For the detailed reasons set forth above, and after consideration of the totality of the circumstances, particularly the necessity of additional litigation due to defendant’s failure comply with court orders, plaintiff’s application for counsel fees has merit. (See Moore v Moore, 93 AD3d 827 [2d Dept 2012].) However, defendant is correct that the application must be denied at this time, regardless of merit, as plaintiff’s counsel has failed to provide any billing documentation whatsoever which would allow the defendant, or the court, to determine if the amount requested is properly supported. In order to receive an award of attorney’s fees there must be sufficient documenta*790tion in the form of time records including the time expended relative to each service. (See Fackelman v Fackelman, 71 AD3d 724 [2d Dept 2010]; see also Darvas v Darvas, 242 AD2d 554 [2d Dept 1997].) Counsel’s affirmation in support of plaintiff’s application, which includes an approximation of time expended without supporting billing documentation, is insufficient to meet this burden. (See B<mask> v Barson, 32 AD3d 872 [2d Dept 2006]; see also Reynolds v Reynolds, 300 AD2d 645 [2d Dept 2002].)


Under the authority of Pe<mask> v. Pearson, 46 Cal. 609, the declarations of P. N. Mackay in his will devising to “Hattie Schenck, housekeeper, ’ ’ a certain legacy, and in his deed, acknowledged before Notary King, that he was an unmarried man, are the very best evidence as to the truth of the facts so stated. According to the doctrine of Pearson v. Pearson, 46 Cal. 609, an entry in a family Bible, an inscription on a tombstone, a pedigree hung up in the family mansion, are all good evidence; declarations of parents in their lifetime are statements made without any temptation to exceed or fall short of the truth. So the statement of P. N. Mackay in his will, when he said “Hattie Schenck, housekeeper,” was the natural effusion of the party who knew the truth. So the declaration before the commissioner that he was an unmarried man was the natural effusion of the party who knew the truth.


“ Upon a revision and codification of the statutes relating to the insane, effected by chapter 446 of the Laws of 1874, it was provided by section 20 of that act,' that ‘ if any person in confinement under indictment for the crime of <mask>, murder, or attempt at murder, or highway robbery, shall appear to be insane, the Court of Oyer and Terminer, in which such indictment is pending, shall have power, with the concurrence of the presiding judge of such court, summarily, to inquire into the sanity of such person * * * and for that purpose may appoint a commission to examine such person and inquire into the facts of his case and report to the court, etc.’ Section 22 provides that ‘ if any person in confinement under indictment for the crime of arson, or murder, or attempt at murder, shall appear to be insane, the county judge of the county where he is confined, shall institute a careful investigation; call two or more reputable physicians and other credible *171witness; invite the district attorney to aid in the examination, and, if it be necessary, call a jury * * * and if it is satisfactorily proved that such person is insane, said judge may discharge such person from imprisonment and order his safe custody and removal to one of the state lunatic asylums ’ ” (pp. 606, 607).


This is a third marriage for each of the parties. The husband had been married to two sisters, with each of whom he lived about 15 years. The wife had been married and then, following a divorce, remarried a previous husband. The parties to this suit had known each other only seven days prior to their present marriage and I am persuaded that one of its inducements was the wife’s desire to terminate her then employment and the husband’s desire that she help him in his business. The cruelty here perpetrated was essentially of the mental type, founded on a course of mutual misconduct and retaliation, culminating in the wife’s refusal to assist her husband after he had spent several thousands of dollars to erect and furnish an office for that purpose. There is no proof, however, that she became ill as a result of such mental cruelty. Indeed, she testified that work generally made her ill and for that reason she did not return to work after marriage. In the absence of evidence of illness there is a failure of proof of a cause based on cruelty (Traylor v. Traylor, 3 A D 2d 727 ; Pe<mask> v. Pearson, 230 N. Y. 141).


The defendant Long, in a supplemental brief, argues that his conviction should be set aside and the charge against him dismissed on the authority of Green v. United States (355 U. S. 184). That case, however, involved the question of double jeopardy and does not impress me as being controlling here. Green was tried originally for murder in the first degree and <mask>. He was convicted of murder in the second degree and arson. The conviction of second degree murder was reversed on evidentiary grounds and the case was sent back for a new trial. This time Green was convicted of murder in *458the first degree. The Supreme Court now says that the original verdict amounted to an acquittal, for double jeopardy purposes, of the charge of murder in the first degree. The court stated, therefore, that he could not again be tried for murder in the first degree. The court did not hold that his first conviction of murder in the second degree meant that he could not properly have been convicted of murder in the second degree. The analogy with the Long case merely means that Long cannot be tried again for the crime of robbery in a degree higher than robbery third degree, if the current verdict is upset. It does not mean that Long’s conviction is invalid. At page 190 of the Green opinion, the court specifically stated that at his new trial ‘ ‘ Green was tried again, not for second degree murder, but for first degree murder ” (italics supplied). The necessary inference, of course, is that a new trial could have been had for murder in the second degree. The original verdict would have been sustained except for questions of evidence that led to a reversal. The Green case, if anything, is an example of a jury’s exercising leniency in bringing in a lesser verdict than was sought by the People. In the Green ease, it would seem that the first jury should have brought in a verdict of guilty in the first degree, because it clearly found a felony murder to have been involved in the light of the verdict of guilty under the arson charge. As in the Long case however, mercy was exercised, a procedure that, rightly or wrongfully, jurors have always taken upon themselves to follow where they felt it warranted, regardless of all the instructions to the contrary that the court might give them.


A husband was excluded where the court found it necessary to do so in order to protect the wife’s safety and the proper care of the children (see Mayeri v. Mayeri, 26 Misc 2d 6). G<mask> v. Garson (271 App. Div. 961) is authority for the court’s power to issue such an order, pursuant to sections 1170 or 878 of the Civil Practice Act. So is Lindley v. Lindley (162 N. Y. S. 2d 217). The Second and Third Departments seem to hold otherwise (see Donnelly v. Donnelly, 272 App. Div. 779 and Cox v. Cox, 266 App. Div. 38).


The literal construction of section 735 of the Real Property Actions and Proceedings Law suggested by the landlord ignores an essential purpose of that section, to wit: to give the tenant notice and an opportunity to be heard (Dobkin v Chapman, 21 NY2d 490). There is of course a presumption of official regularity; and an item mailed will be presumed delivered. Where proof, however, is adduced that there has been no delivery of process, the court may conclude that service has not been properly effectuated notwithstanding proof of mailing (cf. G<mask> v Hohenleitner, 73 Misc 2d 192).


The record contains little information about the facts of the Defendant’s crime. However, the indictment reflects that the Defendant was charged with aggravated <mask>, and the judgment reflects that on June 22, 2011, he pleaded guilty to arson and received a fifteen-year community corrections sentence. The judgment also notes that the Defendant agreed to “plead outside of range” and was sentenced as a Range III, persistent offender.


The will provides as follows: ‘1 fifth : All the rest, residue and remainder of my property, both real and personal, * * * I give, devise and bequeath to my trustee hereinafter named, in trust, nevertheless, to invest and reinvest the same and to pay one-half of the net income therefrom to ruth louise goodwin, * * *, and the remaining one-half thereof to mildred o<mask> donaldson * * * during the life of each respectively, and upon the death of either or both of said persons, to transfer and pay over to my nephew wesley e. donaldson, jr. * * * absolutely and forever such part and/or all the said rest, residue and remainder of my estate.”


The Court of Appeal disagreed, finding that although the restraint on noncompete clauses constitutes an unwaivable statutory right, the statutory scheme in the Business and Professions Code itself created an exception to the policy. ( SingerLewak , supra , 241 Cal.App.4th at p. 624, 193 Cal.Rptr.3d 672.) "[T] he arbitration award, even if legally erroneous, did not contravene a public policy indicating that certain issues not be subject to resolution by the arbitrator. [Citation.]" ( Ibid. ) Further, "[i]n contrast to Pe<mask> , any arbitrator error did not '[misconstrue] the procedural framework under which the parties agreed the arbitration was to be conducted, rather than misinterpreting the law governing the claim itself.' [Citation.] Indeed, [the defendant's] argument is precisely that the arbitrator misinterpreted the law governing the claim itself." ( Ibid. )


The United States Supreme Court in Mastrobuono v She<mask> Lehman Hutton, Inc. (514 US 52 [1995]) confronted a case in which an arbitrator had awarded punitive damages in contravention of New York law which prohibited arbitrators from doing so. In Mastrobuono, the arbitration agreement, a standard form client agreement, provided that it was to be governed by New York law, but that “any controversy arising out of or related to” the agreement was to be settled by arbitration according to the NASD rules “[u]nless unenforceable due to federal or state law.” (Id. at 59 n 2 [internal quotation marks omitted].) The NASD permitted punitive damage awards by arbitrators. (Id. at 61.)


Under our law, the mere entry of judgment creates no lien against the personal property of the judgment debtor. The lien comes into existence only upon issuance of execution to the Sheriff (CPLR 5202; United States v. Pe<mask>, 258 F. Supp. 686; Dean Constr. Co. v. Simonetta Concrete Constr. Corp., 37 F.R.D. 242; Ruppert v. Community Nat. Bank, 22 A D 2d 165, affd. 16 N Y 2d 589). Thus, the race, under State law, is to the swift. Since the assignment was first in time it is, absent *766some statutory inhibition, entitled to precedence over the execution (Stathos v. Murphy, 26 A D 2d 500; Matter of Aird Is. v. De Paula, 29 Misc 2d 666; Matter of Neilson Realty Corp. v. MVAIC, 47 Misc 2d 260; Seamon v. Federated Films, 142 N. Y. S. 2d 324; Matter of Ideal Mercantile Corp., 143 F. Supp. 810, affd. 244 F. 2d 828, cert. den. 355 U. S. 856; Rockmore v. Lehman, 129 F. 2d 892, cert. den. 317 U. S. 700; cf. Matter of City of New York [Nassau Expressway], 56 Misc 2d 602).


[Hines] considered hiding the truck in a park. He considered burning the truck and burning the DNA-or burning the DNA in the truck, but he said he changed his mind because he knew that was a crime, <mask>. And he said that if he did something else with [Chime's body], it would be something else against Hines. And he said: I was-I was-I didn't feel like I was going to have much luck with the legal situation. Ultimately, he decided, as he put it, to leave the vehicle where he thought somebody would be able to find it quickly so that [Chime's] body would be able to have some hope of being displayed in an open casket at a funeral. And so, he said, he chose a neighborhood that was close to a house that he built and that was close to the high school he graduated from. *301Based on his review of Hines's medical records, the videotaped police interrogations, and this interview, Dr. Coates opined that any mental illness symptoms that Hines experienced at the time he killed Chime did not render him unable to know that murder was wrong.


When faced with a constitutional challenge to a restriction on speech activity occurring in a Pruneyard public forum, we must first determine whether the speech activity is protected by the California Constitution. Like its federal counterpart, the California Constitution does not extend to every form of speech or expressive activity. ( Brown v. Entertainment Merchants Assn. (2011) 564 U.S. 786, 791, 131 S.Ct. 2729, 180 L.Ed.2d 708 ( Brown ); L<mask> v. City and County of San Francisco (2011) 192 Cal.App.4th 1263, 1283, 123 Cal.Rptr.3d 40 ( Larson ).) Rather, there are " 'well-defined and narrowly limited classes of speech' " which are entirely unprotected and, thus, may be restricted or prohibited without raising a constitutional problem. ( Brown , at p. 791, 131 S.Ct. 2729 ; see Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal.3d 501, 513, 217 Cal.Rptr. 225, 703 P.2d 1119 ( Spiritual ), disapproved of on other grounds as stated in *105Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 968, 119 Cal.Rptr.2d 296, 45 P.3d 243.) Those categories are obscenity, fighting words, defamation, and speech intended, and likely, to incite imminent lawless action. ( U.S. v. Stevens (2010) 559 U.S. 460, 468-469, 130 S.Ct. 1577, 176 L.Ed.2d 435 ( Stevens ); Larson, supra , 192 Cal.App.4th at p. 1283-1284, 123 Cal.Rptr.3d 40.)


California's DNA and Forensic Identification Database and Data Bank Act of 1998 (Database Act), section 295 et seq, "requires the collection of tissue samples for DNA analysis from all persons convicted of felonies (§§ 295, 296, subd. (a)(1)), adults arrested or charged with a felony (§ 296, subd. (a)(2)(C)), and all persons required to register as a sex or <mask> offender *54as a result of the commission of a *785felony or misdemeanor (id. , subd. (a)(3)). Except as provided in section 296, subdivision (a)(3), persons convicted solely of misdemeanors are not required to provide DNA samples." ( J.C., supra , 246 Cal.App.4th at p. 1470, 201 Cal.Rptr.3d 731.) Subdivision (b) of section 296 provides that the requirements for DNA submission "shall apply to all qualifying persons regardless of sentence imposed ... or any other disposition rendered in the case of an adult or juvenile tried as an adult...."


The fact that plaintiff incurred expense to the knowledge of the defendant (promisor), and in the reasonable belief that defendant would keep its promise, is, probably, ample to sustain this contract even in the absence of any other consideration. (Allegheny College v. National Chautauqua County Bank of Jamestown, 246 N. Y. 369, 374.) However, there is nothing illusory about the obligation of the respective parties to this writing. (Cf. 1 Williston Cont. §§ 36, 36-a, 43, 47-49.) The writing clearly constitutes an enforcible bilateral contract. (Cf. Benedict v. Pincus, 191 N. Y. 377; Saltzman v. B<mask>, 239 id. 332, 335, 336; North Side News Co. v. Cypres, 75 Misc. 129; Post v. Frank & Co., Id. 130; Geringer v. Friedman, 80 id. 212; Meyer v. Schwinger, 141 N. Y. Supp. 504; Bozzone v. Stafford, 85 Misc. 53; Gabriel v. Opoznauer, 89 id. 611; Goldblatt & Schaeffler v. Skudowitz, 172 N. Y. Supp. 339.)


Prom the wording of Indictment No. 48, in order for the People to successfully prosecute the defendant, it would be necessary to present evidence to prove that the defendant burned the same dwelling house specified in the dismissed <mask> indictment. In view of the well-settled principles of law pertaining to double jeopardy such a prosecution cannot be had and Indictment No. 48 must therefore be dismissed.


A person who starts a fire under circumstances evincing a depraved indifference to human life and recklessly causes the death of another person may properly be charged with both <mask> and homicide (Penal Law, § 125.15, subd 1 or § 125.25, subds 2, 3). If the other person is not killed but is seriously injured, the perpetrator may then be properly charged with both arson and assault (Penal Law, § 120.00, subd 2; § 120.05, subd 4 or 6; § 120.10, subd 3). It follows that if the other person is neither killed nor seriously injured, but is recklessly exposed to a grave risk of death, then the perpetrator may be properly charged with both arson and reckless endangerment.


Other courts have adopted various tests for admissibility based on criteria designed to measure the integrity of the hypnosis procedure, and to reduce the dangers of suggestibility, bias, incompetence, and the like, by requiring taping, prehypnotic memorialization, and other safeguards. This approach was taken in New York in People v Lewis (103 Misc 2d 881), People v Lucas (107 Misc 2d 231) and People v McDowell (103 Misc 2d 831; see, also, State v Hurd, 173 NJ Super 333, affd 86 NJ 525; State v Pe<mask>, supra; Use of Hypnosis to Refresh Memory: Invaluable Tool or Dangerous Device? 60 Wash U LQ 1059, referring to Hurd safeguards of Dr. Martin Orne; see Orne, Use and Misuse of Hypnosis in Court, 27 Int J of Clin and Exp Hypnosis, No. 4, pp 311, 335 [1978]; and to articles and views of Dr. Herbert Spiegel, who testified before us at this hearing; see, also, Schafer and Rubio, Guidelines for Use of Hypnosis with Witnesses, Int J Clin and Exp Hypnosis [April, 1978]).


It is well settled that an agreement like this between the husband, the wife and a trustee, for a separation during life is valid and effectual, both at law and in equity (Calkins v. Levy, 22 Barb. 106, 107 ; C<mask> v. Murray, 3 Paige, 483 ; Selling v. Crowley, 2 Vern. 386). And as respects the wife, it would not be invalidated, although the provision in the agreement in respect to the children might be void (Leavitt v. Palmer, 3 N. Y. 19, 37; Parsons on Contracts, 428); nor,'if we assume, upon the authorities cited by the appellant, that the provision respecting the children was one that the court would not enforce, being void as against public policy, does it *515necessarily follow that the defendant is not answerable to the trustee for the support of the wife and children, so far as the agreement has in good faith been executed. In Vansittart v. Vansittart (2 De Gex & J. 255), where such a stipulation in respect to the support of the children in an agreement for a separation was held to be void as against public policy, a distinction was made between enforcing the specific performance of an agreement for a separation, containing such a provision, and questions that may arise where such agreements have been executed in whole or in part. It was said in that case that the father has not only a right to his children, but duties to discharge towards them, and that he should not be allowed to fetter and abandon his parental power to the extent that he might do, if agreements of this character were sustained.


As to the allegation that Tumminia testified falsely that he had not been previously convicted of the crimes of <mask> and rape, the District Attorney contends that the petitioner failed to establish the falsity of Tumminia’s testimony in this respect. The official criminal record established conclusively that he had not been convicted of these crimes, but had been adjudged a youthful offender on April 28, 1955, when sentence was suspended and he was placed on probation by Judge Joyce of the Kings County Court. Under section 913-n of the Code of Criminal Procedure, it is specifically provided that: “ no youth shall be denominated a criminal by reason of such determination, nor shall such determination be deemed a conviction”. (See Matter of Anonymous, 4 A D 2d 953.) While the Assistant District Attorney’s statement to the jury that Tumminia had never been convicted of a crime was technically true, his choice of language cannot be construed to have been falsely made in view of the full explanation of Tumminia’s background before the jury.


in the affidavits stating the names of the witnesses who will be eonvenienced by a change of the place of trial, it is simply stated that the moving defendant expects to prove certain facts by the witnesses named, but it is nowhere- stated that those facts can be proved by those witnesses, nor do the affidavits disclose grounds showing that the facts can probably be established by the persons designated, and it is insufficient. (Thurfjell v. Witherbee, 70 Hun, 401; McPhail v. Ridout, 83 id. 446; White v. Hall, 8 App. Div. 618; S. C., 40 N. Y. Supp. 945. See Hayes v. G<mask>, 25 App. Div. 115.)


However, it appears that plaintiff is a closed corporation having two equal stockholders who are its two directors. In *179November, 1966 it was duly agreed that the business terminate and that Myra Schillinger, secretary of plaintiff corporation, be in charge of the liquidation which is apparently still in process. It further appears that said Myra Schillinger, the individual defendant herein, is also sole proprietor of the corporate defendant. It is charged that accounts receivable due to plaintiff in the amount of $6,031 have been paid to the name of defendant corporation and deposited in such defendant’s account. C<mask> Albert, president and equal stockholder of plaintiff, objects to the procedure and brings this action in the name of plaintiff corporation.


Cases addressing licensing schemes in a variety of contexts have found the placing of unfettered discretion into the hands of an administrative agency to be facially unconstitutional. (See, Saia v New York, 334 US 558 [1948] [ordinance prohibiting use of sound amplifiers without permission of police chief]; *743Kunz v New York, 340 US 290 [1951] [ordinance barring public worship on streets without permit from administrative official]; 414 Theater Corp. v Murphy, 360 F Supp 34 [SD NY 1973], affd 499 F 2d 1155 [2d Cir 1974]; Natco Theatres v Ratner, 463 F Supp 1124 [SD NY 1979], supra; Avon 42nd St. Corp. v Myerson, 352 F Supp 994 [SD NY 1972] [ordinance lacking sufficient standards to guide Commissioner of Consumer Affairs in ruling on licenses to operate movie theaters]; Bayside Enters. v C<mask>, 450 F Supp 696 [MD Fla 1978]; People v Mitchell, 74 Misc 2d 1053 [Crim Ct, NY County 1973].)


The foreseeability rule was recently discussed by our high court in Rangel , supra , 62 Cal.4th 1192, 200 Cal.Rptr.3d 265, 367 P.3d 649. There, the court addressed the question of whether a confrontation clause objection grounded on Crawford was forfeited. The defendant objected on appeal to the admissibility of statements under the adoptive admissions hearsay exception on confrontation clause grounds. ( *185Rangel , at p. 1215, 200 Cal.Rptr.3d 265, 367 P.3d 649.) Before the trial was conducted in 1998, the California Supreme Court had squarely held that statements qualifying for admissibility under the adoptive admissions exception were admissible over a confrontation clause objection based on the analysis in Ohio v. Roberts (1980) 448 U.S. 56, 65-66, 100 S.Ct. 2531, [65 L.Ed.2d 597, 607-608]. ( Rangel , at p. 1215, 200 Cal.Rptr.3d 265, 367 P.3d 649.) The Rangel court noted that Crawford is " 'flatly inconsistent' " with that prior governing precedent and reasoned that the failure to object on confrontation clause grounds was excusable because the " ' "governing law at the time ... afforded scant grounds for objection." ' " ( Rangel , at p. 1215, 200 Cal.Rptr.3d 265, 367 P.3d 649, italics added; see also Edwards , supra , 57 Cal.4th at pp. 704-705, 161 Cal.Rptr.3d 191, 306 P.3d 1049 [given the existing case law, "defendant's failure to object [on confrontation clause grounds] during his 1996 trial 'was excusable, since governing law at the time ... afforded scant grounds for objection' " (italics added) ].) Citing other California Supreme court cases holding that trial counsel "could not have anticipated Crawford 's sweeping changes to federal confrontation clause case law," and that Crawford represented " 'an unforeseen change in the law "that competent and knowledgeable counsel reasonably could [not] have been expected to have anticipate[ ]" at defendant's [pre- Crawford ] trial,' " the Rangel court held that the defendant in that case did not forfeit a Crawford challenge. ( Rangel , at pp. 1215-1216, 200 Cal.Rptr.3d 265, 367 P.3d 649, citing People v. Chism (2014) 58 Cal.4th 1266, 1288, fn. 8, 171 Cal.Rptr.3d 347, 324 P.3d 183, & Pe<mask>, supra, 56 Cal.4th at p. 462, 154 Cal.Rptr.3d 541, 297 P.3d 793.) The Rangel court concluded its discussion on the doctrine of forfeiture by emphasizing that "the relevant question is whether requiring ... an objection ' " ' "would place an unreasonable burden on defendants to anticipate unforeseen changes in the law." ' " ' " ( Rangel , at p. 1217, 200 Cal.Rptr.3d 265, 367 P.3d 649, italics *929added.) It then added, "[b]ecause that standard is satisfied here, we conclude that defendant has not forfeited his Crawford claim." ( Rangel , at p. 1217, 200 Cal.Rptr.3d 265, 367 P.3d 649, italics added.)


The defendants served notices for an examination before trial returnable on March 29, 1965, together with certain notices for discovery and inspection returnable the same day and time and in their notices made a request to obtain copies of statements *191of defendants Markert, Duke and Pe<mask>, pursuant to CPLR 3101, subd. (e). It is these notices which the plaintiff seeks to vacate. It is the State’s contention that the defendants’ notice for an examination before trial of the general managers, trustees, etc., of the State University Construction Fund, a public benefit corporation, is improper because: (a) these individuals are not employees of the State of New York but, rather, are employees of the State University Construction Fund, which is a public benefit corporation; (b) because there is no statutory or other authority for examination before trial of the State even if these individuals are determined to be employees of the State of New York; and, (c) because the notice for examination before trial is vague and constitutes “a fishing expedition”; (d) because the documents demanded to be presented at the time and place are in possession of nonparties. The State has also moved to vacate the discovery and inspection requested by defendants on the grounds that: (a) the State is not subject to disclosure: (b) the action is governed by the procedures set up in the General Business Law (art. 22) and not by the CPLR; (c) that the material in the hands of the plaintiff State is: (1) privileged, (2) confidential, (3) prepared for litigation, (4) represents an attorney’s work product; (e) that the requests for “ statements ” should be denied because the so-called “ statements ” are depositions given at a hearing and under oath and are not discoverable; (f) that the information is otherwise available or it is already in the defendants’ possession; and (g) that the demand for discovery and inspection was ‘1 prolix, vague, and constitutes a fishing expedition”. The State specifically moves to vacate the demand made by the three defendants to obtain copies of their own statements on the grounds that: (a) the State is not subject to disclosure, (b) the General Business Law imposes criminal sanction for unauthorized disclosures, (c) they are not statements but depositions, (d) that defendant Pearson is not “ a party to this action ”, (e) that the depositions in the State’s hands constitute a work product of an attorney, material prepared for litigation and is privileged and confidential, (f) that the testimony of defendants Markert, Duke and Pearson is peculiarly within their own knowledge.


The subpoenas issued to petitioners ask for two classes of records relating to the petitioners and the subject property and do seek relevant information to, for example, (a) identify all persons with an interest in and/or control of 2961 Atlantic Avenue and (b) provide essential information concerning the value and management of this property and any insurance claims filed for fire damage to the premises. However, the subpoenas also request production of books and records that are not presented relevant to the Commission’s investigation into an alleged <mask> for profit scheme, such as corporate minutes, tax returns and financial statements. To this extent, the subpoenas are too far-reaching and constitute an improper “fishing expedition” on the Commission’s part. Therefore, items numbered l-III are hereby deleted from each subpoena and need not be furnished by petitioners.


20 Additionally, we have suggested that jurisdiction under section 1292(a)(1) may obtain 21 where the district court enters a directive that has the “practical effect” of an injunction. 22 Commodity Futures Trading Comm’n v. Walsh, 618 F.3d 218, 224 (2d Cir. 2010) (citing C<mask> v. 23 American Brands, Inc., 450 U.S. 79 (1981)). To avail itself of this possibility, however, the 24 appellant must “show that an interlocutory order of the district court might have a serious, 25 perhaps irreparable consequence, and that the order can be effectively challenged only by an 26 immediate appeal.” Carson, 450 U.S. at 84; see also Sahu v. Union Carbide Corp., 475 F.3d 465, 27 467 (2d Cir. 2007); HBE Leasing Corp. v. Frank, 48 F.3d 623, 632 (2d Cir. 1995). No such 28 showing has been made here. The parties have identified no basis for concluding that the


The record discloses that the parties were married on August 22, 1986 when petitioner was 22 and respondent 15. Soon after they arrived at their marital residence in Norfolk, Virginia, petitioner began to engage in spousal abuse. Besides assaulting respondent on a number of occasions, he fired a weapon and shot out the passenger window of a truck he was driving and in which respondent was riding as a passenger, he pointed a weapon at respondent and fired a shot at her foot, and set a fire inside respondent’s residence. As a result of this latter incident, he was arrested and pleaded guilty to a felony <mask> charge, receiving a sentence from a Virginia court of three months in jail, 10 years’ probation and was ordered to pay $30,000 in restitution.


There not being the evidence required by law,"to authorize the marriage of Ann C<mask> with the prisoner in the bar, it is clearly the opinion of the court that it was, to all intents and purposes, null and void. This being the case, it follows that she was guilty of adultery vrith Smith ; that the rights of Smith, as a third person, have no legal foundation or existence; that Carson had an undoubted right to proceed at law against his wife for a divorce, and to settle with her, and withdraw the suit, whenever he thought, proper, without the consent of the prisoner, or any other person. The law now1 under consideration supposes a case of this very kind, by enacting, that in any suit for a divorce on the ground of adultery, if the defendant shall prove that the plaintiff admitted the defendant into conjugal embraces after he knew she had been guilty of adultery, it shall operate as a perpetual bar to his obtaining a divorce.


Defendant pleads that his right to privacy in his property is protected by the Fourth Amendment prohibition against unreasonable searches and seizures (Katz v United States, 389 US 347). He also directs the court’s attention to People v Tyler (399 Mich 564) which held that police and fire officials who enter a recently burned building to gather evidence of <mask> come within the Fourth Amendment’s warrant requirement regardless of whether the entry is in the nature of a criminal investigation or has the administrative purpose of determining the cause and source of the fire. The court did, however, acknowledge that a lesser standard of probable cause applies to an administrative entry than to an entry for the purpose of a criminal investigation.


The fifth cause of action, wherein the plaintiff sought a fee for breach of contract to pay plaintiff a finder’s fee for certain pension fund business which the plaintiff had allegedly brought to She<mask>, was also properly dismissed as barred by the Statute of Frauds (General Obligations Law § 5-701 [a] [10]), which provides in pertinent part that an oral agreement is void if it is one "to pay compensation for services rendered in * * * negotiating the purchase, sale, exchange, renting or leasing of * * * a business opportunity” (see, Sporn v Suffolk Mktg., 56 NY2d 864; Dura v Walker, Hart & Co., 27 NY2d 346, 348-349).


3. But there was no such evidence and consequently no basis for submission of the case as murder resting on the lowest degree of felony in the <mask> category (id., §§ 2, 224, subd. 3). For the same reason, the felony grade of malicious mischief {id., § 1433, subd. 1) was also out of the question, although I regarded the act and intent constituents of the conduct as necessarily included in the collateral felony charged in the murder indictment. And since the act established by the evidence was not shown to have amounted to arson (People v. Knatt, 156 N. Y. 302, 305) nor, so far as I have been able to determine, was it otherwise specifically penalized by law (Penal Law, § 1421; People v. Costello, 305 N. Y. 63, 65; Hazak Inc. v. Robertson Goetz Bldg. Co., 298 N. Y. 478, 480) it could be and was submitted as the misdemeanor predicate of manslaughter in the first degree (Penal Law, § 1433, subd. 2; § 1050, subd. 1; People v. Koerber, 244 N. Y. 147, 152-153; People v. Levan, 295 N. Y. 26, 33, 34; People v. Draper, 278 App. Div. 298, 306, affd. 303 N. Y. 653). However, before that point was reached there was a denial of the District Attorney’s request that the case be given to the jury as deliberate and premeditated murder (Penal Law, § 1044, subd. 1).


Id. at 275, 813 P.2d at 1388 (citing 2 A. L<mask>, Workmen's Compensation Law § 57.61(c) at 10–178). Moreover, The item missing from claimant's list of considerations is any evidence as to specific availability of employment. In other words, there is a presumption that, if claimant suffers physically, and bears the additional characteristics, then he has proved the prima facie case. The employer then has the burden to prove the existence of regular suitable employment.


The clear intent behind Section 9.42's defense of property is to permit persons to use deadly force to prevent the actor from committing <mask> in specific, prescribed instances. In other words, a person does not have to wait for the actor to complete the offense before using deadly force. Indeed, if deadly force could only be used after the actor committed the offense, the defense would never apply. Therefore, the issue of whether McFadden had a reasonable belief that deadly force was immediately necessary to stop George from committing arson is different from the issue of whether the evidence was sufficient to convict George of arson. While there is some overlap between the two concepts, a reasonable belief that deadly force is necessary to prevent the actor from committing the offense of arson can be developed on facts which would be insufficient to prosecute the actor for arson. Accordingly, for the defense to apply, the evidence need show only that the defendant had a reasonable belief that the use of deadly force was immediately necessary to prevent the actor from committing arson.


The extent of the damage has been sharply contested. Plaintiff’s Exhibit 3 contains a list of almost 100 items of damages to various parts of the building. It was introduced into evidence during the testimony of Frank Olshansky, an expert called by the plaintiff, subject to cross-examination by the defendant with respect to any items. Defendant’s Exhibit B was a list introduced into evidence during the testimony of Raymond Eisenhauer an expert called by the defendant. The total estimated cost of repairs set forth in Exhibit B was $26,563.45, plus $3,984.52, representing an allowance to the builder for his profit and overhead, making a total of $30,547.97. For unexplained reasons the defendant excluded from such estimate the following items: emergency and temporary work; floor coverings; window shades or Venetian blinds; damage due to <mask> or theft; further damage due to exposure to the elements; interior painting, gas ranges or refrigerators, dumbwaiter installation, kitchen and bathroom fixtures, bell wiring.


Claimant’s appraiser, as he amended his appraisal at the trial, valued the entire property before the taking at $41,000 and after the taking at $32,600. This resulted in a difference of $8,400 which, in his opinion, was the total damage suffered by the claimant. His land valuation was $18,500 an acre based on three comparable sales some two to three years after the State’s *1019taking of the subject property. This resulted in a land valuation of $6,300 for the ,338± acres directly taken. To this he added $1,000 for a cost to cure related to the northern remaining portion and $1,000 for a cost to cure relating to the remaining southern portion. These two items included the installation of culverts and fill to obtain access to these portions from the new highway being installed there (Stewart Avenue) during the course of construction and also for the cost of a gate and fencing on the theory that the new Stewart Avenue had the-effect of exposing the back of claimant’s property to the risk of theft and <mask> of personal property and equipment stored thereon. In addition, there was a $100 figure for the difference between his appraisal of the benefit to the northern portion as against severance damage to the southern portion.


Defendant and codefendant Donald J. Aitken were charged in a joint 21-count indictment with crimes stemming from their alleged involvement in multiple acts of <mask>, theft, burglary and arson in Delaware County in 2009, culminating in the destruction of a church by fire. Following a jury trial, defendant was convicted of burglary in the second degree (two counts), burglary in the third degree (three counts), arson in the third degree (four counts), arson in the fourth degree, arson in the fifth degree, attempted arson in the fifth degree, criminal *1085mischief in the third degree (three counts), reckless endangerment in the first degree, criminal trespass in the second degree, trespass and petit larceny.1 Supreme Court sentenced defendant to an aggregate prison term of 23 to 69 years, which was later reduced pursuant to Penal Law § 70.30 to an aggregate term of 12 to 20 years. The court further ordered defendant to pay restitution in the aggregate amount of $814,771.48. Defendant appeals.


The mortgage business is one where the lender must weigh the consequences of the loan. In the event of a default, the bank must act not only to safeguard its financial investment but to safeguard the lives and safety of those who occupy the building. Greenpoint had a duty to inspect and secure the building and to seal off any vacant apartments as well as areas exposed to the weather, <mask> and criminal activity. It had a duty to provide essential services to those living in the apartments and to collect rent to defray the expenses while deciding what to do with the building. The testimony showed the plight of the tenants of the building. It is fortunate that no one was seriously injured or hurt in any way other than by the lack of heat and hot water and that the building stayed intact and remained viable and that the pipes did not freeze during this time. The building only needed the gas meter to be reinstalled to alleviate the cold and unhealthful conditions caused by no heat and no hot water.


The insurance policy was in the standard form of the fire insurance policy under section 167 of Insurance Law with an addition of certain extended insurance as follows: “ Section 2 *271Perils Insured Against. 3. <mask> and malicious mischief being only wilful and malicious damage to or destruction of the described property and including damage to the building (s) covered hereunder caused by burglars.”


Under Hertz’ usual rental agreement, Hertz bears the risk of any loss of or damage to a rented vehicle due to causes other than collision or roll over (e.g., fire, <mask>, theft and storms), irrespective of the presence or absence of neglect by the renter. The renter, however, is liable to Hertz for any damage to the rental vehicle caused by collision or roll over, irrespective of fault. At the time the customer signs the rental agreement, he or she is given the option of electing or declining to obtain the renter’s waiver of the right to look to the customer for collision damage by checking an appropriate box on the form. If the customer elects to accept the CDW, there is an additional charge. The effect of accepting CDW is to shift the risk of collision damage eo instante from the customer to Hertz.


We find that substantial justice was not done between the parties according to the rules and principles of substantive law (UDCA 1807). The lease agreement between the parties stated that defendant, a self-service storage facility (see Lien Law § 182), is not a warehouse. It also contained several exculpatory clauses, including a clause stating that defendant is not responsible for any personal property stored by plaintiff. Under the facts presented, the provisions of the Uniform Commercial Code, including section 7-204 thereof, which provides that a warehouseman is responsible for negligent damage to goods in his custody and sets forth the sole manner in which a warehouse owner may properly limit his liability, do not apply (see Lien Law § 182 [1] [a]). Moreover, plaintiff has not demonstrated that the damage to his camper, which he attributed to <mask>, was the result of defendant’s willful or grossly negligent acts, in which case the exculpatory clauses would not be enforced (see Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 384-385 [1983]). Under these circumstances, there was no basis for the District Court’s determination of liability. Accordingly, the judgment is reversed and the action is dismissed.


*656Defendants' reliance on Penal Code section 415 is also misplaced. They argue Thomas violated Penal Code section 415 by "start[ing] an unlawful fight in public" and his actions constitute a defense to the <mask> charge. Thomas was not charged with such a crime and, in any event, comparative fault is not a defense in criminal proceedings. ( People v. Armitage , supra , 194 Cal.App.3d at p. 420, 239 Cal.Rptr. 515.) Accordingly, there was no ineffective assistance of counsel. (See People v. Price (1991) 1 Cal.4th 324, 387, 3 Cal.Rptr.2d 106, 821 P.2d 610 [defense counsel is not required to make frivolous objections].)


Indeed, father's criminal history spanned almost 30 years, with multiple arrests for possession of narcotics for sale, possession of a controlled substance, and possession of crack cocaine. Recent arrests include petty theft (2010); possession of a controlled substance and violation of probation (2010); second degree robbery, possession of a controlled substance, and trespass (2012); possession of a controlled substance for sale, possession of paraphernalia, and carrying dirk/dagger (2012); burglary, assault with great bodily injury, receiving known stolen property, and committing an offense while on bail (2012); unlawful driving/taking of a vehicle, possession of a controlled substance, and probation violation (2013); second degree burglary, <mask>, and battery (2014); possession of a controlled substance (2015); domestic violence (2015); assault with great bodily injury, possession of a switch blade, and resisting/obstructing police officer/EMT (2016); reckless driving, forgery of registration, driving without a valid license, and receiving stolen property (2016); and petty theft (2016).


Similarly, in the instant case, the Village has failed to adequately substantiate its claim with respect to the adverse impact of 24-hour uses on neighboring properties. There is no evidence that overnight business operations per se have a greater impact on neighboring properties than such business operations during regular hours. Close examination of the record reveals that the complaints received by the Village prior to enactment of the Zoning Ordinance related primarily to trafile, garbage and parking problems arising at other locations in the *753Village, problems that were unrelated to the hours of operation. The Village expresses concern about the potential disruption of sleep caused by light and noise from all-night businesses in close proximity to residential property. However, as in Old Country Burgers, such concern is conjectural at this point, supported only by a consultant’s report on 24-hour uses commissioned by the Village after instituting its 90-day moratorium. (Defendants’ submission, exhibit 48.) The record is devoid of prior complaints related to noise or light, or to the hours of operation of any of the existing 24-hour businesses. (Compare, Matter of Sheer Pleasure Lingerie v Town of Colonie Planning Bd., 251 AD2d 859 [upholding the determination of the town planning board to cut back hours of operation of an adult lingerie modeling business (a nonconforming use), that had been inadvertently expanded through administrative error; the Third Department noted residents’ complaints relating to an increase in crime, <mask> and other disturbances such as outdoor urination and motor vehicle traffic, that were based on the residents’ actual experiences during the one-year period in which the hours were extended].)


The account presents the question of the trustees’ power in relation to property taken over in foreclosure of a mortgage. Here the trustees took over in foreclosure a one-story building and found themselves confronted with the necessity of protecting a building already substantially injured by <mask>. They were confronted with the need to invest substantial additional principal sums to rehabilitate the building or to find a purchaser who was willing to take it in its then condition. They pursued the latter course and the purchaser gave back a purchase-money mortgage for the entire purchase price and after taking possession rehabilitated the building and put it into good order and condition. It is now operating satisfactorily and the trustees are obtaining income on the purchase-money mortgage. The purchase-money mortgage no doubt exceeds the limit permissible to these trustees if they were making a new mortgage loan on the same property. The special guardian objects to the transaction on that ground. There is presented, therefore, the question whether the limits upon trustees in respect of new mortgage investments are applicable to the acts of trustees in .disposing of property which they are forced to take over in the effort to protect an original mortgage investment lawfully made.


Trial was commenced and the thrust of plaintiff’s case was *630that as a result of the gross negligence on the part of Consolidated Edison (Con Ed) in causing the blackout, certain conditions were created in the community which led to the looting and <mask> of plaintiffs supermarket. In support of such position plaintiff introduced expert testimony tending to show that in a lower socioeconomic area such as was claimed to be here involved, a blackout such as occurred on July 13, 1977 would have certain adverse effects on the behavior of the people in that community. The expert testified that because of the absence of street lights, traffic lights, building lights, and the general sense of confusion and disorder that followed, the looting, vandalism and other antisocial activities occurred.


The prosecutor then questioned Turner about his earlier arrest. Turner denied that he had possessed a box of identical ammunition on that occasion or that he had ever possessed such ammunition. In rebuttal, another San *408Pablo police officer testified that he had previously arrested Turner for <mask>. Turner had had a different bag with him at the time, and when the officer conducted an inventory search of it approximately 30 minutes after the arrest, he discovered a 50-round box of Fiocchi .38 caliber Super-Auto ammunition inside.


Mr. Cohen then went on in his affidavit: “ (2) among the four proposals that were received, the first and second low bids did not state any bid prices for Item 76 M — Maintenance and Protection of Traffic, but the next two bids did contain a bid price for this item, and, an award of the contract to Bielec could well generate a lawsuit by the third bidder whose proposal was complete in all respects including Item 76 M. The conferees regarded No. 3 of the bidders as constituting a potential and valid threat to an award to Bielec, whose bid could be challenged by the third bidder on the grounds that, aside from the said ‘ atmosphere of confusion the bid was incomplete and certainly not in conformance with the long established standards of the New York State Department of Public Works with respect to similar situations. The conferees also considered the situation with regard to the buildings which are to be demolished for the highway construction project and learned from reports from the Syracuse district office of the Department that the uncommon <mask> had already reduced the value of salvageable material from the buildings, the point being that even if an award were to be made to Bielec after the decision by Justice Bruhn, Bielec could well claim that conditions at the site had changed which would permit him to sue the State in the Court of Claims.”


It is conceded by both parties that the terms "vacant” and "unoccupied” are not generally considered synonymous, since "vacant” means without inanimate objects, while "unoccupied” refers to the absence of animate occupants. Unlike most insurance policies, which refer to both of the above terms, the contract between these parties only excludes from coverage any loss occasioned by <mask> "if the described building(s) had been vacant beyond a period of 30 consecutive days immediately preceding the loss” (emphasis supplied). Thus the evidence of occupancy by the plaintiff and her family recited in the agreed facts has no bearing on the applicability of the exclusion clause.


In January 2017, Nicole was arrested for <mask> after she broke Stephen's bedroom window during an argument. Nicole and Stephen denied they were in a relationship. Stephen said he was willing to care for M.F. but first needed to find suitable housing and childcare. Stephen had health issues, including heart problems, leg pain, severe asthma, and high blood pressure. At times, he had difficulty walking even short distances. The Agency detained M.F. in the home of the paternal grandmother (caregiver) of one of his half siblings.


The trial court found a 40-year-to-life term was not a life without possibility of parole sentence nor was it a "de facto" life sentence (in light of defendant's life expectancy of 76 years, as well as the statutory "juvenile parole hearing"). The court believed it had the discretion to impose a lesser sentence. The court stated it had "considered the defendant's youth, the attend[ant *182] circumstances here, the nature of the crime, [and] the juvenile's lesser culpability in this case because he's an aider and abettor as opposed to a perpetrator." The court further stated that it had considered the factors outlined in Miller v. Alabama (2012) 567 U.S. 460, 489, 132 S.Ct. 2455, 183 L.Ed.2d 407 ( Miller ) regarding a "juvenile's lesser culpability[,] seemingly a concept that includes more than simply age," "a juvenile's greater capacity for change," and "a juvenile offender who did not kill or intend to kill [having] a twice diminished moral culpability" "when compared with an adult murderer." The court noted defendant's record of multiple prior juvenile adjudications starting when he was 13 years old, including weapons possessions, battery, felony burglary, <mask>, possession of stolen property, and a gang-related assault with a deadly weapon. The court gave defendant "the benefit of the doubt" that he was trying to remove his gang tattoos "because he was trying to get out of the gang lifestyle." The court looked "at the big picture," in which a group of young people had hunted down another gang and all of them had arrived "for purposes of inflicting violence, even though some of them [were] only there for back up," in what was basically "an *753ambush [when] they called the [rivals] out of the pool hall." The court sentenced defendant to a principal aggregate term of 40 years to life for second degree murder with a vicarious gun enhancement.


Defendant acknowledged in his written opposition in the trial court to the prosecution's section 1291 motion that Chatman was exposed to criminal liability for: "(1) a violation of Sacramento probation (2) a possible assault and <mask> charge arising from the incident involving [defendant], and (3) charges arising from a visit to [defendant]'s residence the day following the incident charged in this case."


“An appraisal shall determine the actual cash value, the replacement cost, the extent of the loss or damage and the amount of the loss or damage which shall be determined as specified in the policy and shall proceed pursuant to the terms of the applicable appraisal clause of the insurance policy and not as an arbitration. Notwithstanding the provisions of this subsection, an appraisal shall not determine whether the policy actually provides coverage for any portion of the claimed loss or damage.” (Insurance Law § 3408 [c].) Respondent asserts that it has paid petitioner for all covered losses and that petitioner is seeking payment for replacement of the following various components of his home that did not sustain direct physical damage in the <mask> incident: a fireplace, siding for the entire garage, a bathroom and portions of the plumbing and electrical systems. Respondent characterizes its objections as constituting issues regarding the scope of coverage that may not be determined in an appraisal.


McDONALD, J. Connecticut’s insurance law provides that, ‘‘[w]hen a covered loss for real property requires the replacement of an item or items and the replacement item or items do not match adjacent items in quality, color or size, the insurer shall replace all such items with material of like kind and quality so as to conform to a reasonably uniform appearance.’’ General Statutes § 38a-316e (a) (matching statute). The principal issue in this case is whether a dispute as to the extent of an insurer’s replacement obligation under the matching statute is a question properly relegated to the appraisal arbitral process or a question of coverage to be resolved by the court in the first instance before appraisal may proceed. The defendant, Liberty Mutual Insurance Com- pany, appeals from the trial court’s judgment granting the application of the plaintiff, Karl Klass, to compel appraisal with regard to such a dispute. We affirm the trial court’s judgment. The record reveals the following undisputed facts and procedural history. In 2018, the plaintiff contacted his insurer, the defendant, to report damage to the roof of his home. The defendant sent a representative to examine the loss, who—consistent with the plaintiff’s observation—noticed a few shingles missing from the dwelling portion of the rear slope of the roof. The repre- sentative concluded that the missing shingles were con- sistent with wind damage, a covered loss under the homeowners policy of the plaintiff. The defendant accept- ed coverage and issued an estimate to replace the rear slopes of both the dwelling roof and the attached garage roof. The plaintiff’s contractor inspected the roof and provided an estimate that contemplated replacement of the plaintiff’s entire roof, dwelling and attached garage, at nearly double the cost of the defendant’s estimate. As a result of the parties’ different repair estimates, the plaintiff notified the defendant that he was demand- ing appraisal under his homeowners policy. The policy provides that a dispute as to ‘‘amount of loss’’ is to be resolved by a panel comprised of a disinterested appraiser selected by each party and an umpire selected by those appraisers, effectively an arbitration panel.1 See Covenant Ins. Co. v. Banks, 177 Conn. 273, 279–80, 413 A.2d 862 (1979) (holding that appraisal clause in insurance policy constituted ‘‘ ‘written agreement to arbitrate’ ’’ and, thus, was governed by arbitration stat- utes). In a written reply, the defendant took the position that the plaintiff was not entitled to invoke the appraisal process in the absence of a ‘‘competing’’ estimate (i.e., one that addressed the claim for which the defendant had accepted coverage). The defendant stated that any dispute regarding the matching of the front and rear roof slopes was a question of coverage rather than an issue for appraisal. Nevertheless, citing its interest in amicably resolving the dispute, the defendant agreed to appoint an appraiser to investigate the loss while reserving its right to contest the appraisal panel’s author- ity to decide an issue of coverage. The defendant’s appraiser thereafter inspected the plaintiff’s roof and issued a report concluding that, ‘‘ ‘given the roof configuration, it is reasonable to con- clude that the shingles along the [east facing] (rear) slopes and ridge caps of the residence and garage can be replaced such that a reasonable uniform appearance of the roof covering is maintained.’ ’’ The defendant cited these conclusions in a letter it thereafter sent to the plaintiff denying ‘‘coverage’’ for the front slopes of the plaintiff’s roof. The defendant noted that its adjust- ment of the claim—providing for the replacement of the entire rear slopes of both the dwelling and garage roofs—exceeded the requirements of the matching stat- ute. In light of its denial of ‘‘coverage’’ for the front roof slopes, it contended that there was no valuation issue remaining for the appraisal process. The plaintiff subsequently filed an application to com- pel appraisal in the Superior Court pursuant to General Statutes §§ 38a-307 and 52-410, casting the dispute between the parties as one concerning the amount of loss under the subject policy. The defendant filed an objection to the application, characterizing the dispute as one involving coverage, which, as a purely legal issue, must be resolved by the courts before an appraisal can proceed. In support of that proposition, the defendant cited a Second Circuit case, Milligan v. CCC Informa- tion Services Inc., 920 F.3d 146 (2d Cir. 2019). The plaintiff then filed a motion requesting that the trial court order that any purported coverage dispute does not preclude the parties from moving forward with an appraisal, citing Giulietti v. Connecticut Ins. Place- ment Facility, 205 Conn. 424, 534 A.2d 213 (1987), as support. The trial court initially issued a summary decision denying the plaintiff’s application to compel appraisal, citing Milligan for the proposition that ‘‘the issue of coverage [must] be decided before the court makes a determination whether an appraisal is required.’’ The plaintiff filed a motion to reargue and reconsider, contending that the trial court had overlooked control- ling precedent—namely, this court’s decision in Giu- lietti—and had misapprehended Milligan. The defen- dant objected to the plaintiff’s motion, arguing that the plaintiff failed to demonstrate that there was some decision or principle of law that had been overlooked that would have controlling effect on the case. The trial court granted the plaintiff’s motion to reargue and reconsider, and, following supplemental briefing, issued an order directing the parties to proceed to appraisal. In reaching its decision, the trial court explained that it had misapprehended Milligan and con- cluded that Milligan simply confirms that appraisers cannot make coverage determinations. In light of that conclusion, the court rendered judgment granting the plaintiff’s application to compel appraisal. The defen- dant appealed from the trial court’s judgment to the Appellate Court, and we thereafter transferred the appeal to this court. See General Statutes § 51-199 (c) and Practice Book § 65-1. The defendant raises three claims on appeal. First, it claims that the trial court improperly granted the plaintiff’s motion to reargue and reconsider following its initial denial of the plaintiff’s application to compel appraisal. Second, it contends that the dispute between the parties is ultimately a coverage dispute, and, thus, it was improper for the trial court to compel appraisal before the legal issue regarding the coverage dispute was resolved by the court. Finally, to resolve the pur- ported coverage dispute, the defendant asks this court to adopt an interpretation of the matching statute that would limit the scope of replacement to, at most, the rear slopes of the plaintiff’s roof. We conclude that the trial court properly granted the plaintiff’s application to compel appraisal. Because that conclusion rests in large part on our determination that the dispute between the parties is an appraisable dis- pute not involving coverage, we need not address the defendant’s claims relating to resolution of coverage disputes. I The defendant’s contention that the trial court improp- erly granted the plaintiff’s motion to reargue and recon- sider merits little discussion. We review the adjudica- tion of a motion to reargue and reconsider for an abuse of discretion; see Weiss v. Smulders, 313 Conn. 227, 261, 96 A.3d 1175 (2014); which means that ‘‘every rea- sonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only [when] an abuse of discretion is manifest or [when] injustice appears to have been done.’’ (Inter- nal quotation marks omitted.) Patino v. Birken Mfg. Co., 304 Conn. 679, 698, 41 A.3d 1013 (2012). ‘‘[T]he purpose of a reargument is . . . to demon- strate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. . . . It also may be used to address [alleged inconsistencies in the trial court’s memorandum of decision as well as] claims of law that the [movant] claimed were not addressed by the court. . . . [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple [or to present additional cases or briefs which could have been presented at the time of the original argu- ment] . . . .’’ (Internal quotation marks omitted.) Hud- son Valley Bank v. Kissel, 303 Conn. 614, 624, 35 A.3d 260 (2012); see Rider v. Rider, 200 Conn. App. 466, 486 n.14, 239 A.3d 357 (2020). The trial court did not abuse its discretion in granting the plaintiff’s motion to reargue and reconsider. In its initial decision denying the plaintiff’s application to compel appraisal, the trial court cited the Second Cir- cuit’s decision in Milligan for the proposition that cov- erage determinations must precede appraisal; Milligan v. CCC Information Services, Inc., supra, 920 F.3d 152; without responding to the plaintiff’s contention that this court stated a different rule in Giulietti and that Milligan should not be interpreted to conflict with Giu- lietti. The trial court’s decision to grant reconsideration implies that it agreed with the plaintiff that it had over- looked Giulietti and that its prior order was in error. ‘‘If a court believes that it has made a mistake, there is little reason, in the absence of compelling circum- stances to the contrary, to stick slavishly to a mistake.’’ Beeman v. Stratford, 157 Conn. App. 528, 540, 116 A.3d 855 (2015). II We therefore consider the defendant’s claim that the trial court improperly granted the plaintiff’s application to compel appraisal. The defendant makes several argu- ments regarding the propriety of this decision, all of which rest on the premise that the dispute between the parties is one pertaining to the legal question of cover- age.2 Although not expressly stated, we interpret the trial court’s summary order as an implicit rejection of that premise. In its final decision, the trial court cited Milligan as holding ‘‘that appraisers cannot make cov- erage determinations [or decide] questions of law.’’3 The only dispute on which the plaintiff sought appraisal was the extent of the defendant’s replacement obliga- tion pursuant to the matching statute. The trial court thus would not have ordered the parties to proceed to appraisal unless it viewed the dispute as a factual determination that did not pertain to coverage. There- fore, the threshold, and ultimately dispositive, issue before us is whether a dispute as to the scope of an insurer’s replacement obligation under the matching statute is a question of coverage to be resolved by the courts or a question of the amount of loss to be resolved by the appraisal panel. We conclude that it is the latter. With regard to the standard of review, although the plaintiff is correct that whether the insurance policy manifests the parties’ intent to arbitrate a matter is generally a question of fact subject to review for clear error; see A. Dubreuil & Sons, Inc. v. Lisbon, 215 Conn. 604, 608–609, 577 A.2d 709 (1990); the legal obligation at issue in the present case is one engrafted by operation of law as a result of the legislature’s enactment of the matching statute. See Garcia v. Bridgeport, 306 Conn. 340, 351, 51 A.3d 1089 (2012). The relevant question in this case, therefore, is whether the legislature consid- ered determinations like the one before us as a question relating to the amount of loss to be determined in the appraisal process or, alternatively, by a court when determining an insurer’s coverage responsibilities. This is a question of law subject to plenary review. See, e.g., Financial Consulting, LLC v. Commissioner of Ins., 315 Conn. 196, 209, 105. A.3d 210 (2014); Nelson v. State, 99 Conn. App. 808, 813, 916 A.2d 74 (2007). Our analysis begins with the statutory text. See Gen- eral Statutes § 1-2z (permitting court to consider extra- textual sources only when statutory text is ambiguous or construction yields absurd or unworkable result). The matching statute provides in relevant part: ‘‘When a covered loss for real property requires the replace- ment of an item or items and the replacement item or items do not match adjacent items in quality, color or size, the insurer shall replace all such items with mate- rial of like kind and quality so as to conform to a reason- ably uniform appearance. . . .’’ General Statutes § 38a- 316e (a). Plainly, the text of the statute does not resolve the dispute before us. The statute does not explicitly indicate whether the resolution of matching disputes are to be decided by the courts in the first instance or by an appraisal panel; nor does it expressly characterize the scope of an insurer’s replacement obligation as a question of coverage or one relating to amount of loss. By making a ‘‘covered loss’’ the precondition to an insurer’s replacement obligation, however, the statute appears to suggest that the replacement obligation is of a different nature than the coverage obligation. More- over, the guideposts for the making of such decisions— ‘‘adjacent’’ and ‘‘reasonably uniform appearance’’—are strongly indicative of factual judgments based on visual inspection rather than legal determinations. General Statutes § 38a-316e (a); see Welles v. East Windsor, 185 Conn. 556, 560, 441 A.2d 174 (1981) (stating that ‘‘[t]he term ‘adjacent’ has no fixed meaning but must, instead, be interpreted in light of the relevant surrounding cir- cumstances’’ and is ‘‘[n]ecessarily relative’’); Webster’s Ninth New Collegiate Dictionary (1985) p. 1290 (defin- ing ‘‘uniform’’ as ‘‘presenting an unvaried appearance of surface, pattern, or color’’). Because the text of the statute does not unambigu- ously answer the question before us, we look to extra- textual sources for guidance. See, e.g., Mayer v. His- toric District Commission, 325 Conn. 765, 775, 160 A.3d 333 (2017) (‘‘[w]hen a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and [common-law] principles governing the same gen- eral subject matter’’ (internal quotation marks omit- ted)). We begin with the legislative history of the match- ing statute, which is instructive in two respects. First, it reflects that the legislature intended to codify the existing insurance industry practice. See 56 H.R. Proc., Pt. 8, 2013 Sess., pp. 2402–2403, remarks of Representa- tive Robert W. Megna. Apparently, some insurers had not been following industry practice and were replacing only damaged portions of covered property without regard to whether the property was restored to a compa- rable preloss condition. See id., p. 2403, remarks of Representative Megna; Conn. Joint Standing Committee Hearings, Insurance and Real Estate, Pt. 4, 2013 Sess., pp. 1115, 1119, remarks of Phil Flaker, public insurance adjuster. Second, that history reveals that the legislature contemplated that matching would be a ‘‘subjective’’ determination made on a case-by-case basis; 56 H.R. Proc., supra, pp. 2418–19, remarks of Representative Megna; with disputes resolved through the appraisal process. Representative Megna, the primary sponsor of the bill, explained that, if the insured and insurer dis- agree over the necessary scope of replacement, ‘‘they have a process in most policies called the appraisal process. They can—they can start that process going if they contest it.’’4 (Emphasis added.) Id., p. 2422. The legislative history is devoid of any contrary indication that the legislature viewed the extent of an insurer’s replacement obligation as a coverage issue or disputes as to matching as matters to be resolved by courts in the first instance. The conclusion supported by the text of the statute and by its legislative history is consistent with case law from other jurisdictions. Other courts that have addressed this issue—whether applying their version of a matching statute or recognizing industry practice— have treated similar disputes as within the purview of appraisal. For instance, in In re Pottenburgh v. Dryden Mutual Ins. Co., 55 Misc. 3d 775, 48 N.Y.S.3d 885 (2017), following a <mask> incident that gave rise to a cov- ered loss under the homeowners policy of the insured, the insurer submitted an estimate for replacement of the siding on the garage wall that had been vandalized, while the insured submitted an estimate for replace- ment of the siding on all of the garage walls. Id., 776–77. The insured’s estimate for full replacement was based on the lack of availability of siding for installation on the vandalized wall that would match the faded color of the undamaged siding on the remaining walls. Id., 777. The insurer refused to participate in the appraisal process on the ground that the dispute was one regard- ing the scope of coverage, i.e., the insured sought pay- ment for components of the home that were not ‘‘cov- ered’’ because they did not sustain direct physical damage from the vandalism incident. Id. The trial court concluded that the disagreement between parties was an appraisable dispute. The court noted that the insurer had not denied liability for damages sustained by the vandalism incident. Id., 778. Rather, ‘‘the basis for [the insurer’s] objections to an appraisal is limited to the extent of work required to repair the damage caused by the vandalism incident. Such disputes are factual questions that fall squarely within the scope of the poli- cy’s appraisal clause . . . .’’ (Citations omitted; inter- nal quotation marks omitted.) Id. The Supreme Court of Minnesota similarly character- ized the extent of the insurer’s replacement obligation to ensure matching ‘‘as mere incidents to a determina- tion of the amount of loss or damage, [which] are appro- priate to resolve in an appraisal in order to ascertain the amount of loss.’’ (Internal quotation marks omitted.) Cedar Bluff Townhome Condominium Assn., Inc. v. American Family Mutual Ins. Co., 857 N.W.2d 290, 293 (Minn. 2014); see id. (reviewing appraisal panel’s determination as to whether insurer was obligated to replace siding on only sides of building damaged by hail, which was covered loss under policy, or on all sides to ensure matching); see also Auto-Owners Ins. Co. v. Summit Park Townhome Assn., 100 F. Supp. 3d 1099, 1104 (D. Colo. 2015) (holding that, while apprais- ers cannot resolve parties’ legal issues, they can make factual conclusions, such as ‘‘address[ing] the cost of replacing undamaged property to achieve matching’’); State Farm Lloyds v. Johnson, 290 S.W.3d 886, 891 (Tex. 2009) (‘‘Sometimes it may be unreasonable or even impossible to repair one part of a roof without replacing the whole. The policy provides that [the insurer] will pay reasonable and necessary costs to ‘repair or replace’ damaged property, and repair or replacement is an ‘amount of loss’ question for the appraisers.’’ (Footnote omitted.)); Edelman v. Certain Underwriters at Lloyds, London, Massachusetts Supe- rior Court, Docket No. 1784CV02471 (May 7, 2019) (‘‘to the extent the [insurer] disputes the amount of matching loss . . . a reference proceeding [namely, appraisal] may be appropriate’’). The defendant cites no case law adopting a contrary view.5 In this regard, we observe that the defendant’s own conduct in this case was consistent with insurance industry practice and supports the propriety of having appraisers decide the extent of the insurer’s replace- ment obligation to ensure matching of adjacent items. The defendant’s own appraiser reached a conclusion on the very issue that the defendant claims is a legal question that is improper for resolution by appraisers. The report by the defendant’s appraiser stated that the purpose of his examination of the plaintiff’s property was to ‘‘determine the scope of damage to the roof . . . .’’ He noted that, on the basis of his examination, both sides of the roof presumably were not visible from the ground at the same time and, in light of that fact, reached a conclusion that replacement of only the dam- aged rear sides of the roofs and the roof ridges ‘‘would [not] compromise the uniform appearance of the roof covering.’’ The defendant’s posture in this case also undermines its position that the present dispute raises a question of law. The defendant argued in its trial brief that the parties’ dispute turned on the judicial construction of ‘‘ ‘reasonable uniform appearance’ ’’ but then argued in its appellate brief that the dispute turns on construction of ‘‘ ‘adjacent.’ ’’ None of the defendant’s briefs, however, offered a definition for either term. At oral argument before this court, the defendant proffered a definition of ‘‘adjacent,’’ but one suited to resolution of the present case, not a universally applicable definition. The defendant’s reliance on Kamansky v. Liberty Mutual Ins. Co., Superior Court, judicial district of Hart- ford, Docket No. CV-XX-XXXXXXX-S (April 30, 2019) (68 Conn. L. Rptr. 449), to support its position is misplaced. The court in Kamansky was faced with a question of pure statutory construction, presented in a declaratory judgment action, as to whether an insurer’s obligation to replace ‘‘all such items’’ was limited to ‘‘adjacent’’ items or extended to all items of the same kind as the damaged item, adjacent or not, so as to create a reasonably uniform appearance.6 Id. This question could be—and ultimately was—resolved without refer- ence to specific facts, and the court’s construction applied universally. It appears to us that, at bottom, the defendant’s under- lying concern is that § 38a-316e (a) employs terms that afford too much discretion to decide what is ‘‘adjacent’’ and what is necessary to create a ‘‘reasonably uniform appearance.’’ In response to that concern, we note that the appraisal panel’s umpire, in exercising their discre- tion to make the matching determination in this case, ultimately may agree with the defendant’s appraiser that the defendant’s obligation extends only to the rear sides of the roofs and the roof ridges. Alternatively, the umpire may conclude that the defendant is required to repair the plaintiff’s entire roof. Regardless, it seems to us that the necessarily fact intensive, case-by-case inquiry inherent in the task of matching requires that appraisers be afforded discretion in making matching determinations. We further note that, if the statutory terms are too elastic, the defendant’s recourse is with the legislature. See, e.g., Neighborhood Assn., Inc. v. Limberger, 321 Conn. 29, 45, 136 A.3d 581 (2016) (‘‘[t]o the extent that the plaintiff’s concerns arise from the expansive definitions in the act, its recourse lies with the legislature’’). We conclude that, when an insurer concedes the existence of a covered peril to an insured’s premises, issues concerning the extent of the insurer’s obligation to replace adjacent, undamaged items to achieve a rea- sonably uniform appearance are a component of the ‘‘amount of loss’’ and are, therefore, part of the appraisal process. Here, the defendant concedes that the damage to the plaintiff’s roof resulting from wind damage was a covered loss under the homeowners policy of the plaintiff. The parties’ disagreement regarding how many shingles need to be replaced—whether it be only the missing shingles, the rear slopes of the garage and dwelling roofs, or the entire roof—in order to make the plaintiff whole is a factual dispute that falls within the scope of the insurance policy’s appraisal clause. The judgment is affirmed. In this opinion the other justices concurred. * January 11, 2022, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. The appraisal clause in the defendant’s policy essentially mirrors the one in the standard form set forth in General Statutes § 38a-307. For example, the defendant argues that, if we conclude that the appraisal panel has the authority to decide this coverage dispute, the courts should review the decision de novo, and that this court should resolve this coverage dispute by interpreting the statutory terms ‘‘adjacent items’’ and ‘‘reasonable uniform appearance’’ in § 38a-316e (a) to determine its replacement obliga- tion to the plaintiff under the matching statute. The parties agreed, and the law is well settled, that—in the absence of a statutory provision to the contrary—coverage is a legal question for the courts. See, e.g., Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 600 F.3d 190, 203 (2d Cir. 2010); Johnson v. Nationwide Mutual Ins. Co., 828 So. 2d 1021, 1025–26 (Fla. 2002); Quade v. Secura Ins., 814 N.W.2d 703, 706 (Minn. 2012); Clark v. Sputniks, LLC, 368 S.W.3d 431, 436 (Tenn. 2012); Factory Mutual Ins. Co. v. Citizens Ins. Co. of America, 288 Wis. 2d 730, 736, 709 N.W.2d 82 (App. 2005). Representative Megna contemplated a situation factually similar to the one before us: ‘‘[I]f a—a claim is [made] today, you could have an insurance company representative come out and say, you know, I’m just going to replace one piece of siding, I don’t care that the other siding is [twenty] years old and faded by the sun. They could actually make that argument now. It’s not common practice so they can do that. If they do and the homeowner or the business owner wants to contest it, they have a process in most policies called the appraisal process. They can—they can start that process going if they contest it.’’ 56 H.R. Proc., supra, p. 2422. The National Association of Public Insurance Adjusters filed an amicus curiae brief in support of the plaintiff, in which it confirmed that matching determinations have been routinely performed as a part of the appraisal process. The defendant cites cases holding that questions of causation (i.e., how much of the damage to the affected property was caused by a covered event) present an issue of coverage. We view this determination to be an entirely distinct question from the one raised in the present case. Moreover, there is a split of authority on the question of whether causation is a matter of coverage; compare Quade v. Secura Ins., 814 N.W.2d 703, 706 (Minn. 2012) (holding that appraiser’s evaluation of ‘‘amount of loss’’ requires con- sideration of causation), with Rogers v. State Farm Fire & Casualty Co., 984 So. 2d 382, 391–92 (Ala. 2007) (limiting appraiser’s duty to determining monetary value of property damage and, accordingly, deciding that apprais- ers cannot make determinations as to causation); and the present case does not provide us with the occasion to weigh in on that debate. We note that, although we rely on one case that decided the causation question, State Farm Lloyds v. Johnson, supra, 290 S.W.3d 891, we rely on it only for the Texas Supreme Court’s acknowledgment that the determination of whether replacement must extend beyond the damaged items is an amount of loss question for appraisers. The defendant misconstrues the trial court’s decision in Kamansky as concluding that the undamaged sides of the insured’s house were not ‘‘adja- cent’’ to the damaged side. In Kamansky, the insured conceded that the undamaged garage sides were not ‘‘adjacent’’ to the damaged side. Kaman- sky v. Liberty Mutual Ins. Co, supra, 68 Conn. L. Rptr. 451. Therefore, the issue of whether nondamaged sides were ‘‘adjacent’’ to the damaged garage siding was not before the court.


Plaintiffs commenced this action to recover damages for injuries sustained by the plaintiff Mary C. Giamboi when she was struck by a bottle thrown by an unknown person from the elevator station of the Bay Parkway B Train platform on June 1, 1982. Plaintiffs contend that the platform station is not fully enclosed, has open areas which permit objects to be thrown or to fall from said platform, *34and as such constitutes a dangerous condition conducive to <mask> and criminal activity. Plaintiffs cite several newspaper articles reciting similar incidents in the same vicinity. Plaintiffs’ claim that the Transit Authority is liable, is grounded on the theory that they failed to take any measures to enclose the platform or otherwise rectify the dangerous condition in spite of their awareness of repeated acts of vandalism in the area.


Defendant then cites instances of past <mask> in order to negate a finding of exclusive control. “The exclusiveness of control which is required to invoke the doctrine of res ipsa loquitur does not require the positive exclusion of all other possible agencies other than defendant, as the cause of plaintiff’s injuries.” (Scimeca v New York City Tr. Auth., supra, p 597.)


Finally, defendant contends his conviction on count 2 must be reversed because his counsel's concession at the beginning of closing argument that defendant was *764guilty of this <mask> charge was tantamount to a guilty plea *491on that count. In support of this contention, defendant relies almost exclusively on People v. Lopez (2018) 28 Cal.App.5th 758, 239 Cal.Rptr.3d 465 ( Lopez I ). Following briefing in the instant case, the court vacated Lopez I , after granting the respondent's petition for rehearing and after receiving additional briefing on the issue and found on "reexamination of this issue ... defense counsel's statements during argument were not tantamount to a guilty plea." (See People v. Lopez (2019) 31 Cal.App.5th 55, 58, 242 Cal.Rptr.3d 451 ( Lopez II ).


We note the Legislature did not expressly provide that a violation of *566Commercial Code section 9609 is a defense to a criminal charge of <mask> under Penal Code section 594. In the absence of express statutory language, we find no basis to read in such a defense and defendants cite no authority for doing so. (See People v. Berry (1991) 1 Cal.App.4th 778, 788, 2 Cal.Rptr.2d 416 [finding civil statute inapplicable to criminal case because "nothing in th[e] civil statute suggest[ed] that it creates a defense in a criminal action"].) We further note the remedies for a violation of Commercial Code section 9609 are delineated in Commercial Code section 9625. Defendants' conduct to retrieve the car was conspicuously not one of the lawful remedies listed in the Commercial Code.


3. With respect to claimant’s items for cost to cure and net severance damage, totaling $2,100, the court finds that the $1,000 amount claimed to provide for temporary access to the southern portion and for a gate and fencing should be awarded to the claimant. (As to justification for allowing for the cost of the culvert and fill for such temporary access during construction, see O’Brien v. New York Cent. & Hudson Riv. R. R. Co. [148 App. Div. 733, 738]; Morton v. State of New York [8 A D 2d 49, 53, app. dsmd. 6 N Y 2d 993]; J. Hughes Corp. v. State of New York [199 Misc. 979, 980]; Nichols, Eminent Domain [3d Ed., vol. 2, § 6.4442, subd. [2] and vol. 4, § 14.24]; and as to justification for allowing for the cost of the gate and fencing, see New York State Elec. & Gas Corp. v. Belard Props. [2 A D 2d 791], and Mitchell v. State of New York [20 Misc 2d 374, 379].) This is because the court finds that during the course of construction claimant was unable, without installing the culvert and fill, to utilize the southern portion and because the gate and fencing became necessary by virtue of the exposure to theft and <mask> of personal property and equipment stored on the southern portion.


Defendant and codefendant Donald J. Aitken were charged in a joint 21-count indictment with crimes stemming from their alleged involvement in multiple acts of <mask>, theft, burglary and arson in Delaware County in 2009, culminating in the destruction of a church by fire. Following a jury trial, defendant was convicted of burglary in the second degree (two counts), burglary in the third degree (three counts), arson in the third degree (four counts), arson in the fourth degree, arson in the fifth degree, attempted arson in the fifth degree, criminal *1085mischief in the third degree (three counts), reckless endangerment in the first degree, criminal trespass in the second degree, trespass and petit larceny.1 Supreme Court sentenced defendant to an aggregate prison term of 23 to 69 years, which was later reduced pursuant to Penal Law § 70.30 to an aggregate term of 12 to 20 years. The court further ordered defendant to pay restitution in the aggregate amount of $814,771.48. Defendant appeals.


Further, " '[i]n the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions.' " ( People v. Nguyen (2015) 61 Cal.4th 1015, 1051, 191 Cal.Rptr.3d 182, 354 P.3d 90.) The record reveals at least one tactical reason for not providing additional guidance to the jury. The jury's question indicated the jury was confused as to which items formed the basis for the <mask> charge. By leaving the jury to its own devices based on the existing instructions, defendants' counsel could have believed he was increasing defendants' chance of an acquittal or hung jury because the question suggested there was a disagreement on what items, if any, the prosecution proved were vandalized. Thus, the record on this appeal does not establish ineffective assistance of counsel.


(5) Policy of hazard insurance as defendant may request issued by companies satisfactory to the defendant, in addition to a fire insurance policy including extended coverage and <mask> and malicious mischief coverage, boiler and public liability insurance, rental and business interruption insurance, each having at least one year unexpired term, containing terms, provisions and conditions, satisfactory to the defendant and their counsel as to form and substance and amount.


When an inventory search is conducted based on a decision to impound, the impoundment itself must be warranted. "Whether 'impoundment is warranted under this community caretaking doctrine depends on the location of the vehicle and the police officers' duty to prevent it from creating a hazard to other drivers or being a target for <mask> or theft.' " (People v. Williams (2006) 145 Cal.App.4th 756, 761, 52 Cal.Rptr.3d 162 ; accord, People v. Torres, supra, 188 Cal.App.4th at pp. 787-789, 116 Cal.Rptr.3d 48.) Here, Officer Ambrose did not testify as to whether the car was located in a high crime area, illegally parked or otherwise posed a hazard to motorists or pedestrians. Nor did he indicate whether the department's policy was to impound vehicles regardless of where they were located or how they were parked. This raises further questions about whether the prosecution met its burden of proof to establish that the decision to impound, if any, and an inventory search resulting from impoundment, were called for by department policy and constitutionally reasonable.


With respect to the northern portion, as it faced upon new Stewart Avenue, the court views the matter differently. Access during construction of Stewart Avenue was still possible by way of the frontage on Union Avenue and, therefore, no award should be made for culverts and fill to provide temporary access off new Stewart Avenue during construction. However, the northern portion, as it faced on new Stewart Avenue, was mqde *1021open to theft and <mask> and, accordingly, the court finds an allowance for a gate and fencing to be appropriate and, accordingly, awards $500 of the $1,000 claimed for the northern portion.


The court finds that the defendant violated its duty to provide reasonable supervision to guard against a recurrence of <mask> and the wrongful conduct of others under all the circumstances of the case. Inadequate security is no security. The lack of due care in this case was a substantial factor in bringing about the incident which caused damages to plaintiffs’ property on May 13, 1957.


In Palazzo v Katz Parking Systems (64 Misc 2d 720), the plaintiff’s auto was vandalized while parked in defendant’s parking garage, where plaintiff himself parked the car and took his keys. The court stated that to recover, the plaintiff must show a bailment, and bailment will depend on whether possession was delivered. That question will in turn depend on the intention of the parties, whether express or implied. “Intent may be drawn from the circumstances of the case, i.e., the place, conditions and nature of the transaction”. (Supra, p 721.) The court found that it was the intent of the parties that plaintiff’s auto be protected from <mask>, and therefore there was a bailment.


During the past year there have been intrusions into the building by nonresident teen-agers and considerable <mask>, burglary and abusive conduct, both verbal and physical, toward tenants. Several of the tenants who gave evidence identified one Ann Marie, a nonresident teen-ager, as a central figure in these disturbances, both personally and by her invitation of many other teen-age nonresidents into the building.


The trial record is replete with evidence of actual notice to the defendant of the conditions at the hospital. In 1981, a meeting was attended by State and local elected officials, representatives of the fire district and the New York State Office of General Services. Minutes of the meeting reflect discussions about the fires, <mask> and the need to seal the buildings. Minutes of a similar meeting in June 1984, attended by representatives from New York State Office of General Services and Department of Environmental Conservation, reflect the same problems and concerns. The local fire commissioner predicted that it is only a matter of time until a fireman or child would be seriously hurt or killed.


Indeed, father's criminal history spanned almost 30 years, with multiple arrests for possession of narcotics for sale, possession of a controlled substance, and possession of crack cocaine. Recent arrests include petty theft (2010); possession of a controlled substance and violation of probation (2010); second degree robbery, possession of a controlled substance, and trespass (2012); possession of a controlled substance for sale, possession of paraphernalia, and carrying dirk/dagger (2012); burglary, assault with great bodily injury, receiving known stolen property, and committing an offense while on bail (2012); unlawful driving/taking of a vehicle, possession of a controlled substance, and probation violation (2013); second degree burglary, <mask>, and battery (2014); possession of a controlled substance (2015); domestic violence (2015); assault with great bodily injury, possession of a switch blade, and resisting/obstructing police officer/EMT (2016); reckless driving, forgery of registration, driving without a valid license, and receiving stolen property (2016); and petty theft (2016).


At the conclusion of the trial, Moore asked the court to instruct the jury on voluntary intoxication as a defense to the charges of resisting an officer and <mask>. The prosecutor did not oppose the instruction as applied to the charge of resisting an officer, but asserted the defense was not applicable to vandalism because vandalism is not a specific intent crime. After extensive argument, the trial court ultimately agreed with the prosecutor that the voluntary intoxication evidence was not applicable to the vandalism charge. Thus, the court instructed the jury on voluntary intoxication only as a potential defense to the charge of resisting an officer, and further clarified that the jury could not consider evidence of voluntary intoxication as a defense to vandalism. The court did, however, permit Moore's counsel to argue during closing that Moore was not guilty of vandalism because he was so high on PCP that he had no idea what was going on and, thus, did not act maliciously.


The court observes, and it is significant, that despite such violations the building continued to be fully rented in July-August, 1967, when it was first appraised by the city’s appraiser and it was not vacated until the tenants were showered with notices by the Housing Authority of the proposed condemnation and offers of new apartments and payment of moving expenses for those who moved out prior to condemnation. The court is convinced that it was the activities of the Housing Authority and not building violations that prompted the tenants to vacate and leave an almost empty building which as might be expected became a target for theft, <mask> and destruction, which, according to the city’s own appraiser, was reduced in value by some $27,000 in a period of 10 months, when the city appraiser appraised it for the second time.


At the same time, we see no rational basis for the Board's determination that Moustafa's act of <mask> bore on her fitness to practice nursing. The ALJ did not explain why this conduct was substantially related to nursing except for the conclusory assertion that it "evidence[d] unfitness to practice consistently with the public health, safety[,] or welfare." In our view, *1141removing and damaging a vehicle boot cannot reasonably be considered to constitute unprofessional conduct substantially related to nursing, and it therefore was not conduct that independently qualified as a basis for the license restriction.


Mu and NE, as part of their contract, agreed to an insuring plan designed to minimize project costs by eliminating redundant and expensive policies of insurance. The plan was also designed to prevent disputes and litigation between the parties and the multiplicity of insurers often involved in such projects. The centerpiece of the insuring plan is found at paragraph 11.3.1 of the General Conditions of the Mu-NE contract which required Mu to buy property insurance in the amount of the initial “contract sum” (i.e., $664,200), plus any increase in such costs brought about by change orders. The owner is obliged to maintain such insurance until completion. The property insurance specified in the contract would insure against fire and provide extended coverage for physical loss or damage including theft, <mask>, architect services and other consequential items (para 11.3.1.1).


"A new petition was filed on December 9, 2014. It alleged <mask> ( Pen. Code, § 594, subd. (d)(2) ). The minor admitted the charge at the initial hearing on December 15, 2014. The San Mateo court transferred the case to San Francisco and San Francisco accepted the transfer. On January 23, 2015, the court continued the minor as a ward but ordered out-of-home placement. Appellant filed a timely appeal." ( In re W.R., supra, A144659/A145118, at pp. 3*-*4.) All six petitions were transferred to San Francisco under case No. JW14-6119.


“ Coverage D. (1) Comprehensive (excluding collision) (2) Personal Effects “ (1) To pay for loss caused other than by collision to the owned automobile or to a non-owned automobile. For the purpose of this coverage, breakage of glass and loss caused by missiles, falling objects, fire, theft or larceny, explosion, earthquake, windstorm, hail, water, flood, malicious mischief or <mask>, riot or civil commotion shall not be deemed to be loss caused by collision. ’ ’ Collision is defined in the policy as: “ ‘ Collision ’ means collision of an automobile covered by this policy with another object or with a vehicle to which it is attached or by upset of such automobile. ’ ’


On September 14, 2015 Seidner's attorney, Andrew Stearns, sent an e-mail to Valdez's attorney, David Valdez, with an attached draft "settlement agreement and release of claims." Under the draft settlement agreement, Seidner *604denied all allegations in Valdez's CLRA notice. Seidner agreed to pay off the outstanding loan balance, pay $ 5,126 to reimburse the down payment and monthly payments,4 and $ 2,750 for attorney's fees and costs within 10 days after surrender of the vehicle. The draft settlement agreement required Valdez to return the vehicle "without damage or <mask>, save normal wear and tear," and allowed Seidner to void the settlement agreement if it determined the vehicle was "in unacceptable condition."


The court further finds that the attendant’s failure to observe the acts of <mask> — which, by nature of the damage caused, had to be overt and observable — was also negligence, attributable to the defendant. This is true, whether the attendant was officially on duty or not, since the defendant cannot establish when the damage took place. Even though the plaintiff has the burden of proof, since he was not present and the defendant’s employee was, the burden of coming forward with those facts shifts to the defendant.