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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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As plaintiff husband’s action for medical malpractice was voluntarily withdrawn by him without prejudice to plaintiff wife’s claim for loss of consortium, the motion court properly permitted the wife’s claim to proceed. Although dismissal of the husband’s claims on the merits would mandate dismissal of the wife’s derivative claim (see e.g. Camadeo v Leeds, 290 AD2d 355 [2002]), where, as here, the claims were brought simultaneously and the primary action was voluntarily withdrawn without prejudice, there is no bar to the loss of consortium claim (see Champagne v State Farm Mut. Auto. Ins. Co., 185 AD2d 835 [1992], lv denied 81 NY2d 704 [1993]).

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

Robert T. Johnson, District Attorney, Bronx (Emily Anne Aldridge of counsel), for respondent.

_________________________

Order, Supreme Court, Bronx County (John P. Collins, J.), entered on or about April 12, 2010, which denied defendant’s CPL

440.46 motion for resentencing, unanimously affirmed.

The court appropriately exercised its discretion in determining that substantial justice required denial of defendant’s application (see People v Gonzalez, 29 AD3d 400 [2006], lv denied 7 NY3d 867 [2006]). Defendant has demonstrated a complete inability to control his behavior. During his incarceration on the underlying conviction he committed 27 disciplinary infractions. In addition, he has repeatedly refused to enter or failed to complete drug treatment programs, and his lengthy criminal record includes numerous drug-related crimes committed while on parole or other forms of release.

Simon & Partners LLP, New York (Kenneth C. Murphy of counsel), for appellant.

Reed Smith LLP, New York (Gil Feder of counsel), for respondents.

_________________________

Judgment, Supreme Court, New York County (Barbara R.

Kapnick, J.), entered December 8, 2009, after a jury trial, to the extent appealed from as limited by the briefs, awarding the Crown plaintiffs the principal sum of $500,000 on a guarantee, unanimously affirmed, with costs.

Jurisdiction over defendant guarantor pursuant to CPLR 302(a)(1) was established by a preponderance of the evidence at the hearing (see Elm Mgt. Corp. v Sprung, 33 AD3d 753, 754-755 [2006]). Defendant had made numerous telephone calls to an individual in New York to procure investors for a corporation that defendant chaired and in which he had substantial holdings;

he had sent others to New York who acted on his behalf in dealing with investment bankers involved in obtaining financing for the corporation (see East N.Y. Sav. Bank v Republic Mtge. Corp., 61 AD2d 1001, 1002 [1978]). He was subject to a forum selection clause in the notes underlying his guarantee (see Ameritrust Co.

N.A. v Chanslor, 803 F Supp 893 [1992]). While defendant made the telephone calls and dispatched the agents in his capacity as a corporate executive, his corporate and personal roles in the transaction were intertwined. Defendant’s attempts to distinguish Ameritrust are in vain, since the distinctions are without a difference. Whether a forum clause is permissive, as here, or mandatory, as in Ameritrust, is relevant only if an action is brought in a forum other than the one selected (see Faberge USA, Inc. v Ceramic Glaze, Inc., 1988 WL 31853, *2, 1988 US Dist LEXIS 2469, *7 [SD NY 1988]). Contrary to defendant’s contention, documents executed at about the same time and covering the same subject matter are to be interpreted together, even if one does not incorporate the terms of the other by reference, and even if they are not executed on the same date, so long as they are “substantially” contemporaneous (Nau v Vulcan Rail & Constr. Co., 286 NY 188, 197 [1941]; see Components Direct v European Am. Bank & Trust Co., 175 AD2d 227, 230-231 [1991]).

The finding of jurisdiction did not violate defendant’s right to due process, since his conduct and connection with this State were such that he should reasonably have anticipated being brought into court (see World-Wide Volkswagen Corp. v Woodson, 444 US 286, 292 [1980]).

There was no error in the jury charge, which substantially comported with defendant’s request and was not prejudicial.

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

SNR Denton US LLP, New York (Arthur H. Ruegger of counsel), for appellant/appellant.

Saul Ewing LLP, New York (Ruth A. Rauls of counsel), for respondent/respondent.

_________________________

Judgments, Supreme Court, New York County (Barbara Jaffe, J.), entered August 3, 2010 and August 9, 2010, which denied the petition to vacate an arbitration award, granted the petition to confirm the same award, and awarded petitioner-respondent Cantor Fitzgerald Securities the principal amount of $11,193,466 plus interest, unanimously affirmed, without costs.

Judicial review of the award in this matter is governed by the Federal Arbitration Act (FAA) (9 USC § 1 et seq.), which mandates the enforcement of written arbitration agreements relating to transactions affecting interstate commerce (see 9 USC § 2; see also Matter of Salvano v Merrill Lynch, Pierce, Fenner & Smith, 85 NY2d 173, 180 [1995]). It is undisputed that none of the grounds for vacating an arbitration award set forth in the FAA applies here (see 9 USC § 10[a]). Contrary to Cantor’s contention, the judicially-created “manifest disregard of the law” ground for vacating an arbitration award under the FAA is still viable, notwithstanding the Supreme Court’s decision in Hall Street Assoc., L.L.C. v Mattel, Inc. (552 US 576, 585 [2008]) (see Stolt-Nielsen S.A. v AnimalFeeds Int’l Corp., 559 US _, 130 S Ct 1758, 1768 n 3 [2010]; see generally Gemstar-TV Guide Intl., Inc. v Yuen, 61 AD3d 478, 479 [2009], lv denied 13 NY3d 701 [2009]).





Here, the arbitration award was properly confirmed since there was no showing that the arbitration panel manifestly disregarded the law or exceeded its authority. Specifically, there is no basis to conclude that the panel ignored or refused to apply controlling and explicit law on the issue of lost volume sellers. Even if the panel erred in making its legal conclusion on that issue or failed to understand the law, such error does not equate to a manifest disregard for the law (see Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 480-486 [2006], cert dismissed 548 US 940 [2006]).

The panel’s interpretation of the parties’ fee agreement, particularly that appellant had an obligation to make the payments and that its failure to do so was a breach of the agreement, was supported by the agreement’s plain language and the uncontroverted testimony of Cantor Fitzgerald’s witness. In any event, the manifest disregard standard does not permit review of the panel’s interpretation of the parties’ agreement even if that interpretation was erroneous (see T.Co Metals, LLC v Dempsey Pipe & Supply, Inc., 592 F3d 329, 339 [2d Cir 2010]).

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

Michael A. Cardozo, Corporation Counsel, New York (Julian L.

Kalkstein of counsel), for appellant.

McMahon, McCarthy & Verrelli, Bronx (Matthew J. McMahon of counsel), for Rosado respondents.

Russo, Keane & Toner, LLP, New York (John A. Corring of counsel), for Njie Alhati and Balla Sisse, respondents.

Rivkin Radler LLP, Uniondale (Merril S. Biscone of counsel), for The Catholic Charities of The Archdiocese of New York and Sts.

Peter and Paul Church, respondents.

_________________________

Order, Supreme Court, Bronx County (John A. Barone, J.), entered July 15, 2010, which denied the motion of defendant City of New York for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

The City established its entitlement to judgment as a matter of law on plaintiffs’ claim that it negligently failed to ensure that a crossing guard was present at the crosswalk near infant plaintiff’s school at the time she was struck by a car. In opposition, plaintiffs failed to raise a triable issue of fact as to whether they justifiably relied on the City to provide a crossing guard where infant plaintiff’s use of the crosswalk was unanticipated and her father did not think it unusual that the crossing guard was not present. Indeed, the record demonstrates that the father dropped off his daughter at the “barricades,” a cordoned-off area where the children could play, as he usually did, which did not require her to cross the street at all, and instructed her to stay inside the barricades. He then left, fully aware that the crossing guard was not at his post (compare Florence v Goldberg, 44 NY2d 189 [1978]). Under these circumstances, the special relationship necessary to trigger a duty toward plaintiffs was not demonstrated (see Cuffy v City of New York, 69 NY2d 255 [1987]; Valdez v City of New York, 74 AD3d 76 [2010]).

Defendant school’s cross claims against the City should also be dismissed in light of its failure to raise triable questions of fact regarding whether it justifiably relied on the City to have a crossing guard on duty at the time of the accident.

Robert S. Dean, Center for Apellate Litigation, New York (Peter Theis of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), for respondent.

_________________________

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered December 10, 2009, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, 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 evidence clearly satisfied the element of physical injury (Penal Law § 10.00[9]) under the standards articulated by the Court of Appeals. Minor injuries causing moderate pain may suffice (see People v Chiddick, 8 NY3d 445, 447 [2007] [fingernail injury]), as may injuries that did not require any medical treatment (see People v Guidice, 83 NY2d 630, 636 [1994]). Here, defendant punched the victim in the face five times, causing her to fall to the ground. As a result of the beating, the victim sustained swelling and bruising to the right side of her face and bloodied lips, as well as headaches, blurred vision, and pain in the jaw, making chewing difficult, for approximately two to three weeks after the incident. To the extent defendant challenges the credibility of the victim’s description of her injuries, we find no basis for disturbing the jury’s credibility determinations. Accordingly, the evidence warrants the conclusion that the victim sustained physical injury (see e.g. People v Bravo, 295 AD2d 213, 214 [2002], lv denied 99 NY2d 556 [2002]; People v Smith, 283 AD2d 208 [2001], lv denied 96 NY2d 907 [2001]).

The court’s main and supplemental jury instructions regarding physical injury sufficiently conveyed the applicable standards and did not set an inaccurately low threshold. The court correctly stated that impairment of physical condition does not require incapacitation or serious and protracted impairment (see People v Tejeda, 165 AD2d 683, 684 [1990], affd 78 NY2d 936 [1991]), that substantial pain has to be “more than slight or trivial pain” but need not be “severe or intense” (see People v Chiddick, 8 NY3d at 447), and that pain from “petty slaps, shoves, and kicks” is insufficient (see Matter of Philip A., 49 NY2d 198, 200 [1980]). It was within the court’s discretion to go beyond the statutory language to reflect judicial elucidation of that language (see People v Samuels, 99 NY2d 20, 25 [2002]).

To the extent it quoted from judicial opinions, “the quoted language artfully expresses general and well-recognized legal principles” (People v Hommel, 41 NY2d 427, 429 [1977]), and the court did not invade the jury’s province as sole judge of the facts.

Randall S. Carmel, Syosset, for appellant.

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

_________________________

Order, Family Court, Bronx County (Allen G. Alpert, J.), entered on or about May 3, 2010, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if by committed by an adult, would constitute the crimes of attempted robbery in the second degree, attempted grand larceny in the fourth degree, assault in the third degree and menacing in the third degree, and placed him with the Office of Children and Family Services for a period of 18 months, unanimously affirmed, without costs.

The court’s finding 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]). There is no basis for disturbing the court’s credibility determinations. The record fails to support appellant’s assertion that the victim exaggerated the extent of appellant’s unlawful conduct.

Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (John G.

Nicolich of counsel), for appellant.

Wilk Auslander LLP, New York (Alan D. Zuckerbrod of counsel), for respondent.

_________________________

Order and judgment (one paper), Supreme Court, New York County (Joan A. Madden, J.), entered November 15, 2010, which, to the extent appealed from, granted the petition to stay arbitration of respondent’s fraud-based counterclaims, denied respondent’s motion to dismiss the petition, and denied respondent’s request for sanctions, unanimously modified, on the law, the petition denied, and the motion to dismiss the petition granted, and otherwise affirmed, without costs.

Respondent’s filing of a CPLR article 75 petition to stay the arbitration sought by petitioner on the grounds that the arbitration agreement was invalid due to fraud did not constitute a waiver of her right to arbitrate her counterclaims (see Matter of Heilman [Casella], 188 AD2d 294 [1992], lv denied 82 NY2d 652 [1993]). Given that petitioner initiated the arbitration and successfully moved to dismiss respondent’s petition to stay the arbitration, petitioner is not entitled to stay the arbitration of respondent’s counterclaims on statute of limitations grounds (see CPLR 7503[b]; Morfopoulos v Lundquist, 191 AD2d 197 [1993]).



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