2020 07 09 Dec
2020 07 09 Dec
-against-
_______________________
CLERK
Counsel for appellant is referred to
§ 606.5, Rules of the Appellate
Division, First Department.
Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
Angel A.,
Respondent-Appellant,
(see Matter of Markeith G. [Deon W.], 152 AD3d 424, 424 [1st Dept
Matter of Shannon K., 222 AD2d 905, 906 [3d Dept 1995]).
_______________________
CLERK
Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
-against-
Graphics Corp. v Levy, Davis & Maher, LLP, 94 AD3d 669, 669 [1st
Dept 2012]; Siller v Third Brevoort Corp., 145 AD3d 595, 596 [1st
Seldon v Lewis Brisbois Bisgaard & Smith LLP, 116 AD3d 490, 491
[1st Dept 2014], lv dismissed 25 NY3d 985 [2015]; see also Bill
(CPLR 5701[a][2]; see Sholes v Meagher, 100 NY2d 333, 335 [2003];
_______________________
CLERK
Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
-against-
Episcopal” church, the motion court was correct that it could not
(Religious Corporations Law § 12[2]; Soho Ctr. for Arts & Educ. v
Church of St. Anthony of Padua, 146 AD2d 407, 411 [1st Dept
1989]).
Patriarch Partners, LLC, 63 AD3d 440, 443 [1st Dept 2009]), and
_______________________
CLERK
Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
-against-
Alden Lee,
Defendant-Appellant.
_________________________
it on the merits. Unlike the facts in People v Mox (20 NY3d 936
defense (see People v Robinson, 179 AD3d 568 [1st Dept 2020]).
counsel (see People v Rodriguez, 144 AD3d 498 [1st Dept 2016], lv
claim. (see People v Tolbert, 168 AD3d 498 [1st Dept], lv denied
the sentence.
_______________________
CLERK
Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
-against-
Vladimir Gjinaj,
Defendant-Appellant.
_________________________
affirmed.
evidence, and was not against the weight of the evidence (People
cutter.
[1975]).
_______________________
CLERK
Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
-against-
Curtis J.C.,
Respondent-Appellant.
_________________________
spit on her as he exited the lobby of the building (see Penal Law
121 AD3d 489 [1st Dept 2014]). Petitioner also testified that,
them unavailing.
_______________________
CLERK
Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
-against-
Hughes Hubbard & Reed LLP, New York (Daniel Weiner of counsel),
for Christie’s, Inc., appellant.
Herbert Smith Freehills, New York LLP, New York (A. Robert Dawes
of counsel), for respondents.
_________________________
complaint (other than the claim for replevin) and denied the
motion by defendant Christie’s, Inc. to amend its answer,
appeal from the order entered October 17, 2019, and the order
1982]; see also John v City of New York, 260 AD2d 187, 188 [1st
Dept 1980]).
Corp. v Niagara Frontier Transp. Auth., 180 AD2d 222, 234 [4th
its order entered May 3, 2019, to the extent such appeal relies
(Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 50-51
owned the diamond at the time of his death or, at some point
before, transferred it to Girani.
III Rest. Corp., 131 AD3d 854 [1st Dept 2015]; Matter of Ansonia
Assoc. L.P. v Unwin, 130 AD3d 453 [1st Dept 2015]; Livathinos v
Vaughan, 121 AD3d 485 [1st Dept 2014]), but the omission of an
Seaman (275 App Div 484 [3d Dept 1949], affd 300 NY 756 [1950];
York, not Swiss, law (see Bakalar v Vavra, 619 F3d 136, 144-145
[2d Cir 2010]; Schoeps v MoMA (594 F Supp 2d 461, 465 [SD NY
2009]). The strong New York contacts, combined with New York’s
mod. 175 AD3d 107 [1st Dept 2019]), warrants application of New
as the record showed that the claim accrued when the Investel
reply and thus not properly before us. The court’s denial of
(Gonfiantini v Zino, 184 AD2d 368, 369 [1st Dept 1992]). The
prejudicial to plaintiffs.
them unavailing.
_______________________
CLERK
Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
Meliza T.,
Respondent-Appellant,
had fled the apartment because she wanted to play at the park and
was bored at home. The mother was concerned for her safety and
ran after her, and although the mother shouted at her to come
back, the child continued running. When the mother caught up
return home to her five-year-old son, who she had left alone in
attempted to drag her home, and pulled her hair. Under the
the daughter did not fall below the statutory minimum degree of
care (see Matter of Andy Z. [Hong Lai Z.], 105 AD3d 511 [1st Dept
2013]).
_______________________
CLERK
Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
Ruben Rodriguez,
Defendant-Appellant.
_________________________
The verdict was not against the weight of the evidence. (see
surveillance video.
Sims, 47 AD3d 494 [1st Dept 2008], lv denied 10 NY3d 844 [2008];
893 [2006]).
find that the comments of the court on which defendant relies did
_______________________
CLERK
Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
-against-
Assn. v New York State Div. of Hous. & Community Renewal, 53 AD3d
436, 438 [1st Dept 2008]; Matter of West Vil. Assoc. v Division
of Hous. & Community Renewal, 277 AD2d 111, 112 [1st Dept 2000]).
N.Y. & N.J., 134 AD3d 435, 436 [1st Dept 2015]). Petitioner did
not argue before either the RA or in the PAR that the MCI
application should have been denied because the owner did not
City Hous. Auth., 132 AD3d 549, 550 [1st Dept 2015]). Petitioner
did not argue before the RA that the MCI application should have
carpeting, and did not establish why it could not have done so
State Div. of Hous. & Community Renewal, 92 AD3d 402, 403 [1st
Dept 2012]; Matter of Chelsea Inn Corp. v New York State Div. of
them unavailing.
_______________________
CLERK
Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
-against-
Daquan Collins,
Defendant-Appellant.
_________________________
Janet E. Sabel, The Legal Aid Society, New York (Rachel L. Pecker
of counsel), for appellant.
J.), rendered June 21, 2016, convicting defendant, upon his plea
F., 177 AD3d 439 [1st Dept 2019]; Thornton, 238 AD2d at 36;
Matter of Jaime G., 208 AD2d 382 [1st Dept 1994]), observation
gave way to pursuit when the officers turned on their lights and
his intent was to get a better view and alert oncoming traffic,
and it should have been suppressed (see People v Bilal, 170 AD3d
83, 93-95 [1st Dept 2019], appeal dismissed 34 NY3d 1085 [2020]).
_______________________
CLERK
Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
-against-
Deborah Privitello,
Defendant-Respondent.
_________________________
vacate her default and dismiss the complaint (Motion Seq. No.
costs; order and judgment (one paper), same court and Justice,
the judgment vacated, and appeals from orders, same court and
Justice, entered April 1, 2019 and June 18, 2019 (Motion Seq.
action, given, inter alia, the vacate order then in effect (see
Mullane v Central Hanover Trust & Co., 339 US 306, 314 [1950];
complaint (see Pallotta v Perry, 2002 WL 1798804 [App Term, 9th &
10th Jud Dist 2002]; 4117 15th Ave. Realty Corp. v Hornedo, 184
unavailing.
_______________________
CLERK
Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
-against-
Jermaine Williams,
Defendant-Appellant.
_________________________
_______________________
CLERK
-against-
Lewis Brisbois Bisgaard & Smith LLP, New York (Peter T. Shapiro
of counsel), for appellants.
Indus., Inc. v National R.R. Passenger Corp., 537 F3d 153, 163
[2d Cir 2008], cert denied 556 US 1182 [2009] [internal quotation
to never pay.
Inc. v Fishman & Son, Inc., 218 App Div 472, 474 [1st Dept
1926]).
The court, however, should not have granted plaintiff’s
_______________________
CLERK
Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
-against-
Shakira Hattim,
Defendant-Appellant,
judgment and the underlying order. She then failed to appear for
oral argument on her motion to vacate, and the motion was denied.
Defendant now appeals from the denial of her motion to vacate the
_______________________
CLERK
Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
-against-
N.Y., 127 AD2d 274, 280 [1st Dept 1987]). The information sought
New York State Commn. on Govt. Integrity v Congel, 156 AD2d 274,
_______________________
CLERK
Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
-against-
_______________________
CLERK
Friedman, J.P., Manzanet-Daniels, Gesmer, González, JJ.
-against-
Dionny Joaquin,
Defendant-Appellant.
_________________________
unanimously affirmed.
The verdict was not against the weight of the evidence (see
attempting to do so.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
_______________________
CLERK
Richter, J.P., Oing, Singh, Moulton, JJ.
Serrice H.,
Respondent-Appellant,
granted (see Matter of Louise Wise Servs. [Whyte], 131 AD2d 306
_______________________
CLERK
Richter, J.P., Oing, Singh, Moulton, JJ.
-against-
Darrin M.,
Respondent-Appellant.
_________________________
dated December 15, 2009 that was largely unchanged from the
petitioner was changing the agreement, and expressed the need for
a “legitimate contract.”
the child.
After briefing from the parties and the attorney appointed for
of the subject child. We need not decide whether, under New York
Department of Social Servs. v Donald A.C., 179 AD3d 603 [1st Dept
contract does not exist. Nor was any final oral agreement
that at the time he provided his semen samples, the parties were
1
Petitioner presents a different view of some of the
critical facts.
(158 AD3d 767 [2d Dept 2018]) and Matter of Christopher YY. v
Jessica ZZ. (159 AD3d 18 [3d Dept 2018], lv denied 31 NY3d 909
and a known sperm donor on the other. The courts in those cases
_______________________
CLERK
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
-against-
Fomdo Drame,
Defendant-Appellant.
_________________________
jury trial, of rape in the first degree and sexual assault in the
unanimously affirmed.
(see People v Overlee, 236 AD2d 133 [1st Dept 1997], lv denied 91
People v Rios, 139 AD3d 620 [1st Dept 2016], lv denied 28 NY3d
973 [2016]; People v Almonte, 90 AD3d 579, 580 [1st Dept 2011] lv
_______________________
CLERK
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
-against-
denied.
gratings, and there is a note on the plot plan for the vault
for maintaining the gratings and the area around them in safe
AD3d 551 [1st Dept 2019]; Storper v Kobe Club, 76 AD3d 426 [1st
generally Karr v City of New York, 161 AD2d 449 [1st Dept 1990];
-against-
Patricia S.,
Respondent-Appellant.
_________________________
of Michael B.M. v Gnama I., 118 AD3d 619 [1st Dept 2014]).
_______________________
CLERK
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
-against-
Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for
appellant.
without costs.
Corp., 183 AD3d 430, 431 [1st Dept 2020]; White v New York City
Hous. Auth., 139 AD3d 579 [1st Dept 2016]; but see Ebron v New
York City Hous. Auth., 177 AD3d 530 [1st Dept 2019]). To the
(see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,
853 [1984]).
did not violate the ordinance because the pipe did not need to be
motion court did (see e.g. Wager v Rao, 178 AD3d 434, 435 [1st
not appeal from that portion of the order despite being aggrieved
_______________________
CLERK
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
-against-
Anthony Nurse,
Defendant-Respondent.
_________________________
herewith.
risk.
2013]).
with his tools and picking up his children from school, would
harm caused and of the potential harm had the defendant not been
_______________________
CLERK
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
Ibrahim Doumbouya,
Defendant-Appellant.
_________________________
_______________________
CLERK
-against-
Eddy M.,
Defendant-Appellant.
_________________________
him, and then proceeded to rape the victim who was afraid that
defendant would stab her. Although defendant was not holding the
knife during the actual rape, the evidence amply supports the
included the rape (see People v Parker, 145 AD3d 523, 523 [1st
ENTERED:
_______________________
CLERK
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
Sheldon S.,
Respondent-Appellant,
_______________________
CLERK
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
-against-
Rovi Corporation,
Defendants-Appellants.
_________________________
Ropes & Gray LLP, New York (C. Thomas Brown of counsel), for
appellants.
that defendants breached the covenant not to sue and the forum
those actions.
arising from “Authorized IPG[s],” i.e., the IPGs that are the
and 2.3 do not contain such limiting language, and the phrase
the forum selection clause because the patents that were the
them unavailing.
_______________________
CLERK
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
-against-
unanimously affirmed.
However, defense counsel did not accept the court’s offer to give
_______________________
CLERK
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
-against-
Dakiem E. D.,
Respondent-Appellant.
_________________________
Darlene L., 251 AD2d 178 [1st Dept 1998], lv denied 92 NY2d 816
employed.
368 [1st Dept 2006]), this conduct by the father justified the
contact with the mother every four hours that the child was with
_______________________
CLERK
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
-against-
Claudine DeNiro,
Defendant-Appellant.
_________________________
Chemtob Moss Forman & Beyda, LLP, New York (Nancy Chemtob of
counsel), for respondent.
_________________________
modified, on the law and the facts, to the extent of deleting the
not compel a different result (see M.M. v D.M., 159 AD3d 562, 563
[1st Dept 2018]; Harned v Harned, 185 AD2d 226, 228 [2d Dept
that the interest constituted a gift was based upon the lack of
that plaintiff would ever repay the notes (one of which was years
2008]).
of the trust, but has the power to remove and appoint the
trustee, who, in turn, has the “absolute discretion” to terminate
the trust (see Hofmann v Hofmann, 155 AD3d 442 [1st Dept 2017];
_______________________
CLERK
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
-against-
Zoltan Gorocs,
Defendant-Appellant.
_________________________
Cyrus R. Vance, Jr., District Attorney, New York (Eric Del Pozo
of counsel), for respondent.
_________________________
_______________________
CLERK
-against-
Albert Girdner,
Defendant-Appellant.
_________________________
affirmed.
determinations.
_______________________
CLERK
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
-against-
fault benefits.
claims (see Hereford Ins. Co. v Forest Hills Med., P.C., 172 AD3d
AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).
(see Hertz Vehs. LLC v Significant Care, PT, P.C., 157 AD3d 600
[1st Dept 2018]; Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468
Acupuncture, P.C. v Geico Gen. Ins. Co., 56 Misc 3d 926, 930 [Civ
_______________________
CLERK
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
-against-
Steven Rogers,
Defendant-Appellant.
_________________________
affirmed.
_______________________
CLERK
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
-against-
the prior orders and restore the matter pursuant to CPLR 5015 on
the basis that she lacked a reasonable excuse for the default,
1990]; Vasquez v Koret, Inc., 151 AD2d 448 [1st Dept 1989]),
the court and did not seek reargument until three months after
the action was dismissed (see Perez v New York City Hous. Auth.,
abuse its discretion in finding that it need not decide the issue
Retail, Inc., 175 AD3d 1192, 1192-1193 [1st Dept 2019]). Because
494, 495 [1st Dept 2019]; Moreira v Mahabir, 158 AD3d 518, 518
[1st Dept 2018]; Rodriguez v Konate, 161 AD3d 565, 566 [1st Dept
NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014], affd 24 NY3d
1191 [2015]; Williams v Laura Livery Corp., 176 AD3d 557, 558
_______________________
CLERK
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
-against-
-against-
with costs.
(see Benjamin v Morgan Guar. Trust Co. of N.Y., 173 AD2d 373, 375
The Surrogate’s Court at the time of the enactment of CPA 190 and
CPLR 325 did not have jurisdiction over inter vivos trust[s]”
any event, even if New York County is the proper venue, the
130–2.1).
_______________________
CLERK
SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT,
11320
Index 450545/19
________________________________________x
-against-
Respondents appeal from the order of the Supreme Court, New York
County (Joel M. Cohen, J.), entered August
19, 2019, which, insofar as appealed from as
limited by the briefs, denied respondents’
motion to dismiss.
York, to investigate fraud under the Martin Act. The trial court
“backed” by one U.S. dollar, and any holder of tether may redeem
it for one U.S. dollar at any time. After that date, Tether
2
currency, “cash equivalents,” and “other assets and receivables
to affiliated entities.
United States and does not have a central headquarters, and none
Inv. Mgt. Inc., 18 NY3d 341, 350 [2011] [internal quotation marks
3
this, respondents’ counsel contacted petitioner on November 3,
iFinex, and that iFinex was planning to take a $900 million line
4
transaction and only told petitioner that they had done so after
5
delivery and hand delivery.
vacate the ex parte order. By order dated May 16, 2019, Supreme
it.1
now appeal.
354 on April 24, 2019, and modified it by order dated May 16,
1
Respondents did not appeal from that order and it is not
before us.
6
2019 when respondents filed their motion that resulted in the
order now before the court. All that remained was the Attorney
to, and this Court is unaware of, any prior case in which the
19, 2019 order, and reject each for the reasons discussed below.
Act, and that the motion court thus lacked subject matter
General for orders pursuant to GBL 354 under the Martin Act.
7
matter jurisdiction argument. Respondents failed to appeal from
that order.
term more narrowly than does the Martin Act (“all other goods and
CFTC LEXIS 20, *6 [Sept. 17, 2015, CFTC Docket No. 15-29]).
jurisdiction.
2
Because tether is easily encompassed by the statute’s
definition of “commodity,” there is no need to reach the issue of
whether it may also qualify as a “security” under the Martin Act.
8
personal jurisdiction over them because petitioner failed to
argument is unavailing.
the transaction and the claim asserted” (Deutsche Bank Sec., Inc.
marks omitted]; see also LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210,
9
process considerations (Rushaid v Pictet & Cie., 28 NY3d 316, 331
Martin Act) “within or from” New York (GBL 352) by making untrue
claims about the cash reserves backing tether and their ability
213[9]).
10
Archer-Vail v LHV Precast, Inc., 168 AD3d 1257, 1261-1262 [3d
to dismiss]).
11
reserves and to make public statements on respondents’ behalf
about the Bitfinex platform and tether cash reserves in 2017 and
2018 (see Courtroom Tel. Network v Focus Media, 264 AD2d 351, 353
to this issue and may reveal additional bases for the court’s
12
petitioner commences an action against them, including documents
(as those terms are defined by the Act) “within or from” New York
13
respondents argue that Supreme Court lacked personal jurisdiction
be served in accordance with the CPLR, and held that, where there
14
cooperating, the GBL 354 order is analogous to a temporary
the Order, and the papers upon which it was granted, on counsel
the [pleading] will reach [the] defendant and inform him that he
Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314
15
[1950]). The Court of Appeals noted in Ruffin, in dicta, that
16
of respondents, who were well aware of it and were cooperating
with it.
argument.
17
appealed from as limited by the briefs, denied respondents’
All concur.
_______________________
CLERK
18