Appellate division : fourth judicial department decisions filed


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part the verdict.  
It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs. 
Memorandum:  Plaintiff appeals from an order and judgment denying
its motion pursuant to CPLR 4404 (b) to set aside in part a verdict
rendered following a bench trial on plaintiff’s claim for breach of a
residential lease.  By its verdict, Supreme Court awarded plaintiff
landlord the sum of $9,224.41, plus reasonable attorneys’ fees,
litigation costs and prejudgment interest, “less any amounts Plaintiff
collected from re-renting the subject apartment [during the original
lease term] as an offset credit to Defendant.”  In denying the motion,
the court declined to delete that offset provision from its verdict. 
Instead, upon plaintiff’s failure to submit a posttrial affidavit
“detailing all income/fees it collected from the new tenant as a
result of re-renting the subject property,” the court determined that
plaintiff had “failed to prove its damages and thus [was] not entitled
to monetary judgment against Defendant.” 
We conclude that the court did not err in determining as a matter
of law that the accelerated rent clause of the lease constituted an
“unenforceable penalty” and in concomitantly determining that
plaintiff’s recovery was appropriately “limited to actual damages
proven” (172 Van Duzer Realty Corp. v Globe Alumni Student Assistance
Assn., Inc., 24 NY3d 528, 536 [internal quotation marks omitted]),
notwithstanding that plaintiff was under no duty to mitigate in the
first place (see Holy Props. v Cole Prods., 87 NY2d 130, 134; see also
172 Van Duzer Realty Corp., 24 NY3d at 535).  We likewise reject
plaintiff’s contention that the court had no basis for demanding that
plaintiff produce additional proof of actual damages, either at trial
or posttrial.  The court merely afforded plaintiff a second chance to
prove its actual damages by means of a posttrial affidavit quantifying

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1149    
CA 16-00603  
its relevant receipts from its new tenant and, to the extent that
there may have been some procedural irregularity here, that
irregularity did not prejudice plaintiff, the recipient of that second
chance.  Finally, we conclude that the court did not err in ultimately
denying plaintiff any recovery of its actual damages in this case
based upon plaintiff’s failure to quantify and prove such actual
damages either at trial or by means of a posttrial affidavit.
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1150    
CA 16-00524  
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.     
                                                            
                                                            
PELUSIO CANANDAIGUA, LLC, PLAINTIFF-RESPONDENT,             
                                                            
V
MEMORANDUM AND ORDER
                                                            
GENESEE REGIONAL BANK, DEFENDANT-APPELLANT.
                 
LACY KATZEN LLP, ROCHESTER (MICHAEL J. WEGMAN OF COUNSEL), FOR
DEFENDANT-APPELLANT. 
HOLTZBERG LAW FIRM, ROCHESTER (RICHARD H. HOLTZBERG OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.                                                  
                   
Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered November 12, 2015.  The order denied the
motion of defendant for summary judgment dismissing the complaint.  
It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint is dismissed. 
Memorandum:  Plaintiff leased commercial premises to a tenant
that secured a loan from defendant.  As a condition of the loan,
defendant required the tenant to obtain from plaintiff a “Landlord
Waiver” (waiver), which provided, inter alia, that any claims
plaintiff may have against the tenant were subordinate to defendant’s
security interest in the tenant’s assets used as collateral to secure
the loan.  The tenant arranged to liquidate its assets and, during
that period, it did not make the payments owed to plaintiff pursuant
to the lease agreement.  Plaintiff thereafter commenced the instant
action alleging in a single cause of action that defendant was
unjustly enriched when it took possession of the tenant’s assets
without paying rent to plaintiff.  We agree with defendant that
Supreme Court erred in denying its motion for summary judgment
dismissing the complaint. 
The record establishes that there are two waivers, which were
executed and acknowledged by plaintiff’s principal on the same date. 
Pursuant to the version on which defendant relies in support of its
motion, defendant was entitled to the use of the premises for 30 days,
rent-free, after it took possession of the premises for the purposes
of protecting its security interest.  Pursuant to the version of the
waiver on which plaintiff relies in opposition to the motion,
defendant was entitled to the use of the premises for 60 days, with
the obligation to pay rent, after it was given or obtained access to

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1150    
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the premises for the purpose of protecting its security interest. 
Both versions provided that plaintiff would provide written notice to
defendant in the event the tenant defaulted on its lease agreement
with plaintiff and provide defendant with an opportunity to cure the
default.  It is undisputed that plaintiff did not provide such notice,
and we thus conclude that defendant established its entitlement to
judgment as a matter of law on the cause of action alleging unjust
enrichment.  “The theory of unjust enrichment lies as a quasi-contract
claim.  It is an obligation the law creates in the absence of any
agreement . . . Here, . . . there was no unjust enrichment because the
matter is controlled by contract . . . [, and thus] there is no valid
claim for unjust enrichment” (Goldman v Metropolitan Life Ins. Co., 5
NY3d 561, 572). 
To the extent that the parties on appeal treat the complaint as
also alleging a claim for breach of contract, we conclude that
defendant established its entitlement to judgment with respect to that
claim based upon documentary evidence establishing that both versions
of the waiver were signed only by plaintiff and thus that the claim is
barred by the statute of frauds (see General Obligations Law § 5-701
[a] [2]; American Tower Asset Sub, LLC v Buffalo-Lake Erie Wireless
Sys. Co., LLC, 104 AD3d 1212, 1212).  Viewing the submissions of the
parties in the light most favorable to the nonmoving party, as we must
(see Victor Temporary Servs. v Slattery, 105 AD2d 1115, 1117), we
conclude that plaintiff failed to raise an issue of fact sufficient to
defeat defendant’s motion insofar as it sought to dismiss a claim for
breach of contract (see generally Zuckerman v City of New York, 49
NY2d 557, 562). 
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1151    
CA 16-00032  
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.     
                                                            
                                                            
IRENE HILL AND WILLIAM HILL, 
PLAINTIFFS-APPELLANTS,         
                                                            
V
ORDER
                                                            
MICHELLE MCGINNES, JANET S. CANTY, 
DEFENDANTS-RESPONDENTS,  
ET AL., DEFENDANT.  
                                        
BRENNA BOYCE, PLLC, ROCHESTER (WILLIAM P. SMITH, JR., OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.  
OSBORN REED & BURKE, LLP, ROCHESTER (MICHAEL A. REDDY OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.                                                
              
Appeal from an order of the Supreme Court, Monroe County (Thomas
A. Stander, J.), entered September 8, 2015.  The order granted the
motion of defendants Michelle McGinnes and Janet S. Canty for summary
judgment dismissing the complaint against them.  
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs for reasons stated in the decision
at Supreme Court.
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1152    
CA 16-00458  
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.     
                                                            
                                                            
NICHOLAS KILMER, PLAINTIFF-APPELLANT,                       
                                                            
V
MEMORANDUM AND ORDER
                                                            
DAVID MASTROPIETRO, INDIVIDUALLY AND/OR DOING 
BUSINESS AS FINGER LAKES TRANSPORT, AND DAVID 
BAKER, DEFENDANTS-RESPONDENTS.                                     
                                                            
GREENE & REID, PLLC, SYRACUSE (EUGENE W. LANE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.   
COSTELLO, COONEY & FEARON, PLLC, CAMILLUS (SHANNON R. BECKER OF
COUNSEL), FOR DEFENDANT-RESPONDENT DAVID MASTROPIETRO, INDIVIDUALLY
AND/OR DOING BUSINESS AS FINGER LAKES TRANSPORT.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KAREN J. KROGMAN DAUM
OF COUNSEL), FOR DEFENDANT-RESPONDENT DAVID BAKER.                     
                                       
Appeal from an order of the Supreme Court, Cayuga County (Thomas
G. Leone, A.J.), entered December 24, 2015.  The order granted
defendants’ respective motion and cross motion for summary judgment
dismissing the complaint against them.  
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum:  Plaintiff commenced this action seeking damages for
injuries that he allegedly sustained when he ran behind a rolling car
in an attempt to stop it, and then was struck by the car when he
slipped and fell.  Contrary to plaintiff’s contention, Supreme Court
properly granted defendants’ respective motion and cross motion for
summary judgment dismissing the complaint against them.  Although
“[a]s a general rule, the question of proximate cause is to be decided
by the finder of fact” (Derdiarian v Felix Contr. Corp., 51 NY2d 308,
312, rearg denied 52 NY2d 784), “where[, as here,] a defendant’s
actions merely ‘furnish[ ] the condition or occasion’ for the events
leading to a plaintiff’s injuries, those actions will not be deemed a
proximate cause of the injuries” (Hurlburt v Noble Envtl. Power, LLC,
128 AD3d 1518, 1519; see generally Sheehan v City of New York, 40 NY2d
496, 503).  Here, even assuming, arguendo, that defendants’ alleged
negligence created the opportunity for the vehicle to begin rolling
down the incline, we conclude that any such negligence did not cause
plaintiff, who was in a safe position, to move behind it and attempt
to stop it.  “In short, the [alleged] negligence of [defendants]

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CA 16-00458  
merely furnished the occasion for an unrelated act to cause injuries
not ordinarily anticipated” (Derdiarian, 51 NY2d at 316).
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1153    
CA 16-00602  
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.     
                                                            
                                                            
LAURA MACALUSO AND ARTHUR MACALUSO, 
PLAINTIFFS-RESPONDENTS, 
                                                            
V
MEMORANDUM AND ORDER
                                                            
WEBSTER H. PILCHER, M.D., PH.D., 
AND UNIVERSITY OF ROCHESTER MEDICAL CENTER 
SCHOOL OF MEDICINE AND DENTISTRY, 
DEFENDANTS-APPELLANTS. 
                      
WARD GREENBERG HELLER & REIDY LLP, ROCHESTER (JESSICA N. CLEMENTE OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.   
CHARLES A. HALL, ROCHESTER, FOR PLAINTIFFS-RESPONDENTS.                
                                               
Appeal from an order of the Supreme Court, Monroe County (Matthew
A. Rosenbaum, J.), entered September 24, 2015.  The order denied the
motion of defendants for summary judgment dismissing the complaint.  
It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint is dismissed. 
Memorandum:  Plaintiffs commenced this medical malpractice action
alleging that, during surgery upon Laura Macaluso (plaintiff) to
remove a previously-implanted spinal cord stimulator (SCS), Webster H.
Pilcher, M.D., Ph.D. (defendant) negligently failed to remove part of
a synthetic tubular sleeve that had covered wires connecting
components of the SCS.  On appeal, defendants contend that Supreme
Court erred in denying their motion for summary judgment dismissing
the complaint.  We agree.
In order to meet their initial burden on their motion for summary
judgment in this medical malpractice action, defendants were “required
to ‘present factual proof, generally consisting of affidavits,
deposition testimony and medical records, to rebut the claim of
malpractice by establishing that [they] complied with the accepted
standard of care or did not cause any injury to the patient’ ” (Webb v
Scanlon, 133 AD3d 1385, 1386).  “A defendant physician may submit his
or her own affidavit to meet that burden, but that affidavit must be
detailed, specific and factual in nature . . . , and must address each
of the specific factual claims of negligence raised in [the]
plaintiff[s’] bill of particulars” (id. [internal quotation marks
omitted]).  

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1153    
CA 16-00602  
Here, defendant submitted his own affidavit, along with an
accompanying medical record, in which he described in detail the
specific, limited objectives of the surgery, which included removing
the battery pack component of the SCS and the electrical leads along
plaintiff’s spinal cord, as well as removing the connecting wires that
ran under plaintiff’s skin by pulling them through a surgical opening
on her side.  Defendant averred—consistent with his deposition
testimony that was also submitted with his affidavit—that he was aware
of the possibility that sleeves could be under plaintiff’s skin from
the original surgery, but that the surgical plan discussed with
plaintiff did not include expanding the procedure to encompass
searching for or removing any such items because to do so would have
unnecessarily increased the scope and risk of the surgery beyond any
possible benefit.  Defendant noted, among other things, that any
sleeve previously implanted in plaintiff was inert and sterile, and
was designed and intended to remain inside her body.  Defendant
conducted a routine postoperative visit during which plaintiff had no
complaints, and plaintiff never returned for further care after that
visit.  Defendant explained that, inasmuch as he had completed the
surgery and his goal did not include removing every remaining fragment
of the SCS components, he would not have subjected plaintiff to an
X ray or any other tests unless she had exhibited symptoms such as
local inflammation or infection, which she had not shown.  Defendant
averred that he successfully completed the surgery as planned and
that, in his professional medical opinion, the care he provided to
plaintiff in planning and conducting the surgery fully conformed with
the applicable standard of care.  Based on the foregoing, we conclude
that defendants established their entitlement to judgment as a matter
of law (see id.).
To raise an issue of fact to defeat defendants’ motion,
plaintiffs were required to submit “evidentiary facts or materials to
rebut the prima facie showing by the defendant physician” beyond mere
“[g]eneral allegations of medical malpractice” (Alvarez v Prospect
Hosp., 68 NY2d 320, 324-325).  Plaintiffs failed to meet their burden
here.  Without explaining the accepted medical practice from which
defendant deviated in performing the surgery, plaintiffs’ expert
merely averred in general, vague, and conclusory terms that it was his
opinion “that the non-removal of the tubing conforms to medical
negligence” (see Keller v Liberatore, 134 AD3d 1495, 1496).  We
conclude that the affidavit of plaintiffs’ expert is entirely
“ ‘conclusory in nature and lacks any details[,] and thus is
insufficient to raise the existence of a triable factual issue
concerning medical malpractice’ ” (Moticik v Sisters Healthcare, 19
AD3d 1052, 1053).
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1154    
CA 16-00489  
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.     
                                                            
                                                            
BARBARA KIRBY, PLAINTIFF-APPELLANT,                         
                                                            
V
MEMORANDUM AND ORDER
                                                            
DRUMLINS, INC., DEFENDANT-RESPONDENT,                       
ET AL., DEFENDANT. 
                                         
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KEVIN E. HULSLANDER
OF COUNSEL), FOR PLAINTIFF-APPELLANT.  
LAW OFFICES OF THERESA J. PULEO, SYRACUSE (MICHELLE M. DAVOLI OF
COUNSEL), FOR DEFENDANT-RESPONDENT.                                    
                       
Appeal from an order of the Supreme Court, Onondaga County
(Anthony J. Paris, J.), entered November 30, 2015.  The order, insofar
as appealed from, granted that part of defendants’ motion for summary
judgment dismissing the amended complaint against defendant Drumlins,
Inc.   
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum:  Plaintiff commenced this action to recover damages
for injuries that she sustained when she was thrown from her golf cart
while playing golf at defendants’ golf course.  According to
plaintiff, she was driving the golf cart down an excessively steep and
winding cart path that was littered with wet leaves and other natural
debris when she lost control of her cart and was injured.  
We conclude that Supreme Court properly granted that part of
defendants’ motion for summary judgment dismissing the amended
complaint against Drumlins, Inc. (defendant) on the ground that
plaintiff had assumed the risk of her injuries as a matter of law. 
The doctrine of primary assumption of the risk acts as a complete bar
to recovery where a plaintiff is injured in the course of a sporting
or recreational activity through a risk inherent in that activity (see
Turcotte v Fell, 68 NY2d 432, 438-439).  “As a general rule,
participants properly may be held to have consented, by their
participation, to those injury-causing events which are known,
apparent, or reasonably foreseeable consequences of the participation”
(id. at 439, citing Maddox v City of New York, 66 NY2d 270, 277-278). 
“ ‘It is not necessary to the application of assumption of [the] risk
that the injured plaintiff have foreseen the exact manner in which his
or her injury occurred, so long as he or she is aware of the potential

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CA 16-00489  
for injury of the mechanism from which the injury results’ ” (Yargeau
v Lasertron, 128 AD3d 1369, 1371, lv denied 26 NY3d 902, quoting
Maddox, 66 NY2d at 278).  “The doctrine of primary assumption of the
risk, however, will not serve as a bar to liability if the risk is
unassumed, concealed, or unreasonably increased” (Ribaudo v LaSalle
Inst., 45 AD3d 556, 557, lv denied 10 NY3d 717).
Here, defendants established on the motion that plaintiff was an
experienced golfer who had played that hole and driven that cart path
several times previously.  Apart from her familiarity with the steep
topography of the hole, plaintiff was aware that it had rained the
night before and that the course was still wet that morning.  She had
driven her golf cart on that cart path just moments before her
accident, and further had observed the leaves and berries on the cart
path as she began down the cart path.  It is common knowledge that
leaves and other natural litter may be present on a golf course and
that such litter may become slick when it is wet (see generally
Maddox, 66 NY2d at 278).  For those reasons, we conclude that
plaintiff was aware of the risk posed by the cart path and assumed it
(see Bryant v Town of Brookhaven, 135 AD3d 801, 802-803; Mangan v
Engineer’s Country Club, Inc., 79 AD3d 706, 706; Lombardo v Cedar
Brook Golf & Tennis Club, Inc., 39 AD3d 818, 819; Bockelmann v New
Paltz Golf Course, 284 AD2d 783, 784, lv denied 97 NY2d 602).  
We further conclude that the court did not err in refusing to
consider the conclusory affidavit of plaintiff’s expert in golf course
design in opposition to the motion.  The affidavit set forth none of
the industry standards to which it alluded (see Barbato v Hollow Hills
Country Club, 14 AD3d 522, 523), and it provided no specific
measurements taken at the scene to which such industry standards might
have been compared.  The affidavit thus lacked probative value (see
Costanzo v County of Chautauqua, 108 AD3d 1133, 1133-1134).      
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1155    
CA 16-00630  
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.     
                                                            
                                                            
KRISTY MONTANARO, PLAINTIFF-RESPONDENT,                     
                                                            
V
MEMORANDUM AND ORDER
                                                            
ROBERT M. WEICHERT AND SUSAN M. WEICHERT,                   
DEFENDANTS-APPELLANTS.                                      
(APPEAL NO. 1.) 
                                            
ROBERT M. WEICHERT, DEFENDANT-APPELLANT PRO SE.  
SUSAN M. WEICHERT, DEFENDANT-APPELLANT PRO SE.   
CONOR J. KIRCHNER, SYRACUSE, FOR PLAINTIFF-RESPONDENT.
 
Appeal from an order of the Supreme Court, Onondaga County
(Donald A. Greenwood, J.), dated November 25, 2014.  The order granted
the motion of plaintiff for leave to amend the complaint.  
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum:  In appeal No. 1, defendants appeal from an order
granting plaintiff’s motion for leave to amend her complaint to add
Susan M. Weichert as a defendant.  We note at the outset that,
although the order is dated November 25, 2014 and the notice of appeal
is dated July 28, 2015, the record does not contain a notice of entry
and therefore the 30-day period in which to file a notice of appeal
was not triggered (see CPLR 5513 [a]).  Although the notice of appeal
is premature, we nevertheless treat it as valid (see CPLR 5520 [c]). 
With respect to appeal No. 2, however, defendants purport to appeal
from a decision granting plaintiff’s motion for a default judgment. 
Inasmuch as no appeal lies from a decision, that appeal is dismissed
(see CPLR 5512 [a]; Gay v Gay, 118 AD3d 1331, 1332, lv dismissed 25
NY3d 1015). 
Plaintiff commenced this action alleging, pursuant to Executive
Law § 296 (5) (a) (1), that Robert M. Weichert (defendant) engaged in
discriminatory practices with respect to rental property he owned. 
Following his deposition in which he stated that his wife owned the
property, plaintiff moved for leave to amend the complaint to add
Susan M. Weichert as a defendant.  Contrary to defendants’ contention,
the amended complaint alleged sufficient facts to establish a prima
facie case for discrimination inasmuch as plaintiff alleged that she
is a member of a protected class and was qualified to rent housing

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1155    
CA 16-00630  
that was denied her under circumstances that gave rise to an inference
of unlawful discrimination (see generally Matter of New York State
Div. of Human Rights v Caprarella, 82 AD3d 773, 774).  Specifically,
plaintiff alleged that she was a woman with a minor child who inquired
about an apartment advertised in a local newspaper and that, when she
went to view the apartment, defendant told her that he did not allow
children to live in the rental property.  She further alleged that
defendant acted with the consent and authority of defendant Susan M.
Weichert, the owner, when he refused to rent the premises to plaintiff
based on her familial status.  We have reviewed defendants’ remaining
contentions and conclude that they are without merit. 
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1156    
CA 16-00631  
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.     
                                                            
                                                            
KRISTY MONTANARO, PLAINTIFF-RESPONDENT,                     
                                                            
V
MEMORANDUM AND ORDER
                                                            
ROBERT M. WEICHERT AND SUSAN M. WEICHERT,                   
DEFENDANTS-APPELLANTS.                                      
(APPEAL NO. 2.) 
                                            
ROBERT M. WEICHERT, DEFENDANT-APPELLANT PRO SE.  
SUSAN M. WEICHERT, DEFENDANT-APPELLANT PRO SE.   
CONOR J. KIRCHNER, SYRACUSE, FOR PLAINTIFF-RESPONDENT.                 
                                                                      
Appeal from a letter decision of the Supreme Court, Onondaga
County (Donald A. Greenwood, J.), dated June 18, 2015.  The letter
decision granted plaintiff’s motion for a default judgment against
defendants.  
It is hereby ORDERED that said appeal is unanimously dismissed
without costs.
Same memorandum as in Montanaro v Weichert ([appeal No. 1] ___
AD3d ___ [Dec. 23, 2016]).
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1158    
KA 14-00258  
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.     
                                                            
                                                            
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,            
                                                            
V
MEMORANDUM AND ORDER
                                                            
TAKIEME JACKSON, DEFENDANT-APPELLANT.
                       
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (EVAN HANNAY OF COUNSEL),
FOR DEFENDANT-APPELLANT.   
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.                                           
                  
Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered January 6, 2014.  The judgment convicted
defendant, upon his plea of guilty, of robbery in the second degree
(four counts).  
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed. 
Memorandum:  On appeal from a judgment convicting him upon a plea
of guilty of four counts of robbery in the second degree (Penal Law 


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