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«Greenberg Freeman LLP, New York (Michael A. Freeman of counsel), for appellant. Zeichner Ellman & Krause LLP, New York (Jantra Van Roy of counsel), ...»

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We have considered defendant’s remaining arguments and find them unavailing.

Mango & Iacoviello, LLP, New York (Anthony G. Mango of counsel), for appellants.

Katten Muchin Rosenman LLP, New York (James Tampellini of counsel), for respondent.

_________________________

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered October 1, 2010, which, to the extent appealed from, granted plaintiffs’ motion for contempt insofar as it directed defendants to make specified alterations in their erected partition wall and to remove metal mesh and bars covering the window openings, within 60 days of service of a copy of the order with notice of entry, and denied defendants cross motion for revocation of the easement, unanimously affirmed, with costs.

This action involves a dispute between adjoining neighbors who share a common wall, except where plaintiff’s building extends further back to the rear property line and overlooks defendants’ enclosed garden courtyard. Defendants erected a three-story solid steel wall, which blocked plaintiff’s windows overlooking the courtyard, as well as plaintiff’s ground floor side door that exited into the courtyard. We find that the motion court’s order abided by the clear terms of the parties’ settlement agreement, which had been entered into in open court and reduced to writing (see CPLR 2104; Hallock v State of New York, 64 NY2d 224 [1984]). The agreement provided for window cuts to be made into the wall matching the configuration of plaintiff’s courtyard windows (i.e., five feet high by three feet wide), except to the extent that defendants could demonstrate that smaller windows were necessary to avoid compromising the wall’s structural integrity. Defendants inexplicably made window cuts of two feet high by four feet wide at each courtyard window and failed to offer any evidence other than the conclusory expert opinion that the downsized openings made were structurally warranted. As to the heavy iron mesh coverings placed over the window cuts, along with a single metal bar used in the window cuts, the court correctly found, based on the photographic evidence, that these window coverings did not permit the degree of light and air reasonably intended by the agreement, notwithstanding that the agreement allowed defendants to cover the windows with typical window screens or grates.

While the agreement provides for revocation of the easement if plaintiff opened its side door leading to defendants’ courtyard for non-emergency (i.e., fire) or non-authorized purposes on more than three occasions in a 90-day period, here, the motion court properly ruled, on the basis of the evidence available to it, that defendants had not offered evidence to refute plaintiff’s assertion that it opened the door only to address flood conditions allegedly caused by heavy rain channeled towards its building, in part, by defendants’ courtyard landscaping. The motion court appropriately declined to penalize plaintiff, given its potentially reasonable and protective action taken to safeguard its property and the lack of definitive proof that plaintiff deliberately violated the terms of the stipulation regarding its side door.

Steven Banks, The Legal Aid Society, New York (Eve Kessler of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jaime Bachrach 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 (Renee A. White, J.), rendered on or about October 20, 2009, And said appeal having been argued by counsel for the respective parties; and due deliberation having been had thereon, It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.

–  –  –

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

Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for appellant.

Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for Silverstein Properties, Inc., River Place I, LLC, River Place Holdings Limited Partnership and River Place I Holdings, LLC, respondents.

Jeffrey Samel & Partners, New York (Judah Z. Cohen of counsel), for American Building Maintenance Co. of New York, respondent.

_________________________

Judgment, Supreme Court, Bronx County (John A. Barone, J.), entered September 17, 2009, dismissing the complaint pursuant to an order, same court and Justice, entered March 6, 2009, which, upon reargument, adhered to its prior order, entered May 22, 2008, granting defendants’ motion for summary judgment, unanimously affirmed, without costs. Appeal from the May 22, 2008 order, unanimously dismissed, without costs, as academic.

In this personal injury action, plaintiff was defendants’ special employee, which entitled defendants to rely on the exclusive remedy provisions of the Workers’ Compensation Law (see Workers’ Compensation Law §§ 11, 29[6]; see also Villanueva v Southeast Grand St. Guild Hous. Dev. Fund Co., Inc., 37 AD3d 155 [2007]). “A key factor in determining whether a special employment relationship exists is who controls and directs the manner, details and ultimate result of the employee’s work” (id.

at 156 [citation and internal quotation marks omitted]). The evidence established that defendants, the owner and property manager of the work site, supervised, directed and controlled plaintiff’s work (see e.g. Ayala v Mutual Hous. Assn., Inc., 33 AD3d 343 [2006]; Duque v Pace Univ., 308 AD2d 422 [2003], lv dismissed 14 NY3d 903 [2010]; Lane v Fisher Park Lane Co., 276 AD2d 136, 139-140 [2000]).





We reject plaintiff’s contention that the evidence failed to establish that he was a special employee of the “River Place” defendants. Pursuant to the plain language of § 3.2 of defendants’ property management agreement, the supervisory staff of the defendant property manager were also employees of the defendant owner, thus, plaintiff’s work on the premises was exclusively directed by employees of both entities.

We have considered plaintiff’s remaining arguments and find them unavailing.

Wollmuth Maher & Deutsch LLP, New York (John D. Giampolo of counsel), for appellants.

Ross & Asmar LLC, New York (Steven Ross of counsel), for respondent.

_________________________

Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 28, 2010, which, in this action alleging, among other things, breach of contract, denied the motion of defendants-appellants HDT Holdings Corp., Howard Mensch, Diane Kuczer, and Thomas Piraneo for “partial” summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against defendants-appellants.

Defendants-appellants satisfied their prima facie burden of demonstrating their entitlement to judgment as a matter of law.

In opposition, plaintiff failed to raise a triable issue of fact (see Nassau County v Richard Dattner Architect, P.C., 57 AD3d 494 [2008]). Even if the evidence is viewed in a light most favorable to plaintiff, at most, it shows that, among other things, HDT and defendant Tractor International Corp. had common owners, shared an office, and that, after Tractor ceased its operations, HDT continued in the business Tractor previously engaged in and, together with a new licensee, sold goods to “some” of Tractor’s former customers. Such facts are not sufficient to satisfy the “heavy burden” necessary to pierce the corporate veil or to establish an alter ego relationship (TNS Holdings v MKI Sec. Corp., 92 NY2d 335, 339 [1998]). The record is replete with indicia that defendants-appellants, although related to Tractor, still maintained their separate corporate or individual identities. Further, the record is devoid of evidence that defendants-appellants completely dominated and controlled Tractor so as to perpetuate a fraud or commit a wrong against plaintiff (see Matter of Island Seafood Co. v Golub Corp., 303 AD2d 892, 895 [2003]).

Richard M. Greenberg, Office of The Appellate Defender, New York (Joseph M. Nursey of counsel), and Cadwalader, Wickersham & Taft LLP, New York (Trevor M. Wilson of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Mary C.

Farrington of counsel), for respondent.

_________________________

Judgment, Supreme Court, New York County (James A. Yates, J.

at CPL 190.50(5)(c) dismissal motion; Carol Berkman, J.

at suppression hearing, jury trial and sentencing), rendered June 11, 2008, convicting defendant of robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of 10 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The element of physical injury was established by evidence that, as a result of defendant’s efforts to pull her necklace off her neck, the victim sustained bloody scratches that required a tetanus shot, and neck bruises that hurt her for months afterwards (see e.g. People v Haith, 44 AD3d 369 [2007], lv denied 9 NY3d 1034 [2008]).

The court properly exercised its discretion in modifying its Sandoval ruling based on defendant’s trial testimony (see People v Fardan, 82 NY2d 638, 645-647 [1993]). In disregard of a caution the court gave defendant at the time of its initial ruling, defendant gave a misleading account of his prior record that suggested that he had remained out of trouble during the 19 years between two convictions. Accordingly, the court properly permitted the People to elicit the fact that defendant was incarcerated for about 17 of those 19 years, so as to cure the impression that the first conviction (which the People were only permitted to identify as an unspecified felony) was too remote to affect his credibility. In any event, any error in the court’s modification of its prior ruling was harmless (see People v Crimmins, 36 NY2d 230 [1975]). Defendant’s other claim regarding the Sandoval ruling is without merit.

The court properly denied defendant’s suppression motion.

An officer’s succinct and accurate response to defendant’s inquiry about the victim’s condition was not the functional equivalent of interrogation and thus did not require Miranda warnings (see People v Rivers, 56 NY2d 476, 480 [1982]; People v Lynes, 49 NY2d 286, 294-295 [1980]). Defendant’s incriminating statement, made immediately after the officer’s brief answer, was genuinely spontaneous. Defendant’s remaining arguments concerning his confession are without merit.

Defendant did not preserve any of his challenges to the prosecutor’s summation and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1992]; People v D’Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

After a thorough evidentiary hearing, the motion court properly rejected defendant’s contention that he was deprived of his right to testify before the grand jury. There is no basis for disturbing the court’s credibility determinations.

The sentencing court properly adjudicated defendant a second violent felony offender after sufficient inquiry into his claim that his 1983 predicate conviction had been unconstitutionally obtained. Defendant did not raise any issue warranting an evidentiary hearing (see People v Rivera, 203 AD2d 196 [1994]).

Defendant asserted that his attorney in the 1983 case rendered ineffective assistance by failing to challenge defendant’s postarrest statements on the ground that he lacked mental competence to waive his Miranda rights. Despite being granted a one-week adjournment, defendant offered no evidence other than his own assertions. After examining documents relating to the predicate conviction and postjudgment proceedings, the court properly rejected defendant’s claim. The court also properly exercised its discretion in declining to grant a further adjournment.

“Supreme Court was not required, as a matter of law, to grant defendant an adjournment to try to put together a more persuasive case” (People v Diggins, 11 NY3d 518, 525 [2008]).

–  –  –

Tamara A. Steckler, The Legal Aid Society, New York (Raymond E.

Rogers of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Alyse Fiori of counsel), for presentment agency.

_________________________

Order of disposition, Family Court, Bronx County (Allen G.

Alpert, J.), entered on or about April 29, 2010, which adjudicated appellant a juvenile delinquent, upon his admission that he committed an act that, if committed by an adult, would constitute the crime of menacing in the second degree, and imposed a conditional discharge for a period of 12 months, unanimously affirmed, without costs.

The court properly exercised its discretion when it denied appellant’s request for an adjournment in contemplation of dismissal, and instead adjudicated him a juvenile delinquent and imposed a conditional discharge. The court adopted the least restrictive dispositional alternative consistent with appellant’s needs and the needs of the community (see Matter of Katherine W., 62 NY2d 947 [1984]). This was a case in which the seriousness of the underlying conduct, by itself, justified at least a conditional discharge, which provided a longer period of supervision than an ACD. Appellant swung a bicycle chain at a much younger child in an effort to intimidate and punish him.

This resulted in injury to the child. The record fails to support appellant’s claimed excuse for his behavior.

Callan, Koster, Brady & Brennan, LLP, New York (Michael P.

Kandler of counsel), for appellant.

Rachel Djeddah, respondent pro se.

_________________________

Order, Supreme Court, New York County (Joan B. Carey, J.), entered December 17, 2009, which denied defendant’s motion to renew his prior motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.



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