was sentenced as a second felony offender to an indeterminate term of imprisonment of 12 Vi to 25 years.
Defendant’s principal claim of error on this appeal concerns the pretrial ruling of County Court permitting the People, over defendant’s objection, to introduce proof of prior uncharged acts of sexual intercourse between the victim and defendant. The court permitted introduction of the evidence to show "some amorous relationship”, relying on People v Thompson (212 NY 249). Defendant’s motion for a pretrial ruling was necessitated by the prosecutor’s failure to answer the demand of defendant’s bill of particulars as to whether prior uncharged crimes would be proved. The better practice would have been for the prosecutor to answer this demand (see, People v Ventimiglia, 52 NY2d 350, 361-362), but since a pretrial ruling actually occurred here, defendant was not prejudiced by the prosecutor’s refusal (see, supra).
In its charge, County Court instructed the jury that testimony as to acts of alleged sexual misconduct prior to the July through September 27, 1984 time frame of the indictment was admitted to show defendant’s lewd disposition toward the victim and in no way was to be considered as indicating his criminal disposition to commit the crime charged. Despite these cautionary instructions, we consider the introduction of such evidence highly prejudicial and believe reversal is required.
The Court of Appeals has recently stated: "The primary duty of the fact finder * * * [is] to determine whether the victim’s statements describing the * * * act charged in the indictment were credible. Her allegations concerning defendant’s prior actions did not render her testimony pertaining to the charged crime more trustworthy because a witness cannot buttress her own testimony by making further unsubstantiated accusations. The victim’s statements regarding the prior *867uncharged crimes therefore carried no probative weight” (People v Lewis, 69 NY2d 321, 327-328). The essential elements of the charged crime are that defendant engaged in sexual intercourse with a female who is less than 11 years old (Penal Law § 130.35 [3]). The victim in this case was nine years old, so no issue of consent was involved. Evidence of prior acts of intercourse is, therefore, not relevant to any of these elements for defendant denied committing the acts of which he was accused (see, People v Johnson, 37 AD2d 218, 219, affd 30 NY2d 776). Nor can the evidence of prior acts be considered relevant on the issue of the corroboration that was required, at the time of the commission of the crime, by Penal Law § 130.16 (see, People v Lewis, supra, at 327).
Defendant secondly argues, without merit in our view, that reversal and dismissal of the indictment is mandated for lack of sufficient corroboration of the victim’s testimony. However, we believe that the medical testimony and the testimony of the victim’s brother, which was credited by the jury, was legally sufficient to satisfy the corroboration requirement of Penal Law § 130.16.
The judgment of conviction should, therefore, be reversed due to the introduction of proof of prior uncharged crimes, and a new trial is ordered.
Judgment reversed, on the law, and matter remitted to the County Court of Albany County for a new trial. Kane, J. P., Casey, Yesawich, Jr., and Harvey, 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/6129225/
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— Order affirmed, with ten dollars costs and disbursements.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129226/
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— Order reversed, with ten dollars costs and disbursements. Opinion Per Curiam.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129227/
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Judgment affirmed, with costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129228/
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— Judgment affirmed, with costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129230/
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— Order affirmed, with ten dollars costs and disbursements, on the ground that the case is not one in which the Code has provided for the substituted service of a summons, and the court had no jurisdiction over the action.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901922/
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Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 29, 2011, as superceded by decision filed May 21, 2012, which determined representation fees for claimant’s representative in her application for unemployment insurance benefits.
Kevin Watkins represented claimant in her successful claim for unemployment insurance benefits. In January 2011, the Unemployment Insurance Appeal Board fixed his representation fee at $400. Claimant applied for reconsideration and, in a decision filed on April 29, 2011, the Board modified the determination, setting the fee at $150. Watkins appealed to this Court and, while the appeal was pending, the Board reopened its de*1021termination. In a decision dated May 21, 2012, the Board rescinded the April 29, 2012 decision and, after reviewing the records, again fixed the fee at $150.
Although Watkins did not appeal from the May 2012 decision, insofar as he remains aggrieved by that decision “in essentially the same manner” as the April 2011 decision, we will consider the merits of his contention in the context of the May 2012 decision (Matter of Ford [Commissioner of Labor], 12 AD3d 955, 955 [2004]). Here, inasmuch as the Board was acting within its administrative capacity when it fixed the representation fee in question, an appeal of its determination to this Court is precluded (see Matter of Raff & Becker [Unemployment Ins. Appeal Bd.], 208 AD2d 1086, 1086 [1994], lv dismissed and denied 86 NY2d 776 [1995]; Matter of Dressman v Unemployment Ins. Appeal Bd., 91 AD2d 1147, 1147 [1983]). Accordingly, the appeal must be dismissed.
Peters, P.J., Mercure, Rose, Lahtinen and Spain, JJ., concur. Ordered that the appeal is dismissed, without costs.
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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/5901923/
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Mahoney, P. J.
Appeal from a judgment of the County Court of Washington County (Leary, J.), rendered August 29, 1986, upon a verdict convicting defendant of, inter alia, the crimes of assault in the second degree (two counts) and operating a motor vehicle while under the influence of alcohol.
At about 2:30 a.m. on September 30, 1985, defendant, while in an intoxicated condition, was operating a car in the Town of Greenwich, Washington County, when a State Police vehicle approached from the opposite direction. Because defendant’s car had its high-beam headlights on, the police car *870flashed its lights. When defendant failed to lower his headlights, the police vehicle turned around and pursued defendant. Defendant noticed the police car in pursuit and pulled his car over to the side of the road and fled to a nearby farm. Two State Troopers exited their vehicle and pursued defendant into a barn and attempted to arrest him. An altercation ensued, during which defendant bit the thumbs of both Troopers, causing serious injury. One of the Troopers, in an effort to subdue defendant, struck him with a flashlight. Defendant maintained that the Troopers initiated the altercation by hitting him with their flashlights. He stated that he could not recall biting the Troopers.
Defendant was indicted and charged with two counts of assault in the second degree, operating a motor vehicle while under the influence of alcohol and failure to dim headlights. After a jury trial, defendant was found guilty as charged and was sentenced as a second felony offender to indeterminate terms of imprisonment of 3 Vi to 7 years on the assault charges and a definite term of one year on the driving while intoxicated charge, all sentences to run concurrently. Defendant, also received a $10 fine for failure to dim headlights. Defendant appeals.
Initially, defendant contends that County Court erred in not charging resisting arrest as a lesser included offense of assault in the second degree. Since no objection or request to charge was made at the trial, this issue has not been preserved for appellate review. In any event, resisting arrest is not a lesser included offense of second degree assault as defined by Penal Law § 120.05 (3) since it is theoretically possible to commit such assault without at the same time committing resisting arrest (People v Chesebro, 94 AD2d 897, 898).
Next, defendant contends that, because of his intoxication, he could not have formed the specific intent necessary for a conviction of second degree assault as defined by Penal Law § 120.05 (3). That statute requires as an element of the crime "intent to prevent a * * * police officer * * * from performing a lawful duty”. Intoxication does not automatically negate specific intent, but is a factor to be considered by the jury (People v Leary, 64 AD2d 825, 826). The evidence at trial demonstrated that defendant was intoxicated. However, the People’s witnesses testified that he was rational and his actions were deliberate. County Court properly charged the jury regarding the effect of defendant’s intoxication and the jury chose to credit the prosecution witnesses.
Finally, defendant contends that he was denied the effective *871assistance of counsel because his trial counsel failed to request a charge of resisting arrest as a lesser included offense of second degree assault and to adequately cross-examine witnesses regarding defendant’s intoxication. Since, as discussed earlier, resisting arrest is not a lesser included offense of second degree assault, it obviously was not improper for defense counsel to fail to request such a charge. Further, defense counsel fully cross-examined the witnesses to elicit facts demonstrating defendant’s intoxication. Defendant was not denied meaningful representation.
Judgment affirmed. Mahoney, P. J., Kane, Casey, Weiss and Levine, 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/5901924/
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Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 29, 2011, as superceded by decision filed May 21, 2012, which determined representation fees for claimant’s representative in her application for unemployment insurance benefits.
Kevin Watkins represented claimant in her successful claim for unemployment insurance benefits. In January 2011, the Unemployment Insurance Appeal Board fixed his representation fee at $400. Claimant applied for reconsideration and, in a decision filed on April 29, 2011, the Board modified the determination, setting the fee at $150. Watkins appealed to this Court and, while the appeal was pending, the Board reopened its de*1021termination. In a decision dated May 21, 2012, the Board rescinded the April 29, 2012 decision and, after reviewing the records, again fixed the fee at $150.
Although Watkins did not appeal from the May 2012 decision, insofar as he remains aggrieved by that decision “in essentially the same manner” as the April 2011 decision, we will consider the merits of his contention in the context of the May 2012 decision (Matter of Ford [Commissioner of Labor], 12 AD3d 955, 955 [2004]). Here, inasmuch as the Board was acting within its administrative capacity when it fixed the representation fee in question, an appeal of its determination to this Court is precluded (see Matter of Raff & Becker [Unemployment Ins. Appeal Bd.], 208 AD2d 1086, 1086 [1994], lv dismissed and denied 86 NY2d 776 [1995]; Matter of Dressman v Unemployment Ins. Appeal Bd., 91 AD2d 1147, 1147 [1983]). Accordingly, the appeal must be dismissed.
Peters, P.J., Mercure, Rose, Lahtinen and Spain, JJ., concur. Ordered that the appeal is dismissed, without costs.
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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/5901925/
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Yesawich, Jr., J.
Appeals (1) from an order of the County Court of Rensselaer County (Dwyer, Jr., J.), entered April 1, 1987, which granted the People’s motion pursuant to CPL 440.40 to set aside defendant’s sentence following his conviction of the crime of attempted burglary in the second degree, after a hearing, and (2) from a judgment of said court, rendered May 20, 1987, which resentenced defendant.
In May 1986, defendant pleaded guilty to the crime of attempted burglary in the second degree. The plea was also taken in satisfaction of two other outstanding charges, attempted assault in the second degree and resisting arrest. Pursuant to the bargained-for plea agreement, defendant was to be sentenced to 1 to 3 years’ imprisonment. However, at sentencing, to accommodate defendant’s desire to be near his family and his physician due to defendant’s affliction with epilepsy, the plea bargain was altered to the extent that defendant was sentenced to one year in Rensselaer County Jail. The People agreed to the sentence only on the condition, accepted by defendant, that he would actually serve a full year in jail and that he would waive any reduction in his sentence for good behavior.
After nearly eight months in jail, defendant petitioned Supreme Court for a writ of habeas corpus, claiming that his detention was illegal because the waiver of good-time credit violated Correction Law § 804. Supreme Court granted the writ and, since the hearing date would have been defendant’s release date absent his illegal waiver of good time, discharged him from the Sheriffs custody. Thereupon the People sought to have defendant’s sentence vacated and to have defendant resentenced pursuant to the original plea negotiation. County *872Court granted the People’s CPL 440.40 motion on the ground that the sentence was invalid as a matter of law and resentenced defendant to a term of 1 to 3 years in a State correctional facility with credit for time served and for good time earned. Defendant, who has been released on his own recognizance, appeals; we affirm.
Defendant maintains that Supreme Court found only that the good-time waiver was illegal and did not disturb the otherwise legal one-year determinate sentence, and that County Court abused its discretion in vacating that sentence and imposing a more severe one. To the contrary, County Court’s actions were logically compelled by Supreme Court’s issuance of the habeas corpus writ. Because sentencing courts bear in mind the impact of the good-time factor when they impose definite sentences, Supreme Court, in finding the waiver of good time illegal, effectively invalidated the parties’ agreement. Given the clear intent of the prior sentence, that defendant be incarcerated for one full year, County Court quite correctly resentenced defendant to the statutorily permissible indeterminate minimum term it did, that being the only lawful sentence available to the court that would achieve the intended result (see, People v White, 88 AD2d 940, 941).
It is also significant that at no time has defendant moved to withdraw his guilty plea. Further, in view of defendant’s extensive criminal record, which includes prior felonies, it cannot be said that the sentence imposed—the minimum authorized by statute and one in accordance with defendant’s original plea agreement—was harsh or excessive (see, People v Haynes, 102 AD2d 604, 606).
Order and judgment affirmed. Kane, J. P., Casey, Yesawich, Jr., and Harvey, 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/5901926/
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Mahoney, P. J.
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found that petitioners had willfully violated Labor Law article 8.
In July 1983, petitioner Hull-Hazard, Inc., entered into a contract with the Department of Transportation for the rehabilitation of several bridges on Interstate Route 690 outside the City of Syracuse. In March 1984, petitioner Hull Corporation contracted for the construction of an interchange along *873Route 690. After an investigation, the Department of Labor (hereinafter Department) charged that Hull-Hazard underpaid wages by improperly computing overtime pay in violation of Labor Law § 220 (2). Hull Corporation was also charged with improperly computing overtime and with failing to pay prevailing wages and supplements in violation of Labor Law § 220 (3). After a hearing, the charges were upheld. Hull-Hazard was found to have improperly calculated overtime and, since there was no evidence regarding the amount of underpayment, further proceedings were directed. Next, regarding Hull Corporation, respondent found $178.49 in overtime underpayments and $45,962.82 in prevailing wage and supplement underpayments. Respondent ordered that interest be paid at the rate of 10% per annum and also imposed a civil penalty of $9,228. Finally, it was found that Hull Corporation’s violations were willful. Hull-Hazard and Hull Corporation commenced this CPLR article 78 proceeding challenging respondent’s decision. The proceeding has been transferred to this court for disposition.
Initially, based on this court’s decisions in Matter of General Bldg. Contrs. v Roberts (118 AD2d 173, Iv denied 68 NY2d 612) and Matter of Hull-Hazard, Inc. v Roberts (129 AD2d 348), it is clear that respondent properly found that Hull-Hazard and Hull Corporation improperly computed overtime in violation of Labor Law § 220 (2) and that Hull Corporation failed to pay prevailing wages and supplements in violation of Labor Law § 220 (3). Hull Corporation challenges respondent’s finding that its violations were willful. The term willful " 'does not imply a criminal intent to defraud, but rather requires that [petitioner] acted knowingly, intentionally or deliberately’ ” (Matter of Cam-Ful Indus. [Roberts], 128 AD2d 1006, quoting Matter of Volvo [Ross], 83 AD2d 344, 346, affd 57 NY2d 116). Here, regarding the prevailing wage and supplement violations, the Department made Hull Corporation aware of new pay rates. Hull Corporation contended that respondent lacked authority to enforce such rates on ongoing projects and commenced litigation to that effect. Hull Corporation did not seek a stay or any other injunctive relief to prevent implementation of the rates but, rather, unilaterally refused to pay such rates.1 Thus, it is apparent that Hull Corporation acted know*874ingly, intentionally and deliberately in choosing not to pay the higher rates until judicially ordered to do so. Thus, its action was indeed willful.
Turning to the overtime violation, we held in Matter of Hull-Hazard, Inc. v Roberts (supra) that the same violation regarding another contract was not willful since a technical reading of the statute supported the employer’s interpretation and only a review of the entire statute in light of its purpose convinced us that respondent’s interpretation should be upheld. There is no reason not to apply the same reasoning in this case. We note that respondent’s decision under review in this proceeding was issued prior to our decision in Hull-Hazard.
Next, Hull Corporation challenges the fixing of interest and penalty. Contrary to its argument, a finding of willfulness is not an essential condition to the imposition of a penalty or interest. The statute, at the time relevant to this case,2 mandated interest at a rate not less than 6% per year nor more than 16% per year, and authorized a penalty of up to 25% of the amount due (Labor Law § 220 former [8]). In determining the amount of interest and penalty, due consideration must be given to: “the size of the employer’s business, the good faith of the employer, the gravity of the violation, the history of previous violations and the failure to comply with recordkeeping or other non-wage requirements” (Labor Law § 220 [8]). This court’s scope of review where a penalty is imposed by an agency after an adjudicatory hearing is limited to determining whether the penalty is “ 'so disproportionate to the offense, in the light of all the circumstances, 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). Here, respondent considered all of the factors and fixed interest at 10% per year and the penalty at 20%. In our view, Hull Corporation has not demonstrated that the interest and penalty imposed by respondent are shocking to one’s sense of fairness. We note that, contrary to Hull Corporation’s contention, the imposition of interest and penalty was not to punish the corporation for exercising its legal right to petition the courts, but was in recognition of Hull Corporation’s decision not to comply with the Department’s directives or to obtain a judicial stay while seeking court review.
Determination modified, without costs, by annulling so *875much thereof as found that petitioner Hull Corporation’s failure to properly pay overtime in violation of Labor Law § 220 (2) was willful; matter remitted to respondent for further proceedings not inconsistent with this court’s decision; and, as so modified, confirmed. Mahoney, P. J., Weiss, Yesawich, Jr., and Harvey, JJ., concur.
. Hull Corporation contends that it placed the difference between the pay rates in an "escrow” account. However, it is clear that such funds were never delivered to an impartial third party, which is a key feature of an escrow account. Thus, Hull Corporation never gave up control of these funds.
. The statute was amended in 1985 (L 1985, ch 137). The amendments do not apply to this case.
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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/5901927/
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Harvey, J.
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller which, inter alia, denied petitioner’s application for accidental disability retirement benefits.
In September 1983, while employed by Monroe County, petitioner was involved in an altercation with his supervisor during which petitioner was pushed into a filing cabinet. In September 1984, petitioner filed applications for ordinary disability retirement benefits and accidental disability retirement benefits. The applications were based in part upon his assertion that the September 1983 altercation had injured his arm and that he suffered from diabetes. The applications were denied and petitioner requested a hearing and redetermination. At the hearing, petitioner amended his applications to include a claim for psychiatric disability. Respondent Comptroller ultimately determined that petitioner’s mental incapacity rendered him eligible for ordinary disability benefits. However, the application for accidental disability benefits was denied upon the ground that petitioner failed to show that his mental condition was the natural and proximate result of a work-related accident. Petitioner commenced the instant proceeding claiming that respondents erred in not awarding him accidental disability benefits.
The Comptroller has the exclusive authority to determine applications for retirement benefits (Retirement and Social Security Law § 374 [b]; Matter of Poormon v Regan, 134 AD2d 659). His determination must be upheld if supported by substantial evidence (Matter of Fernandez v New York State Employees’ Retirement Sys., 100 AD2d 694, Iv denied 63 NY2d 606). Petitioner argues that his expert testimony established that his mental disability, though preexisting, was so exacerbated by the September 1983 incident that the incident was the principal cause of his inability to continue work. A psychiatrist who had examined petitioner on behalf of respondent State Employees’ Retirement System opined that petitioner’s *876condition was the result of a progressive problem. He testified that while the September 1983 altercation may have contributed to petitioner’s problem, it was not the cause of his incapacity. Faced with conflicting medical testimony as to the cause of petitioner’s disability, it was within the Comptroller’s discretion to credit the testimony of the Retirement System’s expert (see, Matter of DiFede v Regan, 130 AD2d 832; Matter of Perritano v Regan, 120 AD2d 867).
Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Weiss, Yesawich, Jr., and Harvey, 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/6129234/
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— Order and judgment affirmed, with costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129236/
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— Judgment reversed, new trial ordered, costs to abide event.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901930/
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Levine, J.
Appeal from an order of the Supreme Court (Torraca, J.), entered January 12, 1987 in Sullivan County, which, inter alia, denied plaintiff’s motion to dismiss defendants’ counterclaims and certain affirmative defenses and granted that part of defendants’ cross motion to dismiss the complaint and vacate a lis pendens.
Plaintiff commenced this action against defendants seeking specific performance and damages for the alleged breach of an oral contract to sell real estate to plaintiff. Plaintiff’s theory was that the refusal to sell was motivated by racial discrimination and it brought suit under the State’s Human Rights Law (see, Executive Law §§ 296, 297). This is a companion action, involving substantially the same parties and the same attorneys, to Pemberton v Dolphin Dev. Corp. (134 AD2d 23).
It has been conceded that following Supreme Court’s dismissal of plaintiff’s complaint for legal insufficiency and the filing of a notice of appeal, the parties entered into a stipulation fully settling the underlying action. This settlement took place after plaintiff discharged its attorneys, the firm of Oppenheim & Meltzer. Upon the application of the law firm, Supreme Court granted an order authorizing the attorneys to continue to prosecute the appeal so that the firm could protect its statutory attorney’s lien. As this court decided in Pemberton (supra), however, an attorney is not entitled to continue to press an action after he has been discharged merely to enforce his right to a statutory charging lien. The attorneys herein have no standing to prosecute this appeal following their discharge by plaintiff.
Inasmuch as the parties’ stipulation of settlement appears to have completely resolved the underlying dispute, this appeal is moot.
*881Appeal dismissed, as moot, without costs. Mahoney, P. J., Weiss, Levine and Harvey, 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/5901933/
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Judgment reversed on the law, motion to suppress granted and indictment dismissed. Memorandum: On December 21, 1983 at approximately 2:00 a.m. Clarietta Nowden returned home after visiting a friend. She backed her automobile into her garage and as she got out of the automobile she was attacked by an armed assailant. A scuffle ensued during which Ms. Nowden was able to wrest the gun from the assailant but not before he struck her on the head with it. She screamed and, when he covered her mouth with his left hand, she bit his left index finger and a piece of the skin tissue became lodged in her lower teeth. The assailant fled the scene. He wore a gray wool cap which covered his face except for his eyes and she was unable to identify him. The victim gave a general physical description of her assailant as being a black male of medium build, 5 feet, 7 inches tall, and wearing a short-length tan trench coat.
An investigating officer found a man’s wallet lying in snow in the victim’s driveway approximately 15 to 20 feet from the garage where the attack occurred. The wallet contained a Social Security card and a credit card, each bearing the name of defendant. Defendant was married to the victim’s sister and resided across the street from the victim’s residence. The police went to defendant’s home and was informed by his wife that she did not know his whereabouts and that he had not been home all evening. As the officers were leaving defendant’s home, they encountered two men walking up the driveway towards them. One officer inquired of defendant if he was Ulysses Parris and he acknowledged that he was; defendant was not wearing clothing which matched the clothing that the victim said her assailant wore. The officer then told defendant that he wanted to speak with him; defendant responded that he wanted to talk to his wife and proceeded towards the door to his residence. Defendant was arrested and was taken to a hospital where the victim was being treated. The victim viewed defendant who was seated in a police car, but she was unable to identify him as her assailant. She suggested that the *883police officer examine defendant’s left hand since she had bitten her assailant on the left hand. Defendant displayed his left hand and the officer observed that a large piece of skin was missing from defendant’s index finger. Defendant was then transported to the Public Safety Building where he waived his Miranda rights and gave the police inculpatory statements. He also aided the police in making diagrams which disclosed the location of clothing that he had discarded.
Defendant made a pretrial motion seeking to suppress his oral and written statements, the showup identification, the observations of the apparent bite wound, the diagram he drew, and the items of clothing discovered with the aid of that diagram, on the ground that the evidence was fruit of an illegal arrest. The hearing court denied the motion, finding that the police had probable cause to arrest defendant, and that the statements, identification and clothing were thus not fruits of an illegal arrest. We disagree. In our view the court erred in denying defendant’s motion to suppress since his arrest was without probable cause.
"Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent man in believing that the offense has been committed” (People v Oden, 36 NY2d 382, 384), and that the person arrested is the perpetrator (People v Carrasquillo, 54 NY2d 248, 254). The existence of probable cause "must necessarily turn on the facts in each individual case” (People v Green, 35 NY2d 193, 195). The bases to establish the existence of probable cause must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator (People v Carrasquillo, supra, at 254; see also, People v De Bour, 40 NY2d 210, 216).
Since we conclude that the initial seizure of the defendant was unlawful, the fruits of that unconstitutional seizure must be suppressed (People v Cantor, 36 NY2d 106, 114; see, Wong Sun v United States, 371 US 471). Contrary to the view of the dissenters, the derivative incriminating evidence which was obtained after defendant’s arrest was not the product of a source unrelated to defendant’s arrest, but was a direct result of the illegal arrest; nor was the illegal conduct attenuated "by a significant intervening event which justified the conclusion that that evidence was not the product of that illegal activity (see Wong Sun v United States, supra)” (People v Rogers, 52 NY2d 527, 533; see also, People v Henley, 53 NY2d 403).
The invasion of defendant’s rights to be free from unreason*884able searches and seizures cannot be justified, as suggested by the dissenters, by resort to the rule of inevitable discovery. It is not necessary to decide whether the evidence sought to be suppressed is primary or secondary, for it is clear that the tainted evidence was the direct result of the initial police misconduct in arresting defendant without probable cause. The inevitable discovery rule may not be used to save from suppression "evidence illegally obtained during or as the immediate consequence of the challenged police conduct” (People v Stith, 69 NY2d 313, 318). Absent the illegal arrest of defendant on his own premises and his transportation to another place, the derivative incriminating evidence would not have been revealed (see, Dunaway v New York, 442 US 200; People v Hicks, 68 NY2d 234, 239).
Finally, aside from the probable cause issue, the contentions urged by the dissenters were not addressed by the suppression court or argued by the parties in our court.
All concur, except Callahan and Lawton, JJ., who dissent and vote to affirm in the following memorandum.
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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/6129237/
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Order affirmed, without costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129238/
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— Orders reversed, with ten dollars costs and disbursements in one case.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129239/
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— Order affirmed, with ten dollars costs and disbursements.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129240/
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— Order modified by striking out the words “ or any similar name, or any part thereof,” and affirmed as modified, without costs. '
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/551497/
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918 F.2d 1198
James Roy CARTER, Petitioner-Appellant,v.James A. COLLINS, Director, Texas Department of CriminalJustice, Institutional Division, Respondent-Appellee.
No. 89-6290
Summary Calendar.United States Court of Appeals,Fifth Circuit.
Dec. 12, 1990.
Bertrand C. Moser, Pannill, Moser, Mize & Herrmann, Houston, Tex. (Court-appointed), for petitioner-appellant.
Victoria Benitez, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before KING, GARWOOD and DUHE, Circuit Judges.
GARWOOD, Circuit Judge:
1
Petitioner-appellant James Roy Carter (Carter), a Texas prisoner, appeals from the district court's dismissal of his petition for a writ of habeas corpus. His sole contention in this appeal is that he received ineffective assistance of counsel because his lawyer misinformed him of the parole consequences of his plea. Finding no error, we affirm.
Facts and Proceedings Below
2
In August 1980, Carter was charged in a two-count indictment with having committed aggravated kidnapping and aggravated rape on July 27, 1980. Prior to trial, the state dismissed the aggravated kidnapping charge and agreed to recommend a thirty-five-year sentence on the remaining charge in return for Carter's agreement to enter a plea of nolo contendere to the charge of aggravated rape. After Carter entered the plea, the trial court accepted it, found him guilty as charged, and sentenced him to thirty-five years' imprisonment in the Texas Department of Corrections. Carter did not appeal his conviction, but he did file two applications for state post-conviction relief. Both were denied by the Texas Court of Criminal Appeals without a written opinion.
3
Having exhausted his state court remedies, Carter filed this application for habeas corpus relief in early 1986. In the petition, Carter alleged that his indictment was fundamentally defective, that the trial court failed to inform him of the consequences of his plea, and that he received ineffective assistance of counsel because his lawyer misinformed him of the parole consequences of his nolo contendere plea. The magistrate entered a recommendation that the defective indictment claim be dismissed but that an evidentiary hearing be held for the remaining claims. Counsel was appointed to represent Carter and has continued to represent him in this appeal. The district court accepted the magistrate's recommendation, dismissing the defective indictment claim and setting the remaining claims for an evidentiary hearing.
4
After holding the evidentiary hearing, the magistrate recommended that Carter's petition be dismissed with regard to the remaining claims. Her report warned that failure to file written objections pursuant to 28 U.S.C. Sec. 636(b)(1)(C) within ten days would bar an aggrieved party from attacking the factual findings in the report on appeal, but Carter, after having been granted an extension of time, failed to file any objections. The district court adopted the findings and conclusions of the magistrate and entered judgment accordingly.
Discussion
5
Carter's only contention in this appeal is that the district court erred in finding that he was not denied effective assistance of counsel. Carter contends that his trial counsel, E. Neil Lane (Lane), erroneously advised him that he would be eligible for parole after serving six and one-half to seven years of his thirty-five-year sentence, when in fact he will not be eligible for parole until he serves almost twelve years. Carter asserts that had he known that he would not be eligible for parole until after serving almost twelve years, he would have gone to trial.
6
The two-part Strickland v. Washington test applies to challenges to a guilty plea1 based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985). Strickland requires the petitioner to demonstrate not only that his trial counsel's conduct was deficient, but also that he was prejudiced by this deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). That is, Carter must show that his counsel's performance in misadvising him of the parole consequences of his plea "fell below an objective standard of reasonableness," id., and that a reasonable probability exists that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. 104 S.Ct. at 2068. In order to satisfy the prejudice requirement, Carter must establish that but for his counsel's erroneous advice regarding the parole consequences of his plea, he would not have pleaded nolo contendere and would have insisted on going to trial. Hill, 106 S.Ct. at 371; Uresti v. Lynaugh, 821 F.2d 1099, 1101 (5th Cir.1987).
7
Under the law in effect when Carter was convicted, a person convicted of rape or of aggravated rape was eligible for parole after having served one third of his sentence. A person convicted of rape would also receive credit toward parole eligibility for good conduct time, provided a deadly weapon was not used during the commission of the offense, but a person convicted of aggravated rape received no such consideration of good conduct time (even if a deadly weapon were not used). Tex.Code Crim.Proc.Ann. art. 42.12, Secs. 3f(a), 15(b) (Vernon 1979).2 The magistrate found that it is possible that Carter would have been eligible for parole after having served approximately six and one-half years of his thirty-five-year sentence if he had been convicted of rape rather than aggravated rape.
8
In support of his ineffective assistance claim, Carter asserts that the evidence shows that Lane mistakenly believed that Carter was charged with rape, not aggravated rape, and would thus receive good conduct time credit toward parole eligibility. In his appellate brief, Carter asserts that his testimony at the evidentiary hearing and an excerpt from the state trial court transcript demonstrate that Lane asked the state trial court to make a finding that no deadly weapon was used during the crime. He asserts that the trial court made such a ruling and that the judgment of conviction finds that no deadly weapon was used. Carter argues that Lane's only possible reason for requesting that the trial court make such a finding was to allow Carter good time credit toward parole.
9
Carter misstates the argument and the evidence that he presented at the evidentiary hearing. An affirmative finding that a deadly weapon was not used is not required to allow good time credit toward parole for a rape conviction; all that is required is the absence of a finding that a deadly weapon was used. See Polk v. State, 693 S.W.2d 391, 393 (Tex.Crim.App.1985); Tex.Code Crim.Proc.Ann. art. 42.12, Secs. 3f(a)(2), 15(b) (Vernon 1979). Carter claimed in his testimony at the evidentiary hearing only that Lane had objected to a finding that a deadly weapon was used during the crime. Carter also directed the court's attention to purported quotations from the state trial court transcript, which purported quotations tended to corroborate Carter's testimony at the evidentiary hearing. These purported quotations were set out in Carter's pro se opposition to the state's motion to dismiss. No evidence was presented that Lane had requested an affirmative finding that no deadly weapon was used. Nor did the judgment of conviction contain such a finding. This distinction is not without significance. A request for an affirmative finding that no deadly weapon was used would be gratuitous in this case because it would not affect Carter's parole eligibility on his conviction for aggravated rape. A diligent attorney would still probably object to an allegedly improper finding that his client had used a deadly weapon, however, even if such a finding did not affect whether good conduct time would be counted toward parole eligibility. Such an adverse finding, appearing on the defendant's record of conviction, might cause a parole board to be more reluctant to grant parole whenever the prisoner became eligible.
10
The magistrate determined that Lane had accurately advised Carter of his parole eligibility and did not reach the issue of whether Lane might have objected to a finding of a deadly weapon for reasons other than Carter's eligibility for good conduct time credit toward parole eligibility. Lane testified at the evidentiary hearing that he did not remember a discussion regarding a finding of a deadly weapon. He further testified that he knew that Carter was charged with aggravated rape and was pleading nolo contendere to that charge. Lane maintained that he never told Carter that he would be eligible for parole in six and one-half years. He testified that he informed Carter that he would have to serve at least one third of his sentence and that he directed Carter to read the relevant portion of the Code of Criminal Procedure regarding parole. The magistrate could properly credit this testimony over that of Carter. Amadeo v. Zant, 486 U.S. 214, 108 S.Ct. 1771, 1777, 100 L.Ed.2d 249 (1988). The magistrate also properly refused to consider the purported quotations from the state trial court transcript on which Carter relied because no part of the official transcript, nor any claimed copy thereof, was ever tendered in evidence. Walker v. Maggio, 738 F.2d 714, 716-17 (5th Cir.1984), cert. denied, 469 U.S. 1112, 105 S.Ct. 793, 83 L.Ed.2d 786 (1985); Clayton v. Blackburn, 578 F.2d 117, 120 (5th Cir.1978). The official transcript had been lost through no fault of the state; the only available copy was lost by Carter's brother after Carter had given it to him.
11
Lane had offered essentially the same testimony as he gave below in a state court hearing by affidavit. The state court judge found that the facts asserted in Lane's affidavit were true and that his representation of Carter was effective. Findings of Fact and Order, Ex Parte Carter, No. 319389-B (180th Dist.Ct. Harris Co. July 22, 1985), aff'd without opinion, No. 12,902-02 (Tex.Crim.App. Sept. 25, 1985). "Although the ultimate question of whether or not counsel's performance was deficient is a mixed question of law and fact [to be considered de novo ], state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of section 2254(d)." Loyd v. Smith, 899 F.2d 1416, 1425 (5th Cir.1990); see also Koch v. Puckett, 907 F.2d 524, 527 (5th Cir.1990). The magistrate concluded, and we agree, that these findings are entitled to a presumption of correctness under 28 U.S.C. Sec. 2254(d) and that Carter has failed to overcome this presumption. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981); Loyd, 899 F.2d at 1425. Section 2254(d) requires a "hearing on the merits" in the state court on the disputed factual issue in order to raise this presumption of correctness in the federal proceeding, but we have held that a live evidentiary hearing is not required. Buxton v. Lynaugh, 879 F.2d 140, 143-47 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990); Uresti, 821 F.2d at 1101; Evans v. McCotter, 805 F.2d 1210, 1214 (5th Cir.1986); Smith v. Estelle, 711 F.2d 677, 681 (5th Cir.1983), cert. denied, 466 U.S. 906, 104 S.Ct. 1685, 80 L.Ed.2d 159 (1984); Camarillo v. Estelle, 670 F.2d 473, 475 (5th Cir.1981) (construing Sumner v. Mata).3 Rather than conduct a formal hearing, a state court may evaluate an ineffective assistance of counsel claim by making credibility determinations based on affidavits submitted by the petitioner and the attorney. Smith, 711 F.2d at 681; see also Evans, 805 F.2d at 1214.4
12
The magistrate's report warned that failure to file written objections to the proposed findings and recommendations contained in the report within ten days from the date of service would bar an aggrieved party from attacking the factual findings on appeal. These findings were later accepted and adopted by the district court. A magistrate's findings, adopted by the district court, are normally reviewed under the clearly erroneous standard. Williams v. K & B Equip. Co., 724 F.2d 508, 510 (5th Cir.1984). Nonetheless, because Carter failed to file any objections to the magistrate's report, the standard of review is even more deferential: Carter is precluded on appeal from attacking the factual findings except upon grounds of plain error or manifest injustice. Rodriguez v. Bowen, 857 F.2d 275, 277 (5th Cir.1988); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. Unit B 1982) (en banc); see Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 469-75, 88 L.Ed.2d 435 (1985). Under either standard of review, however, we believe the magistrate's findings and recommendation are adequately supported by the record. The magistrate found that Lane adequately informed Carter of the parole consequences of his plea. His representation of Carter was not deficient or ineffective.
13
Because we affirm the magistrate's conclusion, adopted by the district court, that Lane's representation of Carter was not deficient, we need not reach the issue of whether Carter was prejudiced by any allegedly ineffective representation. We do observe, however, that the magistrate found ample evidence of guilt. She found not credible Carter's assertion that, but for Lane's allegedly erroneous advice, he would have chosen to proceed to trial.5 Whether we were to apply a plain error or clearly erroneous standard of review to these factual findings, they are adequately supported by the record. Carter failed to demonstrate any prejudice to his defense; consequently, his ineffective assistance of counsel claim would fail even if we determined that his representation had been deficient. Strickland, 104 S.Ct. at 2064.
Conclusion
14
The district court's conclusion that Carter did not suffer from ineffective assistance of counsel is adequately supported by the record of the evidentiary hearing, the state court's factual findings, and the factual findings of the magistrate. The dismissal of the petition for a writ of habeas corpus is therefore
15
AFFIRMED.
1
Because a plea of nolo contendere is treated as an admission of guilt, Hudson v. United States, 272 U.S. 451, 47 S.Ct. 127, 129, 71 L.Ed. 347 (1926), the law applicable to a guilty plea is also applicable to a plea of nolo contendere. See Norman v. McCotter, 765 F.2d 504, 509-11 (5th Cir.1985)
2
Section 15(b) of Article 42.12 provided as follows:
"A prisoner under sentence of death is not eligible for parole. If a prisoner is serving a sentence for the offenses listed in Section 3f(a)(1) of this Article or if the judgment contains an affirmative finding under Section 3f(a)(2) of this Article, he is not eligible for release on parole until his actual calendar time served, without consideration of good conduct time, equals one-third of the maximum sentence or 20 calendar years, whichever is less, but in no event shall he be eligible for release on parole in less than two calendar years. All other prisoners shall be eligible for release on parole when their calendar time served plus good conduct time equals one-third of the maximum sentence imposed or 20 years, whichever is less."
Section 3f(a) of Article 42.12 provided as follows:
"The provisions of Sections 3 and 3c of this Article do not apply:
"(1) to a defendant adjudged guilty of an offense defined by the following sections of the Penal Code:
"(A) Section 19.03 (Capital murder);
"(B) Section 20.04 (Aggravated kidnapping);
"(C) Section 21.03 (Aggravated rape);
"(D) Section 21.05 (Aggravated sexual abuse);
"(E) Section 29.03 (Aggravated robbery); or
"(2) to a defendant when it is shown that the defendant used or exhibited a deadly weapon as defined in Section 1.07(a)(11), Penal Code, during the commission of a felony offense or during immediate flight therefrom. Upon affirmative finding that the defendant used or exhibited a deadly weapon during the commission of an offense or during immediate flight therefrom, the trial court shall enter the finding in the judgment of the court. Upon an affirmative finding that the deadly weapon the defendant used or exhibited was a firearm, the court shall enter that finding in its judgment."
3
We recognize that Jones v. Butler, 837 F.2d 691 (5th Cir.) (per curiam), cert. denied, 488 U.S. 846, 109 S.Ct. 123, 102 L.Ed.2d 97 (1988), arguably reaches the contrary conclusion. The Jones court indicated that the district court had erroneously afforded a presumption of correctness to a state court's factual findings in denying a state prisoner's petition for a writ of habeas corpus. Jones declined to afford such a presumption of correctness because the "State court ... did not hold an evidentiary hearing," id. at 692, but did not indicate whether the state court had considered any affidavits in making its findings. Id. (This holding was actually in our unpublished opinion in Jones v. Blackburn, 759 F.2d 19 (5th Cir.1985), but is discussed in the appeal after remand in Jones v. Butler.) Assuming Jones is not readily distinguishable, we cannot reconcile it with our numerous other cases, decided both before and after Jones, that have held that the state court need not hold a live evidentiary hearing. Jones neither cites nor discusses any of these cases, relying solely on what is at most an inference from dictum in Armstead v. Maggio, 720 F.2d 894, 896 (5th Cir.1983) (per curiam). As Camarillo and Smith precede Jones (and also Armstead ), we are bound by Camarillo and Smith. See, e.g., Alcorn County v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1166 (5th Cir.1984). No special circumstances exist in this case to warrant departure from Camarillo and Smith
4
In addition, the trial court's docket sheet indicates that Carter was admonished as to the basic consequences of his plea. The magistrate properly concluded that this instrument is similarly entitled to a presumption of correctness under 28 U.S.C. Sec. 2254(d). Webster v. Estelle, 505 F.2d 926, 929-30 (5th Cir.1974), cert. denied, 421 U.S. 918, 95 S.Ct. 1581, 43 L.Ed.2d 785 (1975); see also Hobbs v. Blackburn, 752 F.2d 1079, 1081-82 (5th Cir.), cert. denied, 474 U.S. 838, 106 S.Ct. 117, 88 L.Ed.2d 95 (1985)
5
The magistrate further concluded that Carter had not demonstrated that he would have been acquitted or would have received a more lenient sentence had he gone to trial
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Casey, J.
Appeal from an order of the Supreme Court (Conway, J.), entered May 2, 1988 in Albany County, which denied defendant St. Clare’s Hospital’s motion for a protective order.
Plaintiff’s discovery demands must first be considered in the light of the potential liability of defendant St. Clare’s Hospital (hereinafter defendant) to plaintiff for malpractice. A hospital cannot be held vicariously liable for the acts of a duly licensed physician who is not its employee (Fiorentino v Wenger, 19 NY2d 407; Raschel v Rish, 110 AD2d 1067). Therefore, the only theory on which defendant can be held liable for any malpractice committed by nonemployee physicians is if defendant had notice of prior acts of negligence or incompetence of the physician and breached its duty to plaintiff by permitting an unqualified physician to exercise staff privileges (see, Byork v Carmer, 109 AD2d 1087, 1088). If, however, any incidents of prior negligence exist and were learned from proceedings and records of the hospital review committee, such information is statutorily privileged and exempt from disclosure (Education Law § 6527 [3]; see, Lilly v Turecki, 112 AD2d 788).
The purpose of the legislative policy which affords such *800confidentiality is to encourage hospitals to review the shortcomings of its physicians, and this policy outweighs the needs of plaintiffs for access to the material (see, Lilly v Turecki, supra, at 789). This privilege, however, attends only to the proceedings and records of a medical review committee and to all persons in attendance at a meeting where a medical review function was performed, except a party to an action or proceeding the subject matter of which was reviewed at ‘such meeting (Education Law § 6527 [3]). In Carroll v Nunez (137 AD2d 911), a medical malpractice action involving a cause of action against a hospital based upon the theory that the hospital was negligent in permitting an unqualified doctor to operate on the plaintiff, we held that the plaintiff was not entitled to possession of the doctor’s personnel file or any complaints that may have been made against him for performing unnecessary surgery or for performing surgery for which he was not qualified. Our holding was based upon the exemption contained in Education Law § 6527 (3).
Defendant contends that the holding in Carroll v Nunez (supra) is applicable here since plaintiff seeks similar information. This reliance, however, is misplaced, for as previously noted the exemption expressly applies only to information obtained in the course of a hospital’s review proceedings, and defendant does not allege that the information sought by plaintiff was so obtained. On the contrary, the attorney’s affirmation in support of defendant’s motion for a protective order admits to a lack of knowledge as to -whether defendant ever conducted any review of the physician involved. It is defendant’s contention that since the information sought by plaintiff could have been obtained during the course of a hospital review proceeding or an investigation by the Public Health Council (see, Public Health Law § 2801-b [3]), the exemption is applicable; we conclude, however, that the exemption applies only where the information was in fact so obtained (see, Byork v Carmer, supra).
Since the purpose of the exemption is to encourage hospitals to review the shortcomings of their physicians (Lilly v Turecki, supra), it would be counterproductive to apply the exemption in a case where a hospital never undertook such a review. We note that it is not necessary for a., hospital to establish that it acquired the information during the course of a review proceeding undertaken with respect to the particular incident that is the subject of the malpractice action. Rather, a hospital is required, at a minimum, to show that it has a review procedure and that the information for which the *801exemption is claimed was obtained or maintained in accordance with that review procedure. Accordingly, defendant’s motion for a protective order was properly denied by Supreme Court. Nevertheless, in the circumstances of this case and in order to prevent "the evil the statute seeks to avoid” (Lilly v Turecki, supra, at 789), we are of the view that denial of defendant’s motion for a protective order should be without prejudice to renewal in the event that defendant is able to establish that some or all of the information sought by plaintiff was obtained in a manner which would make the statutory exemption applicable.
Order modified, on the facts, with costs to plaintiff, by adding to the first decretal paragraph therein a provision making the denial of defendant St. Clare’s Hospital’s motion without prejudice to renewal upon a proper showing, and, as so modified, affirmed. Mahoney, P. J., Kane, Casey, Weiss and Yesawich, Jr., JJ., concur.
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Casey, J.
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Rensselaer County) to review a determination of the Town Board of the Town of Schodack which removed petitioner from his position as a member of the Town of Schodack Planning Board.
In 1979, petitioner became a member of the Planning Board of respondent Town of Schodack in Rensselaer County and some three years later began serving as the Planning Board’s Chairman. Petitioner also held a 25% interest in William J. Keller & Sons Construction Corporation (hereinafter Keller Construction), which performs road work and other heavy construction. In June 1987, the town charged petitioner with violating General Municipal Law § 805-a (1) (c) and Local Laws, 1970, No. 3 of the Town of Schodack as a result of an alleged conflict of interest in his service on the Planning Board and ownership interest in Keller Construction.* Specifically, the town alleged that Keller Construction entered into a road and drainage work contract and performed work at the Mountain View Estates subdivision while an application for *802approval of the subdivision was pending before the Planning Board, and that on September 15, 1986 petitioner voted to approve the subdivision without disclosing his interest in Keller Construction and the work being performed. A hearing was held, after which the Hearing Officer found that although petitioner did not vote to approve the subdivision, he did participate in the Planning Board’s decision despite Keller Construction’s contract to perform work at the subdivision and receive compensation. The Hearing Officer concluded that petitioner’s conduct constituted a conflict of interest but that petitioner might not have been conscious of the conflict. At its November 5, 1987 meeting, the Town Board adopted so much of the Hearing Officer’s report as found a violation of General Municipal Law § 805-a (1) (c) and the town’s local law. Based upon this finding, petitioner was removed from office. Petitioner thereafter commenced this CPLR article 78 proceeding to challenge the determination.
Petitioner contends that the determination is not supported by substantial evidence. We disagree. The parties stipulated to petitioner’s ownership interest in Keller Construction and petitioner admitted that Keller Construction’s contract to do the work at the subdivision was entered into before the subdivision was approved by the Planning Board at its September 15, 1986 meeting. There is other testimony from the Planning Board attorney that petitioner neither disqualified himself in this matter nor made any statement concerning the conflict. From such facts, we conclude that there is substantial evidence to support the determination that a conflict of interest existed when petitioner participated in the Planning Board’s decision on the subdivision while petitioner’s corporation was then under contract to perform work at the subdivision and receive compensation.
Petitioner also argues that the sanction of removal was so disproportionate to his violation that it must be annulled. Again, we disagree. There is nothing either shocking or unfair about the removal from public office of a local contractor who serves on a town planning board and, despite the clear and unequivocal proscription of conflicts of interests in both the General Municipal Law and a local law, participates in the planning board’s consideration of a project in which he or his corporation has a contract to perform work without disclosing the contract. The existence of a conflict of interest in such circumstances is patent, and the potential damage to the public welfare in general and the integrity of the planning board in particular is obvious. We note that the Hearing *803Officer found "ameliorating circumstances” in that petitioner "seems not to have been conscious of a conflict * * * and now seems to regard his failure to vote as a sufficient answer to the ethical problem”. The Town Board, however, adopted only that portion of the Hearing Officer’s report as found petitioner guilty of violating the General Municipal Law and the town’s, local law. By imposing the sanction of removal, the Town Board clearly rejected the Hearing Officer’s finding of "ameliorating circumstances”. The determination should be confirmed.
Determination confirmed, and petition dismissed, without costs. Kane, Casey, Weiss and Yesawich, Jr., JJ., concur.
Mahoney, P. J., dissents and votes to annul in a memorandum. Mahoney, P. J. (dissenting). I agree that there is substantial evidence to support the determination that a conflict of interest existed when petitioner participated in the Planning Board’s decision on the subdivision while petitioner’s corporation was then under contract to perform work at the subdivision and receive compensation. But I disagree that the Town Board properly removed petitioner from the Planning Board.
The Hearing Officer made no affirmative finding that petitioner’s violation was a knowing and intentional act. Furthermore, the Town Board’s adoption of so much of the Hearing Officer’s report as found petitioner guilty of General Municipal Law § 805-a and Local Laws, 1970, No. 3 of the Town of Schodack fails to incorporate or affirmatively make any finding that petitioner’s violation was knowing and intentional. Significantly, the acts prohibited by General Municipal Law § 805-a (1) and the applicable local law are not conditioned upon knowledge or intent; it is only the imposition of the penalties prescribed in General Municipal Law § 805-a (2) and the applicable local law which require knowing and intentional violations. In the absence of any finding of a knowing and intentional violation or reliance on any other provision for petitioner’s penalty, the penalty provisions of General Municipal Law § 805-a (2) and the applicable local law do not apply. Accordingly, I believe that the removal of petitioner from the Planning Board was in excess of lawful authority. Although recognizing that this precise issue was not raised by petitioner, who limited his argument to whether the penalty was disproportionate to the violation, I nonetheless believe that this court has the authority, if not the obligation, to ensure that disciplinary penalties are meted out in accordance with legal authority.
Of three initial charges involving three separate instances of alleged conflicts of interest, petitioner was exonerated of any wrongdoing with regard to two charges. This proceeding involves only the one charge sustained and we limit our discussion to that charge.
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unanimously affirmed. Memorandum: The indictment, in one count, charges that defendant "during 1984” sexually abused a seven-year-old child "on several occasions”. County Court properly denied defendant’s motions to dismiss the indictment because the motions were made more than 45 days after arraignment and defendant failed to show good cause why he could not have raised these grounds for dismissal within the 45-day motion period (see, CPL 255.20 [1], [3]; People v Key, 45 NY2d 111, 116; People v Selby, 43 NY2d 791, affg on mem at App Div 53 AD2d 878).
Moreover, under the circumstances of this case, the indictment, as limited by the bill of particulars, was not defective for lack of specificity (see, People v Morris, 61 NY2d 290; cf, People v Keindl, 68 NY2d 410, rearg denied 69 NY2d 823). The bill of particulars set forth the approximate time of the offense as April 1984. There was no showing of bad faith by the People in failing to particularize further the dates of the alleged offenses because the seven-year-old victim was unable to relate more specifically when they occurred (see, People v Benjamin R., 103 AD2d 663, 666-667).
*888We find no merit to defendant’s other contention that he was deprived of effective assistance of counsel. (Appeal from judgment of Livingston County Court, Cicoria, J.—sexual abuse, first degree.) Present—Dillon, P. J., Denman, Boomer, Pine and Lawton, JJ.
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—Order unanimously affirmed without costs. Memorandum: In affirming, we note that we are not called upon to decide whether the complaint states a cause of action. (Appeal from order of Supreme Court, Monroe County, Siracuse, J.— dismiss complaint.) Present—Dillon, P. J., Denman, Boomer, Pine and Lawton, JJ.
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—Order unanimously modified on the law and as modified, affirmed without costs, in accordance with the fol*889lowing memorandum: The complaint against defendants Marhatta and Mazzo should have been dismissed in its entirety. Nothing in the record supports a cause of action for malicious prosecution or slander against either of them. Deputy Mazzo’s sole involvement was in helping to execute a search warrant. Sergeant Marhatta also assisted in executing the search warrant and, in addition, prepared an affidavit in which he stated that he had been in touch with South Carolina authorities to confirm that a 20-inch Craftsman chain saw had been reported stolen. There is thus no basis for the imposition of liability against either of those defendants.
With respect to defendant Watson, the court properly found that there are triable issues on the causes of action for malicious prosecution and slander thus precluding the entry of summary judgment. Although Watson procured a warrant for plaintiff’s arrest and that raises a presumption that there was probable cause for the prosecution of the charge (see, Broughton v State of New York, 37 NY2d 451, 455-458, cert denied sub nom. Schanbarger v Kellogg, 423 US 929), it cannot be determined on this record whether he misrepresented the facts or omitted certain material facts in preparing the information on which the warrant was based. The information did not reveal that there was a discrepancy in size between the saw which had been seized from plaintiff and that which had been reported stolen. Since there is evidence that the officers were aware of the size discrepancy, there is a triable question whether Watson misrepresented the facts to the court. Additionally, the record suggests that the court may not have been informed that the police had obtained a receipt showing that plaintiff had purchased the saw at Sears. That presents a further question whether there was, in fact, probable cause and whether the court would have issued the warrant had it been informed of those facts.
Watson contends that he is entitled to summary judgment on the slander claims because the complaint fails to allege special damages; because the words alleged in the sixth cause of action did not concern plaintiff; because asking a question cannot constitute defamation; and because he had a qualified privilege to make the statements in the course of a good-faith investigation of plaintiff. Those contentions are without merit. The three utterances allegedly made by Watson impute criminal activity to plaintiff and thus are slanderous per se, and do not require an allegation of special damages (see generally, 43-44 NY Jur 2d, Defamation and Privacy, §§ 3-4, 167). The utterance in plaintiff’s fourth cause of action accused plaintiff *890of sodomizing minors, the statement in the fifth cause of action accused him of selling drugs and the statement in plaintiff’s sixth cause of action accused plaintiff of complicity in or solicitation of theft. In view of the statement in the sixth cause of action, "You are stealing products for Ralph,” defendant’s argument that such statement was not "of or concerning” plaintiff is without merit. With respect to Watson’s contention that the alleged statements are not defamatory because they were in the form of questions, there is no support for that argument. The form of the language used is not controlling and a defamatory meaning may be conveyed by means of a question (see, e.g., Meaney v Loew’s Hotels, 29 AD2d 850, 851, and authorities cited therein; see generally, Prosser and Keeton, Torts § 111, at 780 [5th ed 1984]). Finally, there is no merit to Watson’s contention that his statements were qualifiedly privileged. Although Watson claims that he was engaged in a good-faith investigation of plaintiff, there is nothing in the record to establish that Watson received information that plaintiff molested young boys, solicited them to steal for him, or supplied them with drugs. Watson may be able to introduce proof at trial that there was a basis for these remarks but, at this juncture, he has failed to carry his burden of establishing that he is entitled to judgment as a matter of law. (Appeal from order of Supreme Court, Monroe County, Patlow, J.—summary judgment.) Present—Dillon, P. J., Denman, Boomer, Pine and Lawton, JJ.
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—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him, after a bench trial, of first degree assault and third degree criminal possession of a weapon, defendant’s sole contention is that the court erred in accepting his written jury waiver without inquiring whether defendant voluntarily, knowingly, and intelligently was waiving his right to a jury trial. We hold that, in the circumstances of this case, a written waiver is sufficient and is not invalidated by the court’s failure to inquire (see, People v Dominy, 116 AD2d 851, Iv denied 67 NY2d 942; cfi, People v Basora, 111 AD2d 248). Defendant was represented by experienced counsel who specifically acknowledged, in defendant’s presence, that defendant was waiving his right to a jury trial. Defendant then signed a written waiver in open court. The waiver recites that defendant was waiving his right to a jury after consultation with his attorney and "with full understanding of [his] rights and privileges.” Defendant, who is a 41-year-old businessman, can be presumed to have understood the plain import of his jury waiver. Nothing in the record would have alerted the court to the possibility that defendant was "not fully aware of the consequences of’ his jury waiver (CPL 320.10 [2]; see, People v Dominy, supra). Finally, defendant failed to rescind his jury waiver or protest his being tried by the court at any point in the proceeding. (Appeal from judgment of Supreme Court, Erie County, Kubiniec, J.—assault, first degree, and another offense.) Present—Dillon, P. J., Denman, Boomer, Pine and Lawton, JJ.
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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/5901941/
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—Order unanimously affirmed without costs. Memorandum: In this declaratory judgment action, plaintiffs seek a declaration that the election of Ivan M. Eaton as Town Councilman of the Town of East Otto was illegal, void and a nullity. Plaintiffs allege that the voting machine malfunctioned during the general election held on November 5, 1985 and that the votes cast for competing candidates were not properly tallied. In dismissing the complaint, Special Term ruled that either quo warranto under Executive Law § 63-b or mandamus in a CPLR article 78 proceeding was the appropriate remedy. We affirm.
It is the "long-prevailing rule that an action in the nature of quo warranto by the Attorney-General, now statutorily embodied in section 63-b of the Executive Law, is the exclusive means of * * * trying title to public office” (Morris v Cahill, 96 AD2d 88, 90, citing Greene v Knox, 175 NY 432, 437-438; *891People ex rel. McLaughlin v Board of Police Commrs., 174 NY 450; Matter of Anderson v Krupsak, 51 AD2d 229, 232-233, revd on other grounds 40 NY2d 397; Matter of Ahern v Board of Supervisors, 7 AD2d 538, 543-544, affd 6 NY2d 376). Equally well established is the exception to that rule which permits such title to be tested by mandamus in an article 78 proceeding when only an issue of law is presented (Matter of Dyke-man v Symonds, 54 AD2d 159, 161; Matter of Cullum v O’Mara, 43 AD2d 140, 145, affd 33 NY2d 357).
Mandamus would not be a proper remedy in these circumstances. Whether the voting machine actually malfunctioned during the course of the election may not be resolved on this record as a matter of law. Additionally, if we were to view this action as one commenced under article 78, it is untimely (CPLR 217).
In asserting that a declaratory judgment action is their proper remedy, plaintiffs rely upon this court’s decision in Matter of Dekdebrun v Hardt (68 AD2d 241, Iv dismissed 48 NY2d 882). That reliance is misplaced. In Dekdebrun the objection based upon the exclusivity of quo warranto as the proper remedy was not raised by the parties at Special Term or on appeal (see, Morris v Cahill, supra, at 91). (Appeal from order of Supreme Court, Cattaraugus County, Feeman, J.— declaratory judgment.) Present—Dillon, P. J., Denman, Boomer, Pine and Lawton, JJ.
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01-03-2023
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01-13-2022
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—• Order reversed, without costs, and with leave to the respondents to accept the stipulation tendered and filed by the appellant within twenty days after service of the order to be-entered hereon, if they shall so elect.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/1556227/
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798 F. Supp. 1234 (1992)
CHRYSLER CREDIT CORPORATION
v.
WHITNEY NATIONAL BANK, et al.
Civ. A. Nos. 91-1727, 91-4256 and 91-4257.
United States District Court, E.D. Louisiana.
July 1, 1992.
*1235 *1236 McGlinchy, Stafford, Cellini, Lang, Rudy J. Cerone, Charles R. Penot, Anthony J. Rollo, New Orleans, for plaintiff.
Milling, Benson, Woodward, Hillyer, Pierson and Miller, David McLean Culpepper, Talmadge M. Watts, John Tsai, New Orleans, for defendants.
ORDER AND REASONS FOR RULING
CLEMENT, District Judge.
Chrysler Credit Corporation's Motion for Partial Summary Judgment, Whitney National Bank's Motion for Partial Summary Judgment, Chrysler Credit Corporation's Motion to Strike Exhibits and Chrysler Credit Corporation's Motion to Strike Portions of Whitney's Motion Papers were decided this date on memoranda.
Chrysler's Motion to Strike Exhibits is DENIED, and, for the reasons stated below, Chrysler's Motion for Partial Summary Judgment is DENIED and Whitney's Motion for Partial Summary Judgment is DENIED and Chrysler's Motion to Strike Portions of Whitney's Motion Papers is DENIED as MOOT.
I. BACKGROUND
Plaintiff Chrysler Credit Corp. (Chrysler) was the floor plan lender for Toyota of Jefferson, Inc. (TOJ), an automobile dealership. As the floor plan lender, Chrysler financed TOJ's inventory of new automobiles. These credit advances made by Chrysler to TOJ were secured under a "Security Agreement and Master Credit Agreement" by TOJ's new and used motor vehicle inventory and the proceeds derived from inventory sales.
Upon sale of a car from inventory, the sales proceeds were temporarily held by TOJ until repaid to Chrysler. Defendant Whitney National Bank (Whitney) was the principal banker for TOJ.
During the 18 month period of the floor plan agreement (February 28, 1989 September 28, 1990), Whitney established the practice of covering TOJ's checks to Chrysler when there were insufficient funds in the TOJ account. In addition, Whitney made personal loans to the owners of TOJ. The overdraft loans and other loans to TOJ were secured by an Act of Pledge executed by TOJ on November 28, 1989.
At times, TOJ did not pay for cars as they were sold. Instead, TOJ deposited the proceeds from the car sales into its account with Whitney. Whitney, in turn, set off the accounts in satisfaction of the outstanding loans and overdrafts Whitney paid.
Chrysler contends that Whitney, through its arrangement with TOJ, converted proceeds belonging to Chrysler by virtue of Chrysler's security interest in those proceeds. Whitney contends that it had a right to setoff the funds in TOJ's account which was superior to any security interest that Chrysler had in those funds. In the alternative, Whitney contends that Chrysler's security interest in the proceeds did not establish a "right of possession" in the funds sufficient for Chrysler to maintain a conversion action. In the alternative, Whitney claims that it had a right of subrogation, because it paid off Chrysler.
II. ELEMENTS OF CONVERSION
To prevail on a conversion claim under Louisiana law, Chrysler must prove that (1) it owned or had the right to possess funds that were misused by Whitney, (2) the misuse was inconsistent with Chrysler's rights of ownership, and (3) the misuse *1237 constituted a wrongful taking of the funds. Chrysler Credit Corp. v. Perry Chrysler Plymouth, 783 F.2d 480, 484 (5th Cir.1986). It is generally not required that a plaintiff prove any intent, malice, etc. on the part of the defendant in a conversion action. Id.
In this case, the central dispute is over the first requirement of a conversion action that the plaintiff "own" or have the "right to possess" the converted property.
III. CHRYSLER'S RIGHT TO POSSESS THE PROCEEDS
The question of whether Chrysler had a right to possess the funds at the time of setoff is a complex question that must be resolved in two parts.
The first inquiry is one of priority of intereststhat is, does Chrysler's interest, if any, in the proceeds of TOJ's sale of collateral have priority over Whitney's interest, if any, in the TOJ account?
The second inquiry is whether the commingling of the proceeds with other TOJ funds invalidates Chrysler's security interest in the proceeds or otherwise precludes a conversion action. Even if the Court were to find that Chrysler's security interest has priority, Chrysler must overcome the commingling problem.
A. The Parties' Interests
1. Chrysler's Interest in the Proceeds
Chrysler asserts that it had a first priority security interest in the proceeds from sales of new cars by TOJ, a proposition that Whitney denies.
Section 3.0 of the Security Agreement between Chrysler and TOJ provides as follows:
Debtor hereby grants to Secured Party a first and prior security interest in and to each and every Vehicle financed hereunder, whether now owned or hereafter acquired by way of replacement, substitution, addition or otherwise, together with all additions and accessions thereto and all proceeds thereto (emphasis added).
Security interests in proceeds of mortgaged properties are explicitly authorized by La.R.S. 9:5386(A), which was in effect when the Security Agreement was entered on February, 1989:
A mortgage agreement may provide for the collateral assignment or pledge of incorporeal rights that are or may be incidental or accessory to the mortgaged property or its use ... The incorporeal rights shall include ... [t]he right to receive proceeds attributable to the sale, lease, insurance loss, or condemnation of the mortgaged property.
The explicit language of the Security Agreement and the relevant statute make it clear that Chrysler had a valid security interest in the proceeds from the sale of financed automobiles by TOJ. Under the statute, Chrysler's contractual right to receive proceeds from the sale of collateral is a right which is "incidental or accessory" to its rights in the collateral, rather than an interest arising independently from its rights in the collateral. It follows that Chrysler's interest in the proceeds represents a continuation of its interest in the collateral, which was created by execution of the Security Agreement.
To be effective against third persons, such as Whitney, a mortgage such as Chrysler's must be recorded "in the manner provided by law." La.R.S. 9:5387(A). It is not disputed here that Chrysler recorded its mortgage of TOJ's property soon after the agreement was entered, in February 1989. Accordingly, Chrysler's security interest in the collateral and proceeds was effective against third parties as of that date.
2. Whitney's Interest in the TOJ Account
Whitney contends that it had a security interest in the funds held in the TOJ account that was superior to any security interest that Chrysler had in those funds.
It is not disputed that Whitney was a creditor of TOJ's. Whitney had covered TOJ's overdrafts, which, legally, functions as a loan from Whitney to TOJ. In addition, Whitney had made other loans to TOJ.
*1238 a. Whitney's right of set-off
La.R.S. 6:316 provides banks with the statutory right to set off accounts of depositors who are in default on obligations to the bank. La.R.S. 6:316(C) provides that
[i]n the event that the depositor should default under any loan, extension of credit or other direct or indirect obligation in favor of the depository bank, the bank shall have the right to apply any and all funds that the depositor then has on deposit with the bank towards the payment of the depositor's indebtedness or obligations, whether such payment satisfies the indebtedness in whole or part. The exercise of the bank's remedies under this Subsection shall not affect any other rights and remedies available to the bank following the depositor's default.
In order to avail itself of the statutory setoff remedy provided in La.R.S. 6:316(C), the bank must comply with the notice requirement of La.R.S. 6:316(D):
The bank shall notify the depositor in writing within two business days following the exercise of the bank's remedies under Subsection C of this Section. Such notice shall be forwarded by registered or certified mail to the depositor's most current address reflected in the bank's records ...
Whitney has not provided the Court with any evidence that it provided TOJ with notice of setoff as required by La.R.S. 6:316(D). In addition, Whitney has not established that TOJ was in "default" as required by La.R.S. 6:316(C). Accordingly, Whitney cannot avail itself of the statutory setoff remedy.
However, La.R.S. 6:316(E) provides that the "rights and remedies afforded to banks under this Section shall be in addition to a depository bank's contractual rights of compensation and setoff as provided in customer notes and agreements." Whitney contends that it had a contractual right of setoff pursuant to its various agreements with TOJ. Whitney notes that Paragraph 11 of Whitney's Rules & Regulations Governing Deposit Accounts, which binds all Whitney depositors, provides that
We [Whitney] may at our sole option pay an overdraft ... We may deduct any amounts that are due to us from your account at any time without prior notice to you.
Accordingly, Whitney had a contractual right to set off TOJ's accounts to collect amounts due on overdraft loans.
It should be noted here that Whitney's right of set-off is not a "security interest," but, rather, is in the nature of a lien. Professor Gilmore, the father of UCC Article 9, has explained:
Of course a right of set-off is not a security interest and never has been confused as one ... A bank's right of set-off against a depositor's account is often loosely referred to as a "banker's lien," but the "lien" usage has never led anyone to think that the bank held a security interest in the bank account.
Gilmore, Security Interests in Personal Property, pp. 315-16 (1965), as quoted in Insley Mfg. Corp. v. Draper Bank & Trust, 717 P.2d 1341, 1344 (Utah 1986); Associates Discount Corp. v. Fidelity Union Trust Co., 111 N.J.Super. 353, 268 A.2d 330, 332 (1970).
b. Whitney's Security Interest in the Account
Whitney contends that, in addition to having a right of set-off against TOJ, it had a security interest in the TOJ account. TOJ executed an Act of Pledge encumbering certain property of TOJ to secure any debts the dealership might owe to Whitney. This property encumbered by the Act of Pledge includes "all money and funds on deposit, including balances held in checking, savings or custodian accounts."
The Act of Pledge creating Whitney's security interest was executed on December 28, 1989. This occurred seven months after Chrysler's security interest in the TOJ proceeds was created.
3. Priority Principles Under Louisiana Law
The question of whether a creditor with a perfected security interest in proceeds of collateral has priority over the bank's right *1239 to setoff appears to be a question of first impression under Louisiana law. However, from a review of (1) the most relevant Louisiana statutory and decisional law, and (2) decisions from other jurisdictions concerning this fact pattern (with a particular emphasis on those decided under common law priority rules), the Court can determine the priority rule that the Louisiana Supreme Court would most likely adopt for the fact pattern in the case at bar.
a. Shreveport Production, Security Interests and Setoff
Whitney contends that its right of setoff is superior to any security interest that Chrysler had. Whitney relies heavily on Shreveport Production Credit Assn. v. Bank of Commerce, 405 So. 2d 842 (La. 1981). In Shreveport Production, the plaintiff Credit Association had made loans to the debtor, a cattle-raiser. The loans were evidenced by a note and secured by a chattel mortgage over the debtor's entire herd of cattle. The note was not paid when it matured, and at that time, the debtor and the credit association agreed that the debtor would sell his herd and equipment, the proceeds to be applied to the balance due on the loan. The cattle were sold at auction, and the debtor received sixteen checks in the total amount of $31,894.14 on March 28, 1978. The next day, March 29, the debtor wrote a check in the identical amount, drawn on the defendant bank. On March 30, the plaintiff credit association deposited this check in its account at a second bank. Id. at 843-44.
On March 31, the defendant bank received the checks representing the proceeds from the cattle auction, and on the same date, the debtor's check to the credit association was presented to the defendant bank for payment. After the checks representing the auction proceeds were deposited into the debtor's account at the defendant bank, the bank set-off the account in the amount of the debtor's outstanding balance on loans from the bank. When the debtor's check to the credit association was presented for payment, the bank dishonored the check because of insufficient funds in the debtor's account. Id.
The Shreveport Production court held that there was no wrongful dishonor by the bank because the plaintiff credit association had no right to the funds:
[T]here was no attachment made before the setoff because the Credit Association had not acquired any right to the funds and was not prejudiced. This conclusion leads us to hold that unless a third party had previously acquired rights to the funds which were the subject of the setoff, the exercise by the bank of its right of setoff against its depositor does not fail under the provisions of C.C. art. 2215.
Id. at 845. Relying on La.R.S. 10:3-409, the court held that the presentation of a check for collection did not give the credit association any rights in the proceeds that were superior to the defendant bank's.[1] Courts have uniformly held that, under UCC § 3-409, a check does not of itself operate as an assignment of the drawer's funds in the drawee bank. See, e.g., Atlantic Cement Co. v. South Shore Bank, 730 F.2d 831, 38 UCCRS 539 (1st Cir.1984) (Massachusetts UCC); Carmichael v. General Electric Co., 102 A.D.2d 838, 476 N.Y.S.2d 606 (2d Dept. 1984).
Thus, Shreveport Production is distinguishable from the case at bar, because the credit association in Shreveport Production did not have "any right to the funds." The credit association had an interest in the collateral itself, but had no interest in the proceeds. The court properly concluded that where the third party had not previously acquired rights to the funds, the bank's right of setoff does not fail.
Unlike the plaintiff credit association in Shreveport Production, Chrysler did have rights in the proceeds from the sale of collateral by TOJ. These rights arose from *1240 the Security Agreement between Chrysler and TOJ.
Whitney claims that Shreveport Production establishes that a depository institution always has the right to setoff, regardless of whether there was a prior security interest on the funds deposited into the account. However, as noted above, the Shreveport Production court explicitly held that "unless a third party had previously acquired rights to the funds which were the subject of the setoff, the exercise by the bank of its right of setoff against its depositor does not fail" (emphasis added). 405 So.2d at 845. By negative implication, if a third party had previously acquired rights to the funds which were the subject of the setoff, as Chrysler did, the setoff might fail.
b. Was Shreveport Production legislatively overturned by La.R.S. 9:5386-87?
Chrysler contends that the Shreveport Production holding was legislatively overturned by the adoption of La.R.S. 9:5386-87 in 1987. This is not true. The Editor's Note to Acts 1988, No. 985, which includes La.R.S. §§ 9:5386-87, states that
With the exception of R.S. 9:5387(B)[2] and 5390(C), the provisions of this Act merely confirm and codify established customs and practices ...
Consequently, Chrysler's assertion that the enactment of La.R.S. §§ 5386-87 provided Louisiana creditors with "an automatic continuing security interest in proceeds derived from sale of goods subject to a Louisiana chattel mortgage or collateral chattel mortgage" is erroneous.
Shreveport Production is consistent with La.R.S. 5386(A). The statute provides that a "mortgage may provide for the collateral assignment or pledge of incorporeal rights," including proceeds from the sale of collateral (emphasis added). However, the statute does not, as Chrysler suggests it does, automatically create a security interest in the proceeds of disposed collateral.[3]Cf. La.R.S. 10:9-306 (UCC Article 9 does automatically create security interest in proceeds).
c. The Bank's Right to Rely on the Debtor's Ownership of Funds, under La. R.S. 6:317 and Shreveport Production
Whitney further contends that La.R.S. 6:317, which provides that a bank may rely on the depositor's ownership of funds in the depositor's account, establishes the bank's right to setoff under any circumstances. As Whitney points out, La.R.S. 6:317, enacted in 1988, does embody many of the principles of Shreveport Production. La.R.S. 6:317 provides that
A bank may conclusively rely on an application, agreement or signature card used to establish a deposit account as establishing ownership of any and all funds and other credits deposited therein, and may consider and treat any and all funds on deposit in such an account as belonging to and the sole and exclusive property of the depositor or depositors named on the account application, agreement or signature card, unless otherwise notified or directed by such depositor or depositors.
This language is quite similar to language found in Shreveport Production:
[W]hen a bank receives a check for deposit, which, in all aspects, is valid on its face and contains an endorsement on its back which recites that the payee is the sole and unconditional owner, that bank has the right to treat that check as it would any other deposit. To require the bank to investigate the underlying transaction which led to the issuance of the instrument or to permit a third person to challenge the depositor's ownership under the present circumstances would result in an unreasonable burden upon, and *1241 disruption of, regular and normal banking transactions.
405 So.2d at 845-46. Whitney contends that this language in Shreveport Production and La.R.S. 6:317 establishes the bank's absolute right to setoff.
Whitney is mistaken. La.R.S. 6:317, as quoted above, provides that a bank may rely on the depositor's ownership of the funds in the account "unless otherwise notified or directed by such depositor or depositors." Thus, if Whitney was "notified" by the "depositor," TOJ, of Chrysler's security interest in the funds, then La.R.S. 6:317 does not apply.[4] The exact knowledge Whitney had of Chrysler's security interest at the time of set-off, and whether it obtained this knowledge from TOJ, is a disputed question of fact to be resolved at trial.
The notification exception is consistent with the holding of Shreveport Production. The essence of La.R.S. 6:317, and the comparable language in Shreveport Production, is that it would be unreasonable to impose upon banks the duty to determine whether any parties other than the depositor have an interest in funds deposited into the account. It is well settled under Louisiana law that a bank does not have a duty to inquire as to the origin of funds deposited into accounts. Shreveport Production, 405 So.2d at 854-46; Guidry v. Bank of LaPlace, 954 F.2d 278, 286-87 (5th Cir.1992). This principle is irrelevant, however, where the bank knows of the circumstances surrounding the deposit. And where the bank is in collusion with the debtor at the expense of a senior creditor, as Chrysler alleges, this is especially true.
One could argue that Shreveport Production contradicts La.R.S. 6:317, as the Court noted that the bank did have knowledge of the debtor's "financial difficulties and the chattel mortgage on the cattle."[5] However, a close reading of Shreveport Production reveals that the case is quite consistent with the statute. As quoted above, the Court held that
to require the bank to investigate the underlying transaction which led to the issuance of the instrument or to permit a third person to challenge the depositor's ownership under the present circumstances would result in an unreasonable burden upon, and disruption of, regular and normal banking transactions. (emphasis added)
405 So.2d at 846. In Shreveport Production, there was no allegation that the bank's setoff of funds was anything other than a "regular and normal banking transaction." Consequently, the bank's setoff of funds and subsequent dishonor of the check presented by the credit association were appropriate. If there is something akin to fraud or collusion, as Chrysler alleges in this case, rather than a "regular and normal banking transaction," the general rule of La.R.S. 6:317 and Shreveport Production has no application.[6]
d. La.R.S. 6:312(E)
Whitney notes that La.R.S. 6:312(E)[7] allows banks to prohibit depositors from *1242 granting security assignments in any deposit account, and that a provision of Whitney's Rules and Regulations does so limit TOJ.[8] However, Whitney overlooks the fact that La.R.S. 6:312(E) was not in effect until September 1, 1989, after the execution of the Chrysler-TOJ Security Agreement and after the creation of TOJ's Whitney account. Second, and more importantly, Chrysler has never had a security interest in the TOJ account. Chrysler's security interest is in the proceeds of the sale of its collateral. Whitney and TOJ cannot, by entering a contract, preclude Chrysler's interest in the proceeds.
e. La.R.S. 9:5387(B)
Whitney contends that, under La.R.S. 9:5387(B), a proceeds-secured creditor can only attach funds in unencumbered deposit accounts. Whitney overlooks the fact that La.R.S. 9:5387(B) only applies "following the mortgagor's or debtor's default." In this case, the alleged conversion occurred prior to TOJ's default to Chrysler.
f. A Pre-UCC Priority Rule Consistent With Pre-Article 9 Louisiana Law
Since this priority dispute cannot be resolved under existing Louisiana statutory or common law, other authority must be considered.
As Chrysler points out, the overwhelming weight of authority indicates that a security interest in the proceeds of collateral, such as Chrysler's, has priority over a bank's contractual or statutory right of setoff of funds in depositors' accounts. See, e.g., Harley-Davidson Motor Co. v. Bank of New England, 897 F.2d 611 (1st Cir.1990) (Rhode Island UCC); Griffin v. Continental Life Ins. Co., 722 F.2d 671 (11th Cir.1984) (Georgia UCC); Citizens' National Bank of Whitley County v. MidStates Development Co., 177 Ind.App. 548, 380 N.E.2d 1243, 1244 (1978). See also cases cited in Harrison, "Effect of UCC Article 9 Upon Conflict, as to Funds in Debtor's Bank Account, Between Secured Creditor and Bank Claiming Right of Setoff," 3 A.L.R. 4th 998 (1991 Supp.). Professor Hawkland[9] has stated that the result would be the same under Louisiana law, despite the strong set-off rights of banks under La.R.S. 6:316. Hawkland, Hawkland's Handbook on Chapter 9 Louisiana Commercial Law, § 3:37 (1990).
Whitney argues that these cases are inapposite because Whitney had a security interest in the debtor's account by virtue of TOJ's Act of Pledge. However, even where the bank has a more senior security interest in the account, an inventory creditor's security interest in the proceeds typically has priority over the bank's right of setoff. Coachmen Industries, Inc. v. Security Trust & Sav. Bank, 329 N.W.2d 648, 35 UCCRS 1012 (Iowa 1983); Rauer, "Conflicts Between Set-Offs and Article 9 Security Interests," 39 Stan.L.Rev. 235, 249 (1986).
More importantly, in this case, Chrysler's security interest in the collateral and "incidental" interest in the proceeds, which was created nine months before Whitney's security interest in the account, is first-in-time. Cf. State Bank of Rose Creek v. First State Bank of Austin, 320 N.W.2d 723 (Minn.1982) (bank has priority where creditor's interest in certificate of deposit did not attach until after CD was deposited into account). Professor Hawkland has suggested that a bank with a security interest "over and above its set-off rights" might possibly have priority over the proceeds-secured creditor. Hawkland, supra, at § 3:37. See also Rauer, 39 Stan.L.Rev. at 250-52 (arguing that a bank with a senior security interest should have priority over a proceeds-secured creditor). However, it cannot seriously be argued that a bank with a junior security interest should have priority over a more senior creditor.
*1243 Whitney also argues that decisions from other jurisdictions are irrelevant because they are based on Article 9 of the Uniform Commercial Code (UCC), which was not in effect in Louisiana at the time. Whitney's suggestion that the Court ignore all authority which is dependent upon Article 9 is quite problematic because (1) there are no Louisiana decisions or statutes directly on point and (2) every other jurisdiction in the country adopted Article 9 before Louisiana did. See, generally, Gabriel, "Louisiana Chapter Nine (Part One): Creating and Perfecting the Security Interest," 35 Loy. L.Rev. 311, 312 (1990). Furthermore, cases decided under UCC Article 9 are relevant not only because they are essentially the only authorities available, but also because many of the decisions, as described below, are based on common law principles established long before the UCC ever existed.
Although the courts have nearly unanimously found that the secured creditor's interest in proceeds has priority over the bank's right to setoff, the courts have reached this result in different ways. Rauer, 39 Stan.L.Rev. at 249; Lacy, "Conflicting Security Interests in Inventory and Proceeds Under the Revised Article 9 of the Uniform Commercial Code," 41 S.C.L.Rev. 247, part III(B)(2)(b)(iii) (1990).
Section 9-104(i) of the UCC excludes bank set-offs from the scope of Article 9. Most courts read section 9-104(i) narrowly, that is, as excluding only the creation of set-offs from the scope of Article 9. Applying Article 9 priority rules, these courts unanimously find that the inventory creditor's interest in the proceeds has priority under section 9-201. These authorities only offer limited guidance to this Court, because the UCC's priority rules were not part of Louisiana law at the relevant time.
Some courts have construed section 9-104(i) broadly, completely removing the priority dispute from Article 9's priority scheme. These courts have applied non-Code law to resolve priority conflicts between inventory creditors and banks exercising their right of set-off.
Two common law rules have developed to resolve this type of conflict.
The first is known as the "legal rule," which "subordinates the bank's right to set-off if the bank has knowledge of facts that would reasonably cause a prudent person to inquire as to the source of funds, and a reasonable inquiry would have disclosed that the funds were cash proceeds subject to a security interest." Lacy, 41 S.C.L.Rev. 247, at part III(B)(2)(b)(iii). These courts apply the well-settled principle, derived from trust law, that a bank may not set-off funds of a third person deposited in the debtor's name. Barnes, "Tracing Commingled Proceeds: The Metamorphosis of Equity Principles Into UCC Doctrine," 51 U.Pitt.L.Rev. 281, 333 (1990); Ricketts, "Bank's Right to Apply Third Person's Funds, Deposited in Debtor's Name, on Debtor's Obligation," 3 A.L.R. 3d 235 (1966). In National Acceptance Co. of America v. Va. Capital Bank, 498 F. Supp. 1078 (E.D.Va.1980), rev'd on other grounds, 673 F.2d 1314 (4th Cir.1981), for example, the court applied Virginia's common law rule which provides that the bank has the right to set-off funds unless it has notice of a third party's interest:
Virginia adheres to the majority rule that if the bank can be charged with knowledge of the interest of a third party in a deposit account, or notice of facts sufficient to put it on inquiry that such an interest exists, it may not apply the account to satisfy a debt owed by the depositor.
Id. at 1083.
The second is known as the "equitable rule." Under this rule, the bank cannot set off funds "unless it has detrimentally changed its position in reliance on the debtor's ownership of the funds," regardless of whether it has notice of the creditor's security interest. Id. See, e.g., Commercial Discount Corp. v. Milwaukee W. Bank, 61 Wis. 2d 671, 214 N.W.2d 33, 39 (1974). Under this rule, it is extremely difficult for the bank to overcome the priority of the inventory financier, even where it had no knowledge of the creditor's security interest. This rule would be inconsistent with the aforementioned Louisiana statutes which allow the bank to set-off a debtor's *1244 funds where it has no notice of a third party's interest in those funds.
The "legal rule" is most consistent with pre-Article 9 Louisiana law. First, under La.R.S. 6:317 and Shreveport Production, the bank may typically rely on the depositor's ownership of funds in the account. As noted above, the exception to this rule is where the bank is notified by the debtor that the debtor does not have ownership of the funds. This is analogous to the Virginia common law rule followed by the court in National Acceptance, supra.
Second, Louisiana courts have determined, as courts have in other jurisdictions, that a bank that is aware of the trust character of funds in the debtor's account may not set-off. Merchants & Farmers Bank & Trust Co. v. Hammond Motors Co., 164 La. 57, 113 So. 763 (1927); State v. Calcasieu Nat. Bank, 132 La. 879, 61 So. 857 (1912). The holding in Calcasieu National Bank, despite its antiquity, mirrors the language in La.R.S. 6:317 and Shreveport Production:
[A] bank [is] entitled, at least in the absence of knowledge to the contrary, to presume that a depositor who presents a check in proper form is acting in the course of a lawful exercise of his rights
...
In the case of trust funds the bank assumes no responsibility unless in some way it is put on notice of a violation of the trust.
(emphasis added, citations omitted). In addition, Civil Code article 1899 provides that the mutual extinguishing of obligations, such as set-off, "can neither take place nor may it be renounced to the prejudice of rights previously acquired by third parties."
Courts in other jurisdictions have applied these trust law principles in priority disputes between a bank and a proceeds-secured creditor where the bank is aware of the creditor's security interest in proceeds. See, e.g., Brown & Williamson Tobacco Corp. v. First National, 504 F.2d 998, 1001-02 (7th Cir.1974) (Illinois law); Universal C.I.T. Credit Corp. v. Farmers Bank, 358 F. Supp. 317, 325 (E.D.Mo.1973) (Missouri law). The priority of the proceeds-secured creditor over a bank's right of set-off under Article 9 of the UCC can be traced to these well-settled trust law principles. See Barnes, 51 U.Pitt.L.Rev. at 297-99 (explaining and criticizing this progression).
4. Chrysler's Motion to Strike Portions of Whitney's Memos
Chrysler contends that Whitney has advanced positions in its memoranda concerning the pending motions that are inconsistent with Whitney's responses to Chrysler's Requests for Admission Nos. 16[10], 18[11], 21[12], 22[13] and 38[14].
The Court has held that statements in Requests for Admission Nos. 16 and 18 are correct as a matter of law. However, the fact that Chrysler has a first priority security interest in the proceeds does not necessarily mean that Chrysler's interest in the proceeds has priority over Whitney's interest in the TOJ account or Whitney's right of setoff. While conceding the existence Chrysler's security interest, Whitney may contest its legal implications.
*1245 The statements in Requests for Admission Nos. 21-22 merely state what TOJ agreed to do under the Floor Plan Agreement. As Whitney points out, it may still contest the legal effect of TOJ's agreement to perform these acts.
The statement in Request for Admission No. 38 relates to a material fact in this litigation, and is established conclusively. Thus, the fact that Whitney knew that TOJ's new motor vehicle inventory purchases were being financed by Chrysler Credit on a secured floor plan basis cannot be contested. Although quite probative, this fact is not conclusive as to whether Whitney knew that Chrysler had a security interest in the proceeds of the collateral. Consequently, Whitney may still contest the important (if not decisive) issue of notice of Chrysler's security interest.
5. Conclusion
Chrysler had a security interest in the proceeds of TOJ's new car sales and Whitney had a less senior security interest, and right of set-off, in TOJ's Whitney account. Louisiana law provides that a bank may set-off a debtor's account unless it has notice of a third party's interest in those funds. Where the bank does have notice of the security interest of a proceeds-secured creditor in those funds, it is unclear under Louisiana law which interest in the funds has priority. Under the "legal rule," the pre-UCC priority rule most consistent with Louisiana law, the proceeds-secured creditor has priority over the bank's right to set-off if the bank has notice of the security interest in the proceeds. Accordingly, Chrysler's security interest in the proceeds has priority over Whitney's right of set-off if Whitney had notice of Chrysler's security interest.
B. Tracing of Funds
Even if Chrysler can establish that its interest in the proceeds was superior to Whitney's interest in the account, Chrysler must establish that it is entitled to have the proceeds, which were commingled with other funds in the TOJ account, traced and identified. Whitney contends that Chrysler waived its rights in the proceeds by failing to require TOJ to segregate the proceeds from the sales of new vehicles. Whitney contends that Chrysler cannot be deemed to have "ownership" of the proceeds where it does not require TOJ to segregate them from other funds. Indeed, the Security Agreement empowered Chrysler to require TOJ to deposit the proceeds from the sale of collateral into a separate account, but Chrysler never required TOJ to do so.
The agreement between Chrysler and TOJ provides, in pertinent part that
If the mortgagor so sells any one or more of such chattels, the proceeds of such sale, and the evidence thereof in whatever form the same may be, shall be the property of the Mortgagee and shall be held in trust by the Mortgagor for the use and benefit of the Mortgagee and the Mortgagor agrees as such trustee to deliver such proceeds and such evidence of sale immediately upon his or its receipt thereof to the Mortgagee, to be applied by it toward the reduction of the indebtedness incurred by this Mortgage.
Collateral Chattel Mortgage, Additional Covenant No. 3. Thus, the Chrysler/TOJ contract expressly states that the proceeds are the property of Chrysler, are to be held in trust by the dealership for Chrysler, and are to be transferred to Chrysler immediately after the sale of the collateral. However, it does not require TOJ to segregate the proceeds from other TOJ funds.
1. Validity of Chrysler's Security Interest in Commingled Funds
This failure to require the segregation of funds is not fatal to Chrysler's security interest. La.R.S. 9:5387(D) provides that a security interest in proceeds remains valid where the proceeds have been commingled with other funds:
A mortgage shall not be deemed to be invalid, ineffective, or fraudulent against other creditors by reason of the mortgagor's freedom to use, commingle, or dispose of such proceeds, or by reason of the mortgagee's failure to require the mortgagor to account therefore. *1246 Consequently, the fact that TOJ was free to, and did, commingle the proceeds of the sale of the collateral with other funds, does not affect the validity of Chrysler's interest in the proceeds.
2. Possessory Rights in Commingled Funds
Although Chrysler's security interest was valid, it does not necessarily follow that this interest constituted a "right of possession" of the proceeds.
Chrysler contends that, despite its failure to require TOJ to segregate the proceeds, it had a sufficient possessory interest in the proceeds to maintain a conversion action. Chrysler relies on Chrysler Credit Corp. v. Perry Chrysler Plymouth, 783 F.2d 480 (5th Cir.1986) (Louisiana law). The Perry case, like the case at bar, involved a claim of Chrysler Credit for the conversion of the proceeds of the sale of collateral. The contract between Perry Chrysler and Chrysler Credit required Perry Chrysler to keep all proceeds from the sale of the vehicles covered by the floor plan mortgage "separate from [its] other funds, held in trust for Chrysler Credit, and transferred immediately to it." Id. at 484. Instead of transferring the proceeds to Chrysler Credit as required by the contract, Mr. Perry took the money to Las Vegas and lost. Relying on Louisiana trust law,[15] the court held that the agreement between Perry Chrysler and Chrysler Credit created a fiduciary duty on the dealership's part, and that the dealership's "failure to segregate and remit the funds and its diversion of them to its own uses constituted a conversion for which it is liable." Id.
Whitney contends that, under Unimobil 84, Inc. v. Spurney, 797 F.2d 214 (5th Cir.1986), a creditor does not have the right to possess proceeds where the debtor is not required to segregate them. In that case, the plaintiff, Unimobil, contracted with the organizers of the 1984 World's Fair (Louisiana World Exposition, Inc.; "LWE") to construct and operate a monorail at the Fair. The agreement between Unimobil and LWE provided that:
Fifteen percent (15%) of the Gross Admission Revenue ... shall be collected and held by the Exposition as trustee in trust for the fulfillment of its obligations ... [and such funds] shall not be deemed part of the general assets of the Exposition.
Instead of holding 15% of the monorail revenue in trust for Unimobil, LWE used the funds to pay other debts. LWE filed for bankruptcy, and Unimobil was not paid the funds it was due.
The court distinguished Perry, and held that Unimobil did not "own" the monorail revenue for purposes of its conversion claim. The court reasoned as follows:
[T]he language in the two contracts is materially different. Chrysler Credit's contract with the dealer quoted above unlike Unimobil's contract with LWE provided explicitly that the proceeds of the sales belonged to Chrysler Credit and required the dealer to immediately transmit these funds to Chrysler Credit. On these facts we held that the proceeds of the automobile sales belonged to Chrysler Credit. On the other hand, the Unimobil contract did not require LWE to segregate the gate receipts LWE agreed to withhold; neither did the contract require LWE to immediately remit these receipts. Although the contract did provide that 15% of the gate would not "be deemed part of the assets of LWE," this provision standing alone is insufficient to vest ownership of the funds in Unimobil.
Id. at 216. Whitney interprets Unimobil and Perry as holding that the creditor must require the proceeds to be segregated in order to maintain a conversion action. Chrysler interprets the cases as holding only that the inventory creditor must insist that the proceeds are to be held in trust by the dealer for the inventory creditor, and are to be transferred to the inventory creditor upon sale of the collateral.
*1247 The reality is that the holdings of Unimobil and Perry are not dispositive of this case. It is not clear, under Unimobil, whether a creditor who fails to require the proceeds to be segregated, but otherwise has sufficient possessory rights in the proceeds, may maintain a conversion action. Unlike the Chrysler/TOJ contract, Unimobil's contract with LWE did not establish that the monorail proceeds were Unimobil's property or require LWE to remit the monorail proceeds to Unimobil. Thus, even if Unimobil had required LWE to segregate the monorail proceeds, its security interest still would have been insufficient for it to maintain a conversion action. In this case, Chrysler's possessory rights are comparable to those of Chrysler Credit in Perry, except that Chrysler did not require TOJ to segregate the proceeds. To determine whether a creditor who otherwise has sufficient possessory rights in proceeds, but fails to require the proceeds to be segregated, can maintain a conversion action, the Court must look beyond Unimobil and Perry.
As Whitney points out, the general rule is that one cannot maintain a conversion claim for cash when it is not required to be segregated from other funds. In Matter of Banister, 737 F.2d 225 (2d Cir.1984), the Second Circuit, applying New York law, held that an inventory creditor did not "own" the proceeds of the inventory where the dealer did not have a duty to segregate the proceeds from other funds. Id. at 227. Accord In re Littleton, 106 B.R. 632, 635 (Bankr. 9th Cir.1989) (California law); Covington v. Exxon Co., U.S.A., 551 So. 2d 935 (Ala.1989); Independence Discount Corp. v. Bressner, 47 A.D.2d 756, 365 N.Y.S.2d 44 (1975).
However, in cases involving priority disputes between inventory secured creditors and banks exercising a right of set-off, the Courts have fashioned an exception to this rule:
[C]ourts have ... with virtual unanimity, ... held that, in certain special circumstances, a secured party may trace "identifiable proceeds" through a commingled bank account and into the hands of a recipient who lacks the right to keep them.
Harley-Davidson, 897 F.2d at 619-620 (citations omitted). In determining when to trace proceeds, courts have "distinguished between persons who take funds from a commingled account `in the ordinary course' of a debtor's business (where tracing and recovery are not appropriate), and recipients who have engaged in `fraudulent' or `collusive' or otherwise unfair behavior (where tracing and recovery are appropriate)." Id. at 620.
Thus, Chrysler's security interest, even if superior to Whitney's, does not automatically entitle Chrysler to the tracing remedy. Chrysler must establish that Whitney engaged in fraudulent, collusive or otherwise unfair behavior. If Whitney can establish that Whitney set off TOJ's accounts in the ordinary course of its business, Chrysler's conversion claim will fail because of Chrysler's failure to require TOJ to segregate the proceeds.
IV. MISUSE INCONSISTENT WITH OWNER'S RIGHTS
While the parties have extensively briefed the issue of possession, they have largely ignored the other two elements of conversion: that the misuse of the funds be inconsistent with the plaintiff's ownership rights, and that the misuse was a wrongful taking. Perry, 783 F.2d at 484.
In determining whether the interference with another's property is sufficiently serious to give rise to a conversion action, factors to consider include:
The extent and duration of the defendant's exercise of control over the [property], his intent to assert a right which is in fact inconsistent with the plaintiff's right of control, the defendant's good faith or bad faith, the extent and duration of the resulting interference with the plaintiff's right of control, the harm done to the [property], and the expense and inconvenience caused to the plaintiff.
La. State Bar Ass'n v. Hinrichs, 486 So. 2d 116, 120-21 (La.1986).
If Chrysler can establish the first element of conversion (its ownership rights), it *1248 appears that it can easily establish the second element of conversion, that Whitney's action was "inconsistent with its rights of ownership" in the proceeds. Perry, 783 F.2d at 484. Whitney's action in setting off TOJ's account permanently denied Chrysler access to the proceeds which had been deposited into the TOJ account with Whitney. Assuming, pro arguendo,[16] that Chrysler did have possessory rights to the proceeds at the time of Whitney's setoff, Whitney's actions were inconsistent with these possessory rights.
V. "WRONGFUL" TAKING
In order for an act to give rise to a conversion claim, the act of taking must be "wrongful." There are two ways that a taking can be "wrongful." The first is where the defendant initially acquires the property by a wrongful act, such as theft or fraud. The second is where the defendant comes "rightfully into possession and then wrongfully refuse[s] to surrender" the property to one who is entitled to it. Hinrichs, 486 So.2d at 121. In the second scenario, "demand and refusal are necessary to the existence of the tort." Id. When demand is made, "an absolute, unqualified refusal to surrender, which puts the plaintiff to the necessity of force or a lawsuit to recover his own property, is of course a conversion." Id.
In this case, Chrysler must establish that (1) Whitney initially obtained the funds by a wrongful act, or (2) Chrysler made a demand to Whitney for the proceeds and Whitney refused to release them to Chrysler. Since this issue has not been briefed by the parties, the Court will refrain from considering it at this time.
VI. CONSENT
It is well-settled, under Louisiana law, that a lack of consent by the owner or possessor is a prerequisite to a conversion action. U.S. v. Hibernia Nat. Bank, 882 F.2d 961, 966 (5th Cir.1989). Whitney contends that Chrysler was well aware of Whitney's practice of covering TOJ's checks, and that Chrysler knew that the proceeds of the sale of its collateral was being used to pay back Whitney's loans to TOJ.
Whether Chrysler, through its conduct, consented to the alleged conversion by Whitney is a question of fact concerning Chrysler's state of mind, and is best reserved for resolution at trial.
VII. SUBROGATION
To the extent that Chrysler has a higher priority security interest to Whitney's, Whitney contends that it is subrogated to Chrysler's position because Whitney covered TOJ's overdrafts to enable TOJ to pay Chrysler. Whitney cites La.Civ.Code Ann. art. 1829(1), which provides that "[s]ubrogation takes place by operation of law ... [i]n favor of an obligee who pays another obligee whose right is preferred to his because of a privilege, pledge, or mortgage."
There is little question that Whitney was an "obligee" of TOJ's by virtue of its loans to TOJ. However, it is questionable whether Whitney "paid" Chrysler the money owed by TOJ. A more accurate description of the arrangement would be that Whitney made loans (by covering the overdrafts) to TOJ to enable TOJ to pay off some of its debt to Chrysler.
The Court need not consider Whitney's subrogation defense, because the issue is moot. Even if Whitney was Chrysler's subrogor, Whitney could only set-off TOJ's funds to the extent of Whitney's performance rendered to Chrysler. La.Civ.Code Ann. art. 1830. In its conversion action, Chrysler, of course, may only recover the proceeds that it did not receive (from TOJ or Whitney). Thus, in claiming to be Chrysler's subrogor, Whitney is attempting to shield itself from liability that it cannot incur.
VIII. CONCLUSION
Because there are genuine issues of fact to be tried, as described above, *1249 which preclude summary judgment for either Chrysler or Whitney on Chrysler's conversion claim,
IT IS ORDERED that Chrysler's Motion for Summary Judgment and Whitney's Cross-Motion for Summary Judgment are hereby DENIED;
IT IS FURTHER ORDERED that Chrysler's Motion to Strike Exhibits is DENIED and Chrysler's Motion to Strike Portions of Whitney's Motion Papers is DENIED as MOOT.
NOTES
[1] The Shreveport Production decision is based on the law of negotiable instruments, and contains no analysis of priority rules or other references to the law of secured transactions. See Hersbergen, "Negotiable Instruments: Defenses to Payment, Parol Evidence Problems," 44 La. L.Rev. 247, 260 (1983).
[2] See discussion, in Section III(3)(e) of this order, infra, concerning the irrelevance of La.R.S. 9:5387(B) to this matter.
[3] Chrysler's security interest in the proceeds was created by its agreements with TOJ, not by statute. La.R.S. 9:5386(A), which embodied prior Louisiana custom, allowed Chrysler to create by contract a continuing interest in the proceeds of the collateral, but did not itself create that interest.
[4] It certainly appears that TOJ "notified" Whitney of Chrysler's interest in the proceeds. See July 24, 1990 Memorandum from Brent Smith (TOJ) to David Andignac (Whitney) ("If you would bounce a check then it would be all over with Chrysler Credit").
[5] Of course, to the extent that Shreveport Production, a 1981 case, is in conflict with La.R.S. 6:317, a 1986 statute, the statute will control. However, as the analysis below indicates, there is no conflict.
[6] The UCC is in accord with this reasoning. Comment 2(c) to § 9-306 provides as follows:
Where cash proceeds are covered into the debtor's checking account and paid out in the operation of the debtor's business, recipients of the funds of course take free of any claim which the secured party may have in them as proceeds. What has been said relates to payments and transfers in the ordinary course. The law of fraudulent conveyances would no doubt in appropriate cases support recovery of proceeds by a secured party from a transferee out of ordinary course or otherwise in collusion with the debtor to defraud the secured party.
[7] "Notwithstanding any other law to the contrary and as an exception to R.S. 10:9-318(4), any federally insured financial institution may by contract prohibit or otherwise limit the pledge, assignment, collateral assignment, or granting of any other type of security interest in any deposit account maintained or established at such institution, including those deposit accounts evidenced by certificates of deposit issued by such institution."
[8] See Whitney's Rules and Regulations, ¶ 12.
[9] Professor Hawkland of Louisiana State University, one of the nation's premier UCC scholars, drafted Louisiana's version of Article 9 upon request of the governor, and is uniquely qualified to comment on the relationship between La.R.S. 6:316 and priority rules.
[10] "Credit advances made by Chrysler Credit to TOJ to finance TOJ's wholesale inventory purchases of new Toyota automobiles were secured under the Collateral Chattel Mortgage by TOJ's new and used motor vehicle inventory and the proceeds derived from inventory sales."
[11] "Under the Collateral Chattel Mortgage, Chrysler Credit had a first priority security interest in TOJ's new and used motor vehicle inventory and in the proceeds derived from inventory sales."
[12] "Under the Floor Plan Agreement, TOJ agreed to hold in trust for Chrysler Credit's benefit the proceeds derived from inventory sales."
[13] "Under the Floor Plan Agreement, TOJ agreed to remit proceeds derived from inventory sales promptly to Chrysler Credit."
[14] "During the period beginning on or about February 28, 1989 and ending on or about September 28, 1990, Whitney knew that TOJ's new motor vehicle inventory purchases were being financed by Chrysler Credit on a secured floor plan basis."
[15] The court cited Canal-Commercial T & S Bank v. N.O.T. & M. Ry. Co., 161 La. 1051, 109 So. 834, 839 (1926).
[16] As noted above, the priority between Chrysler's interest in the proceeds and Whitney's right of setoff rests on disputed questions of fact. Whether Chrysler has a possessory interest, for purposes of its conversion claim, is dependent upon the resolution of these questions.
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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/6129242/
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— Order modified by striking out the part appealed from, without costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129243/
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— Order modified by striking out the part appealed from, without costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6714144/
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Petition by defendants (NCDHR and N.C. Dept, of Public Instruction) for writ of certiorari to review the decision of the North Carolina Court of Appeal denied 5 March 1998.
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01-03-2023
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07-20-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901942/
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
*1023Petitioner commenced this CPLR article 78 proceeding challenging a tier III prison disciplinary determination. The Attorney General has advised this Court that the determination has been administratively reversed, all references thereto have been expunged from petitioner’s institutional record and the mandatory $5 surcharge has been refunded to petitioner’s inmate account. In view of this, and given that petitioner has received all the relief to which he is entitled, the matter is dismissed as moot (see Matter of Samuels v Fischer, 98 ADSd 760, 760 [2012]; Matter of Calix v Brown, 92 AD3d 1001, 1001 [2012]).
Mercure, J.P., Spain, Stein, Garry and Egan Jr., JJ., concur. Adjudged that the petition is dismissed, as moot, without costs.
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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/5901943/
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Judgment unanimously affirmed. Memorandum: The record establishes that at the time relator commenced this habeas corpus proceeding to challenge the timeliness of his parole revocation hearing, relator was incarcerated as a result of an unrelated conviction. Because he would not be eligible for immediate release from custody should he succeed on the merits of the proceeding, the remedy of habeas corpus is unavailable (People ex rel. Brown v New York State Div. of Parole, 70 NY2d 391; People ex rel. Maiello v New York State Bd. of Parole, 101 AD2d 569, 573, affd 65 NY2d 145). This court could convert this proceeding to one brought pursuant to CPLR article 78 if it had been commenced within the four-month Statute of Limitations contained in CPLR 217 (see, Matter of Soto v New York State Bd. of Parole, 107 AD2d 693, affd 66 NY2d 817), but this proceeding, commenced some eight months after relator was served with the decision to revoke parole, was *892properly dismissed as untimely. Moreover, were we to reach the merits, we would affirm. (Appeal from judgment of Supreme Court, Erie County, Sedita, J.—habeas corpus.) Present —Callahan, J. P., Doerr, Green, Balio and Davis, JJ.
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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/5901944/
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
*1023Petitioner commenced this CPLR article 78 proceeding challenging a tier III prison disciplinary determination. The Attorney General has advised this Court that the determination has been administratively reversed, all references thereto have been expunged from petitioner’s institutional record and the mandatory $5 surcharge has been refunded to petitioner’s inmate account. In view of this, and given that petitioner has received all the relief to which he is entitled, the matter is dismissed as moot (see Matter of Samuels v Fischer, 98 ADSd 760, 760 [2012]; Matter of Calix v Brown, 92 AD3d 1001, 1001 [2012]).
Mercure, J.P., Spain, Stein, Garry and Egan Jr., JJ., concur. Adjudged that the petition is dismissed, as moot, without costs.
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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/5901945/
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Judgment unanimously reversed on the law, defendant’s motion to suppress granted and indictment dismissed. Memorandum: On appeal from a judgment convicting her of criminal possession of marihuana in the first degree, defendant’s primary claim is that a search warrant under which the marihuana was seized was not issued upon probable cause. The suppression court found that the warrant application did not satisfy the Aguilar-Spinelli test (see, Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410), but did meet the "totality of the circumstances” test enunciated by the United States Supreme Court in Illinois v Gates (462 US 213).
The Court of Appeals in cases involving arrests without a warrant has declined to adopt the Gates test as a matter of State constitutional law (People v Johnson, 66 NY2d 398, 406) and we see no reason why the Gates test should be applied to cases involving a search warrant as in the instant case (see, People v P. J. Video, 68 NY2d 296, 305; People v Bigelow, 66 NY2d 417, 424-425; People v Griminger, 127 AD2d 74, 83, Iv granted 70 NY2d 647). It is the Magistrate, not the police, who must determine probable cause and that determination must be objectively verifiable (People v P. J. Video, supra, at 307; People v Hanlon, 36 NY2d 549, 559). Here, the warrant application fails both prongs of the Aguilar-Spinelli test because there was no showing that the informant or the informant’s information was reliable. Since the warrant was not issued upon probable cause, defendant’s motion to suppress should have been granted. In view of our holding, we need not reach the other issues raised by defendant. (Appeal from judgment of Monroe County Court, Connell, J.—criminal possession of marihuana, first degree.) Present—Callahan, J. P., Doerr, Green, Balio and Davis, JJ.
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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/5901946/
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Judgment unanimously reversed on the law and as a matter of discretion in the interest of justice, and indictment dismissed without prejudice, in accordance with the following memorandum: Defendant was indicted for the crime of manslaughter in the second degree for the stabbing death of his brother Jay Emmick. After a jury *893trial he was found guilty of the lesser included offense of criminally negligent homicide. For reasons stated hereinafter, we reverse.
The facts of the case are not substantially in dispute and may be briefly stated. In mid-December 1983, defendant moved into an apartment on Orange Street in Rochester, New York, with his brother, Jay. Ás a condition of taking up residence with his brother, defendant paid two weeks’ rent in advance. The brothers lived together uneventfully until December 27, 1983. On and off on that day, defendant, the victim Jay, and an older brother John were drinking, both in and out of the apartment. At about 11:30 p.m., while defendant and Jay were in the apartment, Jay, who appeared to be intoxicated, suggested that he and defendant go out to visit another bar. Defendant refused and Jay became angry. He claimed that defendant had not paid sufficient rent and ordered him to leave the apartment. Defendant thereupon packed some of his belongings in a suitcase and sought to leave the apartment. Jay intercepted defendant and tried to restrain him physically from leaving. Defendant pushed Jay away, whereupon Jay grasped a steak knife and jabbed at defendant, inflicting a laceration on defendant’s left palm. Believing Jay to be intoxicated (the Medical Examiner testified that Jay had a blood alcohol level of .20% and a urine alcohol level of .27%— "acute intoxication”), defendant stated that it was his belief that one of the participants in the fray would be injured if he did not get the knife away from his brother. During defendant’s effort to get control of the knife, the knife penetrated Jay’s back, resulting in his death.
On appeal, defendant raises several claims of error, principal among which is the court’s charge on the law of justification. It is beyond cavil that the central issue in this case was justification. In its instructions to the jury, the court did little more than read the statutory definition of justification, making absolutely no attempt to relate the law of justification to the facts of the case (see, People v Williams, 121 AD2d 145, 149; CPL 300.10 [2]). Moreover, although justification was the critical issue in the case, the court failed to apprise the jury that the People have the burden to disprove justification beyond a reasonable doubt (People v McManus, 67 NY2d 541, 546-547). That no exception was taken on this issue is of no moment. Failure to charge the correct burden of proof is reversible error, even in the absence of a request by counsel, if the issue of justification is critical to the case and if there is not strong evidence before the jury to negate defendant’s *894justification claims (see, People v Blake, 130 AD2d 934; People v Comfort, 113 AD2d 420, 426, Iv denied 67 NY2d 760). On the record before us, we do not find any evidence negating the claim of justification.
On appeal, defendant raises another objection to the court’s charge on justification, which was preserved by objection at trial. The court included in its instructions the statutory language concerning the duty of a person under attack to retreat from the fray (Penal Law § 35.15 [2] [a]). Under the facts of this case, this instruction was not applicable. This notwithstanding, the court denied defendant’s request that the court charge the jury on the exception to the duty to retreat when one is in his own dwelling (Penal Law § 35.15 [2] [a] [i]). It has long been the law of this State that a person is under no duty to retreat from an attack when he is in his own home "whether that attack proceeds from some other occupant or from an intruder” (People v Tomlins, 213 NY 240, 243-244; see also, People v Williams, 121 AD2d 145, 149, supra; People v Emick, 103 AD2d 643, 661). Since defendant was inside the apartment where he was living with his brother, having paid for the privilege of doing so, he was under no duty to retreat when Jay came at him with a knife, and the court erred when it charged to the contrary. At the very least, the court should have charged the jury that if they found, as a matter of fact, that defendant was in his own dwelling, then he was under no duty to retreat.
In view of the foregoing, we need not address the other errors claimed by defendant to warrant reversal of his conviction. For purposes of the retrial, however, we note that the court erred when it allowed the Medical Examiner to testify that, in his opinion, the victim’s death was a "homicide” (People v James, 123 AD2d 644, 645, Iv denied 69 NY2d 1005). The judgment of conviction is reversed and the indictment dismissed without prejudice to the People to re-present appropriate charges to another Grand Jury. However, the highest offense for which defendant may now be indicted is criminally negligent homicide (People v Gonzalez, 61 NY2d 633; People v Mayo, 48 NY2d 245; People v Hoy, 122 AD2d 618). (Appeal from judgment of Monroe County Court, Celli, J.—criminally negligent homicide.) Present—Callahan, J. P., Doerr, Green, Balio and Davis, JJ.
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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/5901947/
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Order unanimously affirmed, without costs. Memorandum: Special Term properly dismissed plain*895tiffs causes of action for wrongful discharge, conversion and punitive damages. The court correctly determined that plaintiff was an employee at will (see, Martin v New York Life Ins. Co., 148 NY 117) and that defendant’s employee policy manual does not contain an express limitation on defendant’s right to terminate such employment (see, Sabetay v Sterling Drug, 69 NY2d 329; Murphy v American Home Prods. Corp., 58 NY2d 293, 305; Buffolino v Long Is. Sav. Bank, 126 AD2d 508, 509; Collins v Hoselton Datsun, 120 AD2d 952; Patrowich v Chemical Bank, 98 AD2d 318, 322-323, affd 63 NY2d 541). Plaintiffs complaint fails to state a cause of action for conversion because defendant’s reduction of the redemption price of plaintiffs stock was specifically provided for in the stock purchase agreement, which plaintiff signed on October 10, 1978 and which was in effect upon plaintiffs termination. Plaintiffs separate cause of action for punitive damages is not recognized in New York (APS Food Sys. v Ward Foods, 70 AD2d 483, 488). (Appeal from order of Supreme Court, Ontario County, Reed, J.—dismiss complaint.) Present—Callahan, J. P., Doerr, Green, Balio and Davis, JJ.
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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/6129245/
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— Judgment affirmed, with costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129246/
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— Order affirmed,, with ten dollars costs and disbursements.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/1897923/
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392 B.R. 274 (2008)
In re BRICE ROAD DEVELOPMENTS, L.L.C., Debtor.
General Electric Credit Equities, Inc., Appellant,
v.
Brice Road Developments, L.L.C. and Sir Kensington Associates, LLC, Appellees.
BAP No. 06-8093.
United States Bankruptcy Appellate Panel of the Sixth Circuit.
Argued: May 13, 2008.
Decided and Filed: August 14, 2008.
*277 G. Christopher Meyer, Squire Sanders & Dempsey LLP, Cleveland, OH, William M. Mattes, Donald W. Mallory, Dinsmore & Shohl LLP, Columbus, Ohio, argued and on brief, for Appellant.
Yvette A. Cox, Bailey Cavalieri LLC, Columbus, OH, Richard K. Stovall, Allen Kuehnle Stovall & Neuman LLP, Columbus, OH, argued and on brief, for Appellees.
Before: GREGG, PARSONS, and SCOTT, Bankruptcy Appellate Panel Judges.
OPINION
MARCIA PHILLIPS PARSONS, Chief Judge.
General Electric Credit Equities, Inc. ("GE") appeals an order of the bankruptcy court confirming the chapter 11 reorganization plan of Brice Road Developments, L.L.C. ("Debtor"). GE objected to confirmation of the plan on the basis that the plan was not feasible as required by 11 U.S.C. § 1129(a)(11) and the plan was not fair and equitable as required by 11 U.S.C. § 1129(b)(2) because it provided for an improper interest rate on GE's secured claim, undervalued GE's collateral, and failed to accord GE its rights as an electing secured creditor under 11 U.S.C. § 1111(b)(2).[1] For the reasons that follow, we affirm the bankruptcy court in all respects, with the exception of the conclusion that the plan accords GE the full rights of an electing § 1111(b) secured creditor. On this issue, this case will be remanded for further action by the bankruptcy court.
I. ISSUES ON APPEAL
The issues presented by this appeal are: (1) whether the bankruptcy court erred in assigning a 6% present value rate to GE's claim; (2) whether the bankruptcy court erred in its valuation of GE's collateral; (3) whether the plan is feasible as contemplated by § 1129(a)(11); and (4) whether the plan provides GE its proper rights as an electing secured creditor under § 1111(b)(2).
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to decide this appeal. The United States District Court for the Southern District of Ohio has authorized appeals to the Panel, and neither party has timely elected to have this appeal heard by the district court. 28 U.S.C. §§ 158(b)(6), (c)(1). A final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). For purposes of appeal, a final order "ends the litigation on the merits and leaves nothing for the court to do *278 but execute the judgment." Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S. Ct. 1494, 1497, 103 L. Ed. 2d 879 (1989) (citations omitted). The bankruptcy court's order overruling GE's objection and confirming the Debtor's reorganization plan is a final order. G.E. Cattle Co. v. United Producers, Inc. (In re United Producers, Inc.), 353 B.R. 507, 508 (6th Cir. BAP 2006), aff'd, 526 F.3d 942 (6th Cir. 2008).
The bankruptcy court's conclusions of law are reviewed de novo. Riverview Trenton R.R. Co. v. DSC, Ltd. (In re DSC, Ltd.), 486 F.3d 940, 944 (6th Cir. 2007). "Under a de novo standard of review, the reviewing court decides an issue independently of, and without deference to, the trial court's determination." Menninger v. Accredited Home Lenders (In re Morgeson), 371 B.R. 798, 800 (6th Cir. BAP 2007). Whether a chapter 11 reorganization plan correctly applies an undersecured creditor's election pursuant to § 1111(b)(2) involves interpretation and application of the Bankruptcy Code which is a question of law reviewed de novo. First Fed. Bank of Cal. v. Weinstein (In re Weinstein), 227 B.R. 284, 289 (9th Cir. BAP 1998); see also Cluxton v. Fifth Third Bank (In re Cluxton), 327 B.R. 612, 613 (6th Cir. BAP 2005) ("The determination whether a plan provision violates the Bankruptcy Code is a legal conclusion reviewed de novo.")
The court's findings of fact are reviewed under the clearly erroneous standard. In re DSC, Ltd., 486 F.3d at 944. "A finding of fact is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985)).
III. FACTS
The Debtor is the owner of a partially completed 264 unit apartment complex known as Kensington Commons ("Kensington Property"). Construction of the complex began in 2001. The Debtor began renting units in 2003.
In January 2001, Armstrong Mortgage Company ("Armstrong Mortgage") provided the Debtor financing for the purchase of real estate and construction of the Kensington Property through a U.S. Department of Housing and Urban Development ("HUD") program whereby HUD guaranteed payment. The Debtor executed and delivered to Armstrong Mortgage a non-recourse mortgage note ("Note") in `the original principal amount of $15,444,400, and a mortgage deed ("Mortgage") granting liens on substantially all of the Debtor's assets, including the Kensington Property. The Note provided for interest to accrue at the rate of 7.75%. Payments of interest were to begin on February 2, 2001. Monthly payments of principal and interest in the amount of $104,500 were to begin on March 1, 2003. Prepayments prior to March 1, 2013, were prohibited. The Mortgage granted the mortgagee the right to "the estate, title and interest of said Mortgagor either in law or equity in and to [the Kensington Property]." (Appellees' App. at 291.) The Debtor exhausted its commitment for the construction loan, and 24 units remain unfinished.
The Debtor defaulted on the payment due in March 2004, and made no further payments. Armstrong Mortgage invoked its HUD guarantee and assigned the Note and Mortgage to HUD. GE subsequently purchased the Note, Mortgage and related loan documents as one loan in a bundle of six loans at a HUD auction sale. GE allocated approximately $10.7 million of *279 the total purchase price to the Kensington Property.
The Debtor failed to commence making payments as required by the Note. GE filed a state court foreclosure action on July 7, 2005. In response, on September 2, 2005, the Debtor filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. On November 3, 2005, GE filed a proof of secured claim in the amount of $16,453,965.74 ("Claim"). On January 27, 2006, GE filed its election under § 1111(b)(2) to have its Claim treated as fully secured. GE then filed a motion requesting valuation of its collateral. Following a lengthy hearing on the motion, the bankruptcy court concluded in an order entered June 22, 2006, that the "as is" value of the Kensington Property was $10.5 million. After deduction of outstanding real estate taxes, GE's interest in the value of the Kensington Property was $10,258,000. (Appellee's App. at 166 n. 3).[2]
The Debtor and SIR Kensington Associates, LLC (SIR Kensington)[3] filed a first amended joint plan of reorganization on January 27, 2006, along with an amended disclosure statement that was approved by the bankruptcy court on March 20, 2006. Additional modifications to the first amended joint plan of reorganization were filed on June 18 and 20, 2006 (collectively the "Plan"), by the Debtor and SIR Kensington ("Plan Proponents").
The Plan is premised first on a $2.5 million cash infusion of equity and subordinated debt by SIR Kensington, which will be partially allocated to fund the Plan and to provide capital. Implementation of the Plan will be augmented by the Debtor's future income, which will be enhanced by completion and rental of the 24 unfinished units. In satisfaction of the Debtor's liability to SIR Kensington for money previously loaned, SIR Kensington will be issued all the member interest in the Debtor.
The Plan classifies creditors and equity security holders into eight classes. GE is the sole creditor in Class 2. Pursuant to the Plan, GE has an allowed secured claim that will be paid at the rate of 6% per annum in equal monthly installments based on an amortization period of 40 years, with a balloon payment of unpaid interest and principal on February 1, 2043. GE retains its lien to the extent of the allowed amount of the Claim. All other terms and conditions contained in the Note and Mortgage remain in full force and effect. The plain language of the Plan does not provide GE a restructured Note.
All classes except for GE accepted the Plan. GE filed an objection to confirmation on June 5, 2006. A confirmation hearing was held on June 19 and 20, 2006, at which the Debtor and SIR Kensington requested that the bankruptcy court confirm the Plan pursuant to the "cramdown" provisions of § 1129(b). The bankruptcy court issued a memorandum opinion on September 29, 2006, overruling GE's objection. An order confirming the Plan was issued on October 24, 2006. GE timely filed this appeal.
IV. DISCUSSION
A. The Bankruptcy Court Did Not Err in Finding a 6% Interest Rate.
After hearing extensive testimony and considering the Sixth Circuit Court of Appeals' opinion in Bank of Montreal v. Official *280 Committee of Unsecured Creditors (In re American HomePatient, Inc.), 420 F.3d 559 (6th Cir.2005), the bankruptcy court found that the Plan's "proposed interest rate of 6% is within the range of the rates in an efficient market for a long-term loan secured by a first mortgage on multi-family real estate with a long useful life, of the size of the Debtor's loan held by GE Credit." (Appellee's App. at 169-70.) GE argues that, at a minimum, a market rate loan must be established based upon terms similar to those proposed by the Plan Proponents, including the particular circumstances of the Debtor as to the risk factor. GE further argues that the testimony of its expert, Jeffery Morris, CEO of Morris, Smith & Fay, supports an interest rate of 8.0182%.
Citing to Household Automotive Finance Corp. v. Burden (In re Kidd), 315 F.3d 671 (6th Cir.2003), GE asserts that we must review the bankruptcy court's decision on the market rate of interest de novo. We reject this argument. This Panel is not a fact finder. In Kidd, the Sixth Circuit held that the selection of the appropriate interest rate involved a legal determination that required de novo review because the court was establishing for the circuit the methodology under which the cramdown rate in a chapter 13 case is to be determined. Id. at 675. As both parties acknowledge, the Sixth Circuit has already established the methodology by which the cramdown rate in a chapter 11 case is to be calculated. In re Am. HomePatient, Inc., 420 F.3d at 568. Because the methodology has already been established, the bankruptcy court's determination of the appropriate interest rate is reviewed for clear error. Fin. Sec. Assurance, Inc. v. T-H New Orleans Ltd. P'Ship (In re T-H New Orleans Ltd. P'ship), 116 F.3d 790, 800 (5th Cir.1997); see also In re Grand Traverse Dev. Co. Ltd. P'ship, Inc., 151 B.R. 792, 797 (W.D.Mich.1993).
The cramdown provisions in § 1129(b) do not specify how a bankruptcy court should calculate the appropriate cramdown interest rate. However, in this circuit, in a chapter 11 case where an "efficient market" exists, the market rate should be applied, and where no "efficient market" exists, the formula approach endorsed by the Supreme Court in Till v. SCS Credit Corp., 541 U.S. 465, 124 S. Ct. 1951, 158 L. Ed. 2d 787 (2004), should be employed. In re Am. HomePatient, Inc., 420 F.3d at 568. It is GE's burden to demonstrate that a higher rate than that proposed by the Debtor is appropriate. See Till, 541 U.S. at 484, 124 S. Ct. 1951.
As the bankruptcy court noted, the term "efficient market" was not defined in Till or American HomePatient and neither case offers "much guidance in determining how to ascertain the efficient market rate, nor ... suggest[s] whether the rate may vary based on loan criteria." (Appellee's App. at 166.). Concluding that the typical criteria for establishing an interest rate in the commercial lending market is in effect the "coerced loan" approach that was rejected by the Supreme Court in Till, and recognizing that both Till and American HomePatient "embrace the use of generally applicable interest rates rather than loan-specific interest rates," the bankruptcy court set forth the following criteria for evaluating a proposed efficient market rate:
the priority of the lien securing the loan; whether there exists an open, well-developed market for loans of the kind between the debtor and secured creditor; the type of collateral involved; the quality, age, and life expectancy of the collateral; short or long term nature of the *281 proposed term of the loan; and the amount financed.
(Appellee's App. at 167.)
The bankruptcy court heard the testimony of two witnesses on behalf of the Plan Proponents: Brad Armstrong, a principal of Armstrong Mortgage, the original lender to the Debtor, who has extensive experience in HUD lending, and Nicholas Newman, a witness with significant experience in the field of real estate finance. Armstrong testified regarding various options for first mortgage financing with respect to multi-family housing, including options offered through HUD programs. He opined that the prevailing interest rate for such loans range between 5.5% and 6.25%. Newman testified that, based upon the interest rate on 10-year Treasury bonds plus a spread of 1%, the appropriate interest rate is 6.01%.
GE presented the testimony of Jeffrey Morris, president of a mortgage brokerage firm. Morris testified that his only experience with HUD lending was in the "early 90's" for approximately two years. According to Morris, the Debtor would not be able to obtain the same terms as the proposed note to GE. The only market available, according to Morris, would be a complete refinancing under tiered financing. This tiered financing would have a blended interest rate of 8%. Morris further testified that under an existing approved loan application pertaining to a comparable, but significantly older, property in the same area, the interest rate would be the 10-year Treasury rate of 5.15% on the date of the hearing, plus a spread of 1.11%, for a total interest rate of 6.26%. The tiered financing suggested by Morris was rejected by the bankruptcy court based on the Sixth Circuit's rejection of similar testimony in American HomePatient, wherein the court stated:
The lenders' argument, on the other hand, is centered on the composite interest rate that a new loan (including "mezzanine" debt and equity) would command in the market, not what their loan to American (which was all senior debt) would require. But as the bankruptcy court properly noted:
`The Lenders' argument that the debtor could not obtain a "new loan" in the market place so highly leveraged might be so, but in actuality no hew loan is being made here at all. Instead, the court is sanctioning the workout between the debtor and the Lenders. New funds are not being advanced without the consent of the claimants.'
Indeed, the only type of debt contemplated by American's reorganization plan was senior secured debt. The inclusion of other types of financing-mezzanine debt and equity-is a pure hypothetical suggested by the lenders.
In re Am. HomePatient, Inc., 420 F.3d at 568-69 (quoting In re Am. HomePatient, Inc., 298 B.R. 152, 184 (Bankr.M.D.Tenn. 2003)).
Based on the testimony and evidence presented at the confirmation hearing, GE did not satisfy its burden to demonstrate that a higher rate than that proposed by the Plan Proponents is required. The bankruptcy court's finding that the proposed interest rate of 6% was appropriate is not clearly erroneous.
B. The Bankruptcy Court Did Not Err in its Valuation of the Property.
Following a two-day valuation hearing, the bankruptcy court valued the Kensington Property at $10.5 million. GE asserts that the bankruptcy court erred in the valuation because of its "refusal to give sufficient weight to the most relevant possible evidence, a recent arms-length offer *282 [of $13.1 million] to purchase the Kensington Property." (Appellant's Br. at 36.) GE also argues that the bankruptcy court's valuation of the property was inconsistent with a $13.5 million valuation by the Franklin County Auditor, and the HUD approved value of the project of $17.5 million. Additionally, at the valuation hearing the Debtor claimed the property had a value of $13,968 million.[4]
Valuation of collateral is a question of fact reviewed under the clearly erroneous standard. In re Am. HomePatient, Inc., 420 F.3d at 570. At the valuation hearing, the court heard the testimony of two expert witnesses and several lay witnesses, and reviewed hundreds of pages of appraisal reports and other documents. GE's expert opined that the as-is value of the property was $12.9 million based on a fair market value of $13.9 million. The Debtor's expert opined that the as-is value of the property was $8.9 million based on a stabilized fair market value of $11.9 million. Both experts testified that the income approach is the most appropriate methodology for valuing the property. Therefore, starting with the income approach and reaching a stabilized fair market value of $12,675,387, the bankruptcy court deducted various costs derived from the testimony and documents introduced into evidence, and concluded that the value of the property was $10.5 million.
GE argues that the bankruptcy court failed to give sufficient weight to an armslength offer of Sound View Real Estate Partners, L.L.C. ("Sound View Partners"), the Franklin County Tax Auditor, and the HUD approved value of the project. However, the bankruptcy court specifically stated that it considered this information. (Appellees' App. at 229.) ("The Court did consider all relevant information presented, including the offer of Sound View Partners to purchase the property, the Franklin County Tax Auditor's assessment and GE's underwriter's valuation, but did not find any other indicia of value of the property to be persuasive in the face of the appraisals in evidence.") The bankruptcy court's findings are not clearly erroneous.
C. The Bankruptcy Court Did Not Err in Finding that the Plan is Feasible.
GE asserts that the bankruptcy court erred in confirming the Plan over its objection because the Plan does not satisfy the "feasibility test" under § 1129(a)(11). Pursuant to 11 U.S.C. § 1129(a)(11):
(a) The court shall confirm a plan only if all of the following requirements are met:
....
(11) Confirmation of the plan is not likely to be followed by the liquidation, or the need for further financial *283 reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed by the plan.
"Feasibility is fundamentally a factual question since it necessarily depends upon a determination of the reasonable probability of payment." In re Howard, 212 B.R. 864, 878 (Bankr.E.D.Tenn. 1997) (citing In re Foertsch, 167 B.R. 555, 566 (Bankr.D.N.D.1994)). In order to be feasible pursuant to § 1129(a)(11), "[t]he plan does not need to guarantee success, but it must present reasonable assurance of success." In re Made in Detroit, Inc., 299 B.R. 170, 176 (Bankr.E.D.Mich.2003) (citing Kane v. Johns-Manville Corp., 843 F.2d 636, 649 (2nd Cir.1988)), aff'd, 414 F.3d 576 (6th Cir.2005). In order to sufficiently establish such reasonable assurance, "a plan must provide a realistic and workable framework for reorganization." Id. (citing Crestar Bank v. Walker (In re Walker), 165 B.R. 994, 1004 (E.D.Va. 1994)). Relevant to a finding of feasibility is:
(1) the adequacy of the capital structure; (2) the earning power of the business; (3) economic conditions; (4) the ability of management; (5) the probability of the continuation of the same management; and (6) any other related matter which determines the prospects of a sufficiently successful operation to enable performance of the provisions of the plan.
Teamsters Nat'l Freight Indus. Negotiating Comm. v. U.S. Truck Co., Inc. (In re U.S. Truck Co., Inc.), 800 F.2d 581, 589 (6th Cir.1986). Importantly, "[t]he Code does not require the debtor to prove that success is inevitable, and a relatively low threshold of proof will satisfy § 1129(a)(11) so long as adequate evidence supports a finding of feasibility." 7 Collier on Bankruptcy ¶ 1129.03[11] (15th ed. rev.2006) (quoting Computer Task Group, Inc. v. Brotby (In re Brotby), 303 B.R. 177, 191 (9th Cir. BAP 2003)).
At the valuation hearing, in addition to determining the present value of the Property, the bankruptcy court made other findings with respect to the Debtor's financial prospects.[5] The bankruptcy court found the Plan Proponents' use of these findings and their other assumptions to be reasonable, noting that the assumptions were more conservative than those of even GE's appraisal expert. In regard to the above-quoted factors for determining feasibility, the bankruptcy court concluded, among others, the following: that the Debtor's cash-flow short-fall during the first three calendar quarters post-confirmation will be covered by the interest reserve to be set aside from the $2.5 million contribution by SIR Kensington; that the demands of the Plan will be met from the $2.5 million infusion as well as completion of the Property; that beginning in the second full year post-confirmation, the Debtor will realize a positive cash flow in excess of $300,000 per year; that the Debtor has had positive cash flow most months and for the entire post-petition period when taken in the aggregate; that *284 capitalization is quite adequate; that in light of the oversight by SIR Kensington and Sound View Partners, management of the Property will be experienced and competent, with a plan to operate the Property in a manner consistent with a goal of optimal performance; that the economic conditions in the area of the Property are at least fair, with no evidence to indicate a downswing; and that the Property has a life span of fifty to sixty years.
Based on ample evidence in the record, the bankruptcy court's finding that the Plan satisfies the feasibility test under 11 U.S.C. § 1129(a)(11) is not clearly erroneous.
D. The Plan Does Not Accord GE its Rights as an Electing Secured Creditor under § 1111(b)(2).
A chapter 11 reorganization plan may be confirmed if each class of impaired claims accepts the plan, or at least one class of impaired claims accepts the plan. § 1129(a)(8), (a)(10). If not all classes of impaired claims accept the plan, the Debtor may utilize the so-called "cramdown" procedure.[6] Under a cramdown, a plan must meet all of the requirements set forth in § 1129(a), except for § 1129(a)(8), and also satisfy § 1129(b).
Section 1129(b)(1) of the Bankruptcy Code permits the bankruptcy court to confirm a plan over the objection of a secured creditor "if the plan does not discriminate unfairly, and is fair and equitable, with respect to each class of claims ... that is impaired under, and has not accepted, the plan." GE asserts that the Plan is not fair and equitable, in part, because it fails to properly recognize rights as an electing secured creditor under § 1111(b)(2).[7] To qualify as fair and equitable under this subsection as to a class of secured claims, a plan must provide:
(I) that the holders of such claims retain the liens securing such claims, whether the property subject to such liens is retained by the debtor or transferred to another entity, to the extent of the allowed amount of such claims [the "lien retention" provision]; and
(II) that each holder of a claim of such class receive on account of such claim deferred cash payments totaling at least the allowed amount of such claim, of a *285 value, as of the effective date of the plan, of at least the value of such holder's interest in the estate's interest in such property [the "present value" or "interest" provision][.]
§ 1129(b)(2)(A)(i).
The Bankruptcy Appellate Panel for the Ninth Circuit has succinctly explained the process once the § 1111(b)(2) election occurs:
In order for a reorganization plan to now comply with the cram down requirements of § 1129(b)(2)(A)(i)(I), the electing creditor must retain a lien equal to the total amount of its claim. The lien is not stripped down by § 506(d). Subsection (II) of § 1129(b)(2)(A)(i) guarantees an electing creditor a stream of payments equal to its total claim. However, the stream of payments need only have a present value "of at least the value of such holder's interest in the estate's interest in such property," i.e., the value of the collateral. 11 U.S.C. § 1129(b)(2)(A)(i)(II). In other words, the present value of the electing creditor's stream of payments need only equal the present value of the collateral, which is the same amount that must be received by the nonelecting creditor, but the sum of the payments must be in an amount equal [to] at least the creditor's total claim.
First Fed, Bank of Cat. v. Weinstein (In re Weinstein), 227 B.R. 284, 294 (9th Cir. BAP 1998) (citations omitted).
Applying the foregoing principles to the case at hand, in order to properly accord GE its rights as an electing secured creditor under § 1111(b)(2), the Plan must provide for the following: (1) retention of GE's lien on the Kensington Property to the extent of the allowed amount of GE's claim, $16,453,965.74 according to GE's proof of claim; (2) deferred cash payments to GE with a present value of $10,258,000 ("the value of such holder's interest in the estate's interest in such property," which in this case is the value of the Kensington Property, $10.5 million, minus outstanding real estate taxes of $242,000); and (3) deferred cash payments to GE totaling at least the allowed amount of GE's total claim, i.e., the $16,453,965.74 sum. See In re Weinstein, 227 B.R. at 292-94. Our review of the Plan indicates that the first two requirements are clearly met; the third is less clear.
In pertinent part, the; Plan provides for the following treatment of Class 2, comprised solely of GE:
The Allowed Secured Claim of GE Credit shall be satisfied in full by the Debtor amortizing the amount thereof with interest as follows: i) commencing the first day of the month following the month in which the Effective Date falls and continuing on the first day of each month thereafter, the Debtor shall pay GE Credit the amount of the Allowed Secured Claim of GE Credit, with interest at the rate of six percent (6.0%) per annum, in equal consecutive monthly installments calculated based upon an amortization period of four hundred eighty months from and after the Effective Date. Notwithstanding such amortization period, any unpaid accrued interest and principal shall be due and payable, in full, on February 1, 2043. GE Credit shall retain its lien on Kensington Commons and on any other of Debtor's property securing its Allowed Claim, to the extent of the allowed amount of such Claim; otherwise, the lien shall be void and of no force and effect.... [T]he provisions of that certain Mortgage Note and Rider to Mortgage Note dated January 19, 2001, and executed and delivered by Debtor to Armstrong Mortgage Company, shall remain in full force and effect subsequent *286 to the Effective Date.... In the event of any inconsistencies between the terms and provisions of this Joint Plan and the terms and provisions of any agreements, instruments or other documents evidencing or otherwise relating to the Allowed Secured Claim of GE Credit, the terms and provision of this Joint Plan, as modified herein, shall control.
(Appellees' App. at 210-11.)
In the definition section of the Plan, "Allowed Claim" is defined as "a claim against Debtor determined as of the Effective Date ... in respect of which a proof of claim has been filed with the Court ... as to which no objection to the allowance thereof has been interposed ... or as to which any such objection has been determined by a Final Order." (Appellees' App. at 180.) "Allowed Secured Claim" means "an Allowed Claim secured by a lien on property in which Debtor has an interest... to the extent of the value (determined in accordance with § 506(a) of the Code) of such creditor's interest in Debtor's interest in such property...." (Appellees' App. at 180-81.)
Applying these definitions to GE's Plan provision, it is clear that GE will receive deferred cash payments with a present value of $10,258,000, since "Allowed Secured Claim" is defined as a claim "secured by a lien on property ... to the extent of value." The lien retention requirement is satisfied by the third sentence of the quoted Plan provision providing that GE will retain its lien to the extent of its "Allowed Claim," which under the definition section is GE's total allowed claim as set forth in its proof of claim, i.e., $16,453,965.74 or such amount determined by the bankruptcy court after objection. Nothing in the Plan, however, provides that the deferred cash payments to GE will total this same allowed amount.
The Plan Proponents argue that payment in full of GE's "Allowed Claim" is provided by the lien retention statement and cite the amortization schedule presented at trial which shows that by the 24th year of the restructured Note's 36-year term the stream of payments to GE will have totaled $16,453,965.74. The Plan Proponents also assert that because GE will retain its lien until the payments accumulate to this amount, if the Debtor attempts to cash out GE at any earlier time, it must pay GE a "§ 1111(b) premium." (Appellees' Br. at 19.) According to the Plan Proponents, this premium is the difference between GE's total "Allowed Claim" and the outstanding principal balance remaining due under the Note, plus the payments made to the present. Thus, argue the Plan Proponents, "[t]he deferred cash payments that GE receives under the Plan always will total at least the amount of GE's allowed claim, even if the Debtor cashes out GE before the final balloon payment is due under the Plan." (Appellees' Br. at 20-21.)
The problem with this argument is that the Debtor's obligation to pay GE this § 1111(b) premium is not evidenced in either the Plan or the Note. Cf. IPC Atlanta Ltd. P'ship v. Fed. Home Loan Mortgage Corp. (Matter of IPC Atlanta Ltd. P'ship), 163 B.R. 396, 398 (Bankr.N.D.Ga.1994) (plan note specifically providing that in event of prepayment, electing secured creditor will receive a premium calculated to ensure full payment of creditor's total claim). We are not confident, nor apparently is GE, that this payment is guaranteed by the Plan's lien retention statement. The restructured Note will be in the principal amount of GE's allowed secured claim, $10,258,000, but the lien is to secure GE's allowed claim of $16,453,965.74. If the restructured Note is paid off early, we question how the lien can continue thereafter *287 to stand for the full $16,453,965.74 since the obligation underlying the lien, the restructured Note, will have been satisfied. See Chase Manhattan Mortgage Corp. v. Shapiro (In re Lee), 530 F.3d 458, 472 (6th Cir.2008) (observing that once the debt underlying the mortgage is discharged, the creditor no longer holds a perfected lien interest, even though the mortgage is still of record).
In order to insure that GE will receive payments totaling its allowed claim and that its lien will remain in place until full payment has been received, it is necessary for the Note to be restructured in one of two ways. The first is to specifically provide in the Note for payment of the so-called § 1111(b) premium, as previously discussed. The second is to provide for a Note in the face amount of the electing creditor's allowed claim, in this case $16,453,965.74, but with a below-market rate of interest such that the present value of the Note would still only be the present value of the collateral, i.e., the $10,258,000 sum. See 7 Collier on Bankruptcy ¶l 1111.03[6][b].[8] In the instant case, neither of these options nor any other means for ensuring that GE will receive payment in full of its total allowed claim is provided for in the Plan.[9] Without such a provision, the Plan fails to guarantee that GE will receive the full benefits promised an electing secured creditor under § 1111(b)(2). As explained by the court in Weinstein:
The real benefit of the election is that it protects the creditor against a quick sale of its collateral. The amount of the creditor's secured claim may be determined at a time when the value of the collateral is temporarily depressed. Without the election, the debtor could sell the collateral when its value quickly rebounds and net a considerable gain. By making the election, the creditor guards against such an opportunistic sale because it retains a lien on the collateral equal to the full amount of its claim, albeit without interest. If there is a quick sale, the creditor is entitled to payment on its full claim. Similarly, an electing creditor benefits if there is an appreciation in the value of the collateral and the debtor defaults on its plan payments.
In re Weinstein, 227 B.R. at 295 n. 12. Based on the foregoing, the bankruptcy court erred in finding that the Plan is fair and equitable relative to GE's § 1111(b) election and remand is necessary.
Before leaving this subject we must point out that, contrary to the arguments of GE, the interest payments made to provide present value of the collateral *288 must be applied to reduce GE's total allowed claim. See James A. Pusateri, et al., Section 1111(b) of the Bankruptcy Code: How Much Does the Debtor Have to Pay and When Should the Creditor Elect"?, 58 Am. Bankr.L.J. 129, 136-11 (1984); Klee, 53 Am. Bankr.L.J. at 158. It should be also noted that "the debtor does not have to pay the entire secured claim in the same manner as if it were rally collateralized. If that were not so, every holder of an undersecured claim would make the election." In re S. Mo. Towing Serv., Inc., 35 B.R. 313, 314 (Bankr.W.D.Mo.1983).
This result [applying interest payments to reduce the entire claim] gives effect to the plain language of § 1129(b)(2)(A)(I) which merely requires that in a cram down, the creditor making the § 1111(b)(2) election receive a stream of payments equal to its total claim and with a present value equal to the value of the collateral. Requiring anything more would be an unwarranted and unsupportable extension of the statutory requirements of § 1129(b)(2)(A).
In re Weinstein, 227 B.R. at 295 n. 13.
V. CONCLUSION
The bankruptcy court's order is AFFIRMED except as to the finding that the Plan is fair and equitable in according GE its rights as an electing secured creditor under § 1111(b)(2). In this respect, the order is VACATED in part and REMANDED for proceedings not inconsistent with this opinion.
NOTES
[1] The Debtor's bankruptcy case was filed before October 17, 2005. All references to the Bankruptcy Code, 11 U.S.C. § 101-1330, herein "§ ___," are to the pre-BAPCPA version. See Bankruptcy Abuse and Consumer Protection Act of 2005, Pub. Law No. 109-8, § 1501(b)(1), 119 Stat. 23, 216 (stating that, unless otherwise provided, the BAPCPA amendments do not apply to cases pending before the effective date of BAPCPA).
[2] GE did not appeal the valuation order at that time.
[3] SIR Kensington is a single purpose entity owned by Sound View Real Estate Partners, L.L.C., a real estate investment firm. SIR Kensington provided postpetition financing to the Debtor to support its cash flow needs.
[4] The Plan Proponents argue that GE waived its objection to the valuation of the property by failing to raise it at the confirmation hearing or immediately appealing the valuation order. We reject this argument. The bankruptcy court's order determining the value of the property is a final order that may have been appealed immediately. Chase Manhattan Mortgage Corp. v. Rodriguez (In re Rodriguez), 272 B.R. 54, 58 (D.Conn.2002); see also Lindsay v. O'Brien, Tanski, Tanzer & Young Health Care Providers of Conn. (In re Dow Corning Corp.), 86 F.3d 482, 488 (6th Cir. 1996) (an order that finally disposes of discrete disputes within a larger case may be appealed immediately). The right to immediately appeal an order under § 506(a) does not preclude appeal of that order from plan confirmation. In re Rodriguez, 272 B.R. at 58 (renewal of a creditor's objection to valuation at the confirmation hearing is not necessary to preserve the right to appeal the valuation so long as the objection was clearly made and fully litigated at some point in the litigation). Moreover, the bankruptcy court incorporated many of its findings at the valuation hearing into its memorandum opinion from which GE now appeals.
[5] These findings included the following: (1) stabilized gross potential income ($2,169,360 annually); (2) annual ancillary income ($90,000); (3) stabilized occupancy (88%); (4) stabilized operating expenses, including real estate taxes and reserves ($970,750 annually); (5) the reasonable absorption rate of the rental units during construction (2.2 units) and upon completion of construction (4.4 units), resulting in the Property reaching stabilization in 19 months; (6) total stabilization costs ($550,000); (7) costs of completion of construction including mold remediation and ancillary site work ($827,659); and (8) total costs to fix flooding problems including construction of a retention pond and storm sewer and site grading ($834,500).
[6] "Cramdown" is a bankruptcy term used when a plan is confirmed over a claim holder's objection. Kenneth N. Klee, All You Ever Wanted to Know About Cram Down Under the New Bankruptcy Code, 53 Am. Bankr.L.J. 133 (1979); Till v. SCS Credit Corp., 541 U.S. 465, 468-69, 124 S. Ct. 1951, 1954, 158 L. Ed. 2d 787 (2004). The Sixth Circuit BAP has previously discussed "cramdown" in a chapter 13 context in Tidewater Fin. Co. v. Curry (In re Curry), 347 B.R. 596 (6th Cir. BAP 2006), aff'd, 509 F.3d 735 (6th Cir.2007).
[7] The Debtor contends that GE has raised this issue for the first time on appeal, and has, therefore, waived this argument. GE did specifically object to the Plan on the basis that the Plan was not fair and equitable, although in the context of interest rate, proposed Plan term and whether as an electing secured creditor under § 1111(b)(2) GE is entitled to a due-on-sale clause in the restructured Note. (This last issue was raised initially on appeal by GE, but counsel for GE announced at oral argument that GE was conceding this issue.) More importantly, the bankruptcy court specifically addressed the rights of an electing secured creditor under § 1111 (b)(2) in determining that the Plan was fair and equitable. Accordingly, the issue is properly before this Panel. See Nicely v. McBrayer, McGinnis, Leslie & Kirkland, 163 F.3d 376, 381 (6th Cir. 1998) (Appellate courts have declined to consider arguments that were not properly raised before the trial court; however, it would be inappropriate not to consider argument where statute was clear on point at issue and where relevant information was clearly before the trial court so that it should not have needed specific presentation of the argument in order to be aware of the proper result.).
[8] This very observation was made by the bankruptcy court in a footnote in its memorandum opinion. As astutely stated therein:
In those instances in which the plan proponent contemplates issuance of a note to the secured creditor who elected § 1111(b) treatment, in an amount equivalent to the creditor's claim, § 1129 may not mandate that the interest rate be based on a market rate or the formulaic rate espoused by Till. Because application of § 1111(b) requires that the present value of such a note equal only the value of the creditor's collateral, the solution lies in a below-market rate of interest. See Collier ¶ 1111.03[6][b] at p. 1111-37.
(Appellees' App. at 166.)
[9] Remand and subsequent modification of the Plan in accordance with this opinion may not result in GE ultimately receiving a greater distribution than it would have otherwise under the Plan. Mr. Newman testified on behalf of the Plan Proponents that it was the intent of the Plan Proponents that GE would receive payments totaling its allowed claim, regardless of whether GE was paid over the life of the Plan or cashed out early. Thus, while remand will solidify in writing the benefits GE will receive as an electing secured creditor, the financial or practical effort of remand may be a pyrrhic victory.
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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/6822987/
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No. 10,999 trademark for metal goods. Nos. 11,005 and 11,009 trademark for cutlery, scyther, sickles and hand tools.
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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/5901948/
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Order unanimously affirmed without costs. Memorandum: Plaintiff Harold Kingsland was injured by the collapse of the apron of an ore bridge upon which he was working. The bridge was manufactured and installed by defendant Industrial Brown Hoist Co. in 1904 for plaintiff’s employer, Hanna Furnace Corp. (Hanna). Hanna performed all repair and maintenance work on the bridge, except for one occasion when a contractor painted it. Hanna made modifications to the bridge in 1914 and 1974. One of these modifications was the removal of a fail-safe pawl and ratchet mechanism. The purpose of the pawl and ratchet mechanism was to prevent the uncontrolled dropping of the apron of the bridge when all of the other safety devices failed to operate. It is unrefuted that had the mechanism been in place, the apron would not have collapsed as it did. Hanna had no contact of any kind with Industrial Brown Hoist Co. or its successor in interest, American Hoist and Derrick Co. since 1968.
Defendants, Industrial Brown Hoist Co. and American Hoist and Derrick Co. moved for summary judgment on the ground that the subsequent modification of the bridge by Hanna substantially altered the bridge and proximately caused plain*902tiffs injuries (see, Robinson v Reed-Prentice Div., 49 NY2d 471, 475).
In opposition, plaintiffs submitted only two affidavits of counsel, asserting a duty on the part of the movants to warn of the danger of the removal of the pawl.
Defendants made a prima facie showing that removal of the pawl by Hanna constituted a subsequent modification which substantially altered the bridge and was the proximate cause of plaintiff’s injuries, thereby relieving these defendants of liability (see, Robinson v Reed-Prentice Div., supra, at 475; see also, Powles v Wean United Corp., 126 AD2d 624, appeal dismissed 69 NY2d 1016; Miller v Anetsberger Bros., 124 AD2d 1057; Magee v Bliss Co., 120 AD2d 926). Although we recognize that proximate cause is usually a question for the jury, where, as here, only one conclusion may be drawn from the established facts, "the question of legal cause may be decided as a matter of law” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; see also, Belling v Haugh’s Pools, 126 AD2d 958, Iv denied 70 NY2d 602).
Moreover, plaintiffs have failed to establish "knowledge” of the removal of the pawl on the part of these defendants and therefore no duty to warn exists (cf, Lopez v Precision Papers, 67 NY2d 871; Ayala v V & O Press Co., 126 AD2d 229). (Appeal from order of Supreme Court, Erie County, McGowan, J.—summary judgment.) Present—Callahan, J. P., Doerr, Green, Balio and Davis, JJ.
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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/5901949/
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—Order insofar as appealed from unanimously reversed on the law without costs, defendant’s cross motion granted and complaint dismissed without prejudice, in accordance with the following memorandum: CPLR 3215 (c) requires Special Term to dismiss a complaint as abandoned when plaintiff fails to take proceedings for the entry of judgment within one year after default, "unless sufficient cause is shown” (see, Taylor v Edison Parking Corp., 128 AD2d 605; Monzon v Sony Motor, 115 AD2d 714; Grosso v Hauck, 99 AD2d 750; Winkelman v H & S Beer & Soda Discounts, 91 AD2d 660; Valentin v Rinder, 65 AD2d 716; Baldwin v St. Clare’s Hosp., 63 AD2d 761). In order to demonstrate "sufficient cause”, plaintiff was required to present a valid excuse for her delay in proceeding with the action and to demonstrate a meritorious claim (Taylor v Edison Parking Corp., supra; Monzon v Sony Motor, supra; Valentin v Rinder, supra; Baldwin v St. Clare’s Hosp., supra). On this record, plaintiff *903has failed to do either. The only excuse offered by plaintiff for her failure to enter a default judgment within the statutory one-year period was that she did not know the whereabouts of defendant following his disappearance and thus was unable to obtain a financial affidavit from him as required by Domestic Relations Law § 236 (B) (4). Domestic Relations Law § 236 (B) (4), however, only requires compulsory disclosure by both parties of their respective financial status in all matrimonial actions in which alimony, maintenance or support is "in issue”. Since defendant defaulted in appearing, there was nothing "in issue” and nothing prevented plaintiff entering a judgment by default. Moreover, the affidavit submitted by plaintiff in opposition to defendant’s cross motion to dismiss failed to demonstrate that her cause of action was meritorious. (Appeal from order of Supreme Court, Cattaraugus County, Feeman, J.—dismiss complaint.) Present—Callahan, J. P., Doerr, Green, Balio and Davis, JJ.
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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/5901950/
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Order insofar as appealed from unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: In 1984, plaintiff was injured when a Cricket butane gas lighter exploded. Defendant Gillette manufactured the lighter and redesigned it in 1981 by making the lighter valve nonadjustable. Plaintiff commenced a products liability case against Gillette and others and sought from Gillette discovery of blueprints, design drawings and related documents regarding both the pre- and post-1981 model Cricket lighter. Gillette moved for a protective order with respect to the request for pre-1981 lighter documents on the ground that they were irrelevant.
Although Special Term properly exercised its discretion and entertained Gillette’s motion even though it was served seven days late (see, Matter of Handel v Handel, 26 NY2d 853, 855; Hirsch v Catholic Med. Center, 91 AD2d 1033), the court erred in granting Gillette a protective order with respect to plaintiff’s request for documents concerning the pre-1981 lighter. The pre-1981 documents plaintiff seeks are material and necessary to plaintiff’s case against Gillette (see, Cover v Cohen, 61 NY2d 261). Accordingly, we modify the order by denying Gillette’s motion for a protective order concerning documents regarding Cricket lighters manufactured prior to 1981 and by directing that all discovery be conducted at Gillette’s main business offices in Boston, Massachusetts. (Appeal from order *904of Supreme Court, Erie County, Ricotta, J.—protective order.) Present—Callahan, J. P., Doerr, Green, Balio and Davis, JJ.
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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/5901952/
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Order affirmed without costs. Memorandum: The court’s award of custody to respondent father has a substantial basis in the record. Findings of the trial court should be accorded great weight and we are reluctant to substitute our judgment for that of the court, which heard the witnesses, evaluated their testimony and observed the parties (Matter of Yeo v Cornaire, 91 AD2d 1153, 1154, affd 59 NY2d 875; see also, Eschbach v Eschbach, 56 NY2d 167, 171; Matter of Doty v Doty, 124 AD2d 323, 324).
The trial court considered the stability of respondent’s home, his financial standing and the parental guidance and discipline provided by respondent. These are appropriate considerations in guiding the court in determining what is in the best interests of the children (see, Matter of Harvey v Roselle, 125 AD2d 997).
All concur, except Callahan, J. P., and Doerr, J., who dissent and vote to reverse in the following memorandum.
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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/2042685/
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83 Ill. 2d 277 (1980)
415 N.E.2d 350
RICHARD DUBIN et al., Appellees,
v.
MICHAEL REESE HOSPITAL AND MEDICAL CENTER, Appellant.
No. 52558.
Supreme Court of Illinois.
Opinion filed December 1, 1980.
Rehearing denied January 29, 1981.
*278 Lord, Bissell & Brook (William P. Dorr, Harold L. Jacobson and Hugh C. Griffin, of counsel), and McKenna, Storer, Rowe, White & Farrug (John F. White, Robert S. Soderstrom and James P. DeNardo, of counsel), all of Chicago, for appellant.
Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago (Nat P. Ozmon, Mark Novak and Dario A. Garibaldi, of counsel), for appellees.
*279 Harry L. Kinser and Kenneth C. Robbins, of McLaughlin, Kinser & Bryant, of Chicago, for amici curiae Illinois Hospital Association and Chicago Hospital Council.
James Fletcher, of Winston & Strawn, of Chicago, for amicus curiae Illinois State Medical Society.
Paul G. Gebhard and Douglas J. Polk, of Vedder, Price, Kaufman & Kammholz, of Chicago, for amicus curiae American College of Radiology.
Appellate court reversed; circuit court affirmed.
MR. JUSTICE MORAN delivered the opinion of the court:
Plaintiffs, Richard Dubin, Carla Gifford and Joan Debra Kurlan, filed separate complaints in the circuit court of Cook County against defendant, Michael Reese Hospital and Medical Center, seeking compensation for personal injuries received as a result of X-radiation administered by defendant. The complaints contained two counts: one count based on negligence, the other based on strict liability in tort. The trial court dismissed the counts founded on strict liability and granted summary judgment in favor of defendant on the negligence counts. Each plaintiff appeals only the court's dismissal of the strict liability count. The three appeals were consolidated for review. The appellate court reversed and remanded the causes, finding that the plaintiff's count in each case did state a cause of action under the doctrine of strict liability. (74 Ill. App. 3d 932.) We granted defendant's petition for leave to appeal.
The sole issue is whether X-radiation is a product as that term is utilized in a strict products liability action. Defendant argues that the doctrine of strict products liability is inapplicable to X-radiation since it is not a product. Instead it characterizes X-radiation as the rendition of professional medical services under which strict products liability does not apply.
The three plaintiffs received X-radiation treatment *280 from the defendant hospital for tonsillitis: Dubin in 1947, Gifford and Kurlan in 1951. Dubin filed his complaint on August 13, 1976, Gifford filed her complaint on April 19, 1976, and Kurlan filed her complaint on January 5, 1978, each alleging that they had developed malignant tumors as a result of the X-radiation. The counts charging strict liability in tort claim that defendant prepared, manufactured, distributed, supplied and/or sold certain X-radiation and caused it to enter their bodies. Plaintiffs further allege that such X-radiation was in a condition not reasonably safe for its intended purpose when it left the control of defendant in that defendant failed to warn of its carcinogenic effects. Each plaintiff claims that he or she developed a malignancy as a result of excessive and prolonged exposure to X-radiation.
Generally, a seller of a product will be held strictly liable for physical harm sustained by a consumer as a result of a defective condition which renders the product unreasonably dangerous. (Restatement (Second) of Torts sec. 402A (1965).) X-radiation is not "unreasonably dangerous" per se. It is routinely used by physicians and dentists for the early detection of a variety of diseases and as an aid in the treatment of such diseases. Used in this manner, X-radiation is not dangerous and does not produce adverse effects. Moreover, the plaintiffs here did not claim that X-radiation used under such circumstances is unreasonably dangerous or has a carcinogenic effect. Rather, they claim it was the application of X-radiation in their case that caused it to be unreasonably dangerous. Plaintiffs' argument does not center on any inherent defect in the X-radiation itself, but on the inappropriateness of the application of certain amounts of X-radiation to treat plaintiffs' conditions. The claimed "danger" is actually the professional medical decision as to when X-radiation may be safely utilized to combat a disease, the manner in which *281 it is to be administered, and the amount of X-radiation to be applied. These three determinations are based upon the professional skills of the party directing the treatment. In this instance, plaintiffs are claiming that an overdose was administered, thereby causing the injuries received. Since plaintiffs' complaints are directed toward the amount of X-radiation that was administered, we conclude that the true object of their concern is the alleged error in professional judgment and not, as they claim, the nature of X-radiation itself. Such errors of professional judgment are held to the standard of reasonable skill under the concept of negligence. Strict liability does not come into play in determining the negligence of professional conduct.
Plaintiffs rely on Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, to support their contention that X-radiation should be subject to the standard of strict liability. In Cunningham, this court held that the defendant hospital would be strictly liable for injuries to patients who had received blood contaminated with serum hepatitus. We believe that the distinction between that case and the present case is that in Cunningham the blood was unreasonably dangerous in itself. The contaminants were part of the blood at the time of its manufacture and delivery. It was not the medical decision to perform a blood transfusion that created the danger, but the defective nature of the product itself which was unreasonably dangerous. In the present case, the opposite is true. X-radiation presented no danger as it contained no inherent defect. Rather, the dangerous condition was brought about by the medical decision to use certain amounts of X-radiation in treatment of plaintiffs' disease. Consequently, we find Cunningham to be inapposite here.
We, therefore, find that the appellate court erred in finding X-radiation to be a product subject to the doctrine of strict liability in tort. For the reasons stated, the judgment *282 of the appellate court is reversed and the judgment of the circuit court is affirmed.
Appellate court reversed; circuit court 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/6129247/
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— Order modified by reducing allowance to-each respondent to the sum of $500, and affirmed as modified, without costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129248/
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— Judgment affirmed.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901955/
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—Order unanimously modified on the law and as modified affirmed with costs to plaintiff-respondent, in accordance with the following memorandum: County Court properly affirmed the judgment awarding plaintiff damages based upon the jury verdict. However, it erred in reversing the trial court’s dismissal of the third-party action. Liability of the third-party defendant, Niagara Mohawk, cannot be imputed solely on the basis of its admission of joint ownership of the utility pole. The third-party action is not the same cause of action set forth in the original complaint because it involves the breach of an alleged independent duty owed to the third-party plaintiff by the third-party defendant (Stafford v *908Sibley, Lindsay & Curr Co., 280 App Div 495, 499). The record contains no proof that the third-party defendant was in any way responsible for the maintenance of the pole or the appurtenant guide wire. Without some proof of actual negligence on the part of Niagara Mohawk, the third-party complaint against it must be dismissed. (Appeals from order of Niagara County Court, Hannigan, J.—negligence.) Present—Callahan,, J. P., Doerr, Green, Balio and Davis, JJ.
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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/5901956/
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Appeal from a judgment of the Supreme Court (McNamara, J.), entered March 14, 2012 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.
Petitioner, a prison inmate, was found guilty of violating a prison disciplinary rule following a March 3, 2011 tier III disciplinary hearing. This determination was affirmed on administrative review on May 10, 2011 and petitioner received a copy of the administrative determination on May 12, 2011. He commenced this CPLR article 78 proceeding challenging the determination in Supreme Court on October 21, 2011. Supreme Court granted respondent’s motion to dismiss the proceeding as untimely, and petitioner appeals.
We affirm. Petitioner’s receipt of respondent’s final determination on May 12, 2011 triggered the four-month statute of limitations period within which to commence a CPLR article 78 proceeding challenging the determination (see CPLR 217 [1]; Matter of Cunningham v Fischer, 57 AD3d 1142, 1142 [2008]). Although petitioner attempted to commence this proceeding in this Court by an order to show cause in September 2011, a CPLR article 78 proceeding must be commenced in Supreme Court, with some statutory exceptions not applicable here (see CPLR 506 [b] [1], [4]; 7804 [b]; Matter of Reitman v Sobol, 225 AD2d 823, 823 [1996]). Inasmuch as the petition was not received by the Albany County Court Clerk until October 21, 2011, after the four-month statutory period had expired, Supreme Court properly dismissed the petition as untimely (see Matter of Loper v Selsky, 26 AD3d 653, 654 [2006]; Matter of Blanche v Selsky, 13 AD3d 681, 682 [2004], appeal dismissed, lv denied 4 NY3d 844 [2005]).
Mercure, J.P., Rose, Spain, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.
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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/5901957/
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Judgment unanimously affirmed. Memorandum: There is no merit to defendant’s contention that proof of intent to commit a crime in the premises he had broken into was legally insufficient and, therefore, he should have been convicted only of criminal trespass rather than burglary. The jury was instructed that it could consider burglary as charged in the indictment or the lesser included crime of criminal trespass, and the issue of intent was properly left to the jury to resolve (cf., People v Henderson, 41 NY2d 233). (Appeal from judgment of Cattaraugus County Court, Kelly, J.—burglary, third degree.) Present—Dillon, P. J., Green, Pine, Balio and Lawton, JJ.
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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/5901958/
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Judgment unanimously affirmed. Memorandum: On appeal from his conviction of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [12]) and criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]), defendant contends that the trial court’s admission of evidence of uncharged crimes constitutes reversible error. The trial court, over objection, admitted evidence that complainant’s reason for seeking out defendant was to straighten out a debt for cocaine he received from defendant. Immediately after the introduction of this evidence and again during its charge, the court specifically advised the jury that the evidence was admitted solely to complete complainant’s description of the entire incident and was not to be considered as direct evidence in this case.
Evidence of uncharged crimes is inadmissible unless it helps establish some element of the crimes charged or is relevant because of some recognized exception to this rule (People v Alvino, 71 NY2d 233; People v Molineux, 168 NY 264). Testimony concerning this uncharged crime was admissible to complete the complainant’s narrative of the episode (People v Gines, 36 NY2d 932, 933; People v Brockington, 126 AD2d 655, 656; People v Watts, 118 AD2d 671, 672). It was also relevant *909in establishing defendant’s motive for his possession of a weapon and a controlled substance. Further, the probative value of this evidence outweighs any prejudicial effect (see, People v Ventimiglia, 52 NY2d 350, 359). Additionally, any prejudicial effect was minimized by the court’s repeated limiting instructions (People v Ricchiuti, 93 AD2d 842, 845). Given these circumstances, the trial court properly admitted this evidence of an uncharged crime.
We have reviewed defendant’s remaining contention and find it to be without merit. (Appeal from judgment of Monroe County Court, Connell, J.—criminal possession of controlled substance, third degree, and another offense.) Present—Dillon, P. J., Green, Pine, Balio and Lawton, JJ.
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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/6129250/
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— Motion for resettlement denied.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129252/
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Decree affirmed, with costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129254/
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— Order affirmed, with ten dollars costs and disbursements.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129255/
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— Order affirmed, with ten dollars costs and disbursements.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129256/
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— Judgment affirmed, with costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6823056/
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Buchanan, J.,
delivered the opinion of the court.
The plaintiff, Edward E. Duke, brought this action against Tidewater Construction Corporation, Raymond International, Inc., and Peter Kiewit Sons’ Co., joint venturers trading as Tidewater-Raymond-Kiewit, defendants, for damages for injuries received while aboard a barge owned by the defendants, by whom he was then employed. On trial to a jury he recovered a verdict for $95,000.00, on which the court entered judgment and defendants were granted a writ of error.
On their assignments of error the defendants say the court erred in refusing to pass on their plea in bar, in admitting a deposition into evidence, in granting plaintiff’s instruction No. 1, in refusing their instructions M and N, and in refusing to set aside the verdict as being contrary to the law and the evidence.
As plaintiff states in his motion for judgment and in his brief, his action was brought under the “Jones Act,” 46 U.S.C.A., § 688, which provides, so far as here applicable, as follows:
“Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law *145right or remedy in cases of personal injury to railway employees shall apply; # 1
The issue presented is, therefore, whether the plaintiff was a seaman within the meaning of the Jones Act. The cases dealing with the question are legion. “They turn on individual fact situations; no single factor is controlling, but the whole context must be considered.” Annotation, 75 A.L.R.2d at 1314.
The vessel on which the plaintiff was working at the time of his injury was an ocean-going barge approximately one hundred feet long and fifty feet wide, known as the Big D. It was designed for offshore marine construction, such as light towers. At each of its four corners was a spud or leg, operated by compressed air so that at a construction site the spuds could be lowered to the ocean floor and then by means of compressed air the barge could be raised to the desired height above the surface of the water to serve as a stationary platform for the men engaged in the construction job.
The job at hand was the construction of the Diamond Shoals Light Station, off Manteo, North Carolina. This was to be the third joint venture of the defendants. They had previously constructed the Chesapeake Bay Bridge-Tunnel and thereafter the Chesapeake Off Shore Light Station.
The plaintiff first went to work for the defendants about March 1, 1965, when they were preparing the Big D for service in constructing the Chesapeake Light Station about thirteen miles offshore from Virginia Beach. During that construction plaintiff worked as a mechanic, looking after the air compressor, jacks and other machinery.
Plaintiff introduced a cardboard model of the Big D which he had made and explained to the jury the structure of the barge and some of its equipment, pointing out its four generator units which supplied the air for operating the spuds and grippers on the vessel. The barge was not self-propelled but was towed to the work site where it was to be used. It carried four anchors for use to hold the barge in place at the work site and these anchors were operated by the workmen on the barge. It was arranged so that its crew could eat and sleep on it.
During his employment on the barge at the Chesapeake Tower, the plaintiff was told that his work was satisfactory and that he would be employed on the next job, which was the construction of the Dia*146mond Shoals Light Tower. The defendants had contracted in or before December 1964 to do that work and expected to use the Big D on the job. The Chesapeake Tower job was completed in July-1965 and plaintiff was then assigned to another job at Yorktown. He was then told, he said, that when the Yorktown work was finished “we” would come back and make the Big D ready for sailing.
On March 14, 1966, plaintiff resumed his employment by the defendants and began helping to get the Big D ready for the Diamond Shoals job. The Big D was then afloat in the Elizabeth River, secured by lines running from the stern, from the bow and from the center. It was boarded by means of a gangplank.
The plaintiff testified that the crew then on the Big D was practically the same as had been on the Chesapeake Tower job. They were, he said, a fireman, an “operator,” the deck crew men called the riggers, who were also the pile driving men, and a Mr. Warren. Plaintiff was hired as a mechanic and his work was maintaining the equipment on the deck of the barge. Their purpose was to put the barge in order for the work ahead at Diamond Shoals.
When the Chesapeake job was completed, parts of the equipment of the barge were taken off and stored for protection and preservation. The master mechanic, under whom the plaintiff worked, said the vessel was ‘winterized” for the winter. On March 14, 1966, defendants began to prepare the Big D for the Diamond Shoals job, which was due to be completed on May 1, 1966. This preparation required a lengthening of the spuds, certain electrical work and a general overhauling of the equipment. This work required about six weeks and was within a week of being completed when plaintiff suffered his injuries.
When plaintiff came aboard on Saturday, the day of the accident, the spuds were ready to be set in position and at the time of his injuries all four had been set. On that morning he had been told they were ready for him to hook up the jacks so the air could be applied to the grips and the equipment tested over the weekend to make the vessel ready for sailing. The cook had come aboard and supplies were being brought on the barge.
At the time of the accident the plaintiff was engaged in hooking up the fourth spud when he slipped and fell on grease which had been allowed to accumulate on the deck where he was required to work. In falling he knocked open a high pressure air valve which released high pressure air through the hose he was holding, causing him to *147lose control of the hose. It whipped around uncontrolled on the deck and struck the plaintiff, resulting in a severe fracture of his leg. He has been able to work only occasionally since.
Under their assignments of error the defendants contend, first, that the court erred in “failing to pass on” their plea in bar as a separate issue prior to submitting the case to the jury on its merits. This plea alleged that the court had no jurisdiction of the subject matter because the barge on which the plaintiff was working when he was hurt was out of service; that plaintiff was not a member of the crew; that he was not a seaman; that he was not entitled to any warranty of seaworthiness, and that his exclusive remedy was under the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C.A., § 901 et seq.)
After consideration the court entered an order which stated that substantially all of the evidence necessary to a trial on the merits of the case was necessary to the determination of the status of the plaintiff and of the vessel, and that these issues could be determined by the court and jury at one trial without burdening the parties and the court with two trials. Consequently, it was ordered that the defendants file their answer and that the cause of action on the merits be consolidated for trial with defendants’ special plea.
The several hundred pages of testimony taken on these questions and the outcome of the case demonstrate the propriety of this holding and distinguish this case from Lucas v. Biller, 204 Va. 309, 130 S.E.2d 582, cited by the defendants. There was no error in the procedure complained of.
Defendants next assert that the court erred in permitting the deposition of Bruce Filmore Hale to be admitted into evidence and read to the jury, on the grounds that it was not properly filed as required by § 8-314 of the Code of Virginia, and that it was not shown that the witness was out of the State as required by § 8-313.
When the deposition was offered, defendants objected only on the ground that it had not been filed as required by statute. The statute, § 8-314, provides that it shall be certified and returned by the officer taking it, or sealed and sent to the clerk of the court or to the person before whom it is to be read. The court ruled that the deposition would not be received as offered, but that if “the reporter” presented it to the court with the averment that it was correct, it would be accepted. Apparently this was done and no further objection was made by the defendants to the reading of the deposition. The objec*148tion now made that it was not proved that the witness was out of the State comes too late. It may be added, however, that one of plaintiff’s attorneys made an explanation which satisfied the court on that point. It was not error to allow the deposition to be read to the jury.
Defendants next assert that the court erred in giving plaintiff’s instruction l.2 Their objection relates only to the second paragraph of the instruction. The printed record shows no objection or exception taken to the giving of this instruction. We find, however, in the manuscript record the statement that the defendants note their exception to Paragraph 2 of the instruction, and the statement that the “defendants do not believe that the factors as so defined are in accord with those established by the Supreme Court in West versus U. S., 1959, 361 U.S. 118,” and the further statement that “the factors stated for consideration by the Jury are more detailed than those given by the Supreme Court in West versus U. S.” Such an exception does not comply with Rule 1:8 of Rules of Court. See Harlow v. Commonwealth, 195 Va. 269, 273, 77 S.E.2d 851, 854. Moreover, West v. U. S. was not an action under the Jones Act. It involved a libel under § 781 of Title 46 of U.S.C.A. relating to a “Liberty” ship which had been in the “moth-ball fleet” at Norfolk “in total deactivation” for several years. 361 U.S. 118, 80 S.Ct. 189, on appeal from 256 F.2d 671. It suggested no error in the giving of instruction 1 and the giving of that instruction involved no reversible error.
Defendants assert that the trial court erred in refusing to give their instruction M3 and N4. Again we do not find in the printed *149record that any objection was made or exception taken to the refusal of these instructions. We look to the manuscript record to find that defendants “noted their exception” to refusing instruction M on the ground that it was in accord with Desper v. Starved Rock Ferry Co., 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205, and Antus v. Interocean Steamship Co., (C.C.A. 6), 108 F.2d 185.
In Desper the plaintiff when injured was on board a moored barge and engaged in painting life preservers for use on sightseeing boats which were then blocked up on land. The court in its opinion said that whether an individual was a seaman depended on the facts of the particular case and the “facts in this case are unique.” Desper, the court said, was only a probable navigator and the law covered only seamen in being.
In the present case plaintiff was on board a vessel afloat, almost ready for its voyage to the work site and plaintiff was engaged in fitting it for its designated task.
In Antus, supra, the vessel “had been withdrawn from navigation”. The work being done was not even preparatory to navigation, but consisted of “preparing the vessel for winter quarters.”
The present case is clearly distinguishable from Desper and Antus on its facts.
In the more recent case of Butler v. George W. Whiteman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754, a barge was moored to the wharf and a tug was lashed to the barge. Decedent had been engaged in cleaning the boiler of the tug and met his death by drowning under circumstances not clearly shown. He was last seen alive while running across the barge to the tug. The lower courts dismissed the action for his death under the Jones Act. In a per curiam opinion the Supreme *150Court reversed, holding that the evidence presented a jury question as to whether the tug was in navigation.
Instruction N would have told the jury that under the circumstances therein stated, which in themselves were at least of questionable accuracy, the plaintiff was as a matter of law not a seaman or a member of the crew. Under Butler these were jury questions.
We find no error in the refusal of instructions M and N.
The defendants assert finally that the court erred in refusing to set aside the verdict as being contrary to the law and the evidence. They say in their brief that the paramount question is whether the plaintiff was a seaman entitled to sue under the Jones Act.
In the case of Offshore Company v. Robison, 5 Cir., 266 F.2d 769, 75 A.L.R.2d 1296, in an instructive opinion by Judge Wisdom, it was said:
“ * * The Act has always been construed liberally, but recent decisions have expanded the coverage of the Jones Act to include almost any workman sustaining almost any injury while employed on almost any structure that once floated or is capable of floating on navigable waters. * *” 266 F.2d at 771, 75 A.L.R.2d at 1301.
Offshore Company was in the business of drilling and exploring for oil and gas. It owned and operated a drilling rig mounted on a barge with retractable legs or spuds, and operated in a fashion similar to that of the Big D. It was “strictly a drilling platform.” At the time of the accident “it was resting firmly on the bottom of the Gulf of Mexico”. Robison was an oil field worker. When the accident happened he was working on the main deck of the barge as a driller’s helper. He had never worked as a “seaman” on board a “vessel” as those terms are ordinarily understood. He was injured when a casing fell and broke his leg. He sued the company on the ground that he was a seaman and member of the crew. His case was heard before a jury as an action under the Jones Act and the general maritime law. He recovered a verdict and judgment which were affirmed by the Court of Appeals, 5 Cir. Said the Court: “Whatever may have been the original intention of Congress, courts have given an extremely liberal interpretation to the terms ‘seaman’ and ‘member of a crew of any vessel’ without provoking any congressional amendments restricting the coverage of the act.” 266 F.2d at 774, 75 A.L.R.2d at 1304.
*151After pointing out that the Supreme Court had held that the effect of the Longshoremen’s and Harbor Workers’ Compensation Act was to restrict the benefits of the Jones Act to “ ‘members of a crew of a vessel,’ ” the Court said:
“Gianfala v. Texas Company, 1955, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775, reversing Texas Company v. Gianfala, 5 Cir., 1955, 222 F.2d 382, is the key case in the conversion of offshore oil field workers into seamen. * *” 266 F.2d at 774, 75 A.L.R.2d at 1304.
In that case, said the Court, the defendant contended that the drilling barge was not a vessel in navigation and that the decedent was an oil field employee whose duties were not primarily in aid of navigation; but the trial court held that his status was a question for the jury. The Fifth Circuit Court reversed, holding that decedent was not aboard primarily to aid in navigation and not as a member of the ship’s crew, but as a member of the drilling crew. But the Supreme Court reversed and in a per curiam opinion, and without discussing the law but citing four cases, ordered that the judgment be reinstated.
In the four cases, all decided for the plaintiffs, one of the plaintiffs was a member of a drilling crew on a submersible drilling barge, one a foreman on a derrick, one a common laborer on a dredge, and the fourth a deck hand on a dredge.
The Offshore opinion also discussed the case of Senko v. Lacrosse Dredging Corporation, 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404. Senco was a handyman on a dredge which was anchored to the shore and used as a stationary earth-moving machine. He ran errands on shore, was paid by the hour, lived at home and brought his own meals to work. He had no duties connected with moving the dredge. He was injured ashore while placing a signal lantern from the dredge in a shed on the neighboring bank. He brought suit under the Jones Act and a jury returned a verdict in his favor, but the trial court set it aside on the ground that the evidence was not sufficient to show that he was a member of the crew. The Supreme Court reversed and in its opinion stated that “ ‘a jury’s decision is final if it has a reasonable basis, whether or not the appellate court agrees with the jury’s estimate.’ ” 266 F.2d at 777, 75 A.L.R.2d at 1307.
After reviewing the Supreme Court decisions, the Court in Offshore concluded:
“ * * there is an evidentiary basis for a Jones Act case to go *152to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips.” 266 F.2d at 779, 75 A.L.R.2d at 1309.
In the present case, Duke was a member of a crew engaged in putting the barge in condition to be floated to the site in the ocean where it would be used in the construction of the Diamond Shoals Light Tower. This work was being done while the barge was afloat in the Elizabeth River, where there were large tugs, oil tanks, yachts and other vessels afloat, and had proceeded nearly to completion when the accident occurred. At that time all four of the spuds had been set in position. On Saturday morning when the plaintiff came aboard he was told that the spuds were ready for him to hook up the jacks so the air could be applied to the grippers, and the equipment be tested over the weekend to see that it was ready for sailing. The cook had come aboard and supplies were being brought aboard. In the week following, the barge was floated to the work site and the work of constructing the light tower was begun.
We hold that under the facts as the jury could have determined them to be from the evidence, and considered in the light of the Supreme Court decisions, the plaintiff came under the protection of the Jones Act and the judgment appealed from is accordingly
Affirmed.
45 U.S.C.A., § 51 et seq. Section 56 of said Title 45 provides that the jurisdiction, of the courts of the United States under this chapter (ch. 2) “shall be concurrent with that of the courts of the several States.”
“INSTRUCTION NO. 1
“The Court Instructs the jury that the plaintiff, Edward E. Duke, brought this suit under the Jones Act, which is an Act affording a recovery for personal injuries to seamen of various types of vessels that are in navigation at the time of the injury. For the purposes of these instructions the terms ‘seamen’ and ‘members of the crew’ are used interchangeably.
“To be in navigation within the meaning of the Jones Act, the vessel need not be on station and carrying out the function for which it is designed. You may consider the character of the work being performed aboard the vessel, the presence of the crew performing the customary work of the vessel, the measure of control by the owner over the vessel as a whole, her stage of readiness for carrying out the function that the vessel was designed for.
“The Court further instructs you that if you find that the ‘BIG D’ was not in navigation at the time of the plaintiff’s injuries, then your deliberations are at an end and you shall find for the defendantls], but if you find that the barge ‘BIG D’ was in navigation, then you shall consider the further instructions the Court now makes to you.”
“INSTRUCTION NO. M
“The Court instructs the jury that even if you believe from the evidence that the *149plaintiff was employed on the BIG D during the construction of the Chesapeake Light Tower and even if you further believe that it was contemplated that he would also be employed on the BIG D during the construction of the Diamond Shoals Light Tower, this does not constitute him a seaman or a member of the crew thereof if you further believe that at the time of plaintiff’s accident the BIG D was out of service and that at said time he was engaged in preparing the BIG D for return to service.”
“INSTRUCTION NO. N
“The Court instructs the jury that if you believe from the evidence that the BIG D was laid up and out of service for a period of approximately eight (8) months prior to plaintiff’s accident, and was in the process of being thoroughly rehabilitated for return to service at the time thereof, then the BIG D had no crew, and under such circumstances you should find that the plaintiff was not a seaman or a member of the crew thereof.”
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Snead, J.,
delivered the opinion of the court.
*169Leslie Nathaniel Harrison and Richard Linwood Pollard, defendants, were indicted for the crimes of robbery and rape. By consent the defendants’ cases were tried “simultaneously and jointly”. Motions made to strike the Commonwealth’s evidence at the conclusion thereof and again at the conclusion of all of the evidence were overruled. The jury found defendants guilty of both charges contained in the indictments and fixed the punishment of each defendant at confinement in the State penitentiary for a term of five years for robbery and ten years for rape. After overruling motions to set aside the verdicts as being contrary to the law and evidence the trial court sentenced defendants in accordance with the jury verdicts. The defendants sought writs of error to the judgments of conviction, alleging that the evidence was insufficient to sustain verdicts of guilty on either charge. We granted both defendants a writ of error to that part of the judgments relating to robbery and writs were refused as to the convictions for rape.
The sole issue presented on this appeal is whether the evidence is sufficient to support the robbery convictions.
The Commonwealth first called the alleged victim, Mrs. Beatrice Williams, age forty-one. She testified that on September 5, 1967 at approximately 12:15 a.m., after having drunk two beers, she went to 2804 East Broad street, where defendants and others resided, to obtain more beer. The place was known to be a “nip joint” where alcoholic beverages were illegally sold and consumed. On arriving but before entering the premises she looked in her wallet which was in a small purse and ascertained that it contained five one-dollar bills. Mrs. Williams said that she checked her money because “I’ve had some money taken off of me” before at this place.
She knocked on the front door and it was opened by defendant Harrison. She informed Harrison that she wanted beer and he let her in closing the door behind her. He then “pulled” her through the bedroom of defendant Pollard and into an adjoining room which was used for drinking alcoholic beverages. Pollard was in his bed but awake. On entering the adjoining room Harrison turned on the juke box. He ignored her repeated request for beer and pushed her down on a sofa. Mrs. Williams stated that she dropped her purse beside her while attempting to shove Harrison away; that Harrison had one hand over her mouth and the other on her body, and that he succeeded in pulling off her panties and completing the act of intercourse.
Mrs. Williams further testified that after the rape had been ac*170complished, Harrison called Pollard who came into the room and also raped her while Harrison helped to hold her and held his hand over her mouth. When Pollard completed the act he left the room telling Harrison to leave her alone or he would call the police. She stated that she then observed her wallet, which was outside of the purse, and discovered that the five one-dollar bills were missing. She accused both Harrison and Pollard of having the money and told them to be there when she returned. The two men denied taking the money. Mrs. Williams then retrieved her panties and proceeded to a friend’s house and secured a ride to a filling station where'she called the police.
She testified that she did not see either of defendants actually take the money and that she had been to the place involved several times prior to this occasion.
Officer J. A. Windsor testified that he responded to a radio dispatch to 2804 East Broad Street at about 1:45 a.m. and on arriving observed Mrs. Williams and also other officers who responded to the call in front of the building. She appeared to have been drinking. They entered the dwelling and went into Pollard’s bedroom where both Harrison and Pollard were on Pollard’s bed. After Windsor informed them that they were being interviewed concerning an alleged rape and robbery of Mrs. Beatrice Williams he told them of their constitutional rights. At his request Mrs. Williams related in defendants’ presence what had occurred. He then asked defendants if they desired to make any statements. Harrison related an entirely different versión of what had happened. He stated, among other things, that Mrs. Williams came into the house with two unknown men; that they all ¡four, went into the living room; that he (Harrison) left and sometime later the two men left.
Officer Windsor further testified that a search of part of the premises and both defendants revealed no paper currency of any kind.
Both Harrison and Pollard took the stand at the trial and testified to basically the same version, in greater detail, that they had related to Officer Windsor at the scene. They denied taking any money from Mrs. Williams.
The jury’s verdict has resolved all conflicts in the evidence in favor of the Commonwealth and as has-been noted the only question for us to determine is whether the- evidence, viewed in the light most favorable to the Commonwealth, is sufficient to support the robbery convictions.
The evidence shows that Mrs. Williams had five one-dollar *171bills in her purse immediately prior to entering the dwelling occupied by defendants; that shortly after being raped by Pollard she no longer had the money, and that defendants were the only persons in her presence between the time she entered and the time she departed the premises. She did not see either Harrison or Pollard take the money but the jury could have concluded from the evidence that the robbery occurred during the time she was forcibly held on the sofa. Mrs. Williams’ own testimony reveals that Harrison and Pollard were not both present with her at all times. Pollard first came into the room where the rape and robbery took place after Harrison had raped Mrs. Williams and left prior to the discovery that the money was missing from her purse.
The evidence therefore establishes that the robbery may have taken place before Pollard entered the room, while he was there, or after he departed, but it does not establish, or even indicate which of these three possibilities represents events as they actually occurred. Further there is no evidence that Pollard in any way participated in any proceeds from the robbery. Such evidence falls short of that proof required to overcome the presumption of innocence, and we conclude that as to Pollard the evidence is insufficient to support the verdict of guilty.
On the other hand, the evidence does show that Harrison was present with Mrs. Williams during the entire time she was in the house up to the time of the discovery that the five dollars were missing. It must be concluded therefore that the robbery was either perpetrated by Harrison himself or by Pollard in Harrison’s presence.
Appellants cite Burton v. Commonwealth, 122 Va. 847, 852, 94 S.E. 923, 924, wherein this court approved an instruction to the jury “that when two persons had the same opportunity to commit the offense, and if upon the whole evidence in the case there remains a reasonable doubt as to which of the two committed it, neither of the two can be convicted”. In that case, however, concert of action was not considered. It is well established that if it can be shown that two persons acted in concert or one aided and abetted the other then it is not necessary to prove which one of the two actually committed the offense, each will be held responsible for the acts of the other. Ward v. Commonwealth, 205 Va. 564, 568, 138 S.E.2d 293, 296; Spradlin v. Commonwealth, 195 Va. 523, 527, 79 S.E.2d 443, 445.
It is also well established that whether one aided and abetted or acted in concert with another to commit a criminal act may be shown *172by circumstances as well as direct evidence. Brown v. Commonwealth, 130 Va. 733, 737, 107 S.E. 809, 811; Foster v. Commonwealth, 179 Va. 96, 100, 18 S.E.2d 314, 316; Boggs v. Commonwealth, 153 Va. 828, 836, 149 S.E. 445, 447.
The evidence adduced in the case at bar shows that when Pollard came into the room at Harrison’s call, Harrison held Mrs. Williams and continued to restrain her and kept her from calling for help by holding his hand over her mouth while Pollard committed a rape upon her. If Pollard also committed the robbery at this time certainly the circumstances proven were sufficient to support a finding that Harrison acted in concert with him in its commission. Therefore as to Harrison we conclude that the evidence was sufficient to establish that Harrison either committed the robbery himself or acted in concert with Pollard in its commission, and hence was sufficient to support the verdict of the jury.
Accordingly, the judgment of conviction as to Harrison is affirmed. The judgment of conviction as to Pollard is reversed and the case remanded for a new trial if the Commonwealth be so advised.
Affirmed in Record No. 7101, Reversed and remanded in Record No. 7102
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—Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Defendants J. Jay Cassen and Sweet Shirts, Inc., are entitled to summary judgment in plaintiffs’ action against J. Jay Cassen, Sweet Shirts, Inc., Jean Cassen and May J. Scott. Plaintiffs’ complaint sought a judgment declaring fraudulent and void a $150,000 conveyance to Manufacturers Hanover Trust Company discharging a mortgage executed by J. Jay and Jean Cassen, yet plaintiffs concede on appeal that they have no claim against Manufacturers, nor did plaintiffs name Manufacturers as a defendant. Since plaintiffs have conceded that they are not entitled to the relief they seek, their action cannot stand, and the notice of pendency dated April 13, 1987, filed in that action, must be canceled. We further find that Special Term did not abuse its discretion in canceling the notice of pendency dated March 2, 1987, filed in a companion action, upon the condition that defendants post the entire net value of the residence at 340 Sandringham Road. Although a creditor is entitled only to the debtor’s interest in the property, and not to the debtor’s spouse’s interest (Marine Midland Bank v Murkoff, 120 AD2d 122, 133, appeal dismissed 69 NY2d 875), if the debtor’s spouse dies during the pendency of the action, the surviving debtor would own the entire property (see, V.R. W., Inc. v Klein, 68 NY2d 560, 563-564). (Appeal from order of Supreme Court, Monroe County, Curran, J.—set aside transfer of real property.) Present—Dillon, P. J., Green, Pine, Balio and Lawton, JJ.
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/4534512/
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Date: Thu, 14 May 2020 21:11:10 GMT
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