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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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Sanctions against petitioner are not warranted.

Borah Goldstein Altschuler Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for appellant.

Jeffrey S. Goldberg, White Plains, for respondent.

_________________________

Order, Supreme Court, New York County (Judith J. Gische, J.), entered September 2, 2010, which, to the extent appealed from as limited by the briefs, granted so much of plaintiff subleasee’s motion for summary judgment as sought a declaration that plaintiff had no obligation to repair a leak at its own cost or otherwise, and so declared, and denied defendant subleasor’s cross motion for partial summary judgment on plaintiff’s third cause of action alleging trespass to the extent it is predicated on partial actual eviction, unanimously modified, on the law, to the extent of searching the record and granting defendant summary judgment dismissing the complaint’s first cause action for a permanent injunction, denying the part of plaintiff’s motion for summary judgment seeking a declaration that plaintiff had no obligation to repair a leak at its own cost or otherwise and vacating the declaration, and otherwise affirmed, without costs.

The conflicting expert affidavits raise issues of fact as to whether the horizontal waste line that leaked “exclusively serv[ed]” the leased premises so as to require plaintiff to repair the leak pursuant to the terms of the lease (see generally Kumar v Stahlunt Assoc., 3 AD3d 330 [2004]).

We agree with the motion court that plaintiff failed to establish a prima facie case for a permanent injunction requiring defendant to fully repair the premises’ employee bathroom and restore it to its original condition. In particular, plaintiff failed to establish that it does not have an adequate remedy at law, namely monetary damages (see Severino v Classic Collision, 280 AD2d 463, 463-464 [2001]). Given the absence of any material issues of fact, we search the record and grant summary judgment to defendant with respect to the complaint’s first cause of action (see CPLR 3212[b]; Rodless Props., L.P. v Westchester Fire Ins. Co., 40 AD3d 253, 254-255 [2007], lv denied 9 NY3d 815 [2007]).

The affidavit of defendant’s plumber raised an issue of fact as to whether the condition of the bathroom after the repair of the leak amounted to a partial actual eviction (see Whaling Willie’s Roadhouse Grill, Inc. v Sea Gulls Partners, Inc., 17 AD3d 453, 454 [2005]).

Charles A. Singer, Great Neck, for appellant.

Mazur, Carp & Rubin, P.C., New York (Brian G. Lustbader of counsel), for respondents.

_________________________

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered on or about March 10, 2010, which, inter alia, granted defendants NTD Construction Corp. and MUS23, LLC’s motion to dismiss the second and third causes of action as against them, unanimously affirmed, with costs.

The documentary evidence annexed to the complaint contradicts the allegations in the complaint underlying the second cause of action, which alleges breach of contract (see Wilson v Hochberg, 245 AD2d 116 [1997]). Defendant NTD was justified in terminating its contracts with plaintiff based on plaintiff’s failure to pay its subcontractor, defendant Midwest Curtainwall. By refusing to pay Midwest after NTD offered to reverse the termination of the contracts if it did, plaintiff effectively waived the 15-day cure period by demonstrating that it would have similarly rejected a written notice to cure.

The third cause of action, which seeks recovery in quantum meruit, is precluded by the valid and enforceable written contracts governing the subject matter in dispute (ClarkFitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]).

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

Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Nicole Coviello 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 September 1, 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.

Michael J. Berman & Associates, P.C., New York (Michael J. Berman of counsel), for appellants.

Alterman & Boop LLP, New York (Arlene F. Boop of counsel), for respondents.

_________________________

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered November 8, 2010, which, to the extent appealed from, granted plaintiffs’ motion to compel compliance with subpoenas seeking production of certain surveillance equipment and tapes, and denied the nonparty appellants’ cross motion for a protective order, unanimously affirmed, without costs.

CPLR 3101(a) “mandates full disclosure of all matter material and necessary in the prosecution or defense of an action,” and the person seeking to quash a subpoena bears “the burden of establishing that the requested documents and records are utterly irrelevant” (Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104, 108, 112 [2006]). The court properly exercised its discretion in determining, upon review of all the facts, that the nonparties had not shown that the surveillance materials sought are utterly irrelevant to plaintiffs’ claims, brought derivatively on behalf of the cooperative corporation, which allege that defendant, while employed as managing agent for the corporation, acted for the sole benefit of the nonparties and allowed corporate resources and assets to be used for the nonparties’ benefit.





Steven Banks, The Legal Aid Society, New York (Denise Fabiano of counsel), and Kramer Levin Naftalis & Frankel, LLP, New York (Matan A. Koch of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Maureen L.

Grosdidier of counsel), for respondent.

_________________________

Judgment, Supreme Court, Bronx County (Seth L. Marvin, J.), rendered March 12, 2009, reversed, on the law and the facts, the judgment vacated, the suppression motion granted, and the information dismissed.

–  –  –

Miguel Garcia, Defendant-Appellant.

Robert T. Johnson, District Attorney, Bronx (Maureen L. Grosdidier and Stanley R. Kaplan of counsel), for respondent.

ACOSTA, J.

The issue in this case is whether the nervousness of occupants of a car stopped for a traffic infraction gives rise to a founded suspicion of criminality such that an officer’s question regarding the presence of weapons in the vehicle was permissible under the common-law right of inquiry. We hold that it does not.

On September 19, 2007, uniformed officers Cleri, Manning, and Payton pulled over defendant’s Honda because its brake light was not working. There were five occupants in the car, two in the front and three in the back. Officer Manning’s testimony confirms that he stopped the car only because of the broken tail light. The officers did not feel there was anything suspicious about the vehicle. Officer Manning testified that the three passengers in the rear seat kept looking behind them, “turning around, [and] looking side to side.” When he approached them, they “kind of stiffened up.” Officer Cleri, who approached the driver’s side, also observed that the passengers became very stiff and nervous and stared directly ahead. Cleri testified that he feared for his physical safety.

Officer Cleri immediately asked defendant for his license and registration. Defendant was polite and compliant and provided the requested documents. After defendant handed Cleri his license and registration, Cleri asked defendant whether there was any weapon in the car. The passenger in the rear middle seat answered, “Yes, I have a knife.” Cleri had him place the knife on the floor and directed him to keep his hands in view.

Following this, each passenger was frisked as he exited the car.

After the last passenger had exited, Officer Manning saw what appeared to be a weapon in the car. With the aid of a flashlight, he identified the object as “either a gun or some sort of weapon.” Upon further inspection, the object turned out to be an air pistol between the front seat and the door.

Throughout the entire encounter, all of the men were polite, respectful and completely compliant.

At the precinct, in an inventory search of the vehicle, Cleri discovered a second air rifle in the trunk. Also at the precinct, a little less than three hours after the officers had first encountered defendant, defendant was given his Miranda rights, which he waived. He was questioned for 15 or 20 minutes, and admitted that he was the owner of the air guns. Defendant was then charged with two counts of misdemeanor possession of an air pistol or rifle in violation of Administrative Code of City of NY § 10-131(b).1 Although at some point Officer Cleri issued a summons to defendant for the defective tail light, the summons had vanished Defendant moved to suppress the evidence. In a decision and order dated November 17, 2008, the court granted defendant’s motion. It found that the officers’ testimony about the nervous behavior by the passengers did not give rise to a founded suspicion of criminality, which would be necessary to allow a common-law inquiry. However, the court held that defendant's statement admitting ownership of the guns was voluntarily made and therefore admissible.

On January 15, 2009 the People moved to reargue that part of the November 17, 2008 decision that suppressed the physical evidence. Relying on People v Alvarez (308 AD2d 184 [2003], lv denied 3 NY3d 657 [2004]), the People argued that an inquiry about weapons did not reach the level of a common-law right of inquiry because it was less intrusive than asking drivers or passengers to get out of a stopped car, an action officers are clearly entitled to take.

By order dated February 27, 2009, the motion court, relying on Alvarez, reversed its prior order. The court found that Officer Cleri’s inquiry regarding the presence of weapons was permissible even though a founded suspicion of criminality had not been established. Defendant subsequently pled guilty to two by the time of the hearing, and there was no record of a disposition of the summons.

counts of attempted possession of an air pistol or rifle, in violation of Administrative Code § 10-131(b), and was sentenced to a conditional discharge. Defendant now appeals from that judgment.

It is well established that in requesting a driver’s credentials during a typical traffic stop, it is perfectly appropriate for an officer to ask the occupants of a vehicle to exit the vehicle (People v Robinson, 74 NY2d 773, 774 [1989], cert denied 493 US 966 [1989]; People v McLaurin, 70 NY2d 779, 781-782 [1987]). This is so even if the police do not have “a particularized reason” to believe that anyone in the vehicle has a weapon (Robinson, 74 NY2d at 774). Any further intrusion, however, must be justifiable under People v De Bour (40 NY2d 210, 217 [1976]) and People v Hollman (79 NY2d 181, 184-85 [1992]) (see People v Faines, 297 AD2d 590, 594 [2002], lv denied 99 NY2d 558 [2002]; People v Barreras, 253 AD2d 369, 373 [1998]; People v Berberena, 264 AD2d 670 [1999], lv denied 94 NY2d 901 [2000]).

The first two levels of inquiry in the De Bour framework are referred to as a “request for information” and a “common-law right of inquiry” (Hollman, 79 NY2d at 184-85). In discussing the difference between the two levels, the Court of Appeals has

observed:

–  –  –

“[A] request for information involves basic, nonthreatening questions regarding, for instance, identity, address or destination. As we stated in De Bour, these questions need be supported only by an objective credible reason not necessarily indicative of criminality. Once the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing and is the focus of the officer’s investigation, the officer is no longer merely seeking information. This has become a common-law inquiry that must be supported by a founded suspicion that criminality is afoot.” (id. [citation omitted]).

In applying De Bour/Hollman, this Court has expressly identified an inquiry about weapons, such as the one posed here, as a common-law inquiry requiring founded suspicion (see People v Ward, 22 AD3d 368, 368 [2005], lv denied 6 NY3d 782 [2006] [“the officer had a founded suspicion that criminality was afoot, which justified the officer in asking defendant whether he had any weapons on him”]). Such inquiries must therefore be supported by the presence of circumstances that are sufficient to justify a founded suspicion of criminal activity.

Police observation of the occupants of a vehicle "acting nervous" does not provide the police with a founded suspicion of criminality (People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US 868 [1995] [“defendant’s nervousness and the innocuous discrepancies in his and (other passenger’s) answers to the Trooper’s questions... did not alone, as a matter of law, provide a basis for reasonable suspicion of criminality”]; People v Milsaki, 62 NY2d 147 [1984] [holding that the two different reasons given by defendant for his presence in the parking area, along with defendant’s nervousness and other inconsistencies in his statements, provided no indication of criminal conduct];



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