SUPREME COURT, APPELLATE DIVISION
FIRST DEPARTMENT
FEBRUARY 19, 2019
THE COURT ANNOUNCES THE FOLLOWING DECISIONS:
Richter, J.P., Manzanet-Daniels, Tom, Gesmer, Kern, JJ.
79137913A

Index 150181/18
In re Patrolmen’s Benevolent
Association of the City of
New York, Inc.,
Petitioner-Appellant,
-againstBill De Blasio, etc., et al.,
Respondents-Respondents.
- - - - Reporters Committee for Freedom of the Press,
Hearst Corporation, The Associated Press, Inc.,
Buzzfeed, Inc., Cable News Network, Inc.,
The Center for Investigative Reporting, Daily News, LP,
Dow Jones & Company, Inc., Gannett Company, Inc.,
Gizmodo Media Group, LLC, New York Public Radio,
The New York Times Company, NYP Holdings, Inc., and
Spectrum News NY1,
Amici Curiae.
_________________________

Kasowitz Benson Torres LLP, Pelham (Michael J. Bowe of counsel),
for appellant.
Zachary W. Carter, Corporation Counsel, New York (Aaron M. Bloom
of counsel), for respondents.
Ballard Spahr LLP, New York (Thomas B. Sullivan of counsel), for
amici curiae.
_________________________
Orders, Supreme Court, New York County (Shlomo Hagler, J.),
entered May 7, 2018, which denied the petition and granted
respondents’ cross motion to dismiss the petition and complaint

 in this hybrid CPLR article 78 proceeding to challenge the City’s
public release of police department body-worn-camera footage
without a court order or the relevant officers’ consent, pursuant
to Civil Rights Law § 50-a, and denied petitioner’s motion for a
preliminary injunction, unanimously affirmed, without costs.
We affirm the denial of the petition and dismissal of the
proceeding on grounds different from those of Supreme Court.

The

court held that petitioner could not maintain this hybrid action
because there is no private right of action under Civil Rights
Law § 50-a.

We conclude that the fact that the statute does not

provide a private right of action does not preclude review of
petitioner’s request for injunctive relief in an article 78
proceeding, because the statute creates protected rights (for
police officers) and does not explicitly prohibit a private right
of action or otherwise manifest a clear legislative intent to
negate review (see Matter of Dairylea Coop. v Walkley, 38 NY2d 6,
10-11 [1975]; Delgado v New York City Hous. Auth., 66 AD3d 607,
608 [1st Dept 2009]; see also Matter of East Ramapo Cent. Sch.
Dist. v King, 29 NY3d 938 [2017]; Patrolmen’s Benevolent Assn. of
the City of New York, Inc. v De Blasio, 2015 NY Slip Op 32829[U]
[Sup Ct, NY County 2015]).
Nevertheless, the petition must be denied.

In order to

determine whether something is a “personnel record” under Civil
2

 Rights Law § 50-a, the “threshold criterion” is whether the
documents (or a summary of the documents) are “of significance to
a superior in considering continued employment or promotion”
(Matter of Luongo v Records Access Officer, Civilian Complaint
Review Bd., 150 AD3d 13, 19 [1st Dept 2017], lv denied 30 NY3d
908 [2017], quoting Matter of Prisoners’ Legal Servs. Of N.Y. v
New York State Dept. Of Correctional Servs., 73 NY2d 26, 32
[1988]).
The Court of Appeals has further clarified that whether a
document "containing personal, employment-related information
about a public employee," that is under the control of the
agency, and "relied upon in evaluating the employee's
performance," is covered by Civil Rights Law § 50-a "depends upon
its nature and use in evaluating an officer’s performance"
(Matter of Prisoners' Legal Servs., 73 NY2d at 32).

Moreover,

the Court of Appeals has held that, in the context of a FOIL
disclosure of an officer’s personnel records, preventing such
disclosure requires more than merely demonstrating that the
document “may be used” to evaluate performance (id. at 31).
Petitioner argues that the body-worn-camera was designed in
part for performance evaluation purposes and is clearly “of
significance” to superiors in considering employment or
promotion.

Petitioner also suggests that a finding that body3

 worn camera footage is not a personnel record would result in an
unprecedented invasion of privacy.
While we recognize petitioner’s valid concerns about
invasion of privacy and threats to the safety of police officers,
we are tasked with considering the record’s general “nature and
use,” and not solely whether it may be contemplated for use in a
performance evaluation.

Otherwise, that could sweep into the

purview of § 50-a many police records that are an expected or
required part of investigations or performance evaluations, such
as arrest reports, stop reports, summonses, and accident reports,
which clearly are not in the nature of personnel records so as to
be covered by § 50-a.
We find that given its nature and use, the body-worn-camera
footage at issue is not a personnel record covered by the
confidentiality and disclosure requirements of § 50-a (see Matter
of Prisoners’ Legal Servs. of N.Y. v New York State Dept. of
Correctional Servs., 73 NY2d 26, 32 [1988]).

The purpose of

body-worn-camera footage is for use in the service of other key
objectives of the program, such as transparency, accountability,
and public trust-building.
Although the body-worn-camera program was designed, in part,
for performance evaluation purposes, and supervisors are
required, at times, to review such footage for the purpose of
4

 evaluating performance, the footage being released here is not
primarily generated for, nor used in connection with any pending
disciplinary charges or promotional processes.

New York Civil

Liberties Union v New York City Police Department, __NY3d__, 2018
NY Slip Op 8423 [2018], which involved disciplinary matters, does
not constrain this analysis.

The footage, here, rather, is more

akin to arrest or stop reports, and not records primarily
generated for disciplinary and promotional purposes.

To hold

otherwise would defeat the purpose of the body-worn-camera
program to promote increased transparency and public
accountability.
We have considered petitioner’s remaining arguments and find
them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

5

 Sweeny, J.P., Gische, Kahn, Oing, Singh, JJ.
80148015

Ind. 2373/14
The People of the State of New York,
Respondent,
-againstDavon Pinkston,
Defendant-Appellant.
- - - - The People of the State of New York,
Respondent,
-againstAlejandro Rivera,
Defendant-Appellant.
_______________________

Marianne Karas, Thornwood, for Davon Pinkston, appellant.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of
counsel), for Alejandro Rivera, appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod
of counsel), for respondent.
_______________________
Judgment, Supreme Court, New York County (Edward J.
McLaughlin, J.), rendered November 4, 2015, convicting defendant
Davon Pinkston, after a jury trial, of conspiracy in the first
degree, conspiracy in the third degree (two counts), attempted
murder in the second degree (three counts), assault in the first
degree, attempted assault in the third degree (two counts),
attempted gang assault in the first degree and criminal
possession of a weapon in the second degree (six counts), and

6

 sentencing him to an aggregate term of 54 years, 11 months and 22
days to life, unanimously affirmed.

Judgment, same court and

Justice, rendered November 23, 2015, convicting defendant
Alejandro Rivera, after a jury trial, of conspiracy in the third
degree (two counts), attempted gang assault in the first degree
and attempted assault in the first degree, and sentencing him to
an aggregate term of 19b years, unanimously affirmed.
The verdicts were based on legally sufficient evidence and
were not against the weight of the evidence (see People v
Danielson, 9 NY3d 342, 348–349 [2007]).

Moreover, we find that

the evidence against each defendant was overwhelming.

There is

no basis for disturbing the jury’s credibility determinations.
In addition to testimony from cooperating witnesses, there was
extensive evidence including Facebook messages and recorded phone
conversations.
The fact that defendants were in leg shackles during a brief
portion of jury selection was harmless given the overwhelming
evidence of guilt (see People v Clyde, 18 NY3d 145, 153-154
[2011], cert denied 566 US 944 [2012]).
Expert testimony on gang activity did not exceed the
limitations outlined in People v Inoa (25 NY3d 466 [2015]).
Among other things, an officer properly testified about his own
observations, and the fixed meaning of gang code words (see
7

 Matter of Dysean R., 137 AD3d 604 [1st Dept 2016] [officer
properly permitted to identify and interpret gang activity
through use of social media]; People v Shan, 276 AD2d 282 [1st
Dept 2000], lv denied 96 NY2d 740 [2001] [proper exercise of
discretion to admit expert testimony relating to gang
activities]; People v Hinton, 178 AD2d 279 [1st Dept 1991], lv
denied, 79 NY2d 948 [1992] [proper to admit officer’s
explanations of jargon associated with street drug trade]).
There was no legal impediment to the officer providing testimony
both as a fact witness and as an expert witness (People v
Singleton, 270 AD2d 190 [1st Dept], lv denied 95 NY2d 858 [2000];
People v Lamboy, 228 AD2d 366 [1st Dept 1996], lv denied 88 NY2d
988 [1996]).
The circumstances also warranted testimony by the officer
identifying defendants as persons depicted in videotapes (see
People v Russell, 79 NY2d 1024, 1025 [1992]).

Notwithstanding

the fact that defendants had not changed their appearance
subsequent to having been videotaped, the testimony was
permissible, because “[the] testimony ‘served to aid the jury in
making an independent assessment regarding whether the [men] in
the [video] [were] indeed the defendant[s]’” (People v Montanez,
135 AD3d 528 [1st Dept 2016], lv denied 27 NY3d 1072 [2016],
quoting Russell, 79 NY2d at 1025).
8

Furthermore, the

 circumstances suggested that the jury would be less able than the
officer to determine whether the defendants were seen in the
videotapes, given the poor quality of the surveillance tapes,
which showed groups of young men, mostly from a distance, thus
rendering his testimony appropriate (see People v Boyd, 151 AD3d
641 [1st Dept], lv denied 29 NY3d 1124 [2017]; People v Sanchez,
95 AD3d 241, 249-250 [1st Dept 2012], affd 21 NY3d 216 [2013]).
The trial court instructed the jurors that the officer’s
testimony concerning the identities of those seen on video was
his opinion and that the ultimate identification determination
belonged exclusively to the jury.

Furthermore, none of the

officer’s testimony violated the hearsay rule or defendants’
right of confrontation.
Pinkston’s Confrontation Clause complaint about DNA evidence
is likewise meritless.

His claim that this evidence was

irrelevant or lacking in probative value is unpreserved, and we
decline to review it in the interest of justice.

As an

alternative holding, we also reject it on the merits.
Defendants did not preserve their complaints about the
court’s supplemental jury instructions, and we decline to review
them in the interest of justice.

As an alternative holding, we

find that, as to each of the two defective instructions cited by
defendants, the court corrected itself and sufficiently cured the
9

 defects.
The various evidentiary and other trial rulings challenged
by defendants were proper exercises of the court’s discretion,
and they did not deprive either defendant of a fair trial.
Rivera’s complaints about the prosecutor’s cross-examination
and summation are likewise unavailing.

Rivera did not preserve

his contention that the court unfairly denigrated or unfairly
treated his trial counsel, and we decline to review it in the
interest of justice.

As an alternative holding, we find that he

has not shown that the court’s admonitions were unwarranted or
prejudicial.
In any event, we find that any errors regarding any of the
issues raised by either or both defendants on appeal were
harmless in light of the overwhelming evidence of each
defendant’s guilt (see People v Crimmins, 36 NY2d 230 [1975]).
The record does not establish that either defendant’s

10

 sentence was based on any improper considerations, and we
perceive no basis for reducing the sentences.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

11

 Renwick, J.P., Richter, Mazzarelli, Webber, Kern, JJ.
8245

Eli Hoffman, as Receiver
to, and on Behalf of Cobalt
Asset Management, L.P.,
Plaintiff-Respondent,

Index 150620/16

-againstRSM US LLP, etc., et al.,
Defendants-Appellants,
John Does 1-10, et al.,
Defendants.
_________________________
Arnold & Porter Kaye Scholer LLP, New York (Veronica E. Callahan
and Kevin T. Sullivan of counsel), for appellants.
Nagel Rice LLP, New York (Bradley L. Rice of counsel), for
respondent.
_________________________
Order, Supreme Court, New York County (Melissa Crane, J.),
entered May 3, 2018, which, insofar as appealed from, denied
defendants RSM US, LLP and Richard Nichols’s motion to dismiss
the cause of action for aiding and abetting fraud pursuant to
CPLR 3211, unanimously modified, on the law, to grant the motion
except as to the part of the claim based on defendants’ advice to
nonparty Charles Thompson to treat his defense costs in a prior
proceeding as capital contributions to Cobalt Asset Management,
L.P., and otherwise affirmed, without costs.
Plaintiff, as receiver to Cobalt Asset Management, L.P.
(CAM), alleges that defendants, tax preparers/accountants for CAM

12

 and its former general partner, nonparty Charles Thompson, aided
and abetted Thompson’s looting of CAM’s assets for his personal
benefit.
The motion court correctly declined to dismiss the aiding
and abetting fraud claim on statute of limitations grounds,
despite mistakenly ruling that defendant RSM’s engagement letters
required CAM to have actual knowledge of Thompson’s fraud.

In

fact, the letters say that no claims may be brought by either
party more than 24 months after the party “knows or has reason to
know” that the claim has accrued (emphasis added) (see
Norddeutsche Landesbank Girozentrale v Tilton, 149 AD3d 152, 161162 [1st Dept 2017]).

The court correctly accepted as true

plaintiff’s allegation that it was not until the summer of 2015,
when defendants produced their work papers – as opposed to CAM’s
tax returns – and defendant Nichols was deposed, that plaintiff
realized that defendants had aided and abetted Thompson’s fraud
(see id. at 158).
However, the aiding and abetting fraud claim is largely
duplicative of the dismissed malpractice claim (see e.g. Penner v
Hoffberg Oberfest Burger & Berger, 303 AD2d 249 [1st Dept 2003]).
To the extent both the malpractice and aiding and abetting fraud
claims allege that defendants ignored their professional duties,
they are duplicative (see id.).

To the extent both the
13

 malpractice and aiding and abetting fraud claims are based on
defendants’ conflicts of interest, they are duplicative (see
Alphas v Smith, 147 AD3d 557, 558-559 [1st Dept 2017]).

To the

extent both claims are based on nondisclosure, they are
duplicative (see Sage Realty Corp. v Proskauer Rose, 251 AD2d 35,
39 [1st Dept 1998]).
Serio v PricewaterhouseCoopers LLP (9 AD3d 330, 331 [1st
Dept 2004]) and Houbigant, Inc. v Deloitte & Touche (303 AD2d 92
[1st Dept 2003]) are distinguishable as the defendants in those
cases were auditors whereas the defendants in the case at bar
were acting as CAM’s and Thompson’s tax preparers and, as the
complaint alleges, were not responsible for providing any opinion
about CAM’s financial statements.
However, to the extent the aiding and abetting fraud claim
alleges that defendants gave Thompson specific advice that
allowed him to perpetrate a fraud, it is not duplicative of the
malpractice claim (see Mitschele v Schultz, 36 AD3d 249, 255 [1st
Dept 2006]).

The only specific advice alleged in the complaint

is that Nichols, on behalf of RSM, decided or suggested that
Thompson’s costs to defend a prior proceeding be treated as
capital contributions to CAM.
Additionally, most of the aiding and abetting claim should
be dismissed on the ground that it fails to state a cause of
14

 action as it fails to sufficiently allege substantial assistance
in achievement of the fraud (see Stanfield Offshore Leveraged
Assets, Ltd. v Metropolitan Life Ins. Co., 64 AD3d 472, 476 [1st
Dept 2009], lv denied 13 NY3d 709 [2009]).

Most of the claim is

based on defendants’ failure to protect CAM’s limited partners.
However, even if RSM owed a duty to CAM, its client, it did not
owe a duty to CAM’s limited partners (see Eurycleia Partners, LP
v Seward & Kissel, LLP, 12 NY3d 553, 561-562 [2009]).

Thus, to

the extent the claim is based on allegations of inaction on
defendants’ part, the claim should be dismissed because such
allegations are insufficient to support the claim of aiding and
abetting fraud absent such a duty (Stanfield, 64 AD3d at 476).
To the extent the aiding and abetting fraud claim is based
on allegations of defendants’ affirmative conduct in continuing
to file CAM’s tax returns, the claim fails to state a cause of
action because the conduct alleged is nothing more than the
performance of routine business services (see CRT Invs., Ltd. v
BDO Seidman, LLP, 85 AD3d 470, 472 [1st Dept 2011]).

However, to

the extent the aiding and abetting fraud claim is based on
allegations that defendants specifically advised Thompson to
treat his defense costs in a prior proceeding as capital

15

 contributions to CAM, the claim is sufficiently pleaded as such
conduct does not constitute the performance of routine business
services.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

16

 Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.
8426

F.P.V., etc., et al.,
Plaintiffs-Respondents,

Index 350127/13

-againstCity of New York, et al.,
Defendants-Appellants.
_______________________
Zachary W. Carter, Corporation Counsel, New York (Fay Ng of
counsel), for appellants.
Greenberg & Stein, P.C., New York (Ian Asch of counsel), for
respondents.
_______________________
Order, Supreme Court, Bronx County (Wilma Guzman, J.),
entered on or about April 20, 2017, which, to the extent appealed
from as limited by the briefs, denied the motion of defendants
New York City Department of Education and New York City Board of
Education (collectively DOE) for summary judgment dismissing the
complaint, unanimously affirmed, without costs.
DOE satisfied its entitlement to judgment as a matter of law
by submitting evidence showing that infant plaintiff’s injury was
caused while he was participating in a game of “Bulldog” in gym
class when a fellow student suddenly and unexpectedly collided
with him, which was a spontaneous act, and that no additional
supervision could have prevented the injury (see M.V. v City of
New York, 149 AD3d 641 [1st Dept 2017]; Chynna A. v City of New
York, 143 AD3d 623 [1st Dept 2016]).
17

 Under the circumstances, including how the game was played,
the number of students and the size of the gym space, plaintiff
established that there are issues of fact warranting a trial.
We have considered DOE’s remaining arguments and find them
unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

18

 Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.
8427 &
M-4168

Index 251751/14
In re James Pettus,
Petitioner-Appellant,
Charlene Thompson,
Petitioner,
-againstBoard of Directors, et al.,
Respondents-Respondents.
_______________________

James Pettus, appellant pro se.
Boyd Richards Parker & Colonnelli, P.L., New York (Bryan J.
Mazzola of counsel), for respondents.
_______________________
Judgment (denominated an order), Supreme Court, Bronx County
(Julia I. Rodriguez, J.), entered on or about March 28, 2017,
striking the note of issue and dismissing with prejudice the
proceeding brought pursuant to CPLR article 78 to annul
respondent coop board’s determination, dated December 9, 2014,
which increased coop maintenance by 9%, unanimously affirmed,
with costs.
The issues decided in the order on appeal, i.e., petitioner
Pettus’s standing to bring this proceeding and the application of
the business judgment rule to the coop board’s decision to raise
the maintenance by 9%, were decided in a prior order of the same
court and Justice, entered September 28, 2015, which was law of

19

 the case and properly adhered to by the court (see Mohamed v
Defrin, 45 AD3d 252 [1st Dept 2007], lv dismissed 11 NY3d 783
[2008]).
Petitioner’s remaining arguments are without merit.
M-4168 - Pettus v Board of Directors
Motion granted to the extent of restraining and enjoining
petitioners from filing any papers in this court that have any
relation to this matter without prior leave of this Court. Any
violation of this order may subject petitioners to an award of
additional sanctions or attorneys fees.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

20

 Richter, J.P., Manzanet-Daniels, Gesmer, Oing, JJ.
8428

Ruth Kassover, etc., et al.,
Plaintiffs-Respondents,

Index 602434/05

-againstPrism Ventures Partners, LLC, et al.,
Defendants,
Allerand 675 Company, LLC,
Intervenor-Appellant.
_______________________
Kucker & Bruh, LLP, New York (Catherine A. Helwig of counsel),
for appellant.
Hahn & Hessen LLP, New York (Stephen J. Grable of counsel), for
respondents.
_______________________
Order, Supreme Court, New York County (Saliann Scarpulla,
J.), entered on or about September 12, 2017, which, to the extent
appealed from, granted plaintiffs’ motion pursuant to CPLR 5225
to direct defendant judgment debtors to turn over all cash and
personalty, unanimously affirmed, with costs.
The motion court correctly engaged in a conflict of laws
analysis, as the competing mechanics of Florida’s and New York’s
laws of priority of judgment liens would yield differing results
(see Matter of Istim, Inc. v Chemical Bank, 78 NY2d 342, 348
[1991]).
The court correctly found that New York had the superior
interest in having its law applied (see Schultz v Boy Scouts of

21

 Am., 65 NY2d 189, 197 [1985]; Matter of Istim, 78 NY2d at 348349).

The New York judgment at issue arose from a dispute over

the merger of a New York business, among New Yorkers subject to
New York law; Florida’s interest is the result of one defendant’s
unilateral acts in moving one of the judgment debtors and its
property to Florida.
Contrary to intervenor’s contention, the Full Faith and
Credit Clause of the US Constitution does not require the
enforcement of its Florida judgment, because the judgment has not
been domesticated pursuant to New York law (see American Fid.
Fire Ins. Co. v Paste-Ups Unlimited, Inc., 368 F Supp 219, 224
[SD NY 1973]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

22

 Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.
8429

The People of the State of New York,
Respondent,

Ind. 1062/15

-againstIsaac Rozier,
Defendant-Appellant.
_________________________
Christina A. Swarns, Office of The Appellate Defender, New York
(Katherine M.A. Pecore of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Julia L. Chariott of
counsel), for respondent.
_________________________
An appeal having been taken to this Court by the above-named
appellant from a judgment of the Supreme Court, Bronx County
(John Moore, J.), rendered July 19, 2016,
Said appeal having been argued by counsel for the respective
parties, due deliberation having been had thereon, and finding
the sentence not excessive,
It is unanimously ordered that the judgment so appealed from
be and the same is hereby affirmed.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK
Counsel for appellant is referred to
§ 606.5, Rules of the Appellate
Division, First Department.

23

 Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.
8430

Eleni Dritsas, etc., et al.,
Plaintiffs-Respondents,

Index 190276/15

-againstAmchem Products, Inc., etc., et al.,
Defendants,
ITW Food Equipment Group, LLC, etc.,
Defendant-Appellant.
_______________________
Lynch Daskal Emery LLP, New York (Lawrence G. Lee of counsel),
and Gary J. Saalman of the bar of the State of Ohio and the State
of Texas, admitted pro hac vice, of counsel), for appellant.
Weitz & Luxenberg, P.C., New York (Pierre A. Ratzki of counsel),
for respondents.
_______________________
Order, Supreme Court, New York County (Lucy Billings, J.),
entered on or about May 7, 2018, which, to the extent appealed
from as limited by the briefs, denied defendant ITW Food
Equipment Group, LLC’s motion for summary judgment dismissing as
against it so much of the complaint as is predicated on a de
facto merger, unanimously reversed, on the law, without costs,
and the motion granted.
Plaintiff seeks to hold defendant liable, as a successor to
the Vulcan-Hart Corporation, for the consequences of her
decedent’s exposure to asbestos between 1969 and 1988 arising
from his work on ovens, grills and broilers manufactured by
Vulcan-Hart.

Vulcan-Hart’s assets were purchased in 1986 by
24

 Hobart Corporation pursuant to an asset purchase agreement, and
defendant acquired Hobart Corporation’s product lines and other
assets in 2002.
Defendant established prima facie that there was no de facto
merger between Hobart and Vulcan-Hart that would make Hobart
responsible, contrary to the general rule, for Vulcan-Hart’s
preexisting liabilities (see Fitzgerald v Fahnestock & Co., 286
AD2d 573, 574 [1st Dept 2001]), because there was no continuity
of ownership between the two corporations (see Matter of New York
City Asbestos Litig., 15 AD3d 254, 258 [1st Dept 2005]; Ambac
Assur. Corp. v Countrywide Home Loans, Inc., 150 AD3d 490 [1st
Dept 2017]; New York v National Serv. Indus., Inc., 460 F3d 201,
215 [2d Cir 2006]; but see Lippens v Winkler Backereitechnik
GmbH, 138 AD3d 1507, 1509-1510 [4th Dept 2016]).

The asset

purchase agreement stated that Hobart purchased Vulcan-Hart’s
assets for cash (see Oorah, Inc. v Covista Communications, Inc.,
139 AD3d 444, 445 [1st Dept 2016]).
In opposition, plaintiff failed to raise an issue of fact as
to continuity of ownership.

There is no evidence in the record

that any other transaction took place in which Vulcan-Hart’s
shareholders obtained an interest in Hobart (see Matter of New
York City Asbestos Litig., 15 AD3d at 256).
Plaintiff failed to show that discovery on continuity of
25

 ownership would be anything other than a fishing expedition (see
Auerbach v Bennett, 47 NY2d 619, 636 [1979]; Oorah, 139 AD3d at
445).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

26

 Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.
84318431A

The People of the State of New York,
Respondent,

Ind. 3184/15
5128/15

-againstLindsay Aailiyah,
Defendant-Appellant.
_________________________
Christina A. Swarns, Office of The Appellate Defender, New York
(Rosemary Herbert of counsel), for appellant.
_________________________
Judgments, Supreme Court, New York County (Bonnie Wittner,
J.), rendered December 9, 2016, unanimously affirmed.
Application by defendant's counsel to withdraw as counsel is
granted (see Anders v California, 386 US 738 [1967]; People v
Saunders, 52 AD2d 833 [1st Dept 1976]).

We have reviewed this

record and agree with defendant's assigned counsel that there are
no non-frivolous points which could be raised on this appeal.
Pursuant to Criminal Procedure Law § 460.20, defendant may
apply for leave to appeal to the Court of Appeals by making
application to the Chief Judge of that Court and by submitting
such application to the Clerk of that Court or to a Justice of
the Appellate Division of the Supreme Court of this Department on
reasonable notice to the respondent within thirty (30) days after
service of a copy of this order.

27

 Denial of the application for permission to appeal by the
judge or justice first applied to is final and no new application
may thereafter be made to any other judge or justice.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

28

 Manzanet-Daniels, J.P., Kapnick, Gesmer, Oing, JJ.
84328433

Index 450460/16
In re People of the State of
New York, etc., et al.,
Petitioners-Respondents-Appellants,
-againstNorthern Leasing Systems,
Inc., et al.,
Respondents-Appellants-Respondents,
Joseph I. Sussman, P.C., et al,
Respondents-Respondents.
_______________________

Cahill Gordon & Reindell LLP, New York (Thomas J. Kavaler of
counsel), for appellants-respondents.
Barbara D. Underwood, Attorney General, New York (Ester
Murdukhayeva of counsel), for respondents-appellants.
Rottenberg Lipman Rich, P.C., New York (Mark M. Rottenberg of
counsel), for respondents.
_______________________
Orders, Supreme Court, New York County (Lucy Billings, J.),
entered November 29, 2017, which granted respondents Northern
Leasing Systems, Inc., Lease Finance Group LLC, MBF Leasing LLC,
Lease Source-LSI, LLC, Golden Eagle Leasing LLC, Pushpin Holdings
LLC, Jay Cohen, and Neil Hertzman’s (collectively, Northern
Respondents) motion to dismiss the Executive Law § 63(12) and
CPLR 5015(c) claims as against them to the extent the claims are
based on illegal conduct in violation of General Business Law §
349, and denied the motion as to the remainder of the Executive

29

 Law § 63(12) and CPLR 5015(c) claims and the Business Corporation
Law § 1101 claim, and granted respondents Joseph I. Sussman,
P.C., Joseph I. Sussman, and Eliyahu R. Babad’s (together,
Attorney Respondents) motion to dismiss the petition as against
them, unanimously modified, on the law, to deny the Attorney
Respondents’ motion except as to the General Business Law 349
claim, and otherwise affirmed, without costs.
The petition fails to state a cause of action based on
violations of General Business Law 349, because the lessees and
guarantors who were affected by the deceptive conduct are not
alleged to be “consumers” within the meaning of the statute.
There are no factual allegations that would show that the
underlying transactions involve goods or services for “personal,
family or household purposes” (Cruz v NYNEX Info. Resources, 263
AD2d 285, 289 [1st Dept 2000] [internal quotation marks omitted],
citing, inter alia, General Business Law § 399-c).
The Executive Law § 63(12) claim is based on a type of fraud
recognized in the common law, and therefore is governed by the
six-year statute of limitations (CPLR 213[1]; People v Credit
Suisse Sec. [USA] LLC, 31 NY3d 622, 634 [2018]).
The petition alleges that the Northern Respondents, via
“Independent Sales Organizations” (ISO) sales representatives,
knowingly made misrepresentations and omissions of fact to
30

 merchants for the purpose of inducing them to enter into the
predatory leasing agreements and that the merchants justifiably
relied on those misrepresentations or omissions in entering into
the agreements to their detriment (see Ambac Assur. Corp. v
Countrywide Home Loans, Inc., 31 NY3d 569, 578-579 [2018]; see
also Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486 [2008]).
The Northern Respondents argue that they cannot be found liable
for conduct attributable to the ISOs because the agreements
between them and the ISOs, and the leases presented to the
merchants, contain a disclaimer of agency which provides that the
ISOs were acting as independent contractors, did not have the
authority to bind the Northern Respondents, and were not
authorized to act as the Northern Respondents’ agents.
The Northern Respondents’ reliance on Shawmut Woodworking &
Supply, Inc. v ASICS Am. Corp. (162 AD3d 486, 487 [1st Dept
2018]) in support of this argument is, however, misplaced,
because in that case, this Court specifically noted that the
complaint failed to allege actual or apparent authority, or that
the franchisor actually authorized its franchisee to enter into
the subject contract on behalf of the franchisor.

The Shawmut

Court further pointed out that the complaint there failed to
allege that the plaintiff relied on any representations or
conduct by the franchisor that would give rise to the appearance
31

 and belief that the franchisee possessed authority to enter into
the contract in issue.
Here, contrary to the facts in Shawmut, the petition
alleges that the ISO sales representatives acted as Northern
Respondents’ agents under a theory of actual authority (see
Greene v Hellman, 51 NY2d 197, 204 [1980]).

The allegations

sufficiently demonstrate that the Northern Respondents trained
the ISO representatives, provided them with the specific lease
forms, offering detailed instructions and materials about how to
complete the forms, and then ratified the representatives’
deceptive acts by retaining the benefits of the acts with
knowledge of the material facts (see Northern Leasing Sys., Inc.
v Kollars, 56 Misc 3d 131[A], 2017 NY Slip Op 50878[U] [App Term,
1st Dept 2017]; cf. Standard Funding Corp. v Lewitt, 89 NY2d 546,
552 [1997]; Matter of New York State Med. Transporters Assn. v
Perales, 77 NY2d 126, 131 [1990]).

In view of the foregoing, we

need not reach the issue of apparent authority.
The Northern Respondents’ argument that, while there is no
statute of limitations on CPLR 5015(c) claims, the Attorney
General (on behalf of the administrative judge) is required to
bring those claims within a reasonable period of time from the
discovery of the deceptive acts is unpreserved.
disagree.

In any event, we

The statute codifies the inherent power of the courts
32

 to supervise its own processes, and that power is not subject to
time limitations (see Matter of Thompson v Lincoln Budget Corp.,
88 Misc 2d 894, 896 [Civ Ct, NY County 1975], affd 89 Misc 2d 252
[App Term, 1st Dept 1976], mod 59 AD2d 683 [1st Dept 1977]
[setting time limitation based on facts peculiar to case], appeal
dismissed 44 NY2d 697 [1978]).
The petition adequately alleges that the Northern
Respondents’ conduct falls within the “sham exception” to the
Noerr-Pennington doctrine (see Professional Real Estate Invs.,
Inc. v Columbia Pictures Indus., Inc., 508 US 49, 60 [1993];
Singh v Sukhram, 56 AD3d 187, 192 [2d Dept 2008]; see also
Eastern R.R. Presidents Conference v Noerr Motor Freight, Inc.,
365 US 127 [1961]; United Mine Workers of Am. v Pennington, 381
US 657 [1965]).

The allegations that the Northern Respondents

created legal obligations through misrepresentations and fraud,
and then attempted to enforce those obligations through abusive
pre-litigation and litigation practices sufficiently demonstrate
that the Northern Respondents’ debt-collection activities and
procuring of default judgments were “objectively baseless”
(Professional Real Estate Invs., 508 US at 52; see e.g. Sykes v
Mel Harris & Assoc., LLC, 757 F Supp 2d 413, 419-420, 429 [SD NY
2010]; Shetiwy v Midland Credit Mgt., 980 F Supp 2d 461, 475-476
[SD NY 2013]).
33

 Insofar as it is based on unconscionable contract terms, the
Executive Law § 63(12) claim states a cause of action (see
Gillman v Chase Manhattan Bank, 73 NY2d 1, 10 [1988]).

The

element of procedural unconscionability is sufficiently alleged
given the assertions that the ISO sales representatives targeted
vulnerable individuals – the elderly, disabled, and immigrants
with limited fluency in English – and employed deceptive tactics
to induce them to execute the leases (see Dabriel, Inc. v First
Paradise Theaters Corp., 99 AD3d 517, 520 [1st Dept 2012]).
Although the challenged contract provisions are ordinarily
enforceable, the element of substantive unconscionability is
sufficiently stated by the allegations that the contract
provisions are “unreasonably favorable” to the Northern
Respondents as enforced by the Northern Respondents (see Gillman,
73 NY2d at 10).
The petition states a cause of action as against individual
respondent Neil Hertzman, Northern Leasing’s Vice President of
Customer Service and Collections, who was responsible for
addressing customer complaints.

The allegations that in response

to customer complaints Hertzman relied on the unconscionable
contract terms and disclaimed responsibility for the ISO sales
representatives’ misrepresentations sufficiently demonstrate
that he was aware of the fraud scheme and participated in it (see
34

 People v Apple Health & Sports Clubs, 206 AD2d 266, 267 [1st Dept
1994], lv dismissed in part, denied in part 84 NY2d 1004 [1994];
see also Polonetsky v Better Homes Depot, 97 NY2d 46, 55 [2001]).
The petition adequately alleges that the Attorney
Respondents’ conduct falls within the sham exception to the
Noerr-Pennington doctrine (see Professional Real Estate Invs.,
508 US at 60).

The allegations that the Attorney Respondents

continually engaged in a large-scale practice of bringing debt
actions against numerous lessees and guarantors across a span of
years, despite being aware of the same defenses raised by the
lessees against the Northern Respondents, including fraud and
misrepresentations, sufficiently allege that the Attorney
Respondents knew that their litigation-related conduct was
objectively baseless (see id.).

The allegations sufficiently

show a knowing participation in the scheme that justifies holding
the Attorney Respondents liable under Executive Law § 63(12) (see
People v Law Offs. of Andrew F. Capoccia, 289 AD2d 650 [3d Dept
2001]; People v Boyajian Law Offs., P.C., 17 Misc 3d 1119[A],
2007 NY Slip Op 52077[U] [Sup Ct, NY County 2007]).

35

The

 allegations also support a finding of frivolous conduct (see 22
NYCRR 130-1.1).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

36

 Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.
8434

In re Dawn H. F.,
Petitioner-Appellant,
-againstMarco J.,
Respondent-Respondent.
_______________________

Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of
counsel), for appellant.
Janet Neustaetter, The Children’s Law Center, Brooklyn (Chai Park
of counsel), for respondent.
_______________________
Order, Family Court, Bronx County (Jennifer S. Burtt,
Referee), entered on or about August 9, 2017, which, inter alia,
awarded joint legal custody of the subject child, with final
authority to the father on major medical, dental, and therapeutic
decisions, unanimously affirmed, without costs.
The joint custody arrangement crafted by the court was in
the child’s best interests and has a sound and substantial basis
in the record (Anonymous v Anonymous, 107 AD3d 531, 532 [1st Dept
2013]).

We decline to disturb the court’s division of final

authority for certain categories of major decisions, as the
record establishes that each parent had successfully exercised
good judgment in making major decisions related to their assigned
categories (Nimkoff v Nimkoff, 74 AD3d 408, 408 [1st Dept 2010]).
Moreover, the division of final authority in major decisions
37

 would maintain the respective roles of each parent in the child’s
life (id.).
The determination of the mother’s request for new counsel is
not before this Court as the mother has not filed a notice of
appeal from a decision on such motion and any decision would not
be encompassed by the notice of appeal from the final custody
determination.
We have considered the mother’s remaining arguments and find
them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

38

 Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.
8435

Deutsche Bank National
Trust Company, etc.,
Plaintiff-Respondent,

Index 32003/16E

-againstArshad Al Rasheed, etc.,
Defendant-Appellant,
City of New York Environmental
Control Board, et al.
Defendants.
_______________________
Petroff Amshen LLP, Brooklyn (Christopher Villanti of counsel),
for appellant.
Shapiro, DiCaro & Barak, LLC, Rochester (Austin T. Shufelt of
counsel), for respondent.
_______________________
Order, Supreme Court, Bronx County (Ben R. Barbato, J.),
entered September 15, 2017, which, inter alia, granted
plaintiff’s motion for summary judgment on its foreclosure
complaint against defendant Arshad Al Rasheed, unanimously
affirmed, without costs.
Plaintiff made a prima facie showing of its right to
foreclose by producing the mortgage documents, the unpaid note,
and evidence of defendant’s default (see Red Tulip, LLC v Neiva,
44 AD3d 204, 209 [1st Dept 2007], lv dismissed 10 NY3d 741
[2008]).

It established prima facie that it had standing to

foreclose as holder of the note by attaching a copy of the

39

 indorsed note to the summons and complaint at the time the action
was commenced (see U.S. Bank N.A. v Saravanan, 146 AD3d 1010 [2d
Dept 2017]).

It demonstrated its compliance with the notice

requirements of RPAPL 1304 by submitting copies of the notices
with an affidavit by an employee of the loan servicer stating,
based on her review of the loan servicer’s records, that the
notice of default and a 90-day foreclosure notice were mailed to
defendant in accordance with the provisions of the mortgage and
RPAPL 1304, respectively (see HSBC Bank USA, N.A. v Ozcan, 154
AD3d 822, 826-827 [2d Dept 2017]).
In opposition, defendant failed to raise an issue of fact as
to his affirmative defenses (see Red Tulip, 44 AD3d at 209).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

40

 Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.
8436

In re Suncica Reljic, et al.,
Petitioners-Appellants,

Index 650092/17

-againstTullett Prebon Financial Services, LLC,
Respondent-Respondent.
- - - - In re Tullett Prebon Americas Corp., et al.,
Counterclaim Petitioners-Respondents,
-againstSuncica Reljic, et al.,
Counterclaim Respondents-Appellants.
_______________________
Winston & Strawn LLP, New York (Thomas P. Lane of counsel), for
appellants.
Sheppard, Mullin, Richter & Hampton LLP, New York (John E. Kiley
of counsel), for respondents.
_______________________
Order, Supreme Court, New York County (O. Peter Sherwood,
J.), entered July 11, 2017, which denied the petition to vacate
an arbitration award and granted respondent Tullett Prebon
Financial Services, LLC’s cross motion to confirm the arbitration
award, unanimously affirmed, with costs.
In holding petitioners jointly and severally liable for
compensatory damages, plus attorneys’ fees and costs, the
arbitrators did not act in manifest disregard of the law (see
Matter of Brown & Williamson Tobacco Corp. v Chesley, 7 AD3d 368,
372 [1st Dept 2004]; Duferco Intl. Steel Trading v T. Klaveness
41

 Shipping A/S, 333 F3d 383, 385 [2d Cir 2003] [“to vacate an
arbitral award on the grounds of manifest disregard of the law
... we must be persuaded that the arbitrators understood but
chose to disregard a clearly defined law or legal principle”]).
Contrary to their contention, petitioners were not each held
responsible for both a breach of contract and a tort; rather,
they committed separate wrongs that resulted in a single injury
(see Spector v Torenberg, 852 F Supp 201, 208-209 [SD NY 1994]).
The fact that the arbitrators did not offer a more detailed
explanation for the award is not a ground on which to set the
award aside (id. at 390; see also Matter of Israel Aircraft
Indus. [DDY-Wing Aviation], 284 AD2d 281, 281 [1st Dept 2001]).
Nor did the arbitrators improperly hold petitioner Tradition
Securities and Derivatives, Inc. liable for liquidated damages.
Compensatory damages was one of several types of damages
specifically requested, and the fact that the award only granted
compensatory damages precludes a finding that the arbitrators

42

 awarded any other type of requested relief (see Roganti v
Metropolitan Life Ins. Co., 786 F3d 201, 213-214 [2d Cir 2015]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

43

 Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.
8437

In re John Joyce,
Petitioner-Respondent,

Index 158793/16

-againstNew York City Department of
Education, et al.,
Respondents-Appellants.
_______________________
Zachary W. Carter, Corporation Counsel, New York (Nwamaka Ejebe
of counsel), for appellants.
Eisner & Dictor, P.C., New York (Benjamin N. Dictor of counsel),
for respondent.
_______________________
Judgment, Supreme Court, New York County (Manuel J. Mendez,
J.), entered April 5, 2017, to the extent appealed from as
limited by the briefs, vacating respondents’ determination, dated
June 21, 2016, which denied petitioner’s request for rescission
of resignation, and directing respondents to accept petitioner’s
request, unanimously affirmed, without costs.
On or about August 30, 2011, petitioner resigned his
employment as a tenured social studies teacher with respondent
New York City Department of Education (DOE).

Less than a year

later, on or about July 29, 2012, he submitted a request to DOE
to rescind his resignation pursuant to Chancellor’s Regulation C205(29).

Following an almost 4-year delay by respondents in

acting on petitioner’s request, and litigation between the

44

 parties, and only after petitioner filed a motion for contempt,
did respondent Chancellor finally respond to and deny the
request.

In her letter of June 21, 2016, the Chancellor cited

petitioner’s unsatisfactory year-end performance rating for the
2010-2011 academic year, a determination that was ultimately
annulled by this Court by decision dated May 10, 2018 (see Matter
of Joyce v City of New York, 161 AD3d 488 [1st Dept 2018]).
We find that good faith and fairness demand that a decision
on a request for rescission of resignation pursuant to
Chancellor’s Regulation C-205(29) be made within a reasonable
time.

We reject respondents’ suggestion that the Chancellor has

the discretion to wait more than three years before making such a
decision, without providing a reason for the delay.

Supreme

Court had directed DOE, in an order issued May 6, 2013, to follow
its own stated procedure by accepting the rescission letter and
reinstating petitioner (subject only to the Chancellor’s

45

 approval, pursuant to the regulation).

Respondents’ delay was

unacceptably long and effectively operated to subvert the court’s
order.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

46

 Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.
8438

The People of the State of New York,
Respondent,

Ind. 2239/15

-againstFabian Soto,
Defendant-Appellant.
_______________________
Robert S. Dean, Center for Appellate Litigation, New York
(Abigail Everett of counsel), and Arnold & Porter Kaye Scholer
LLP, New York (Stephanna Szotkowski of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret
Bierer of counsel), for respondent.
_______________________
Appeal from order, Supreme Court, New York County (Thomas
Farber, J.), entered on or about September 21, 2017, which
adjudicated defendant a level two sex offender pursuant to the
Sex Offender Registration Act (Correction Law art 6-C), held in
abeyance, and the matter remanded for a further hearing
consistent with this decision on defendant’s request for a
downward departure.
In People v Gillotti (23 NY3d 841 [2014]), the Court of
Appeals outlined a three-step process for determining whether to
grant a defendant’s request for a downward departure.

First, the

hearing court is to determine whether alleged mitigating
circumstances are “of a kind or degree not adequately taken into
account by the guidelines” (id. at 861).

47

If so, the court

 applies a preponderance of the evidence standard (id. at 863) to
determine whether the defendant has proven the existence of those
circumstances (id. at 861).

Finally, if the first two steps are

satisfied, the court must “exercise its discretion by weighing
the aggravating and mitigating factors to determine whether the
totality of the circumstances warrants” a downward departure to
avoid an overassessment of the defendant’s dangerousness and risk
of sexual reoffense (id.).
While not entirely clear on this point, the decision of the
hearing court in this case suggests that, in this case of
statutory rape, the court considered itself bound, as a matter of
law, to conclude that the various details of the offense urged as
mitigating circumstances by defendant were adequately accounted
for by the guidelines.

Thus, the court appeared to consider

itself unable to engage in the discretionary weighing prescribed
in Gillotti’s third step.

To the extent that the court acted

based on this reasoning, it operated on an inaccurate premise
that is contradicted by numerous cases that have granted downward
departures in a similar context (see e.g. People v Carter, 138
AD3d 706 [2d Dept 2016]), as well as the Guidelines themselves
(see Sex Offender Registration Act: Risk Assessment Guidelines
and Commentary at 9 [2006]).
“In cases of statutory rape, the Board has long recognized
48

 that strict application of the Guidelines may in some instances
result in overassessment of the offender’s risk to public safety”
(Carter, 138 AD3d at 708).

Accordingly, the fact that in such a

case the offender is not assessed any points for force or injury
should not be the end of the discussion of whether to grant a
downward departure.
Accordingly, we hold the appeal in abeyance and remand for
further proceedings in accordance with this guidance.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

49

 Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.
84398439A

Index 150610/18
Michelle Nappi,
Plaintiff-Appellant,
-againstCommunity Access, Inc., et al.,
Defendants-Respondents.
_______________________

Michelle Nappi, appellant pro se.
Charles McMellon, New York, for Community Access, Inc.,
respondent.
Sperber Denenberg & Kahan, P.C., New York (Eric H. Kahan of
counsel), for Eight Cooper Equities, LLC, respondent.
_______________________
Order and judgment (one paper), Supreme Court, New York
County (Lynn R. Kotler, J.), entered July 25, 2018, which granted
defendants’ cross motions to dismiss the complaint, unanimously
modified, on the law, to declare that plaintiff does not have
individual rights to the subject apartment, and otherwise
affirmed, without costs.

Appeal from order, same court and

Justice, entered July 3, 2018, which denied plaintiff’s motion to
stay a housing court proceeding and to enjoin her eviction,
unanimously dismissed, without costs, as subsumed in the appeal
from the judgment.
Defendant Community Access, Inc. (Community Access) is a
not-for-profit organization that enters into agreements with

50

 government agencies to lease apartments from private landlords
using government funding, to provide stipends for housing for its
clients.

Defendant Eight Cooper Equities, LLC (Eight Cooper)

entered into a rent stabilized lease with Community Access for an
apartment in its building.

Plaintiff was a client of Community

Access at the time, and lived in the Eight Cooper apartment
pursuant to a sublease.

The relationship between plaintiff and

Eight Cooper subsequently deteriorated, and the landlord decided
not to extend a renewal lease to Community Access.

Plaintiff was

offered an opportunity to relocate, pursuant to the housing
program, but she declined.

She was subsequently discharged from

the program, with a right to be reinstated upon

compliance with

the program’s minimum requirements.
Defendants demonstrated, as a matter of law that plaintiff
has no established rights to the subject apartment, because the
lease between Community Access and Eight Cooper did not name her,
or specify that she, or any particular individual or group of
individuals was intended to live in the subject apartment
(Manocherian v Lenox Hill Hosp., 229 AD2d 197, 204-205 [1st Dept
1997], lv denied 90 NY2d 835 [1997]).

Further, Community Access

was justified in terminating plaintiff’s sublease based upon her
failure to comply with the program’s requirements and her failure
to allow basic access by the landlord to the apartment for
51

 necessary repairs and health-related inspections.
We modify that portion of the action seeking declaratory
relief only to declare in defendants’ favor (see Lanza v Wagner,
11 NY2d 317, 334 [1962], cert denied 371 US 901 [1962]).
We have considered plaintiff’s remaining arguments and find
them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

52

 Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.
8440

The People of the State of New York,
Respondent,

Ind. 4395/13

-againstSidney Sass,
Defendant-Appellant.
_________________________
Seymour W. James, Jr., The Legal Aid Society, New York (Harold V.
Ferguson, Jr. of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Vincent
Rivellese of counsel), for respondent.
_________________________
An appeal having been taken to this Court by the above-named
appellant from a judgment of the Supreme Court, New York County
(Jill Konviser, J.), rendered July 1, 2014,
Said appeal having been argued by counsel for the respective
parties, due deliberation having been had thereon, and finding
the sentence not excessive,
It is unanimously ordered that the judgment so appealed from
be and the same is hereby affirmed.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK
Counsel for appellant is referred to
§ 606.5, Rules of the Appellate
Division, First Department.

53

 Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, JJ.
8441

Moon 170 Mercer, Inc.,
Plaintiff-Respondent,

Index 155605/12

-againstZachary Vella,
Defendant-Appellant.
_______________________
Steven Landy & Associates, PLLC, New York (David A. Wolf of
counsel), for appellant.
Cordova & Schwartzman, LLP, Garden City (Jonathan B. Schwartzman
of counsel), for respondent.
_______________________
Order, Supreme Court, New York County (Barry Ostrager, J.),
entered December 18, 2017, which denied defendant guarantor’s
motion to vacate a judgment, entered January 23, 2017, pursuant
to CPLR 5015(a)(5) and renew his opposition to plaintiff
landlord’s motion for summary judgment, unanimously reversed, on
the law, without costs, the motion granted, and the judgment
vacated, and the case remanded for further proceedings consistent
with this decision, including a determination as to the amount of
restitution, if any, owed to defendant guarantor.
Based on the reinstatement of the wrongful eviction claim
asserted by the nonparty tenant against respondent landlord Moon
170 Mercer, Inc. in the related action of Mephisto Mgmt., LLC v
Moon 170 Mercer (Index No. 658456/13) (see 151 AD3d 416 [1st Dept
2017]), the IAS court should have allowed the guarantor to avail
54

 himself of a defense based on an alleged failure of
consideration.

New York law specifically preserves failure of

consideration as a defense available to a guarantor, even under
an unconditional guaranty (see I Bldg, Inc. v Hong Mei Cheung,
137 AD3d 478, 478 [1st Dept 2016] [guarantor cannot raise claims
personal to principal, “unless it extends to a failure of
consideration for the principal contract, and therefore for the
guarantor’s contract”]).
Further, the guarantor was not collaterally estopped from
raising the defense because he did not have a full and fair
opportunity to have the issue litigated and determined (Singleton
Mgt. v Compere, 243 AD2d 213, 217 [1st Dept 1998]).
The guarantor should be afforded the opportunity to present
evidence before the IAS court to determine 1) whether the facts
and circumstances from which the alleged wrongful eviction arose
prevented him from exercising his rights under the guaranty, and
2) the extent to which those facts and circumstances bear on the
amounts due post-eviction under the guaranty.

55

 We have considered the parties’ remaining contentions and
find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

56

 Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.
8442N

Brett Bossung, etc., et al.,
Plaintiffs-Appellants,

Index 162142/15

-againstRebaco Realty Holding Company,
N.V., et al.,
Defendants-Respondents.
_______________________
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac
of counsel), for appellants.
Law offices of Arnold Stream, New York (Arnold Stream of
counsel), for respondents.
_______________________
Order, Supreme Court, New York County (Manuel J. Mendez,
J.), entered May 25, 2017, which denied plaintiffs’ motion
pursuant to CPLR 3025(b) to amend the complaint to add The Board
of the Walton Condominium as a defendant, unanimously affirmed,
without costs.
Although plaintiffs sought leave to amend the complaint
before the applicable statute of limitations had expired, their
motion did not toll the statute, because they failed to annex the
supplemental summons to their papers (see Karagiannis v North
Shore Long Is. Jewish Health Sys., Inc., 80 AD3d 569, 569 [2d
Dept 2011]).

Nor did plaintiffs establish that their proposed

amended complaint relates back to the date of service of the
original complaint (see CPLR 203[b]; Raymond v Melohn Props.,

57

 Inc., 47 AD3d 504, 504-505 [1st Dept 2008]).

The record is

devoid of any evidence that defendant Gumley-Haft LLC, the
manager of the building in which the incident occurred, and the
Board, which owns the building, are vicariously liable for one
another’s acts (see Xavier v RY Mgt. Co., Inc., 45 AD3d 677, 679
[2d Dept 2007]) or that their defenses to the action would be the
same, particularly because Gumley-Hart’s defense that it was not
the property owner and lacked exclusive control of the premises
at the time of the incident is not available to the Board (see
Mangual v U.S.A. Realty Corp., 63 AD3d 493 [1st Dept 2009]).
That the Board agreed to name Gumley-Hart as an additional
insured under its policy does not establish that the two entities
are united in interest for the purposes of the relation back
doctrine (see generally Cahn v Ward Trucking, Inc., 68 AD3d 491
[1st Dept 2009]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

58

 Richter, J.P., Manzanet, Kapnick, Gesmer, Oing, JJ.
8444N

Paul Fiondella,
Plaintiff-Appellant,

Index 100594/14

-against345 West 70th Tenants Corp.,
Defendant-Respondent.
_______________________
Charla R. Bikman, East Hampton, for appellant.
Marin Goodman, LLP, Harrison (Alexander J. Drago of counsel), for
respondent.
_______________________
Order, Supreme Court, New York County (Carmen Victoria St.
George, J.), entered January 17, 2018, which denied plaintiff’s
motion to hold defendant in civil contempt for failing to comply
with a lawful mandate of the court, to direct defendant to pay
plaintiff’s costs and expenses on the motion, and to impose
sanctions, unanimously affirmed, without costs.
The motion court properly held that the order defendant
allegedly violated was not sufficiently clear and unequivocal to
justify a contempt finding or the imposition of sanctions (see
Richards v Estate of Kaskel, 169 AD2d 111, 121 [1st Dept 1991],
lv dismissed in part, denied in part 78 NY2d 1042 [1991]; see
also Oppenheimer v Oscar Shoes, 111 AD2d 28 [1st Dept 1985]).

59

 Plaintiff cannot prove by clear and convincing evidence that
there was an intent on defendant’s part to ignore a court order.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

60

 Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.
8445
[M-6074]
M-495

In re Steven Mears,
Petitioner,

Ind. 4854/03
OP 167/18

-againstHon. A. Kirke Bartley, etc., et al.,
Respondents.
- - - - Cyrus R. Vance, Jr., District Attorney,
New York County,
Nonparty Respondent.
_______________________
Steven Mears, petitioner pro se.
Barbara D. Underwood, Attorney General, New York (Charles F.
Sanders of counsel), for Hon. Kirke A. Bartley and Hon. Edward J.
McLaughlin, respondents.
Cyrus R. Vance, Jr., District Attorney, New York (Valerie
Figueredo of counsel), for Cyrus R. Vance, Jr., respondent.
_______________________
The above-named petitioner having presented an application
to this Court praying for an order, pursuant to article 78 of the
Civil Practice Law and Rules,
Now, upon reading and filing the papers in said proceeding,
and due deliberation having been had thereon,

61

 It is unanimously ordered that the application be and the
same hereby is denied and the petition dismissed, without costs
or disbursements.
M-495 Motion for change of venue denied.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

FEBRUARY 19, 2019

_______________________
CLERK

62