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I NEW YORK LAW JOURNAL 25 o CD

Ing, inter alia, that at the time of the acci­ M. Soviero is commanded to desist and opposition, the plaintiffs failed to raise a FLORIO, J.P., S. MILLER, RIVERA and o EE CISIONS dent there was a sign at the entrance to refrain from (1) practicing law in any triable issue of fact. The affidavit of the LIFSON, JJ., concur. “D o the pool area, which the plaintiff admit­ form, either as principal or agent, clerk, injured plaintiff submitted in opposition By Luciano, J.P.; Cozier, Mastro and c o tedly failed to read, indicating that diving or employee of another. (2) appearing as to the motion constituted an attempt to Spoizino, JJ. CT

O) o Second Judicial Department was prohibited. There were also conspic­ uous depth-markings and "no diving” admonitions along the perimeter of the pool deck. The campground appellants an attorney or counselor-at-law befor e any court, Judge, Justice, board, com­ mission, or other public authority, (3) giving to another an opinion as to the avoid the consequences of his earlier deposition testimony by raising feigned issues of fact with respect to the issue of notice, and thus, it was insufficient to CITIBANK, N.A., plf-res, v. KENNEY, JR., ETC. def, KENNEY ap. LAKE HIGHLANDS. L.P., def-res — (INDEX NO. o' "□ Ch also demonstrated through the plaintiff’s law or its application or any advice in defeat the motion for summary judg­ 016062/00) — Michael S. Cox, o CO APPELLATE By Altaian, J.P.; Miller, Cozier and Ma®- tro, JJ. deposition testimony that he erroneous­ ly believed, based upon his experience relation thereto, and (4) holding himself out in any way as an attorney and coun­ ment (see Krohn v. Melanson, 298 AD2d 510;7?az5neru. City of New York, 272 Farmingdale, N.Y. for appellant. Certilman Balin Adler & Hyman, LLP, CD

DIVISION DERISE, res. v. KREINIK, ap — (INDEX at other pools, that the water into which he dove was nine feet deep. Under these selor-at-law; and it is further, ORDERED that if Clement M, Soviero AD2d 460, Gdwin v. Rosenberg, 204 AD2d 388). East Meadow, N.Y. (Thomas J. McNa­ mara of counsel), for plaintiff­ o o NO. 18566/02) — In an action, inter alia, to recover damages for abuse of circumstances, where the plaintiff failed has been issued a secure pass by the Accordingly, the Supreme Court respondent. o process and malicious prosecution, the to read the warnings and disregarded Office of Court Administration, it shall be should have granted the appellants’ Daniel S. Komansky, Huntington Sta­ c defendant appeals, in part by permis­ the risk, summary judgment dismissing the complaint insofar as asserted against returned forthwith to the issuing agency motion for summary judgment dismiss­ tion, N.Y. (Gerry Careccia Leonti of 3 By Altman, J.P.; Smith, Luciano, Adams sion, from an order of the Supreme and he shall certify to the same in his ing the complaint insofar as asserted counsel), for defendant-respondent. CD and Cozier, JJ. the campground appellants is warranted affidavit of compliance pursuant to 22 against them (see generally Alvarez v. 3 Court, Queens County (Flug, J.), dated In an action to foreclose a mortgage, (seeAnellov. Town of Babylon, i43AD2d NYCRR 691.10(f). Prospect Hosp.. 68 NY2d 320). MCCLUSKEY res, v. AGUILAR apnJef March 19, 2003, which, in effect, denied the defendant Renate Kenney appeals, as 714; Smith v. Stark supra at 694). in oppo­ By Santucci, J.P.; Miller, Luciano, Crane SANTUCCI, J.P., GOLDSTEIN, LUCIANO - (INDEX NO. 25011/99) — In an action his motion to dismiss the complaint for limited by her brief, from (1) so much of failure to serve a notice of claim pur­ sition, the plaintiffs failed to raise a tri­ and Spolzino, JJ. and MASTRO, JJ., concur. to recover damages for personal able issue of fact. an order of the Supreme Court, Nassau injuries, etc., the defendants Manuel suant to Education Law §3813 and, sua SANTIAGO, ap, v. NEW YORK CITY By Setter, J.P.; Goldstein, Mastac and County (Winslow, J.), entered December The appellant Aqua-Jet Pools & Ser­ FIshee-, JJ, Aguilar and Jose Herreros appeal, as sponte, relieved the Corporation HEALTH AND HOSPITALS 22.2002, as, upon granting the plaintiff's vices, Inc. (hereinafter Aqua-Jet), estab­ limited by their brief, from (1) so much Counsel of the City of New York as his CORPORATION, res — (INDEX NO. RUPP res, v. CITY OF PORT JERVIS, motion for summary judgment and deny­ lished its prima facie entitlement to of an order of the Supreme Court, Kings attorney. 15785/01) — In an action to recover APPELLANT def — 0NDEX NO. 7242/02) ing her cross motion for summary judg­ judgment as a matter of law by demon­ County (Dabiri, J.), dated January 23, ORDERED that the order is reversed, damages for personal injuries, the plain­ — In an action to recover damages for ment, established the order of priority in on the law, with costs, the motion is strating that the pool was not negligently 2002, as denied their motion for sum­ designed or constructed, and there were tiff appeals from an order of the personal injuries, etc., the defendant which the proceeds from the foreclosure mary judgment dismissing the com­ granted, and the complaint is dismissed. Supreme Court, Kings County (Knipel, City of Port Jervis appeals, as limited by sale were to be distributed, and (2) so sufficient warning signs prohibiting div­ plaint insofar as asserted against them The plaintiff, a former school princi­ J.), dated November 5, 2003, which its brief, from so much of an order of much of an amended judgment of fore­ ing. A representative of the Ulster Coun­ on the ground that neither of the plain­ pal, commenced this action against the ty Health Department testified that the granted that branch of the defendant’s the Supreme Court, Orange County closure and sale of the same court, tiffs sustained a serious injury within defendant Neil E Kreinik, a district super­ motion which was to vacate a prior (McGuirk, J.), entered October 15, 2003, dated February 25, 2003, as, in effect, pool fully complied with the State Sani­ the meaning of Insurance Law §5i02(d), intendent, to recover damages for abuse order of the same court (Rappaport, J.), as denied its motion for summary judg­ directed that the junior liens held by tary Code concluding that the pool’s sig­ and (2) a judgment of the same court of process, malicious prosecution, and dated June 30, 2003, conditionally grant­ ment dismissing the complaint insofar Citibank, N.A., Renate Kenney, and Lake nage exceeded the applicable dated March 7, 2003, which, upon a intentional interference with contract. ing the plaintiff’s motion pursuant to as asserted against it and granted the Highlands, LLP, attach to the surplus requirements (see 10 NYCRR6-1.10, 6-- The plaintiff alleged, inter alia, that the CPLR 3216 to strike the defendant’s plaintiffs’ cross motion for leave to funds in order of their priority as set jury verdict, is in favor of the plaintiffs 1.29). Thus, the Supreme Court also defendant wilfully and maliciously pre­ answer, inter alia, for failure to appear amend their notice of claim and com­ forth in the order entered December 22, and against them in the principal sum erred in granting the plaintiffs’ cross ferred unfounded and false disciplinary for an examination before trial pursuant plaint. 2002. of $160,000. motion for leave to amend the complaint charges against him, thereby injuring the to a preliminary conference order of the ORDERED that the order is affirmed ORDERED that the appeal from the ORDERED that the appeal from the plaintiff’s career and reputation. to add a cause of action based upon order is dismissed; and it is further, strict products liability against Aqua-Jet, same court dated January 2, 2003. Insofar as appealed from, with costs. order dated December 22,2002, is dis­ Thereafter, the defendant filed a pre­ ORDERED that the order is reversed, The appellant contends that it cannot missed; and it is further, ORDERED that the judgment is since the proposed claim was also predi­ answer motion to dismiss the complaint on the law and as a matter oi discretion, be held liable for the alleged sidewalk ORDERED that the amended judgment affirmed; and it is further, cated on a failure to warn (see Martin v. on the ground that the plaintiff failed to with costs, and that branch of the defen­ defect since it did not receive written is reversed insofar as appealed from, on ORDERED that one bill of costs is Hacker, 83 NY2d 1,9). In opposition, the serve a notice of claim in accordance dant’s motion which was to vacate the notice of the defect prior to the occur­ the law, the order of priority of the liens awarded to the plaintiffs. plaintiffs failed to raise a triable issue of with Education Law §3813. The Supreme order dated June 30,2003, is denied. rence as required by Port Jervis City attaching to the surplus funds is estab­ The appeal from the intermediate fact. Their reliance upon the American Court, in effect, denied the motion, The Supreme Court issued a prelimi­ Charter §Cll-2. In support of its motion, lished as follows: (1) those funds attrib­ order must be dismissed because the National Standards Institute Standards allowed the plaintiff to proceed against nary conference order dated January 2, the appellant submitted, inter alia, an utable specifically to the sale of lots 62, right of direct appeal therefrom termi­ for Environmental and Facility Safety the defendant and, sua sponte, relieved 2003, at a conference at which the defen­ unnotarized, undated statement from 63, and 64 shall first be applied in satis­ nated with the entry of judgment in the Signs known as ANSI Z535.2-I998 and the Corporation Counsel of the City of dant did not appear, scheduling the dep- the City Clerk, stating that he “conduct­ faction of the mortgage held by the action (see Matter ofAho. 39 NY2d 241, Z535.2-1991 was misplaced as they failed New York (hereinafter the Corporation osition.s of all parties, a compliance date ed a search of records maintained by the defendant Renate Kenney, dated January 248). The issues raised on the appeal to demonstrate that those standards rep­ Counsel), as the defendant’s attorney. for discovery, and a compliance confer­ City with respect to any written com­ 18, 1993, and recorded in the Nassau from the order are brought up for review resented the general custom or usage in Service of a notice of claim was a con­ ence. After the defendant, inter alia, plaints or written notice pertaining to County Clerk’s Office on March 10,1993 and have been considered on the appeal the industry (see Sawyer u. Dreis & dition precedent to the commencement failed to appear for an examination any alleged defective sidewalk condition in Liber 15001, Page 691; (2) if those from the judgment (see CPLR of the action against the defendant pur­ Krump Mfg. Co., 67 NY2d 328,337). 5501Ia][l]). before trial pursuant to the order dated or the need for repairs at the location funds are insufficient to satisfy that suant to Education Law §3813 (see Phil- The parties’ remaining contentions The only Issue raised on appeal by January 2,2003, the plaintiff moved pur­ now given as 24-32 Front Street in the mortgage in full, then no portion of the son Painting Co. u. Board of Educ. of City either are academic or without the defendants Manuel Aguilar and Joel merit. suant to CPLR 3216 to strike the answer. City of Port Jervis” for the period prior deficiency on that mortgage shall be ofN. Y., 133 AD2d 619). The Supreme By order dated June 30, 2003, the to the accident, “and found that none paid from the remaining surplus funds Herreros (hereinafter the appellants) Court erred, in effect, in denying the H. MILLER, J.P., GOLDSTEIN, LUCIANO Supreme Court conditionally granted the exists.” This statement was insufficient until the satisfaction of the mortgage relates to the denial of their motion for motion to dismiss the complaint and in and COZIER, JJ., concur. plaintiff’s motion to strike the defen­ to establish the appellant’s entitlement held by the defendant Lake Highlands, summary judgment dismissing the com­ allowing the action to proceed against By Gail Prudenti, P.J.; Ritter, Santucci, dant’s answer unless the defendant com­ to judgment as a matter of law on the LLP, dated March 5,1993, and recorded plaint insofar as asserted against them the defendant since the plaintiff failed to Florio and Goldstein, JJ. plied with all outstanding discovery issue of notice (see Winegrad v. New Yhrk in the Nassau County Clerk’s Office on on the ground that neither of the plain­ serve a notice of claim prior to com­ April 29,1993 in Liber 15096, Page 458, as tiffs sustained a serious injury within MATTER OF SOVIERO, AN ATTOR­ demands. The defendant did not oppose Univ. Med. Ctr., 64 NY2d 851; Clarke v. mencing the action, and the conduct the motion. By order to show cause Brooklyn Union Gas Co,. 297 AD2d 779). amended by the instrument recorded in the meaning of Insurance Law §5102(d). complained of occurred during the dis­ NEY AND COUNSELOR-AT-LAW, RESIGN­ elated September 15,2003, the defendant In any event, the plaintiffs argued that the Nassau County Clerk’s Office on June fn support of their motion, they submit­ charge of the defendant’s duties within OR. — Resignation tendered pursuant to 22 NYCRR 691,9 by Clement M. moved, inter alia, to vacate the order an exception to the prior written notice 6,1994, in Liber 16345, Page 430 and the ted reports prepared by the plaintiffs' the scope of his employment (see Educa­ dated June 30, 2003, asserting, among mortgage held by the plaintiff. Citibank, Soviero, who was admitted to the Bar at rule applies on the ground that the treating chiropractor indicating that tion Law §3813[2];Sm/rfi v. Collins, 221 other things, that it did not receive time­ N.A„ dated April 29,1997, and recorded a term of the Appellate Division of the appellant created the allegedly defective both plaintiffs exhibited restricted range AD2d 518; Agins v. Darmstadter, 153 ly notice of the plaintiff’s motion to in the Nassau County Clerk's Office on Supreme Court in the Second Judicial condition (see Amabile v. City of Buffalo, of motion in their cervical and lumbar AD2d 600; Cioffi v. Giannone, 56 AD2d strike its answer. However, it did not con­ 93 NY2d 471,474). Under the particular May 12,1997, in Liber 17926, Page 835, spines and that the injuries which the 620). Department on April 12.1989. trovert the plaintiff’s affidavit of service. facts of this case, summary judgment on and the order entered December 22, plaintiffs sustained were the result of Further, the defendant was entitled to Clement M. Soviero, Kings Park, To vacate its default, the defendant this issue would have been premature 2002, is modified accordingly; and it is the subject motor vehicle accident. representation by the Corporation Coun­ N.Y, resignor pro se. was required to demonstrate both a rea­ since substantia! discovery remained further, Accordingly, the appellants failed to sel (see General Municipal Law §50-k[2]) Robert P. Guido, Syosset, N.Y. sonable excuse for its default and a meri­ outstanding (see CPLR 3212[f]; Rengifo a ORDERED that one bill of costs is make a prima facie case for judgment as and the Supreme Court erred in sua (Stacey J. Sharpelletti of counsel). torious defense (see CPLR5015[a][l]; City of New York, 1 AD3d 773: Yadgarov u. awarded to the appellant. a matter of law (see Chaplin v. Taylor, sponte relieving the Corporation Coun­ for the Grievance Committee for the Kolajo u. City of New York. 248AD2d512; Dekel, 2 AD3d 631). The appeal from the intermediate 273 AD2d 188). Under these circum­ sel as the defendant’s attorney. Tenth Judicial District. Roussodimou v. Zafiriadis, 238 AD2d 568, In addition, the Supreme Court proper­ order must be dismissed because the stances, we need not consider whether The plaintiff's remaining contention is 568-69; see also Harper u. Edwards, 301 ly granted the plaintiffs leave to amend right of direct appeal therefrom termi­ the plaintiffs’ opposition papers were improperly raised for the first time on PER CURfAM.CIement M, Soviero has submitted an affidavit dated March 26, AD2d 627: Correa v. Tscheme, 296 AD2d their notice of claim and complaint to nated with the entry of the amended sufficient to raise a triable issue of fact appeal, and we decline to address it (see 476). While the determination of what state the correct location where the acci­ judgment In the action (see Matter of (see Chaplin v. Taylor, supra). Mann v. All Waste Sys.. 293 AD2o’ 656; Chi- 2004, wherein he tenders his resignation as an attorney and counselor-at-law (see constitutes a reasonable excuse for a dent allegedly occurred. At the hearing Aho, 39 NY2d 241, 248). The issues ALTMAN, J.R, SMITH, LUCIANO, ... ulliv. Cross Westchester Dev. Cotp., 130 default generally lies within the sound pursuant to General Municipal Law §59- raised on appeal from the order are ADAMS and COZIER. JJ., concur. AD2d6II^:' 22 NYCRR 691.3). Mr. Soviero was admit­ ted to the Bar at a term of the Appellate discretion of the trial court (see Grutman h, the plaintiffs submitted photographs brought up for review and have been By Ritter, J.P.; Florio, Sinith and MiSIer, ALTMAN, J.P., H. MILLER, COZIER and V. Southgate At Bar Harbor Home Owners' of the location of the accident and the considered on appeal from the amended MASTRO, JJ., concur. Division of the Supreme Court in the Sec­ JJ. ond Judicial Department on April 12, Assn, 207 AD2d 526,527; Bardales v. injured plaintiff identified the site of the judgment (see CPLR5501[a][l{). FUENTES, ap pif, v. BROOKHAVEN By Miller, J.P.; Goldstein, Luciano and 1989. Blades, 191 AD2d 667, 668), reversal is accident on one of the photographs. The plaintiff, Citibank, N.A. (here­ MEMORIAL HOSPITAL, res, CAYPINAR, Cozier, JJ. Mr. Soviero has been informed by the warranted where the trial court improvi- There was no evidence that the appel­ inafter Citibank), commenced this action ETC., def — (INDEX NO. 2477/95) — In FERNANDES plf-res, v. LAWRENCE ap, Grievance Committee that evidence of dently exercises its discretion (see Rous- lant suffered prejudice (see General in 2000 to foreclose a mortgage originally AiviTo CO awncY MA his professional misconduct has been sodimou v. Zafiriadis, supra at 569). While Municipal Law§50-e[6]; D’Alessandro v. recorded in 1987, which was consolidat- lir.-. 'r.. 4..U, oa oni onQ. C14 v,Hhh a cor-onH mnrtoaap in 1 998 and