The crime of murder in the second degree is perhaps a little less marked. “ Such killing, unless it be murder in the first degree ” (reading as before). When this statute was first passed it was supposed by many members of the legal profession and by many members of the community, 'that it was designed to mark a crime of murder wherein the premeditation was not so clear and distinct as that of murder in the first degree. As for example, two men meet suddenly and through words passing between them, without any other provocation, the one, suddenly fired by wrath, kills, having formed the determination to kill upon the instant and upon the spot. Mow here is a case of designed killing, but it is a killing in the heat of passion, without a sufficient provocation to bring the crime-down to manslaughter in the second or third degree. That was murder at the common law and it was this class of cases to which many persons supposed this *210statute applied •; whereas, it was supposed that murder in the first degree was designed to mark that class of cases where the evidence of premeditation was clear and well defined, as for example a person administers poison to another; there you have the purchase of poison, the mixing of the dose, and its administration. Or where a person, stealthily lay in wait for another and slew him upon meeting. Ton will see for yourselves that the latter cases are more marked by deliberation than the first cases I put. This, I say, was largely the opinion of the profession and the community when this section was passed. They also supposed it referred to another case, and that was where the killing was without any design to effect death when the person was engaged in the commission of a felony of a lower grade than that of <mask> in the first degree. As if, for example, .some persons should undertake to commit a burglary in your house, and while in the act of committing the burglary, without any intent to kill, that person should slay you. This was deemed to be covered by this second section. And I should charge you, gentlemen, that this was the law were it not for a decision of the court of appeals of this state which has construed, that statute and to which decision I now desire to call your attention. It is the case of Fitzgerald agt. The People (37 N. Y., 413). I read from chief justice Hunt’s opinion (p. 19) where he says:


Count one of the indictment accuses defendant of second degree <mask>, committed as follows: “defendant, on or about July 12,1983, in the County of Monroe, State of New York, intentionally damaged a building by starting a fire, to wit, the defendant set fire to a garage located at 156-158 Flanders Street in the City of Rochester, which spread to a building located at 162-164 Flanders Street * * * when another person who was not a participant in the crime was *369present in such building located at 162-164 Flanders Street * * * and the defendant knew that fact or the circumstances were such as to render the presence of such a person therein a reasonable possibility.”


In view of the foregoing, defendants G<mask> Holdings, LLC and Garson Management Company, LLC, as direct and indirect owners of 500A, a limited liability company, cannot be held liable to plaintiff, since there was no showing that they dominate and control 500A with respect to the matter in issue (see Retropolis, Inc. v 14th St. Dev. LLC, 17 AD3d 209, 210 [1st Dept 2005]; Limited Liability Company Law § 609).


Jessica alleges the circuit court erred in designating Jason as a third party in their dissolution proceeding and awarding him third-party custody because such an award violates section 452.375.5(5). Jessica maintains the legislature did not intend for a third party under section 452.375.5(5) to include a party to a dissolution proceeding. Jason's designation as a third party is a legal question this Court reviews de novo. Pe<mask> v. Koster , 367 S.W.3d 36, 43 (Mo. banc 2012).


A determination of the question can be brought on in many ways. The commonest method is by a habeas corpus proceeding (Matter of Livingston, 151 App. Div. 1; People ex rel. Lentino v. Feser, 195 id. 90; People ex rel. Cornelius v. Cullen, 69 Misc. 187; Matter of L<mask>, 31 Hun, 539; revd., on other grounds, 96 N. Y. 381), but it has also been adjudicated in a proceeding to abrogate an adoption (Matter of Moore, 72 Misc. 644; Matter of Johnston, 76 *690id. 374; Matter of Hayford, 109 id. 480) and on an issue of status on the probate of a will (Matter of Dein, 135 Misc. 244). It may, and of course frequently is, made an issue on the initial application for allowance of the adoption (Matter of Miller, 119 Misc. 638). The proceeding instituted by petitioners is entirely appropriate for the purpose, and is analogous to an application for the reprobate of a will where a potentially interested person has not been cited in the first instance. Not only is the jurisdiction of the court clear from this aspect of the question, but the answer of respondents invokes the affirmative relief of abrogation.


"1. A person is guilty of <mask> in the first degree when he intentionally damages a building * * * by causing an explosion or a fire and when (a) such explosion or fire is caused by an incendiary device propelled, thrown or placed inside or near such building * * * and when (b) another person who is not a participant in the crime is present in such building * * * at the time; and (c) the defendant knows that fact or the circumstances are such as to render the presence of such person therein a reasonable possibility.


The petitioner urges (1) that the law of New York applies in the determination of the nature and extent of the bequest under the will to testator’s nephew, James C<mask> Agnew; (2) that the condition attached to the gift, namely, that the share passing to this nephew be held in trust so long as he is married to his present wife, and in the event the marriage relationship is dissolved that the trust terminate and the principal be immediately paid over to him, is invalid as against public policy; and (3) that in any event the trust is invalid because it violates the Statute against Perpetuities. The nephew makes the same contention and further urges that he is entitled to one fourth of the residuary estate outright, as if no condition were annexed to the gift or as if the void condition had been complied with. The special guardian on behalf of infant remaindermen, submits that the court should declare inoperative the condition for the termination of the trust based upon dissolution of the marital status, should uphold the trust as far as possible in all other respects, and should apply the law of Minnesota as to the duration and administration of the trust.


1. Duplicitous — A count in an indictment can only charge a single crime. If the indictment charges in a count more than one crime, it is duplicitous and invalid (People v Keindl, 68 NY2d 410, supra). If a crime is continuous, then charging in a single count multiple acts which constitute the continuous crime is not duplicitous (People v F<mask>, 244 NY 413).


In support of his motion, the plaintiff submitted his uncontroverted General Municipal Law § 50-h hearing testimony which demonstrated that, while stopped for approximately five to seven seconds, his vehicle was struck by the defendants' bus, and that the defendants' bus crossed over the double yellow line and at least two lanes of traffic in the opposite direction before colliding with his vehicle. The plaintiff's testimony also demonstrated that the bus operator violated Vehicle and Traffic Law § 1126(a) by crossing the median and entering the opposite lane of traffic (see Gute v Grease Kleeners, Inc., 170 AD3d 676, 677; Pe<mask> v Northstar Limousine, Inc., 123 AD3d 991, 991), violated Vehicle and Traffic Law § 1128(a) by failing to drive, to the degree practicable, within a single lane (see Pipinias v Ferreira, 155 AD3d 1073, 1074), and violated his common-law duties to see what there is to be seen (see Peluso v Martinez, 136 AD3d 769, 770) and to keep a proper lookout to avoid a collision (see Canales v Arichabala, 123 AD3d 869, 870).


*898Here, the WCJ found Hernandez met the three requirements set forth in Tensfeldt, and the WCAB adopted those findings. The WCJ found that Hernandez suffered a compensable injury, there was substantial medical evidence supporting an award which did not stem from his fraudulent statements, and his credibility had not been so damaged as to make him unbelievable concerning the underlying compensation case. As to the first requirement, Pe<mask> Ford does not challenge the WCAB's determination that Hernandez suffered a compensable injury. As to the third requirement, although Pearson Ford contends that Hernandez's credibility could not be restored, we are bound by what is plainly a credibility determination made by the board; that determination, made after extensive consideration by the WCJ does not appear to be wholly irrational, especially in light of the fact there is no dispute Hernandez in fact suffered a compensable injury and Dr. King stated that he relied on objective testing.


When Justice G<mask> consented to act as an attorney-in-fact, he became a fiduciary. A power of attorney creates a fiduciary relationship between principal and agent (Matter of Roth, 283 AD2d 504 [2d Dept 2001]; Mantella v Mantella, 268 AD2d 852 [3d Dept 2000]; Matter of Kent, 188 Misc 2d 509 [Sup Ct, Dutchess County 2001]). As such, Justice Garson had a duty to act with the utmost good faith in accordance with the principles of moral fidelity, loyalty and fair dealing (Semmler v Naples, 166 *850AD2d 751 [3d Dept 1990], appeal dismissed 77 NY2d 936 [1991]). That duty, as far as it relates to this proceeding, includes accounting for all of the withdrawals made from Ms. Gershenoff s accounts (Matter of Kent, supra).


A response cost is " 'necessary' " if "there is a threat to human health or the environment and ... the response action is addressed to that threat." ( C<mask> Harbor, supra , 270 F.3d at p. 872 ; see Alcoa, supra , 12 Cal.App.5th at pp. 327-328, 219 Cal.Rptr.3d 474.) The necessity requirement may be met "if it is shown that any release violates, or any threatened release is likely to violate, any applicable state or federal standard, including the most stringent." ( Amoco Oil Co. v. Borden, Inc. (5th Cir. 1989) 889 F.2d 664, 670-671 ; see Alcoa , at p. 328, 219 Cal.Rptr.3d 474 ["The presence of VOC contamination at significant levels was a threat to human health and the environment."].) "Investigatory costs incurred 'in order to assist with and help plan the eventual remediation and cleanup efforts' are necessary under CERCLA [citation] and ' "are recoverable even absent any subsequent recoverable response costs" ' [citation]." ( Alcoa , at pp. 327-328, 219 Cal.Rptr.3d 474.)


The idea that the board of police may try and convict persons charged with perjury or murder, <mask>, or other legal offence, is simply preposterous. Those offences can only be tried by a jury, and in the mode provided by law. Neither an act of the Legislature, or the consent of the accused, will justify a trial for these offences in any different manner.


*1026“ Fourth. After the death of my said wife, I give, devise and bequeath all the Rest, Residue and Remainder of my Personal Property and Real Estate as follows: one-sixth part thereof, to my daughter, Henrietta Lemken * * * absolutely and forever; another one-sixth part thereof, to my daughter, Carrie G, Schroder * * * absolutely and forever; another one-sixth part thereof, to my daughter, Meta F. L<mask> * * *; another one-sixth part thereof, to my son, Albert E. Schroder * * * another one-sixth part thereof, I give, devise and bequeath to my executors hereinafter named, in Trust, however, * * * to' * * * collect the rents * * * therefrom, and after the payment of all necessary * * * expenses thereon to pay the balance thereof to my son, Martin F. Schroder, during his natural life; and upon the death of my said son * * * I direct my Executors or Trustees, to pay the said one-sixth part * * * to the children of my said son * * * absolutely and forever.”


JONES, Judge: Petitioner, John M. L<mask>, along with two other individuals, Robert A. Pfaff and David Amir Makov, promoted a fraudulent tax shelter transaction known as Bond Linked Issue Premium Structure (BLIPS). Mr. Larson was convicted of tax evasion for his involvement in BLIPS, but the central issue in this case concerns the use of a restricted stock agreement to defer recognition of income earned from these transactions.


Offenses which are the "individual manifestations of a general plan” which has motivated the offenders to commit them, of necessity, constitute aspects of a single conspiracy (see, e.g, United States v Varelli, 407d 735, 742, supra; cf. Blumenthal v United States, 332 US 539, 557 [1947]). This is *196apparent from comparison of the cases used in Fiore (supra) to demonstrate the rule of evidence. On the one hand, in People v Grutz (212 NY 72) the court held that evidence of uncharged arsons would be inadmissible to prove the <mask> charged, because they were "separate, independent transactions, separately planned and effected, albeit due to an initial overall agreement between the two culprits” to insure, and then to destroy, the property insured, by fire (34 NY2d, at p 86; emphasis added). On the other hand, in People v Duffy (212 NY 57) evidence of a series of periodic payments by a group of gamblers to the defendant police sergeant and to his predecessor was held to be admissible to prove the single bribe charged, since there was proof that all of the bribes were made in the course of a "single inseparable plan encompassing both the charged and uncharged crimes”. (34 NY2d, at p 85; emphasis added.) A common scheme or plan in the evidentiary context is, therefore, defined by that singularity of purpose which also characterizes a single conspiracy.


Contrary to the determination of the respondents, the testimony and evidence submitted by community residents with respect to the effect the operation of the cabaret had on the surrounding neighborhood, particularly in connection with the use by cabaret’s patrons of a Town-owned parking field located across the street therefrom, was insufficient to sustain a determination that the operation of the cabaret, in and of itself, was the primary source of the noise, disturbances, trespassing, and littering with which the residents voiced displeasure (see, Matter of Lee Realty Co. v Village of Spring Val. supra; see, e.g., Matter of Texaco Ref. & Mktg. v Valente, supra; Matter of C & B Realty Co. v Town Bd., supra; Matter of Old Ct. Intl. v Gulotta, supra; cf., Matter of Pleasant Val. Home Constr. v Van Wagner, 41 NY2d 1028; Matter of Penny Arcade v Town Bd., 75 AD2d 620). There was evidence that noise and vibrations emanating from the cabaret posed somewhat of a disturbance to residents of dwellings located adjacent to the Town-owned parking field. However, the respondents are empowered to impose reasonable conditions to minimize disturbances which are both directly associated with and incidental to the operation of the cabaret, to ensure the comfort, peace, enjoyment, health and safety of the surrounding area (see, Matter of St. Onge v Donovan, 71 NY2d 507, 515-516; Matter of Pe<mask> v Shoemaker, 25 Misc 2d 591, 592; see also, Building Zone Ordinance of Town of Hempstead § 267 [D] *688[3]). Accordingly, we reverse the judgment, annul the respondents’ determination as to the special exception permit, and remit the matter to the respondents for the purpose of issuing the special exception permit requested, subject to appropriate conditions and restrictions as it may find necessary.


“ Such killing, unless it be manslaughter, or excusable or justifiable homicide, as hereafter provided, shall be murder in the first degree, in the following cases: “ 1. When perpetrated from a premeditated design to effect the death of the person killed, or of any human being.” It is under this subdivision I suppose the prosecution will insist (if under any), that the prisoner is to be convicted. “ 2. When perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual. “ 3. When perpetrated in committing the crime of <mask> in the first degree.” *206These are the statute definitions of this crime, of which I shall have occasion presently to speak when I shall have read to you the various definitions of murder in the second degree, of justifiable and excusable homicide and manslaughter in its degrees. Murder in the second degree is thus defined:


In his Rule 37 petition, Guthrie alleged that his trial counsel was ineffective because, among other things, counsel did not question or strike venireperson Garland *462Pe<mask> when counsel was advised by Guthrie that Pearson's uncle had brought criminal charges against Guthrie. Guthrie further alleged that Pearson had lied under oath when he said that he did not know Guthrie because he (Guthrie) had been married to Pearson's first cousin, Laurie. Guthrie further alleged that Pearson became jury foreman, which put him in a position to influence and manipulate the other jurors.


*653Similarly, the New York Court of Appeals stated in a case that involved a Form U-4 that incorporated NASD rules: “The reasoning is that ‘by adopting the NASD Code of Arbitration Procedure as the rules governing their dispute, [the parties] agreed to give the arbitrators discretion via section [10324] of [the] Code to interpret section 15’s time limitation’ ” (Matter of Smith Barney She<mask> v Sacharow, 91 NY2d at 47 [citation omitted]). There, of course, the question of arbitrability turned on the timeliness of the claim.


In Darcy v. Presbyterian Hospital (202 N. Y. 259) involving the right of a mother to maintain an action for damages resulting from the mutilation of the remains of her deceased son through an unauthorized autopsy on the body, the court stated its approval of the rule adopted in the case of L<mask> v. Chase (47 Minn. 307) — as the Massachusetts courts previously had done.


Donald J. Mark, J. This is an application by the defendants, Jannie Dudley and Linda Washington, who have been charged with the crimes of murder, second degree (two counts), burglary, first degree (two counts), attempted <mask>, second degree, and unlawful imprisonment, first degree (two counts), pursuant to CPL 710.20 (subd 3), to suppress statements made by them to the police and an Assistant District Attorney upon the ground that they were obtained by means of a promise in violation of CPL 60.45 (subd 2, par [b], cl [i]).1


An examination of the petition reveals that it does not set' forth the exception to the Office of Price Administration Regulations upon which the landlord relies. While the contention of the tenant has merit, and while it is desirable to set forth the exception, the Appellate Division, Second Department, has held that the absence of such an allegation does not constitute a fatal defect. (Ellenbogen v. Caldwell, 270 App. Div. 946, and Matter of Hollis v. Gelbach, 270 App. Div. 1063.) These cases indicate that the procedure has not been changed by the- Federal housing regulations, that it is not necessary to plead conformity with the National Housing and Rent Act, and that compliance with the Federal restrictions can be established upon the trial. (See, also, L<mask> v. Grady, City Court of New Rochelle, Dec. 9, 1946, Fasso, J.*)


The court is unable to concur in the construction that the gift to Mrs. Pe<mask> is absolute and that the words “ to be used by her in promoting the welfare of her children ” are merely precatory. The words used by the testatrix are not precatory in character. She did not attempt to express a wish, desire, hope, request or recommendation. Her words are imperative in character. Title indeed is given to Mrs. Pearson but the bequest is coupled with the clear mandate that the money ‘ ‘ be used'by her in promoting the welfare ” of her three named children. She is granted a broad discretion in using the money, limited only by the general standard fixed by testatrix, but she plainly has no authority to use it for any purpose unconnected with the welfare of her children.


The ACCA applies to defendants who have at least three prior convictions for “violent felonies.” § 924(e)(1). To qualify, the crime of conviction is judged categorically by its elements, not by the defendant’s conduct. Taylor v. United States, 495 U.S. 575, 600 (1990). The crime must have as an element the use, attempted use, or threatened use of force, or be comparable to common law burglary or certain other crimes. § 924(e)(2)(B). Parker’s pre-sentence report listed eight prior felonies: Four for Illinois burglary; two for Illinois residential burglary; one for Illinois <mask>; and one for Illinois aggravated battery. The court did not note which of them qualified as violent felonies under the ACCA. At his sentencing, Parker did not dispute that he had at least three prior violent felonies, nor did he take a direct appeal.


Confinement of prisoners in excess of a facility’s rated capacity is a violation of inmates’ constitutional rights. (Ambrose v Malcolm, 414 F Supp 485; Pugh v Locke, 406 F Supp 318, supra; Miller v C<mask>, 401 F Supp 835; Costello v Wainwright, 397 F Supp 20, affd 525d 1239, vacated 539d 547, revd 430 US 325, supra; see, also, Detainees of Brooklyn House of Detention For Men v Malcolm, 520d 392, supra; Valvano v Malcolm, 18 Crim L Rep 2394.)


The contract provision invoked by Rotterdam requires snow removal by Blay, as quoted above, but the quoted sentence goes on to say, “at the direction of the Site Supervisor or an authorized representative.” The contract also provides that Blay is to plow only when notified that two inches has fallen at the mall. According to Mr. DiMarco’s deposition testimony, it was the responsibility of the site supervisor or the chief of security to contact Blay when two inches of snow had fallen at the mall. No deposition testimony has been offered on this motion from the site supervisor, listed in the accident report concerning Mrs. Yansak’s fall as Steven Pe<mask>, or of any other “authorized representative” who may have directed Blay’s activities during the time frame in question. It is not clear on the record thus far whether the phrase “at the direction of the Site Supervisor” simply refers to notifying Blay when the requisite two inches of snow has fallen at the mall, triggering his duty to plow, or whether it also includes particulars such as which areas to plow.


These are two of the most solemn declarations a man could make, one in his will and the other in an acknowledgment to a deed, where the law required him to state whether he was married or not; the latter, made in a most public and solemn manner before a commissioner of the state of Washington authorized to take such acknowledgments. How are these declarations to stand against the uncertain evidence of persons who are brought here to say that decedent said that he was married or that petitioner was his wife, or words to that effect? Are a man’s solemn declarations in instruments of that kind of less avail than such transient testimony? The authorities cited in Pe<mask> v. Pearson say that they are most important in such matters.


Nicholas A. Clemente, J. The defendants were indicted on six counts of murder in the second degree and one count of <mask> in the second degree. The People maintain that on February 7,1980 the defendants set fire to premises located at 695 Sackett Street, Brooklyn, New York, in an attempt to burn out one Hannah Quick. A consequential result was that six people, residing in another apartment, died.


It is claimed on part of the contestants that the note was executed entirely without consideration — an attempted hub ineffectual testamentary provision — in other words, that it was intended purely as a gift; if such contention is sustained by the evidence, the claimant is not entitled to recover. Pe<mask> v. Pearson, 7 Johns. 26; Harris v. Clark, 3 N. Y. 93; Holmes v. Roper, 141 id. 64.


The general doctrine, that a delivery is necessary to con*311summate a gift, is reiterated through a long series of decisions in this state, and is not controverted by the counsel for the plaintiff. (See Goodrich v. Walker, 1 Johns. Cas. 252; Noble v. Smith et al., 2 Johns. Rep. 52; Pe<mask> v. Pearson, 7 Ib. 26; Grangiae v. Arden, 10 Ib. 292; Cook v. Husted, 12 Ib. 187, and cases there cited and in notes.)


On this type of motion the function of the court is to determine whether factual issues exist — not to determine them. Here the allegations in the affidavits with respect to the nature and extent of the contacts the City had with She<mask> and Merrill Lynch & Company relating to the subject property during the period in which the City was to negotiate exclusively with plaintiff are alone sufficient to raise triable issues as to whether the City breached its obligations under *879the designation agreement. Hence, its motion for summary-judgment is denied solely to the extent that the complaint seeks the recovery of plaintiffs out-of-pocket expenditures incurred in connection with the designation agreements.


“The term [motor vehicle], which is defined here in essentially the same manner as in the Vehicle & Traffic Law §125, is then added in each of the four sections defining the various degrees of the crime of <mask>. “These amendments were part of a larger enactment establishing a State Office of Fire Prevention and Control to coordinate statewide efforts directed at the arson problem. The inclusion of‘motor vehicles,’ in addition to ‘buildings,’ as subjects of the crime of arson seems to reflect the conclusion that arson-for-profit is not limited to the torching of buildings but extends to the destruction of automobiles and trucks. Since the definition of‘building’ (subd. 1) already included such vehicles as house trailers and mobile field offices, the addition of ‘motor vehicles’ essentially *864brings automobiles, trucks and buses within the scope of arson crimes.” The memorandum of the State Executive Department (NY Legis Ann, 1979, p 152) states:


Defendant contends that suppression is required because the police began searching the apartment before arrival of the warrant on site, even as to items seized after he came in with the warrant. While there are two cases which held that evidence seized after a warrant has been signed, but before it has arrived at the place to be searched, should be suppressed (People v Okun, 135 AD2d 1064 [3d Dept 1987]; People v C<mask>, 99 AD2d 664 [4th Dept 1984]), Fourth Amendment jurisprudence in the Supreme Court has fully abrogated them. There is as yet no separate state constitutional rule in this area. (People v Martinez, 187 AD2d 992 [4th Dept 1992].)


First. If the parol agreement was made prior to the execution of the deeds, in the absence of any averment of mistake in respect to the deeds, and in the absence of any reformation of them, it must be held that the deeds are controlling evidence in respect to the intentions of the parties; and that if any parol agreement existed at the time of the execution of the deeds it was the intention of the *108parties that the same should be abandoned and their several undei*etandings in respect to the boundary line merged in the written conveyance. If the parol agreement was made subsequently to the execution of the deeds, then the same was void under the statute of frauds as it related to an interest in real estate. (Marie v. G<mask>, 13 Abb. N. C., 210.)


The Act thus recognizes that a party to an arbitration agreement may elect to initiate a civil action, rather than an arbitration proceeding, and it specifically protects the party's right to do. Our Supreme Court recently explained why the Legislature wrote such protection into the Act: "According to its legislative history, [ section 1281.12 ] prevents 'parties from being either forced to abide by arbitration agreements of dubious validity instead of seeking court evaluation, initiating costly and duplicative proceedings, or being unfairly deprived of any forum for resolution of the dispute. Supporters observe that there are many legitimate reasons why a party might file a lawsuit in court, rather than demanding or pursuing arbitration . Among these are the following: (1) the plaintiff may believe the claims are not subject to arbitration because the arbitration agreement is unenforceable on grounds of unconscionability or similar concepts; (2) there may be a dispute about whether the particular claims at issue do or do not fall within the scope of an arbitration agreement; (3) the plaintiff may contend that one or more of the statutory grounds for denying a petition to compel arbitration set forth in Code of Civil Procedure section 1281.2 exist, assuming the defendant does file a petition to compel arbitration in response to the plaintiff's filing of the lawsuit; (4) the plaintiff may prefer a court trial or jury trial and simply be hopeful that the defendant will not assert any right to arbitrate the claims, for whatever reason [indeed, the defendant may decide that it prefers a court *768proceeding as well]; and (5) the plaintiff might not *601even be aware that there is an arbitration agreement governing the controversy.' (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1553 (2005-2006 Reg. Sess.) for hearing Apr. 5, 2005, p. 3, underlining and extra capitalization omitted.)" ( Pe<mask> Dental , supra , 48 Cal.4th at pp. 673-674, 108 Cal.Rptr.3d 171, 229 P.3d 83, italics added.)


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.


The courts have discussed the meaning of the word “ abandoned ” as used both in relation to an adoption and in relation to section *295133 of the Decedent Estate Law (See Matter of L<mask>, 31 Hun, 539; Matter of Davis, 142 Misc. 681; Matter of Hess, 143 id. 335; Matter of Schriffrin, 152 id. 33, and Matter of Cohen, 155 id. 202), and from said decisions there would seem to be analogy between the meaning of the word as used in relation to adoptions and in relation to inheritance of moneys recovered in cases of death by negligence, and as stated in Matter of Davis (142 Misc. 681, at p. 691), “ It fairly may, and in our judgment does, import any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.”


Respondents argue that the alleged wrongful forwarding of appellants' tax returns comes within the litigation privilege because it was "in anticipation of the civil action" appellants "would surely (and did in fact)" file if State Farm denied their claim despite Dennis Strawn not having been convicted of <mask>. Respondents maintain that Wood was acting to protect his client in anticipated litigation and that appellants demonstrated they also anticipated litigation by retaining legal counsel before the present case was actually filed. Respondents also argue that the alleged wrongful forwarding of the tax returns had "some connection or logical relation" ( Silberg v. Anderson, supra, 50 Cal.3d at p. 212, 266 Cal.Rptr. 638, 786 P.2d 365 ) to both the present suit and the criminal prosecution because the fact Dennis Strawn was prosecuted shows there was at least probable cause to believe he had intentionally caused the fire ( Lee v. Crusader Ins. Company (1996) 49 Cal.App.4th 1750, 1759, 57 Cal.Rptr.2d 550 ); the *1097financial condition of the insured is "relevant and material" where an insurer "has reason to suspect arson" ( *225Abdelhamid v. Fire Ins. Exchange (2010) 182 Cal.App.4th 990, 1001, 106 Cal.Rptr.3d 26 ); and the fact that the criminal case did not result in conviction does not mean State Farm had no basis for continued suspicion, given the higher standard of proof required for proof of a criminal offense. ( Ibid. ; see Suggs v. State Farm Fire and Casualty Co. (10th Cir. 1987) 833 F.2d 883, 891 [denial of claim not in bad faith denial despite arson charges having been dropped].)


Under CERCLA and the HSAA, " '[t]o prevail in a private cost recovery action, a plaintiff must establish that (1) the site on which the hazardous substances are contained is a "facility" under CERCLA's definition of the term, Section 101(9), 42 U.S.C. § 9601(9) ; (2) a "release" or "threatened release" of any "hazardous substance" from the facility has occurred, 42 U.S.C. § 9607(a)(4) ; (3) such "release" or "threatened release" has caused the plaintiff to incur response costs that were "necessary" and "consistent with the national contingency plan," 42 U.S.C. §§ 9607(a)(4) and (a)(4)(B) ; and (4) the defendant is within one of four classes of persons subject to the liability provisions of Section 107(a) [ 42 U.S.C. § 9607(a) ].' " ( C<mask> Harbor Village, Ltd. v. Unocal Corp. (9th Cir. 2001) 270 F.3d 863, 870-871 ( Carson Harbor ) [en banc].)


The cases below cited go to the length of asserting that a testamentary provision to a widow in lieu of dower is not subject to abatement, in the first instance, and before other legacies have been exhausted, *625for the satisfaction of her husband’s debts; but they go no further (Heath v. Dendy, 1 Russ., 543 ; Burridge v. Bradyl, 1 P. Wms., 127 ; Blower v. Merret, 2 Ves. Sr., 420; Norcott v. Gordon, 14 Sim., 258; Davenhill v. Fletcher, Ambl., 244 ; Reed v. Reed, 9 Watts, 263 ; Hubbard v. Hubbard, 6 Met., 50 ; Pollard v. Pollard, 1 Allen, 490; Gaw v. Hoffman, 12 Gratt., 628; Howard v. Frances, 30 N. J. Eq., 444; Potter v. Brown, 11 R. I., 232; Lord v. Lord, 23 Ct., 327; Loocock v. Clarkson, 1 Dess., 471 ; Williamson v. Williamson, 6 Paige, 298; Stuart v. C<mask>, 1 Dess., 500).


In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action was barred by virtue of a November 21, 2011 judgment which had been entered against plaintiff in a declaratory judgment action in the Supreme Court, Nassau County. Plaintiff cross-moved for summary judgment. By order dated April 23, 2014, the Civil Court (Robin S. G<mask>, J.) denied defendant’s motion and granted plaintiff’s cross motion, directing plaintiff to enter judgment in the principal sum of $556.78, plus statutory interest and attorney’s fees. In July 2014, plaintiff submitted a proposed judgment in the total sum of $988.34. A judgment was ultimately entered on September 19, 2014 in the sum of $993.34.


Plaintiff’s claims are without merit. The Electronic Signatures and Records Act provides that “an electronic signature may be used by any person in lieu of a signature affixed by hand” and that such a signature “shall have the same validity and effect as the use of a signature affixed by hand” (State Technology Law § 304 [2]; e.g. Naldi v Grunberg, 80 AD3d 1, 10-11 [2010]; People v Johnson, 31 Misc 3d 145[A], 2011 NY Slip Op 50933[U] [App Term, 9th & 10th Jud Dists 2011]). Plaintiff does not deny that his electronic signature was placed on an initial brokerage agreement which contained an arbitration clause, at his direction, in lieu of his handwritten signature (cf. Adler v 20/20 Cos., 82 AD3d 918, 920 [2011]). Plaintiff did not object at trial to the sufficiency of defendant’s proof of this signature and of the validity of the initial brokerage agreement (see CPLR 4518 [a]; 4539 [b]; State Technology Law § 306), nor did he deny that the parties’ initial agreement bound the parties. Indeed, the parties’ initial agreement is the basis of plaintiff’s claim of overcharge. The Civil Court determined that the initial agreement contained an arbitration clause, that the clause was enforceable and applied to the subject matter of plaintiff’s cause of action, and that plaintiff’s electronic signature thereon was valid. Such determinations are properly for a trial court to make (Matter of Smith Barney She<mask> v Sacharow, 91 NY2d 39, 45 [1997]; Zachariou v Manios, 68 AD3d 539, 539-540 [2009]), and there is nothing in the available record that requires a different result. We note that, as there is no dispute that the electronic signature on the initial brokerage agreement was valid, the issue of whether subsequent documents allegedly executed by the parties contained unauthorized signatures is academic for purposes of the enforceability of the initial brokerage agreement’s arbitration clause, and the documents’ relevance, if any, to the merits of the parties’ dispute is a matter for the arbitrator to resolve.


in the third degree and <mask> in the third degree by a jury in a trial conducted before Mr. Justice Samuel S. Leibowitz. After the imposition of sentence the defendant appealed to the Appellate Division, Second Department. On September 15, 1964, upon application by the defendant, that court made an order (N. Y. L. J., Sept. 17, 1964, p. 16, col. 7) holding the defendant’s appeál in abeyance and remitting “ the action to the trial court for the purpose of holding a hearing and determining, in accordance with the recent decision of the Supreme Court of the United States (Jackson v. Denno, 378 U. S. 368), the voluntariness of the appellant’s confession which had been adduced at the trial.”


It was Mr. Mellusi’s membership in an organization such as the IAAI that gave him some of the necessary training to even hold himself out as an expert in the field of <mask> investigation. Therefore, he should comply with their training and their generally accepted published standards or he should have explained, when given the opportunity by this court, why they are not relevant. Mr. Mellusi’s conclusion that the fire was “suspicious” is not a recognized classification of a cause of a fire by his peer group. In fact, Mr. Mellusi’s conclusions are indeed undetermined, which does not satisfy the insurance carrier’s burden of proof by a high degree of probability.


.An obligation valid in its inception is not invalidated by an-usuripus agreement for the extension of the time of payment; but the sum paid on the agreement for forbearance will in equity be applied as payment (Real Estate Trust Co. v. Keech, 69 N. Y. 248. See also Bush. O. Livingston, 2 Cai. Cas. 66; Pearsall v. Kingsland, 3 Elw. 195. S. P., Lovett v. Dimond, 4 Id. 22; C<mask> v. Ingalls, 33 Barb. 657; Lesley v. Johnson, 41 Id. 359; Williams v. Fitzhugh, 44 Id. 321; partly affirmed on other grounds in 37 N. Y. 444).


The trial court's ability to weigh the evidence and consider witness credibility distinguishes a motion for judgment from a motion for nonsuit during a jury trial, which also challenges a plaintiff's evidence at the close of the plaintiff's case-in-chief. When considering a motion for nonsuit, a trial court must deny the motion "if the evidence presented by the plaintiff would support a jury verdict in the plaintiff's favor." (C<mask> v. Facilities Development Co. (1984) 36 Cal.3d 830, 838, 206 Cal.Rptr. 136, 686 P.2d 656.) In other words, to avoid a nonsuit, a plaintiff must introduce evidence sufficient to establish a prima facie case. (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 694, 209 Cal.Rptr. 682, 693 P.2d 261 ; Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1266, 132 Cal.Rptr.2d 855.) If a plaintiff makes out a prima facie case, a motion for nonsuit must be denied. When considering a motion for judgment during a bench trial, a trial court is not so limited. Even if a plaintiff introduces evidence sufficient to establish a prima facie case, the trial court may still conclude the plaintiff has not carried his or her burden of proof and grant judgment in favor of the moving defendant. For example, on a motion for judgment, the trial court may disbelieve the plaintiff's evidence, draw adverse (rather than favorable) inferences therefrom, and credit contrary evidence introduced through cross-examination or otherwise.


It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judg*708ment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact. Once the movant meets this burden, it becomes incumbent upon the party opposing the motion to come forward with proof in admissible form to raise a triable issue of fact. (See Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980].) When determining a summary judgment motion, the evidence must be viewed in the light most favorable to the nonmovant. (See Dorival v DePass, 74 AD3d 729 [2d Dept 2010]; Pe<mask> v Dix McBride, LLC, 63 AD3d 895 [2d Dept 2009].) Since the granting of summary judgment deprives a litigant of his day in court, it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues. (See Andre v Pomeroy, 35 NY2d 361 [1974]; Dorival v DePass, supra.) “Even the color of a triable issue forecloses the remedy.” (See Rudnitsky v Robbins, 191 AD2d 488, 489 [2d Dept 1993].) In any event, if the proponent of a summary judgment motion fails to make a prima facie showing of its entitlement to judgment as a matter of law, the motion must be denied. (See Alvarez v Prospect Hosp., supra.)


She further discussed her and Jonathan's relationship with the DHS caseworker, Karen Pe<mask>. She stated that she had requested a new caseworker because Pearson is disrespectful to them and initiates fights in the children's presence. She testified about an incident in which Pearson had critiqued how she fed one of the children during a visitation and she became aggravated with Pearson. Whitney acknowledged that she had responded inappropriately, and she apologized for her actions.


Because defendant committed multiple and divisible acts with distinct objectives, the trial court did not violate section 654 by sentencing him for both the count one animal cruelty conviction and the count four attempted <mask> offense. (See, e.g., People v. Mejia (2017) 9 Cal.App.5th 1036, 1047, 216 Cal.Rptr.3d 13 [the defendant was properly sentenced for both torture and criminal threats because a reasonable *359trier of fact could conclude the criminal threats were in furtherance of a separate criminal objective, even if, in part, the threats were intended to break or beat the victim down emotionally and to discourage her from attempting to flee]; People v. Solis (2001) 90 Cal.App.4th 1002, 1022, 109 Cal.Rptr.2d 464 [the defendant was properly sentenced under § 654 on both arson and criminal threats convictions]; People v. Phan (1993) 14 Cal.App.4th 1453, 1466, 18 Cal.Rptr.2d 364 [robbery of mother and threat to cut off her young son's hand if she did not give more money were separate and divisible acts that could be punished separately under § 654].) Defendant's due process rights, moreover, were not violated as his sentence was properly calculated.


Plaintiff has sufficiently alleged injury in his own right in the cause of action set forth in the complaint (Weiner v Bank of King of Prussia, 358 F Supp 684, 690-696, and cases cited therein), and while the amount of his damages are stated to be presently unknown, specification of the amount of damages is not mandatory (Daukas v She<mask>, Hammill & Co., 26 AD2d 526; Silvestris v Silvestris, 24 AD2d 247, 250; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3017:l). The amount of damage to plaintiff Gilman has been calculated by defendant to be I8V2 cents per day. While this damage is small, it is, nevertheless, real. The fact that plaintiff claims personal damage differentiates this case from Weitzman v Bache Halsey Stuart (NYLJ, Nov. 4, 1977, p 5, col 1).


[Appellee] waived his right to a jury trial and proceeded to a bench trial, where the trial court convicted him of [<mask>, possessing instruments of crime, criminal mischief, resisting arrest, robbery, theft, and receiving stolen property]. On June 19, 2014, the trial court imposed an aggregate term of ten to twenty years’ imprisonment[, which included a mandatory minimum ten year term per 42 Pa.C.S.A. § 9714 (governing second strike offenses for crimes of violence)].


Because the District is not a State under CERCLA, it must also prove its response costs are "consistent with" the NCP, including *540its requirements for meaningful public participation, cost-effectiveness, and adequate planning for any remedial action. (42 U.S.C. § 9607(a)(4)(B) ; see C<mask> Harbor Village v. County of Los Angeles (9th Cir. 2006) 433 F.3d 1260, 1265-1266 (Carson Harbor II ).) For reasons we will explain, we conclude the District has not shown its claimed response costs were consistent with the NCP.


The United States Supreme Court has not required a probation or parole search condition be "closely tailored" when it infringes on an expectation of privacy. Instead, it has evaluated the condition under the general balancing test just described to determine whether the intrusion was reasonable under the circumstances. In Knights, supra , 534 U.S. 112, 122 S.Ct. 587, the court upheld the constitutionality of searches made pursuant to the probation condition commonly used in California requiring the probationer to submit his " 'person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant[.]' " ( Id. at p. 114, 122 S.Ct. 587.) Affirming the investigative search of a probationer's home and vehicle who was suspected of <mask>, the court ruled the search was reasonable under "our general Fourth Amendment *137approach of 'examining the totality of the circumstances,' [citation], with the probation search condition being a salient circumstance" ( id. at p. 118, 122 S.Ct. 587 ), an approach the court called its "ordinary Fourth Amendment analysis[.]" ( Id. at p. 122, 122 S.Ct. 587.) The balance of the state's interest in rehabilitating the probationer and protecting the public from additional harm by him outweighed the probationer's limited interest in privacy. ( Id. at p. 121, 122 S.Ct. 587.)


Plaintiffs argue that the Legislature failed to provide standards and safeguards to guide the Department in exercising its delegated authority. Again, we disagree. Plaintiffs are correct that, in delegating authority, the Legislature must *308provide "adequate direction for the implementation of [its] policy." ( C<mask> Mobilehome Park Owners' Assn v. City of Carson (1983) 35 Cal.3d 184, 190, 197 Cal.Rptr. 284, 672 P.2d 1297 ( Carson ).) However, "standards for administrative application of a statute need not be expressly set forth; they may be implied by the statutory purpose." ( People v. Wright (1982) 30 Cal.3d 705, 713, 180 Cal.Rptr. 196, 639 P.2d 267, citing Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 168, 130 Cal.Rptr. 465, 550 P.2d 1001 ; see also Carson , at p. 190, 197 Cal.Rptr. 284, 672 P.2d 1297.)


By another proposed conclusion of law we have been asked to determine that plaintiff is entitled to interest from May 12, 1959, date of death, upon any amount found to be due here, that is prejudgment interest, pursuant to the provisions of section 132 of the Decedent Estate Law of the State of New York. We have denied that request. Only by finding sanction therefor under said section which is contained in article 5 of our Decedent Estate Law could we make such a conclusion, for that section provides, among other things, that ‘1 When final judgment for the plaintiff is rendered ” in a wrongful death action, ‘ ‘ the clerk must add to the sum so awarded, interest thereupon from the decedent’s death, and include it in the judgment.” It has been held that section 132 of the Decedent Estate Law must be read with sections 130 and 131 and cannot be severed therefrom. {Davenport v. Webb, 11 N Y 2d 392, 395.) The West Virginia death statute makes no provision for such prejudgment interest. In the light of our conclusion as to plaintiff’s proposed conclusion of law numbered six immediately hereinbefore discussed and refused, we have determined that plaintiff is not entitled to such interest. (Davenport v. Webb, supra-, see, also, Pe<mask> v. Northeast Airlines, supra.)


Since section 1170.18, subdivisions (a) and (b) expressly includes certain theft related offenses (§§ 459.5, 473, 476a, 490.2, 496, & 666 ), we determine that the intent of the voters was to exclude theft related offenses not mentioned in the statute from reclassification and resentencing under Proposition 47. (See, e.g., Sanchez, supra, 52 Cal.App.4th at p. 1001, 60 Cal.Rptr.2d 880.) The offense of buying or receiving a stolen motor vehicle is set forth in section 496d, which is a statute not included in section 1170.18, subdivisions (a) and (b). Therefore, under the maxim expressio unius est exclusio alterius, a conviction of violating section 496d is excluded from reclassification and resentencing under Proposition 47. (See People v. Peacock (2015) 242 Cal.App.4th 708, 712, 195 Cal.Rptr.3d 344 (Peacock ) [violation of section 496d, subdivision (a), is not an offense eligible for reclassification as a misdemeanor].) Moreover, to construe section 1170.18 as including section 496d would be inconsistent with our Supreme Court's instruction that we may not "add to the statute or rewrite it to conform to some assumed intent not apparent from that language." (Pe<mask>, supra, 48 Cal.4th at p. 571, 107 Cal.Rptr.3d 265, 227 P.3d 858.)


Those defendants sentenced by this court to A-III felonies for which applications to resentence have been received are Albert Pe<mask>, indictment No. 78-249; Richard La Barbera, indictments Nos. 78-123, 78-124; John McCray, indictment No. 76-137, all of whom were originally sentenced to a term of one year to life, and Gibbs Hodges, indictment No. 78-55, who was sentenced to one and a half to life. This court has reviewed the probation report and the sentencing minutes of each of these defendants, and in each case the court had indicated at the time of sentencing that the defendants had nonviolent backgrounds. It recommended they be considered for early release by the State Division of Parole. Accordingly, this court *756determines that each of the above-named defendants shall be resentenced to the new maximum of three times the minimum sentence originally imposed. The new sentences are: Albert Pearson, indictment No. 78-249, 1-3; Richard La Barb-era, indictment No. 78-123, 1-3; Richard La Barbera, indictment No. 78-124, 1-3 (con. with 78-123); Gibbs Hodges, indictment No. 78-55, I-V2 — 4-V2\ John McCray, indictment No. 76-137, 1-3. This sentencing is effective September 1, 1979.


The Defendant agreed that the present violation was his fourth and that he had been on community corrections for ten years. He agreed that his <mask> conviction was related to his “not getting a check on time” and “set[ting] a mattress on fire inside a house.” He agreed that he had completed drug and mental health treatment after previous violations.


Based on uncontroverted information set forth by the People, the defendants were both aware that they were charged with the several offenses on an "acting in concert” theory. This with respect to each count of the indictment. Clearly both defendants are named in the indictment caption, and the document is otherwise sufficient to fulfill its statutory purpose not simply by virtue of said designation, but by identification of the defendants in the plural throughout its body (see, General Construction Law § 35; see also, People v Brothers, 66 AD2d 954 [3d Dept 1978]); moreover, the indictment specifies "acting in concert” respecting all charges required to be answered (see, People v Armlin, 6 NY2d 231 [1959]; People v F<mask>, 244 NY 413 [1927]; People v Barton, 51 AD2d 1044 [2d Dept 1976]).


Nor are we persuaded that the sentence is grossly disproportionate to defendant's individual culpability based on his personal characteristics. Here, defendant had turned 15 years old just 12 days before committing the offense, which could be a positive in defendant's favor. However, although defendant did not have a long history of criminal activity at that point, he showed serious signs of rebelliousness and unwillingness to abide by the law, or by rules at home. Defendant had already been on juvenile probation for <mask>, been arrested twice for drug possession, had been brought home by the police at age 14 after running away from home, and had began using drugs at a young age. Defendant indicated his relationship with his mother was "on and off" because she would not let him go out to parties and established rules in her home about him having adult women over. More important in terms of culpability, the probation officer noted in the probation report that defendant showed no remorse, stressed how the shooting had impacted him and his family, and expressed anger at the victim rather than sorrow at the injury he had caused her. Regarding the victim, the defendant told the probation officer, "I'm not mad but I think she should have thought who she was sending to jail for his whole life." Defendant was angry about the possibility of paying restitution to the victim, commenting "I would be especially mad. I heard that her family is a drug family, so them taking money from my family, I'd be more than mad." Defendant also blamed his girlfriend for testifying against him. Defendant's complete failure to take responsibility for having committed this horrific crime that only by a miracle3 failed to cause the victim's death increases his individual culpability for the crime.


Here, the Board essentially found that claimant was on a special errand at the time the accident occurred and awarded claimant benefits on that basis. In our view, however, the record before us simply does not contain substantial evidence to support the Board’s finding in this regard. Even assuming, as the Board contends, that it may be inferred from the stipulated facts that the employer "derived significant benefit from the polished appearance of its guards”, there is no indication in the record that claimant was required to have his uniforms drycleaned (compare, Matter of Gray v Lyons Transp., 179 AD2d 985, supra [claimant injured following employer’s request that claimant report to work early]; Matter *947of Pe<mask> v New York City Tr. Auth., 146 AD2d 849 [claimant directed by employer to report to medical clinic and injured en route]; Matter of Junium v Bazzini Co., 86 AD2d 690, supra [claimant’s decedent directed by superior to attend meeting and suffered heart attack]; Matter of Augustine v New York State Elmira Correctional Facility, 64 AD2d 340 [claimant injured while returning from medical examination required by retirement system]) or, having elected to do so, was compelled to use a particular cleaning establishment for that purpose. As noted previously, although claimant apparently was required to properly maintain his uniforms, the uniforms provided by the employer were machine washable and, hence, drycleaning was but one of the options available to claimant (compare, Matter of Watson v American Can Co., 23 AD2d 423, affd 18 NY2d 758; Matter of Goldberg v Gold Medal Farms, 18 AD2d 951). In short, although it may be inferred from the record that claimant was encouraged to avail himself of the drycleaning option, there is nothing in the record to suggest that he was required to do so (cf., Matter of Costa v New York State Workmen’s Compensation Bd., 34 AD2d 585). Accordingly, the Board’s decision must be reversed.


(1) whether the party opposing the testimony had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue; (2) the nature of the two proceedings—both what is at stake and the applicable burden of proof; and (3) whether the party opposing the testimony in fact undertook to cross-examine the witness (both the employed and available but forgone opportunities). [People v Farquh<mask>, 274 Mich App 268, 278; 731 NW2d 797 (2007) (quotation marks and citation omitted).]


“[admissibility of opinion testimony pertaining to an ultimate question within the jury’s province turns on whether, given the nature of the subject, ‘the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon, and no better evidence than such opinions is attainable.’ ” (People v De Sarno, 121 AD2d 651, 654 [2d Dept 1986], quoting Noah v Bowery Sav. Bank, 225 NY 284, 292 [1919]; Van Wycklyn v City of Brooklyn, 118 NY 424, 429 [1890].) Thus, the Second Department held that it was proper in an <mask> case for an expert witness to give his opinion that the fires the defendant was charged with intentionally setting were not “chemically, mechanically, electrically or naturally caused, thus eliminating all nonsuspect causes.” (People v Maxwell, 116 AD2d 667, 668 [2d Dept 1986]; see also People v Rivera, 131 AD2d 518, 518 [2d Dept 1987] [approving fire marshal’s testimony that “based upon his investigation, he had eliminated ‘to a reasonable degree of scientific certainty’ all possible ‘natural’ and ‘accidental’ causes of the fire”].) For the same reason, the Court of Appeals has permitted expert witnesses in rape and sexual abuse cases to testify concerning rape trauma syndrome and abused child syndrome in order “to explain behavior of a victim that might appear unusual or that jurors may not be expected to understand.” (People v Carroll, 95 NY2d 375, 387 [2000]; see also People v Taylor, 75 NY2d 277 [1990]; People v Keindl, 68 NY2d 410, 422 [1986].)


Mr. Pe<mask> stated that other than the accident involving the claimants and the accident which occurred in 1980 three or four miles away, he was not aware of any accident involving a collision between a motor vehicle and a pedestrian or bicyclist. Over the five-year period, there were no reported accidents of any kind at the specific location of the subject accident (exhibit O).


*383The issues raised by the defendants in this case were similarly involved in People v. P<mask> (supra). The defendant there was charged with the violation of section 953 of the Penal Law dealing with manipulation of prices of securities. The indictment charged him with the commission of the crime from April 29,1919 to July 17, 1919. The defendant demurred to the indictment on the ground, amongst others, that the indictment which was a single count charged more than one crime. The question there raised is the identical question with that raised by the defendants herein although in somewhat different form. The court upheld the indictment pointing out that the crime might be committed by a single transaction or by a continuous series of acts. The defendant urged there (and the argument is implicit in this case) that the indictment was invalid for the reason that it did not sufficiently identify the specific acts during the period covered by the indictment so as to bar a further prosecution for such acts following a conviction or acquittal of the single continuous crime charged in the indictment. The court there rejected the argument pointing out at page 419 that “ [t]he principle is well settled that an acquittal or a conviction upon a charge that a continuing offense has been committed during a specified time will be a bar to another prosecution for a like offense for another specified time which includes any part of the time named in the first charge.”


Lance Robson, a licensed civil engineer, was retained by claimants in October 2002, and was provided with the police accident report, photographs of the site and transcripts of the depositions of Mr. Tarry and Mr. Pe<mask>. He went to the site on November 2, 2002, and took photographs (exhibit 1) and measurements. He measured the distance between the edge of the roadway and the edge of the bicycle path in the subject area as nine feet six inches, and the width of the path as ten feet nine inches. The edge of the right travel lane is separated from the path by grass, and there is no curb between the travel lane and the adjoining grassy area.


Counsel for petitioner, in his opening argument, referred to the case of Pe<mask> v. Pearson, reported in 51 Cal. 120, in which it was held that Laura Pearson, a mulatto woman, was the widow of Richard Pearson, a white man. That whole case hinged upon the fact that Richard Pearson, in his will, designated Laura as his wife and her children as his children, and devised his whole estate to them. The same case reported in 46 Cal. 609, establishes a doctrine favorable to the contention of the respondent in the case at bar.


. The entire record of the proceedings in the felony-murder case, from indictment to judgment, including the trial-evidence, exhibits, jury instruction (but not the summation) and the proceedings upon and after the verdict, was, considered in deliberation upon these motions. Financial difficulties caused delay in defendants’ compliance with the court’s direction that the trial record be submitted. Also considered, was the record in the <mask> case, from indictment to date. The content of the Grand Jury minutes in each ease is known to the court, through prior motions to inspect and dismiss. Both indictments were found upon the same evidence, recorded in a single set of Grand Jury minutes.


The defendant insurer, in moving for a trial order of dismissal pursuant to CPLR 4401, claimed that it was entitled to conduct an investigation for suspected <mask> and could not, under any circumstances, settle the claim on the business auto policy without waiving its rights under the multi-peril policy which insured the physical plant and assets of the business and provided business interruption coverage.


So in Woodford v. The People (62 N. Y., 117). The principle, that where there is in fact, but one transaction sought to be described, it may be done in different counts, is recognized and the case of Regina v. Trueman (8 Carr & P., 727), is referred to, where an indictment consisted of five counts for <mask>, charging the burning of five houses belonging to different persons. It was stated in the opening, that the houses were in a row of adjoining houses, and upon an application to compel the prosecution to elect, Ekskine, J"., says : “As it is all one transaction, we must hear the evidence. * * * I shall take care, that as the ease proceeds, the prisoner is not tried for more than one felony,” and in the same case there is a reference to a case in 20th Pickersgill (356) of an indictment held good, charging burglary with an attempt to commit larceny, and also larceny as distinct offenses, and various other illustrations of the rule, adopted by our courts in the cases before cited.


Nicholas A. Clemente, J. In a three-count indictment filed September 11, 1980, defendant was charged with one count of <mask> in the second degree and two counts of reckless endangerment in the first degree. The second and third counts, both relating to the same act, charged that the defendant, on August 29, 1980, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct which created a grave risk of death to another person. They differed in that the second count contended that the defendant started a fire in an occupied building, while the third count alleged that the defendant started a fire in a building to which New York City fire fighters responded and entered.


Likewise, Jones & Co. (supra, 957d at 514), a case that predates First Options, is readily distinguishable. In Jones & Co., the objectants claimed from the beginning that the NASD did not have jurisdiction to arbitrate some claims based on section 15 of the NASD Code, which provided that “[n]o dispute, claim, or controversy shall be eligible for submission to arbitration under this Code where six (6) years have elapsed from the occurrence or event giving rise to the act or dispute, claim or controversy” (emphasis added). Based on settled Seventh Circuit precedent and the particular language and history of the NASD Code provision, the court concluded that section 15 was an “eligibility requirement,” not a statute of limitations, and that the NASD absolutely did not have the power or authority to consider claims that arose from transactions that were over six years old. The Seventh Circuit further concluded that there was no “evidence in the record demonstrating that the parties intended to allow the arbitrators to define their own jurisdiction” and that it was for the court to decide arbitrability notwithstanding the parties’ submission of arguments on the issue to the panel. (Id. at 514; contrast, Matter of Smith Barney She<mask> v Sacharow, supra, 91 NY2d at 46-47 [based on NASD Code arbitrators could decide arbitrability].)


A ‘ quotient verdict ’ ’ is nothing more than a verdict by chance, is illegal, and must be set aside. (North Tex. Producers Assn. v. Jenkins, 342 S. W. 2d 192, 195 [Tex. Civ. App.].) It is one resulting from agreement whereby each juror writes down amount of damages to which he thinks party is entitled and such amounts are then added together and divided by number of jurors. (Index Drilling Co. v. Williams, 242 Miss. 775. See, also, Haarberg v. Schneider, 174 Neb. 334.) However, as an essential element of “ quotient verdict,” jurors must agree to be bound by the quotient. (Wilson v. Gardner, 10 Utah 2d 89.) It is not the setting down of an amount by each of the jurors as to what he thought was fair and reasonable to award plaintiff under the circumstances as damages that is objectionable or improper. (See Killion v. Dinklage, 121 Neb. 322; Hoffman v. City of St. Paul, 187 Minn. 320, Ann. 86 A. L. R. 203; Zook v. State Highway Comm., 156 Kan. 79; Balkwill v. City of Stockton, 50 Cal. App. 2d 661; State ex rel. Senter v. Cowell, 125 Mo. App. 348; Murphy v. Cordle, 303 Ky. 229; Harris v. State, 241 Ala. 240.) It is rather the advance agreement to be bound by average and adherence to such agreement after a quotient is arrived at that renders the verdict illegal. (See Klein v. Swift & Co., 248 Iowa 563. Also, Zanos v. Great Northern Ry. Co., 60 Mont. 37; Stadium Cab Co. v. Shawd, 12 Ohio Law Abstract 106, 36 Ohio Law Rep. 456; Harris v. State, supra; Kelly v. Rainelle Coal Co., 135 W. Va. 594; Killion v. Dinklage, supra; Hoffman v. City of St. Paul, supra; Moses v. Central Park, etc. R. R. Co., 3 Misc. 322; Spain v. *6Oregon & Washington R. & N. Co., 78 Ore. 355; City of Dothan v. Hardy, 237 Ala. 603; L<mask> v. Wisconsin Ry., Light & Power Co., 138 Minn. 158; St. Louis & San Francisco R. R. Co. v. Brown, 45 Okla. 143; Miller v. Blue Ridge Transp. Co., 123 W. Va. 428; Benjamin v. Helena Light & Ry. Co., 79 Mont. 144, 52 A. L. R. 33.)


As we have discussed, the HSAA provides that a plaintiff "may seek contribution or indemnity from any person who is liable pursuant to this chapter." (Health & Saf. Code, § 25363, subd. (d).) The elements of a private *305HSAA claim are the following: " '(1) the site on which the hazardous substances are contained is a "facility" under CERCLA's definition of the term, Section 101(9), 42 U.S.C. § 9601(9) ; (2) a "release" or "threatened release" of any "hazardous substance" from the facility has occurred, 42 U.S.C. § 9607(a)(4) ; (3) such "release" or "threatened release" has caused the plaintiff to incur response costs that were "necessary" and "consistent with the national contingency plan," 42 U.S.C. §§ 9607(a)(4) and (a)(4)(B) ; and (4) the defendant is within one of four classes of persons subject to the liability provisions of Section 107(a) [42 U.S.C. § 9607(a) ].' " (C<mask> Harbor I, supra , 270 F.3d at pp. 870-871.)


The record on this motion speaks more forcefully than the phraseology of any judicial condemnation. Ernest L<mask> and defendant Milton Margulies were the remaining partners in a firm with which Larson has been associated for several decades, and defendant since 1970. Larson — the managing partner, with a substantially larger account equity capital — suffered a heart attack last summer. Upon his return to work there was a dispute over shares, and defendant withdrew from the partnership. Thereafter plaintiff’s papers reveal — and it is not denied — that defendant, through stealth and in the dead of night, entered the partnership offices (which concededly were lawfully being operated by Larson after defendant’s resignation) and helped himself to everything; he cleaned out the partnership, its books and records, its files, its accounts, its time sheets, even its furniture, its library, and its office supplies. Plaintiff has pointed out, without contradiction, that the vast bulk of the partnership clientele was not attributable to defendant, but rather to Mr. Larson, who had either acquired them or succeeded to them in the course of the partnership. Defendant’s limited involvement with the clientele did not deter him from his all-out raid. His ransacking has destroyed the business as an on-going operation; it absolutely cannot function without these records. Plaintiff cannot service its clients in any way nor can it bill them and maintain the cash flow necessary to pay its expenses, including wages for employees. Accordingly it brings on this motion, seeking a preliminary injunction for the recovery of the purloined records, papers, and other assets, without which its demise as a viable enterprise is immediately inevitable.


We discern no necessity to justify the performance of autopsy herein. Such unauthorized autopsy, and burial of decedent’s dismembered body, invaded the private rights of decedent’s widow and children, causing them to suffer injured feelings. (See Darcy v. Presbyterian Hospital, 202 N. Y. 259, citing L<mask> v. Chase, 47 Minn. 307, to which the Court of Appeals refers as outlining the most elaborate consideration-of the question ever passed upon by the courts of this country.)


The proper remedy for The Dime Savings Bank of Brooklyn to pursue under the existing circumstances, is to institute a foreclosure action and have a receiver appointed for its benefit. Until this is done or until the mortgagor consents to the assumption of possession by the mortgagee, no claim may be made by The Dime Savings Bank of Brooklyn for rent from any of the tenants occupying portions of the mortgaged premises herein. (B<mask> v. Mulligan, 191 N. Y. 306.)


common law it was held, that not only the dwelling-house, but also out-houses, that are parcel of the dwelling-house, and within the curtilage, although not contiguous, were the subjects of <mask>. 1 Hale, 56. And it has always been held to be arson, to burn a barn filled with hay or corn, even where it stood a great distance from the house. 3 Inst. 69. To set fire to one’s own house, whereby another is consumed, is arson. Cro. Car. 377, In the definition of arson, the mansion house is not only included, but it extends “ to the outset also, as “ barn, stable, cow house, sheep house, dairy house, mill house and a“ the like parcel of the mansion house.” But they must be parcel of the mansion, although it is not necessary they should be under the At *239same roof. 1 Hale, 5G0. 1 Hawk. Ch. 38. If the out houses be adjoining to the mansion house, though there be no common enclosure or curtilage, they are still considered as parts of the mansion. 1 Hale, 559. The indictment need not alledge the burning'of a mansion house, but only of a house. East. C. L. p. 1020. 4 Blac. Commj 221. It must be the house of another, although it is unnecessary he should have the legal title or entire interest; a lawful possesion is sufficient. Cro. Car. 376. Chi tty, C. L. vol. 3, p. 532. It has been decided that arson cannot be committed by setting fire to premises which a man enjoys under a lease for years. Cro. Car. 376. Or even as tenant under an agreement for a lease. 1 Leach, 220. Nor can he be guilty of arson of the premises while tenant from year to year. But one entitled to dower, out of a dwelling house let to another person, if she burns it through malice, she will be guilty of arson. Fost. 113, And where a pauper was suffered to reside in a house free of rent it was held he might be guilty of arson in burning it, notwithstanding his possession. 1 Leach, 246, in notis.


However, the New York rule cannot apply to the extent it is preempted by the Federal Arbitration Act (FAA) (9 USC § 1 et seq.) which Congress adopted to overcome and preempt state *691restrictions on or resistance to arbitration of disputes involving commerce. (Matter of Smith Barney, Harris Upham & Co. v Luckie, 85 NY2d 193 [1995].) Thus, where an arbitration agreement relates to commerce, the FAA overrides and preempts the New York law. (Matter of Smith Barney She<mask> v Sacharow, 91 NY2d 39 [1997]; Progressive Cas. Ins. Co. v C.A. Reaseguradora Nacional De Venezuela, 991d 42 [2d Cir 1993].)


Early on the morning after the fire, depositions were taken of Miss Cleveland and Miss Stickel outlining the facts previously recited. A deposition of one Alan Emerson, <mask> investigator for the New York State Bureau of Criminal Investigation, was prepared. That deposition opined that the fire at No. 3 Maple Avenue on the morning of September 8, 1984 was the result of arson. The foregoing package of depositions together with an application for a search warrant by Investigator Hayes of the Bureau of Criminal Investigation were presented to Franklinville Town Justice James Burrow who signed a search warrant on September 8, 1984. The defendant contests the sufficiency of the information presented to the Justice for the issuance of the search warrant.


assault with a deadly weapon, as well as multiple prior misdemeanor convictions, including false imprisonment. The trial court further noted the probation report indicated defendant had “attack[ed] another inmate . . . without provocation” while at the jail. The trial court then noted defendant was 32 years old at the time of the current offense and provided a brief overview of the facts of this case, noting “a common element” shared by the current offense, defendant’s jailhouse conduct, and two of his prior convictions, i.e., “violence against someone else.” The trial court then stated: “The flip side of this, as you know, and it’s entitled to some consideration is that [defendant] is a relatively young person and we like to think that anyone can change over time.” The trial court then noted the loss suffered by the victim and his family and concluded: “The Court can’t find that in the interest of justice that the enhancement should be stricken, so the Court’s going to deny that motion.” “ ‘ “[A] court’s discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is” reviewable for abuse of discretion.’ [Citation.] ‘In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, “ ‘[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ ” [Citation.] Second, a “ ‘decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” ’ ” [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.’ [Citation.]” (People v. Pe<mask> (2019) 38 Cal.App.5th 112, 116.) Defendant argues the trial court’s decision declining to strike his firearm enhancement amounted to an abuse of discretion because “the fight precipitating the


The rule that all “legal offenses,” which, as Mr. Justice Potter correctly shows, are all grades of criminal offenses triable by courts (Code of Criminal Pro., § 63), cannot be investigated or acted upon till after a conviction has been had in a court of justice, necessarily springs out of the provisions of the Constitution, if it has any existence at all. That he so regarded it may be seen by his *117opinion. He says: “ By legal offenses are meant crimes and misdemeanors enacted by tbe legislature or existing at the common law. When a policeman bas been convicted of any of these offenses, by the tribunal and in the manner prescribed by law, the respondent (the board) may remove for such conviction. The idea that the board of police may try and convict persons charged with perjury, murder, <mask> or other legal offenses, is simply preposterous. Those offenses can only be tried by a jury and in the mode provided by law. Neither an act of the legislature or the consent of the accused will justify a trial for these offenses in any different manner.”


In the first of the cases cited (People v. Winant, supra) it was held that a bribe taker was to be considered as an accomplice of the bribe giver. In the next case cited People v. Vedder, supra) it was held that a woman upon whom an abortion was committed was not an accomplice of the abortionist. In the third case cited People v. Smith, supra, it was held that a purchaser of liquor from one who sold it without license was not an accomplice of the seller, and in the last case cited (People v. Zucker, supra) it was held that one who, without intent to aid in the commission of the crime of <mask>, in point of fact did an act which aided another in committing such crime, was not an accomnlice of the incendiary.


. The circuit courts have upheld the constitutionality of 18 USC § 922 (g), because of the presence in the statute of the jurisdictional element “in or affecting commerce,” despite the Supreme Court’s recent decisions holding that various laws were unconstitutional as having no substantial effect on interstate commerce (e.g. United States v Jones, 529 US 848, 859 [federal <mask> statute did not reach arson of owner occupied residence that is not used for any commercial purpose because such property could not be “used in * * * any activity affecting commerce,” as required by statute]; Morrison, 529 US 598 [Congress’ creation of a federal private cause of action in tort for spousal abuse or domestic partner battering is an invalid exercise of its power under Commerce Clause as conduct does not have a substantial impact on interstate commerce]; Lopez, 514 US at 562 [the Supreme Court held inter alia that neither 18 USC § 922 (q) “nor its legislative history contain(s) express congressional finding regarding the effects upon interstate commerce of gun possession in a school zone”]).


The successor executor, Bathkopf, in 1959 obtained a surcharge against Harlow S. Pe<mask>, the former executor, in the amount of $63,560.33. It appeared that Harlow was unemployed and in debt and had no assets other than a life estate in a trust established in Connecticut under the terms of his father’s will which produced income of $20,000 to $30,000 per year. He had made two assignments of this trust interest, one as security for a $50,000 bank loan, and the second (subject to ■the first) to Helen Bidgeway (now Pearson, Harlow’s second wife) to the extent of one third of the income accrued and to accrue after December, 1957.


The drastic remedy of summary judgment should be granted only where there are no triable issues of fact (see Pe<mask> v Dix McBride, LLC, 63 AD3d 895 [2009]; Sillman v Twentieth *1098Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The moving party on a motion for summary judgment has the burden of demonstrating “a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence presented on summary judgment must be scrutinized in the light most favorable to the party opposing the motion (Goldstein v County of Monroe, 77 AD2d 232, 236 [1980]). Accordingly, “[i]f there is any doubt about the existence of a triable issue of fact or if a material issue of fact is arguable, summary judgment should be denied” (Celardo v Bell, 222 AD2d 547, 548 [1995]).


prisoner’s motion for compassionate release for an abuse of discretion. United States v. Cooper, 996 F.3d 283, 286 (5th Cir. 2021). Jacobs argues that the district court treated U.S.S.G. § 1B1.13, p.s., as binding and limited its consideration of extraordinary and compelling reasons to those listed in Application Note 1 of the Guideline’s commentary, even though the policy statement does not apply where a motion for compassionate release is brought by a prisoner and not the Bureau of Prisons. See United States v. Shkambi, 993 F.3d 388, 391–92 (5th Cir. 2021). He also argues that the district court erred in balancing the 18 U.S.C. § 3553(a) factors, especially with respect to his post-sentencing rehabilitative efforts. We need not resolve whether the district court’s consideration of the policy statement and its commentary constituted legal error because the court also concluded that Jacobs had failed to establish that the § 3553(a) factors weighed in favor of modifying his sentence. See Ward v. United States, 11 F.4th 354, 360–62 (5th Cir. 2021). Despite Jacobs’s assertion to the contrary, the district court gave due consideration to his post-sentencing rehabilitative efforts, but it permissibly found that the seriousness of Jacobs’s offenses, solicitation of murder for hire and attempted <mask>, tipped the scales against modifying his sentence. Although Jacobs may disagree with the court’s balancing of the § 3553(a) factors, “that is not a sufficient ground for reversal.” United States v. Chambliss, 948 F.3d 691, 694 (5th Cir. 2020). AFFIRMED.


In brief, an indictment should contain such specifications of the acts and description of the criminal offense and enable a defendant to adequately defend himself and bar further prosecution arising out of the same facts (People v Bogdanoff, 254 NY 16; People v Bruno, 43 NYS2d 942; see CPL 200.50). As expressed in People v F<mask> (244 NY 413, 417): "The indictment is sufficient if it identifies the charge against the defendant so that his conviction or acquittal may prevent a subsequent charge for the same offense; notifies him of the nature and character of the crime charged against him to the end that he may prepare his defense; and enables the court upon conviction to pronounce judgment according to the right of the case. (Code Crim. Pro. §§ 284, 285; People v. Williams, 243 N.Y. 162.)”


The party prevailing in the trial court should be given the option of accepting the remittitur or having the case remanded for a new trial. L<mask> v. Cactus Util. Co. , 730 S.W.2d 640, 641 (Tex. 1987). If appellees file a remittitur within twenty days from the date of this opinion, we will modify the trial court's judgment accordingly and affirm the judgment as modified. If the remittitur *579is not timely filed, we will reverse the trial court's judgment in part and remand this case for a new trial on the claims of Daniel and Mr. and Mrs. Cuevas. Tex. R. App. P. 46.3 ; see Tex. R. App. P. 44.1(b) ("The court may not order a separate trial solely on unliquidated damages if liability is contested.").


Defendants also cite Catellus Dev. Corp. v. U.S.(9th Cir. 1994) 34 F.3d 748, 750, for the proposition that disposal refers " 'to an affirmative act of discarding a substance as waste, and not the productive use of the substance.' " Even assuming their conduct was not affirmative, the Ninth Circuit has since "reject[ed] the absolute binary 'active/passive' distinction." (C<mask> Harbor I, supra, 270 F.3d at p. 879.)


*201Joseph was drafted into the Army in early 1968, and moved to Fort C<mask>, Colorado after basic training. He and Marline married and lived together in Fort Carson. Joseph worked part-time at a Chevron service station in Fort Carson in 1968 and 1969, doing the same type of work he had done at the Enco station. Joseph testified that Marline came to visit him at that service station as well. After Marline and Joseph moved back to California in 1970, *278Joseph worked part-time at another Enco station for a year or slightly longer. Joseph did the same type of service work there that he did at the other service stations. During this time period, Marline washed Joseph's clothing.


Co-operative library systems are creatures of the State Legislature which authorizes their establishment through the Education Law. Section 255 of the Education Law ("Establishment of a public library”) provides in subdivision 2 that a cooperative library system may be established upon the request of two or more libraries chartered by the Board of Regents when it appears to the commissioner that such a system "will result in improved and expanded library service to the area”. All 52 member libraries in the Suffolk system are either public or free association libraries and the trustees are elected by vote of their boards of trustees. The principal source of revenue is State aid. Clearly, co-operative library systems are public institutions (1972 Opns Atty Gen 24) and not private eleemosynary organizations (see Matter of C<mask> v Nyquist, 59 Misc 2d 577). Since the trustees are the officers of the cooperative library system, the position of trustee is a public office (23 Op St Compt, 1967, p 767).


"1. A person is guilty of <mask> in the first degree when he intentionally damages a building or motor vehicle by causing an explosion or a fire and when (a) such explosion or fire is caused by an incendiary device placed inside such building or motor vehicle; or when such explosion or fire is caused by an explosive; and when (b) another person who is not a participant in the crime is present in such building or motor vehicle at the time; and (c) the defendant knows that fact or the circumstances are such as to render the presence of such person therein a reasonable possibility.


11 NYCRR 216.6 (c) provides that: “Within 15 business days after receipt by the insurer of a properly executed proof of loss and/or receipt of all items, statements and forms which the insurer requested from the claimant, the claimant, or the claimant’s authorized representative, shall be advised in writing of the acceptance or rejection of the claim by the insurer. When the insurer suspects that the claim involves <mask>, the foregoing 15 business days shall be read as 30 business days pursuant to section 2601 of the Insurance Law. If the insurer needs more time to determine whether the claim should be accepted or rejected, it shall so notify the claimant, or the claimant’s authorized representative, within 15 business days after receipt of such proof of loss, or requested information. Such notification shall include the reasons additional time is needed for investigation. If the claim remains unsettled, unless the matter is in litigation or arbitration, the insurer shall, 90 days from the date of the initial letter setting forth the need for further time to investigate, and every 90 days thereafter, send to the claimant, or the claimant’s authorized representative, a letter setting forth the reasons additional time is needed for investigation. If the claim is accepted, in whole or in part, the claimant, or the claimant’s authorized representative, shall be advised in writing of the amount offered. In any case where the claim is rejected, the insurer shall notify the claimant, or the claimant’s authorized representative, in writing, of any applicable policy provision limiting the claimant’s right to sue the insurer.”


The Massachusetts Death Act was punitive, not compensatory, irrespective of the pecuniary loss (see Pe<mask> v. Northeast Airlines, 309 F. 2d 553, supra). The court continued (pp. 635-636): “ The legislative history of § 1404 (a) certainly does not justify the rather startling conclusion that one might ‘ get a change of law as a bonus for a change of venue.’ * * * We conclude, therefore, that in cases such as the present, where the defendants seek transfer, the transferee district court must be obligated to apply the state law that would have been applied if there had been no change of venue. A change of venue under § 1404 (a) generally should be, with respect to state law, but a change of courtrooms.” (p. 639).


As a threshold matter, we conclude defendant forfeited his claim that the proffered evidence was admissible under Evidence Code section 356 because counsel did not raise that basis for admissibility below. (People v. Pe<mask>, supra, 56 Cal.4th at p. 460, 154 Cal.Rptr.3d 541, 297 P.3d 793.) In any event, Evidence Code section 356 has no application here. Defendant acknowledges that Kerr's statement to Peet regarding her husband's physical abuse of her did not occur in any of the conversations, presented by the prosecutor, in which Kerr said she feared defendant. By its terms, Evidence Code section 356 applies "[w]here part of an act, declaration, conversation, or writing is given in evidence by one party ...." (Evid. Code, § 356, italics added.) Nor does defendant persuade that the proffered statement was necessary to the jury's understanding of the prosecution's evidence regarding Kerr's fear of defendant. (See People v. Farley (2009) 46 Cal.4th 1053, 1103, 96 Cal.Rptr.3d 191, 210 P.3d 361 [trial court was not required under Evid. Code, § 356 to grant the defendant's request to admit numerous additional letters from the defendant to the victim when several such letters that had been placed into evidence were " 'independently comprehensible' " on the relevant topics of intent to kill and premeditation].)