Invoice or legal notice from New York Law Journal, Aug

z J.UVI1 111!.,., me rxeiJiaue- ment Mortgage. Accordingly, because By Smith, J.E; Krausman, Adams and Matter of Marielene T.R., supra at 883). Usury §41 [“in the absence of agreement. wcpuraxeiy-appem, ji» mn- ited by their brief, from so much of the The Town’s rezoning of the property from MF-1 to MF-3 invited invocation of z Sketos, JJ. RITTER, J.P., GOLDSTEIN, MASTRO ,. [aj creditor may apply partial pay­ same order and judgment as declared the doctrine of vested rights by requir­ Kenney never changed her position in o reliance on the inadvertent discharge of PRUS, pif, V. GLENCOTT REALTY and FISHER. JJ., concur. ments to principal or to interest or to that the proposed development of lot 28 is exempt from Clarkstown Town Code ing the demolition of the Bobbin Inn o By Horio, J.P.; Schmidt, Adams and both, as and when he or she elects to do within 45 days and requiring the acquisi­ CD the Original Mortgage, there was no CORP., def THIRD-PARTY plf-res; so”]). As siich, her belated attempt to §290-31(D) requiring site plan approval basis in equity to deny the continued Fisher, JJ. tion of easements or adjoining parcels in § seniority of Citibank’s equitable lien over the Kenney Mortgage with respect to ASBESTWAY ABATEMENT CORP., THIRD-PARTY def, INSURANCE MALDONADO, JR., ETC., res, v. amend the renewal judgment, employing a more favorable computation method, and directed the issuance of a building permit, (3) the petitioners-plaintiffs order to develop the property in accor­ dance with MF-3 zoning. The terms of

'2 CORPORATION OF NEW YORK, THIRD- COUNTY OF SUFFOLK, ap — (INDEX was properly rejected. cross-appeal, as limited by their notice “0 those lots encumbered by the Original the resolution mandated that the peti- Mortgage (see Payne v. Wilson, 74 NY PARTY def-ap — (INDEX NOS. 4244/00 NO. 11071/93) — In an action to recover The plaintiff’s remaining contention is of cross appeal and brief, from stated tioners-plaintiffs change their position to c AND 75805/00) — In an action, inter alia, damages for personal injuries and without merit. portions of the same order and judg­ CT o 348,353-354), to recover damages for personal wrongful death, the defendant appeals their detriment in exchange for the H. MILLER, J.P., GOLDSTEIN, LUCIANO ment which, inter alia, dismissed the o The parties’ remaining contentions are injuries, the third-party defendant from an order of the Supreme Court, and SPOUINO, ,1J., concur. cause of action to recover damages for rezoning to MF-3 (see Mader of Ellington o without merit. Insurance Corporation of New York Suffolk County (Catterson, J.), dated Constr. Corp. v. Zoning Bd. of Appeals, LUCIANO, J.R, COZIER. MASTRO and By Gail Prudend, P.J.; Ritter, Goldstein, breach of contract, and (4) the petition­ supra'). "0 o> SPOLZINO, JJ., concur. appeals, as limited by its brief, from so November 18, 2003, which denied its Schmidt and Cozier, JJ. ers-plaintiffs appeal from so much of an The chronology of events indicates o 00 much of an order of the Supreme Court, motion for summary judgment dismiss­ order of the same court dated Kings County (D. Schmidt, .1.), dated PEOPLE, ETC., res, v. RAHIM that the Town may have acted in bad CD o> By Miller, J.R; Schmidt, Rivera and ing the complaint. September 23, 2002, as granted the faith (see Matter of Pokoik v. Silsdorf. 40 ro Spokino, JJ. February 4, 2003, as denied that branch ORDERED that the order is reversed, THOMAS, ap — (TND. NO. 8183/01) — motion of the Zoning Administrator of NY2d 769; Matter of Marasco v. Zoning ' MATTER OF SPEED, ap, v. A. HOLLY of its cross motion which was for sum­ on the law, with costs, the motion is Lynn W. L. Fahey, New York, N.Y., for the Town of Clarkstown, the Building Bd. ofAppeals, 242 AD2d 724). An 0 PATTERSON EXTENDED CARE FACILITY, mary judgment dismissing the third- granted, and the complaint is dismissed. appellant. Inspector of the Town of Clarkstown, o party complaint insofar as asserted On April 5,1992, at approximately Charles J. Hynes, District Attorney, and the Town of Clarkstown for reargu­ income-producing building, which the o ETC., res-res res — (INDEX NO. 9059/03) . against it, 12:00 A.M.. the plaintiff’s decedent, Chun Brooklyn, N.Y. (Leonard Joblove and ment, and upon reargument, modified Town regarded as a nuisance, was c — In a proceeding pursuant to General demolished tn exchange for rezoning to 3 ORDERED that the order is affirmed Cha Maldonado, was a passenger in a Cynthia Kean of counsel; James Kii- the order and judgment by directing Municipal Law §50-e for leave to serve a MF-3. The Town may have implemented Q insofar as appealed from, with costs. vehicle operated by a nonparty, Oksu lelea on the memorandum), for submission of a site plan application late notice of claim, the petitioner the rezoning to MF-3 as a ploy sothe 3 appeals, as limited by her brief, from so The plaintiff commenced this action, Manete, on Veterans Memorial Highway respondent. prior to the issuance of a building per­ inter alia, to recover damages for per- in Hauppauge. A Highway Patrol Officer landowners, at their own expense, would much of an order of the Supreme Court, Appeal by the defendant, as limited by mit. soned injuries allegedly sustained on employed by the defendant arrested Ms. do what the Town was unable to do. Nassau County (Jones, J.), dated August his motion, from a sentence of the ORDERED that the appeal from so November 11, 1999,atthe workplace of Manete for operating the vehicle while However, the record is insufficient to 27, 2003, as denied that branch of the Supreme Court, Kings County (Firetog, much of the order and judgment as determine these issues as a matter of the defendant third-party plaintiff, while under the influence of alcohol and J,), imposed March 11,2003, on the directed the issuance of a building per­ petition which was for leave to serve a law. Accordingly, the matter must be late notice of claim on the respondent the plaintifi was employed by the third- placed her in the rear of his patrol car. ground that the sentence is excessive. mit is dismissed as academic, without party defendant Asbestway Abatement The officer concluded that Ms. Maldona­ remitted to the Supreme Court, Rockland A. Holly Patterson Extended Care ORDERED that the sentence is costs or disbursements, as that portion Corp, (hereinafter AAC). At the time of do. who had also been drinking, was like­ County, for a hearing on the framed issue Facility. affirmed. No opinion. of the order and judgment was vacated the accident, AAC was covered under a wise incapable of driving. He therefore of whether the rezoning of the property ORDERED that the order is reversed PRUDENTI, P.J., RITTER, GOLDSTEIN, by the order dated September 23, 2002, general liability insurance policy issued from MF-3 to MF-1 was barred by estop­ insofar as appealed from, on the facts placed her in the front passenger seat of SCHMIDT and COZIER, JJ., concur. made upon reargument; and it is further, by the appellant. The defendant com­ pel and/or bad faith. and as a matter of discretion, with costs, the patrol car and drove her to a diner ORDERED that the order and judg­ menced a third-party action against AAC located at Veterans Memorial Highway By Altman, J.P.; Crane, Fisher and Lif- We note that the Supreme Court erred that branch of the petition which was for ment is modified, on the law, by (1) in initially finding that the proposal to and the appellant. and Route 347 where she could tele­ soa, JJ. deleting the provision thereof denying leave to serve a late notice of claim on redevelop lot 28 was exempt from Clark- On the cross motion for summary phone her husband. He watched her MATTER OF MARY W.RONICA R. that branch of the motion which was for stown Town Code §290-31(b) by virtue the respondent A. Holly Patterson Extended Care Facility is granted, and judgment, the appellant contended that enter the restaurant before departing in (ANONYMOUS). SUFFOLK COUNTY summary judgment dismissing the cause it timely disclaimed coverage of the acci­ of its status as a pre-existing noncon­ the notice of claim is deemed served on order to transport Ms. Manete to the DEPARTMENT OF SOCIAL SERVICES, of action sounding in estoppel and, upon forming use. It is undisputed that by dent based upon the insured’s failure to police station. Ms. Maldonado subse­ res; JOAN R. (ANONYMOUS), ap — searching the record, granted the peti­ that respondent. 1982, all existing structures on Lot 28 immediately send it a copy of the sum­ quently left the diner and walked out (DOCKET NO. N-1392/01) — In a pro­ tioners-plaintiffs summary judgment A court may, in its discretion, grant a had been demolished. Clarkstown Town mons and complaint in the action. How­ onto Route 347 where she was struck by ceeding pursuant to Family Court Act declaring that the rezoning of their prop-' petition for leave to serve a late notice of ever, by letter dated April 17, 2000, the Code §290-29(C) proAddes that if anon- claim under General Municipal Law §50- an oncoming motorist and fatally article 10, the mother appeals from an erty from MF-3 to MF-1 is null and void conforming use is discontinued for a appellant received notice that the action injured, at approximately 12:30 A.M. order of the Family Court, Suffolk and (2) deleting the provision thereof e(5). In so doing, the court shall consider was pending. On June 19, 2000, the continuous period of one year, the build­ whether or not the entity sought to be The plaintiff commenced this action to County (Lehman, .1.), dated May 6, 2003, declaring that the proposed develop­ ing or land where such nonconforming appellant disclaimed coverage solely recover damages for personal injuries which, after a hearing, extended place­ ment of lot 28 is exempt from Clarkstown served received timely notice of the based upon the insured’s failure to use previously existed shall thereafter be claim, whether or not it has been sub­ and wrongful death, and after joinder of ment of the subject child with the Town Code §290-31(D) requiring site occupied and used only for a conforming promptly notify it of the action. This dis­ issue and the completion of disclosure, Suffolk County Department of Social plan approval, and substituting therefor stantially prejudiced, and the reason for claimer was untimely as a matter of law use. The protection of vested rights in a the delay (see Matter of Valestil v. City of the defendant moved for summary judg­ Services for a period of 12 months, until a provision declaring that the petition­ nonconforming structure existing at the (see Pennsylvania Millers Mut. Ins. Co. u. ment dismissing the complaint. The April 1, 2004. ers-plaintiffs’ proposed development of New York, 295 AD2d 619). Sorrentino, 238 AD2d 491; Matter ofAll­ time a prohibitory code is enacted does Here, the petitioner is seeking dam­ Supreme Court denied the motion, find­ ORDERED that the appeal is dismissed lot 28 i.s not exempt from Clarkstown not extend to subsequent construction state Ins. Co. V. Soufirant, 221 AD2d 434; ing a triable issue of fact as to whether as academic, without costs or disburse­ Town Code §290-31(0) requiring site ages for claims sounding in medical mal­ Mader of Aetna Cas. (fi Sur. Co. a Rosen, (see Mader of Marx v. Humenik, 302 AD2d practice from the respondent A. Holly the police officer’s actions proximately ments. plan approval; as so modified, the order 528; Matter of Ciicci c. Zoning Bd. of 205 AD2d 684; Mader of Nationwide Mut. caused Ms. Maldonado’s injury and The appeal from the order, which and judgment is affirmed insofar as Patterson Extended Care Facility (here­ Ins. Co. V. Steiner, 199 .AD2d 507). An Appeals. 154 AD2d 372). Upon reargu­ inafter AHP) for its failure to implement, death. We reverse. extended the placement of the child for a reviewed, without costs or disburse­ ment, the Supreme Court properly insurer’s justification for denying cover­ The law is well settled that “[once] a period of 12 months, must be dismissed ments, and the provision of the order observe, and take proper medical pre­ age is strictly limited to the grounds stat­ directed the landowmers to file a site cautions in light of her known seizure police officer arrests an intoxicated driv­ as academic because the placement peri­ dated September 23, 2002, which speci­ plan application for lot 28 prior to the ed in the notice of disclaimer (see er, that officer has a duty to exercise the od has expired (.see Mailer of Brandon S., fied that the application for site plan disorder (see Rey a. Park View Nursing General Acc. Ins. Group u. Cirucci, 46 issuance of a building permit. However, Home. 262 AD2d 624; Stanley a. Lebetkin. degree of care necessary under the cir­ 305 AD2d 809, 610; Matter ofNeftaly K, approval for lot 28 be in conformity with the question of whether a site plan appli­ NY2d 862). Accordingly, an insurer, cumstances to assure the safety of a per­ 283 AD2d 579.580; Matter ofAngelina E., MF-3 zoning is vacated; and it is further, 123 AD2d 854; see also Mossmon.v. which denied coverage on a specific cation may be filed in conformity with Albany Med. Ctr. Hosp., 34 AD2d 263; cf. son in that condition” (Johnson v. State of 213 AD2d 346,347; Matter ofTanya M.. ORDERED that the order dated Sep­ the MF-3 zoning district may only be ground, may not later deny coverage on New York, 253 AD2d 274, 277; see Thomas 207 AD2d 656: Matter of Byron A, 112 tember 23, 2002, is affirmed insofar as Fields V. Sisters of Charity Hosp., 275 another ground known to it at the time determined after the hearing and new AD2d 1004). Contrary to its contention, V. State of New York. 46 NY2d 1043,1044), AD2d 30). appealed from, without costs or dis­ determination as to whether the rezon­ of its disclaimer (see Sisco o. Nations Tit. Similarly, in assisting Ms. Maldonado, the In any event, we note that the petition­ bursements: and it is further, AHP’s medical records were sufficient to Ins. ofN. Y, 278 AD2d 479; Hubbell v. ing from MF-3 to MF-1 applies. put it on notice of the claim in this mat­ Highway Patrol Officer was also obligat­ er met its burden of establishing, by a ORDERED that the matter is remitted The remaining contentions of the par­ Trans World Life Ins. Co. of N.Y, 54AD2d ed to act with due care (see Parvi v. City preponderance of the evidence, that the to the Supreme Court. Rockland County, ter (see Medley v. Cichon, 305 AD2d 643, 94). Since the appellant knew at the time ties are without merit or relate to mat­ 644-645; Mader of Staley v. Piper, 285 ofKingsion, 41 NY2d 553). mother was presently unable to care for for a hearing pursuant to CPLR 3212(b) ters which are pending and undecided of its disclaimer that it had not received AD2d 601,603; Mader of Kurz u. New York Here, the Highway Patrol Officer her child and that the continuation of on the framed issues of whether the by the Supreme Court (see Katz u. Katz, a copy of the summons and complaint, removed Ms. Maldonado from a poten­ foster care was in the child’s best inter­ City Health and Hosps. Corp., 174AD2d and based its disclaimer upon the rezoning of the property from MF-3 to 68AD2d536). 671, 573, Mader of Charles v. New York tially dangerous situation and escorted ests (see Family Ct Act §1055[b][iv][B]; MF-1 was barred by estoppel and/or bad RITTER, J.P., H, MILLER, GOLDSTEIN insured’s failure to promptly notify it of CityHealth andHosps. Corp., 166AD2d her to a secure public place where the Mader of Glenn B., 303 AD2d 498; Mader faith. and MASTRO, JJ., concur. the action and not on this alternate 526, 527-528). Furthermore, AHP’s con- officer knew, from personal experience, ofAntonelli v. Department of Social Seeking to redevelop their property, By Altman, J.R; Goldstein, Schmidt, ground, the appellant could not later rely clusory allegations that it was preju­ upon this alternate ground to disclaim there was a telephone she could use to Servs., 155 AD2d 593, cf. Matter of Com­ the landowners applied for a zoning Cozier and SkeSos, JJ. diced due to the mere passage of time coverage. call her husband. He then made certain missioner of Admin, for Children's Servs. change from Multi-Family MF-1 to MF-3 that she entered the restaurant before ofCityofN.Y., 254AD2d416). designation, which would increase the MATTER OF MACIAS, ETC., res, v. was insufficient in light of the facts set SMITH, J.R. KRAUSMAN, ADAMS and MOTOR VEHICLE ACCIDENT out in the medical records and its failure SKELOS, JJ., concur. driving Ms. Manete to the police station ALTMAN, J.P., CRANE, FISHER and LIF- allowable residential density for multi- (cf. Walsh V. Town of Cheektowaga. 237 SON.JJ., concur. family development on the property. In INDEMNIFICATION CORPORATION, ap to show what investigation if any, it By Ritter, J.P.: Goldstein, Mastro and — (INDEX NO. 5839/03) — in a proceed­ undertook (see Malcolm v. City of New AD2d 947, Iv denied 90 NY2d 889; Parai v. By Ritter, J.P.; Miller, Miller and Craiie, January 1996 the Town Board of the Fisher, JJ, City of Kingston, supra). Ms. Maldonado Town of Clarkstown (hereinafter the ing pursuant to Insurance Law §5210 to York, 2 AD3d 696,697; Mader of Tomlin­ JJ. compel the payment of a judgment, the son u. New York City Health and Hosps. MATTER OF DONOVAN R- later wandered onto Route 347 where, Town Board) approved the application (ANONYMOUS). ANGEL GUARDIAN approximately a half hour after Ms. SlDOTl, ETC. ap, v. DEGLIUOMINI res- for all the lots including lot 28 on condi­ Motor Vehicle Accident Indemnification Corp., 190 AD2d 806; Mader of Kurz v. def—(INDEX NO. 10460/02) —In an Corporation appeals from an order of New York CityHealth andHosps. Corf)., CHILDREN AND FAMILY SERVICES, ap: Manete’s arrest, she was struck by a tion that the Bobbin Inn, situated on lot AFFETTE R. (ANONYMOUS), res — passing motorist. The Highway Patrol action, inter alia, to recover fees for 18, be demolished within 45 days, and the Supreme Court, Queens County supra). While the petitioner's excuse was legal services rendered, the plaintiffs (O’Donoghue, J.), dated October 14, insufficient, the lack of a sufficient (POCKET NO. B-25269-98) — In a pro- Officer “had no duty to detain her and sole access to Route 9W be provided