Subdivision b of section 2203d-2.0 of title A of chapter 64 of the Administrative Code of the City of New York (the 'Consumer Protection Law of 1969; Local Laws, 1969, No. 83 of the City of New York) defines the following as an unconscionable trade practice covered by its provisions: ‘ ‘ Any act or practice in connection with the sale, lease, rental or loan or in connection with the offering for sale, lease, rental or loan of any consumer goods or services, or in the extension of <mask>, or in the collection of consumer debts which unfairly takes advantage of the lack of knowledge, ability, experience or capacity of a consumer ”. Section 2203d-3.0 provides that the Commissioner may adopt such rules and regulations as may be necessary to effectuate the purposes of the law, which “may supplement but shall not be inconsistent with the rules, regulations, and decisions of the Federal Trade Commission and the Federal courts in interpreting the provisions of Section 5 (a) (1), or the Federal Trade Commission Act 15 IT. S. C. 45 (a) (1), or the decisions of the courts interpreting General Business Law § 350 and Uniform 'Commercial Code § 2-302. ’ ’


Form of Affidavit. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. In this case, the contract states that it is assigned to Ford Motor Credit. The contract *21bears the signature of Tony Jones. The affidavit states that the attached contract is maintained by Ford Motor Credit and is associated with Tony Jones's account number. Jones states in his counterclaim that he "signed a <mask> contract for the purchase of a motor vehicle." Moreover, the trial court held a hearing and then made a factual finding that the attached contract was the contract at issue. This court defers to those factual findings. See Greene v. All. Auto., Inc. , 435 S.W.3d 646, 648-49 (Mo. App. W.D. 2014) (finding that even when the case is submitted solely on documentary evidence, the trial court is the finder of fact and appellate courts defer to those findings.)


The fact that the pleadings do not conform to the statutory requirements for pleading a <mask> transaction means that the clerk of the court has not placed the action on the calendar in Part 11C, the part designated for consumer credit cases. The result is that the defendant is not afforded the opportunity to be represented by the Volunteer Lawyer for the Day, consult with representatives from the Civil Legal Advice and Resource Office program, or take advantage of other resources available in consumer credit litigation.


Plaintiff, a State guarantee agency, commenced the instant “<mask> transaction”, to recover on a promissory note for guaranteed student loans, in the principal sum of $2,250, executed by defendant on September 22, 1976. Defendant asserted several affirmative defenses including the fifth affirmative defense, wherein defendant alleged that the suit was barred by Banking Law §§ 352 (formerly § 353) and 358, in that “plaintiff or its assignor failed to comply with applicable [disclosure] provisions of Federal and New York State Truth-in-Lending’ statutes, rules and regulations governing said loan at the time said loan was made.” The court below granted so much of plaintiff’s motion for summary judgment as sought dismissal of the seventh affirmative defense but denied so much of the motion as sought dismissal of the fifth affirmative defense. It also denied defendant’s cross motion for summary judgment in his favor dismissing the complaint based on the fifth affirmative defense, and the seventh affirmative defense which alleged noncompliance with 8 NYCRR part 2107. Plaintiff argues for the first time on appeal that defendant’s fifth affirmative defense should have been dismissed on the ground that the defense is barred under section 1603 of the Federal Truth in Lending Act (15 USC). We agree, and note initially that contrary to defendant’s contention, plaintiff is not precluded from presenting an issue of law for the first time on appeal since the question of law is one which could not have been avoided by defendant if raised in the court below (see, Block v Magee, 146 AD2d 730, 732). Moreover, this court may search the record and grant summary judgment to the nonappealing party (see, CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyards, 61 NY2d 106, 110-111). Accordingly, this court may consider plaintiff’s argument.


Advocacy groups have raised the issue concerning these rent arrearage matters that the failure to classify them as <mask> transactions deprives defendants of the assistance of legal services programs. They point out that had the landlord plaintiff been forced to proceed in the Housing Part, legal services programs would provide counselling or actual representation. If the action is deemed a consumer credit transaction, programs such as the Volunteer Lawyer for the Day would be available to defendants. It is argued that discontinuing the summary proceeding and then bringing a civil proceeding for rent due and owing that could have been resolved in the Housing Part is prejudicial to the tenant defendant not only because of the lack of legal services in the civil parts, but also the passage of time may deprive the tenant of certain defenses which were available in the Housing Part.


The only statutory definition of a “sum certain” appears in article 3 of the Uniform Commercial Code in regard to “commercial paper.” <mask> debt does not qualify as “commercial paper” under that statute (Smith v Palasades Collections LLC, 2007 WL 1039198, 2007 US Dist LEXIS 28348 [ND Ohio 2007]; Citibank [SD] N.A. v C & S Wholesale Grocers, Inc., 2009 WL 688991, 2009 US Dist LEXIS 20195 [D Vt 2009]), but UCC 3-106 does set forth standards to be applied in determining whether an amount claimed due is a “sum certain” for the purpose of determining whether an “instrument” is a “negotiable instrument” (UCC 3-102).


. Recently, the court rules relating to proof on default judgments in <mask> matters were amended, “to ensure a fair legal process in the more than 100,000 credit collection lawsuits brought annually in the state courts ... to combat deceptive debt collection practices and protect consumers,” including the granting of default judgments based upon “ ‘robosigned’ affidavits containing hearsay allegations and few if any facts pertaining to the history of the debt at issue.” (New York State Unified Court System, Press *86Release, Chief Judge Announces Comprehensive Reforms to Promote Equal Justice for New York Consumers in Debt Cases [Apr. 30, 2014], available at https://www.nycourts.gov/press/PDFs/PR14_03.pdf [accessed Aug. 13, 2015]; Administrative Order of Chief Admin Judge of Cts AO/185/14.)


CPLR 503 (subd [f]) mandates that actions based upon <mask> transactions must be brought in the county of the defendant’s residence, if he resides in the State, or in the county where the transaction took place, if it took place in the State. The foregoing statute was enacted to curb the serious abuses to which individuals were frequently subjected under existing traditional venue provisions (see 2 Weinstein-Korn-Miller, NY Civ Prac, par 503.20; Memorandum of State Executive Department, McKinney’s 1973 Session Laws, vol 2, pp 2171-2172).


Plaintiff asserts causes of action against Saar for negligence, negligent misrepresentation, fraudulent misrepresentation, constructive fraud, violation of General Business Law § 349 and breach of contract. In each of the causes of action, plaintiff alleges that the <mask> of Saar in producing the appraisal “caused plaintiff to approve the Galdi Loans and sustain monetary injury well in excess of $100,000.”


In an action of tort for negligence, evidence that the acts or omissions of the plaintiffs contributed to the injury, is admissible under a general denial that the injury complained of was occasioned by the defendant. The right of recovery depends on plaintiffs’ establishing, at least b y prima facie proof, that he in no respect by his own negligence contributed to the injury, but that it was occasioned solely by the defendant’s acts (Button v. Hudson R. R. Co. 18 N. Y. 248; McDonell v. Buffum, 31 How. Pr. 154; Deyo v. N. Y. Central R. R. Co. 34 N. Y. 9 ; Grippen v. Same, 40 N. Y. 34).' Such exemption from liability was equally available to this defendant, if the injury complained of was in any way attributable to plaintiffs’ neglect in turning off the water by the main stop-cock on their own premises. Whether regarded as a primary duty arising from having the entire control, or as one they had gratuitously assumed and were in its ordinary performance for the accommodation of the defendant (Ed. on Bail. 94). One assuming the voluntary performance of an act or duty for another, engages for such skill and attention as it ordinarily requires, and if it be in respect to a matter for which the defendant is under contract or obligation with himself, he cannot make claim for any <mask> or neglect to which he has himself been a party or contributed. In an action of tort for negligence in performance of such duty, the fact that plaintiff contributed to the injury would be available under a general denial that it was caused by the defendant’s neglect, and without special defense of such secondary intervention of the plaintiff in aid of the primary duty or obligation the defendant had assumed. Such a general denial does not confess and avoid the cause of action, but presents the principal fact or transaction upon which an action for negligence is founded as evidence that the injury com*332plained of was not occasioned solely by the default of the defendant and without plaintiff having in any respect contributed to it.


Since the plaintiff’s motion searches the record, the defendant contends that the amended complaint fails to state facts sufficient to constitute a cause of action. His position is clearly untenable. The plaintiff alleges that the defendant, who was then Conservation Commissioner of the State of New York, in a speech delivered at a dinner at the Hotel Woodruff in the city of Watertown, New York on May 31, 1956 falsely stated in the presence of over 150 persons that the plaintiff, a public official employed by the State of New York in the capacity of chief of the Bureau of Game, Division of Fish and Game, in the New York State Conservation Department, was guilty of <mask> in office in that his deliberate sabotage or gross neglect “ sunk ” an experimental wild life project conducted by the department at Grenadier Island. He also alleges that the defendant’s remarks were uttered with malice and a deliberate intent to injure him in his office and employment and to subject him to ridicule, suspicion and contempt over a wide area. Proof of these allegations makes out a *991cause of action in slander per se and no allegation or proof of special damages is necessary. (Toomey v. Farley, 2 N Y 2d 71, 85; Macy v. New York World-Telegram Corp., 2 N Y 2d 416, 420; Mencher v. Chesley, 297 N. Y. 94; Sydney v. Macfadden Newspaper Pub. Corp., 242 N. Y. 208; Abell v. Cornwall Ind. Corp., 241 N. Y. 327, 335; Cafferty v. Southern Tier Pub. Co., 226 N. Y. 87, 622; Moore v. Francis, 121 N. Y. 199, 204; More v. Bennett, 48 N. Y. 472, 476; Sanderson v. Caldwell, 45 N. Y. 398, 403; Shakun v. Sadinoff, 272 App. Div. 721; Julian v. American Business Consultants, supra; see Hoeppner v. Dunkirk Print. Co., supra.)


The plaintiff has failed to adduce evidence adequate to raise a triable issue as to the existence of any affirmative <mask> or negligence in the performance or nonperformance of any duty extended to the benefit of the plaintiff herein. The defendant is therefore entitled to summary judgment on this ground (Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Freedman v Chemical Constr. Corp., 43 NY2d 260).


Armstrong sued four Nevada state officials in their individual capacities under 42 U.S.C. § 1983, alleging that the officials violated her substantive and procedural due process rights and further alleging violations of both state and federal statutes and regulations. She also brought Nevada state law claims for civil conspiracy, intentional and negligent infliction of emotional distress, fraud, and <mask>, misfeasance, or nonfeasance in office. The district court dismissed all the claims.


The rule is that corporate officers or agents are personally liable for those torts they personally commit or participate in even though performed in the name of an artificial body, but that corporate officers are not liable for nonfeasance; they are liable only for misfeasance or <mask>. (See Michaels v. Lispenard Holding Gorp., 11 A D 2d 12; 12 N. Y. Jur., Corporations, § 810.) The charges against the third-party defendant Benson are charges of nonfeasance. Moreover, Benson had no independent duty owing to the plaintiff; his breach of duty, if any, was a breach of duty owing by him to his principal only.


The <mask> alleged by Chastain arises from Geary's actions in his official capacity as City Attorney relating to the advancement of the Light Rail Committee's proposed ordinance. Chastain's complaint focuses on Geary's advice regarding the legality of the Light Rail Committee's proposed ordinance, Geary's request that the Light Rail Committee's attorney not attend the hearing before the City Council's Transportation and Infrastructure Committee, and Geary's statement at that hearing that the proposed ordinance was illegal and could be repealed by the Council if approved by voters (while failing to mention the advice he had previously provided regarding the legality of the petition).


The court certainly recognizes the sacred right of the people to choose their elected officials. Section 36 of the Public Officers Law is in no way intended to interfere with this vital aspect of democratic society. Rather, this section has been enacted to protect the citizens from an elected official who by his misconduct, <mask>, maladministration or malversation, abuses his public trust, harms the public interest and violates his oath of office.


At common law, misconduct in office was defined as “corrupt behavior by an officer in the exercise of the duties of his office or while acting under color of his office.” An officer could be convicted of misconduct in office (1) for committing any act which is itself wrongful, <mask>, (2) for committing a lawful act in a wrongful manner, misfeasance, or (3) for failing to perform any act that the duties of the office require of the officer, nonfeasance.


Most critical, the written consent judgment on its face was made “without admitting the allegations of the complaint”. Therefore, there are no prior factual findings, either way, which could ip any way affect or bind the current administrative *221proceeding. . The Department of State has a continuing responsibility to set standards of broker practice, and to review broker compliance with those standards whenever need for it is indicated, particularly when specific <mask> comes to its attention. (See Real Property Law, art. 12-A, § 441 et seq.)


There is nothing whatever in the bond that would preclude a deputy sheriff from showing, in answer to an action of this kind, that he was specially directed by the sheriff to make the return in the form and manner in which it was made, for which the sheriff was afterwards held liable in an action. That would be neither <mask> nor non-feasance, nor would it be any omission of duty. As between himself and the sheriff it would be no act of the deputy, but the sheriff’s own act, for which neither the deputy nor his sureties would be held responsible. ¥e think the exclusion of the evidence tending\to establish such directions was error, for which a new trial must be had.


The cases cited on behalf of the plaintiff relate to the liability of public officers for nonfeasance or <mask> in respect to the performance of ministerial duties. They have no application to a case of this kind. The rule of law which we have now laid down is well established in this State, although some contrariety of decision on the subject exists in other States.


Section 46 of the Highway Law provides that a town superintendent may be removed for <mask> or misfeasance in oEce. Misfeasance is the wrongful and injurious exercise of lawful authority, or the doing of a lawful act in an unlawful manner; while malfeasance is doing an act which is positively unlawful or wrongful. Bouvier Law Dict. 421. A misfeasance is a default in not doing a lawful act in a proper manner, or omitting to do it as it should be done; while a malfeasance is the doing of an act wholly wrong and unlawful; and non-feasance is omission to perform the required duty at all, ór a total neglect of duty. Cott v. Lynes, 33 Conn. 109. The acts alleged to have been committed,, if proven, would constitute both malfeasance and misfeasance in oEce.


It is well settled that the court has no power to remove a public officer for acts done prior to his present term of office (People v. Ahearn, 131 App. Div. 30; affd., 196 N. Y. 221; Conant v. Grogan, 6 N. Y. St. Repr. 322; State ex rel. Tyrrell v. Jersey City, 25 N. J. L. 536), so that the respondent’s term of office to which he was elected last spring could not be affected by a determination adjudging him guilty of <mask> or misfeasance in his present term. The respondent’s re-election, however, cannot, as a matter of law, have any controlling influence or effect upon the determination of this matter. The fact that the people have the right to nominate and re-elect a man to an office from which he has been removed does not affect the binding force of the express provision enacted by the people themselves that an official who has violated the mandate of a statute which has been expressly enacted to govern and control his official acts shall be removed from office and prevented from continuing to exercise the trusts, powers and duties of *290the office during the term in which he has been found guilty of official misconduct. Any other construction would completely nullify the act of the legislature and would in effect repeal the statute or at least make it inoperative in a special case. The people themselves have placed limitations upon their own power and are forced to give obedience collectively as well as individually to the lawful enactments of their legislature. It follows, therefore, that no matter how inconsistent it would seem to be to remove a man from office for the remainder of a term when he has been reelected by the people for the same office for the succeeding term with full knowledge of bis official misconduct, the plain mandate of the statute makes it imperative upon the court to order Ms removal if his violation of the statute has been' established. Any other disposition of the matter would be judicial legislation.


Additionally, there are no facts set forth in the misdemeanor information, or the accompanying documents, which could support any allegation that the defendant engaged in intimidation, physical force or interference. It clearly is not alleged that the defendant intimidated, or even attempted to intimidate anyone. To the contrary, it is alleged that the defendant’s <mask> was a passive one, failing to take some action. Similarly, it is not alleged that the defendant resorted to the use of physical force or physical interference, which are necessary if force or interference are alleged to be the manner in which the administration of law was obstructed. (People v Case, 42 NY2d 98 [1977].)


With respect to the existence of a physician-patient relationship under the facts herein, this court is controlled by the decision of the Fourth Department in Twitchell v MacKay (78 AD2d 125 [1980]). In that case, the plaintiff went to defendant for an examination at the request of the disability insurance carrier. During the examination, defendant therein purportedly injured plaintiff. In holding that the claim presented sounded in malpractice and not simple negligence, the court held: "The plaintiff knew that he was seeing a doctor and must have been aware of the fact that the doctor, after the examination, would express his medical judgment to John Hancock. Defendant was acting as a doctor and in doing so he agreed to perform his common-law duty to use reasonable care and his best judgment in exercising his skill, and the law implies that he represented his skill to be such as is ordinarily possessed by physicians in the community. Thus, if he carried out his function in a negligent or improper fashion the fact remains that the legal concept for any <mask> or misfeasance by defendant would quite properly fall under the label *306of medical malpractice” (78 AD2d, at pp 128-129). Twitchell conclusively establishes that under the circumstances herein defendant was acting as a physician, and consequently owed plaintiff a duty to exercise due care in his examination, diagnosis and treatment of her, to the extent he was to perform these functions. That defendant was not engaged to treat plaintiff, under Twitchell, does not negate the physician-patient relationship. On the other hand, however, defendant can only be liable for breach of duty with respect to those functions he was required to undertake. That is, plaintiff could not maintain an action against defendant on the basis of any failure to provide her with treatment for her back, since there was no question that defendant was not to treat plaintiff.


because any alleged <mask> by the State was cured by the inevitable discovery doctrine, in that the State presented substantial evidence that any contraband in Defendant’s backpack would have inevitably been discovered when he entered the jail, as it was standard procedure to go through every pocket and bag inside of a backpack upon [Defendant]’s entry into the jail, and [Corporal] Fannen testified at the suppression hearing that if there were narcotics in a backpack they would have been discovered in this search.


The alleged facts are as follows: The defendant Grossman was an employee of the board of education in the capacity of a clerk. *782Some time prior to June, 1931, there were rumblings of corruption and <mask> in the said department. In order to determine whether such corruption really existed, a subpoena was issued to the defendant Grossman by the president of the board of education to appear before a special committee designated to make the investigation. Grossman, upon being sworn as a witness, refused to answer, claiming his constitutional rights on the ground that the answers given might tend to incriminate and degrade him.


It is, however, urged on the part of the defendants that the complaint contains no allegations of fact to charge them with liability for embezzlement of the funds of the institution. There is no -charge of <mask> against them. The theory of the action is that the trustees, bv their failure to perform the duties which they by their relation to the bank assumed or undertook to exer-cise, were chargeable with negligence, and its consequences. When the statute nlaced the management and direction of the business of the bank under the control of the board of trustees, it imposed upon them some duties in respect to it. All of those duties are not specificallv defined by the statute. They are such as the nature of the sunervision fairly requires. Negligence is depend-ent upon failure to exercise the care which persons are, by their relation, called unon to exercise, and that is more or less dependent upon circumstances. In Briggs v. Spaulding, 141 U. S. 132, 11 Sup. Ct. 924. which was an action against the directors of a national bank, it was held that they were required to exercise ordinary care and prudence, and, if they did that, they were not chargeable with . negligence. And Mr. Chief Justice Fuller, in the prevailing opinion, said substantially that the degree of care which the defendants were bound to exercise is that which ordinarily diligent and prudent men would exercise under similar circumstances. “What may be negligence in one case may not be want of ordinary care in another, and the question of negligence is therefore ultimately a question of fact to be determined under all the circumstances.” In Hun v. Cary, 82 N. Y. 65, in considering the subject of the measure of diligence required of trustees of a savings bank, Judge Earl, spealdng for the court, said that they are not bound to exercise the highest degree of diligence, nor is their duty discharged by slight care, but that they are to “exercise ordinary care and prudence in the trusts committed to them; the same degree of care an<I prudence that men prompted by self-interest generally exercise in their own affairs.” Pom. Eq. Jur. § 1070; Brinckerhoff v. Bostwick, 88 N. Y. 52.


In an affidavit, Carter identified eight specific articles-those published on February 20, 21, 27, and 29, and March 2, 3, 4, and 8, 2008-and stated that these articles "alleged or implied financial <mask> by me," "implied or insinuated that I committed" violations of the penal code, "caused me enormous harm" including the loss of his job, "extreme mental anguish" and "over $1 million in lost income," and were false. Carter stated that he had a telephone conversation with Birmingham in which Birmingham "threatened" him by saying: "[D]on't mess with the man who buys ink by the barrel."


Consistent with public policy, Beverly drafted the Trust to protect the beneficiaries from <mask> on the part of a trustee. Both in order to prevent such malfeasance and to maintain the effective and consistent operation of the Trust, *656paragraph 10.11 must be interpreted in a manner that does not permit Thomas to withhold from the Hitchmans-or any other interim or successor trustee-materials covered by the attorney-client privilege and which reflect Thomas's communications with the Trust's legal counsel while he was serving as trustee. As we have explained, there is no contention in this case that Thomas, as trustee, distinguished his own interests from those of the beneficiaries or retained separate counsel for this purpose.


The <mask> for which claimant is suing is the release of the confidential information and he did not learn of that release until after the expiration of the 90-day period. Such lack of knowledge constitutes a reasonable excuse. (See Callanan v State of New York, 42 Misc 2d 740, affd 23 AD2d 937; 47-Albany Troy Road Corp. v State of New York, 17 AD2d 892; Gielski v State of New York, 3 Misc 2d 578.)


In addition, the cases cited by the Appellate Division in support of its decision are also distinguishable. Pizarro v City of New York (188 AD2d 591 [2d Dept 1992], supra) involved a one-car accident where plaintiff, a passenger who sustained injuries, sued, inter alia, the operator of the vehicle, the vehicle’s owner, the City of New York and Mansfield Contracting Company (Mansfield), the contractor responsible for the maintenance and repair of the street lighting at the accident site. The City of New York and Mansfield moved for summary judgment on the ground that the testimony of the vehicle’s operator failed to establish that any negligence on their part was a proximate cause of the accident. The Court affirmed the granting of summary judgment in favor of both defendants. In finding that Mansfield was entitled to judgment as matter of law, the Court stated (at 593-594) that "[e]ven assuming, arguendo, that Mansfield breached a contractual duty to the City by failing to discover and repair deficiencies in the lighting at the scene of the accident, Mansfield did not owe any duty to plaintiff, a member of the public [citations omitted]. In any event, we note that in view of [the vehicle operator’s] admissions, and the absence of any evidence indicating that defective street lights were a proximate cause of the accident, Mansfield was entitled to judgment as a matter of law [citation omitted].” Similarly, the relevant analogy in Francois v New York City (161 AD2d 319 [1st Dept 1990], supra) concerns a defendant which had a contract with the City to maintain its traffic lights. Plaintiff was injured in a car accident when he eased his vehicle into an intersection where the traffic signal was not functioning properly; the light was stuck on red. Plaintiff sued, inter alia, the City, who interpleaded the contractor. The contractor, Acolyte, moved for summary judgment on the ground that the sole proximate cause of the accident was plaintiff’s negligence in driving past the red light into the intersection. The Supreme Court granted summary *847judgment on the ground that there was no contractual privity between Acolyte and defendants (sic). In affirming the granting of summary judgment in favor of Acolyte, the First Department held (at 320): "This case is governed by our recent decision in Thompson v City of New York (157 AD2d 634). In Thompson, the plaintiff, a pedestrian, was hit by an automobile in an area ordinarily illuminated by a streetlight, which was unlit at the time of the accident. We affirmed an order granting summary judgment to Acolyte, applying the principle that, in this State, ' "a duty directly assumed to benefit one person does not extend to third parties who are not intended beneficiaries of the undertaking to perform, even if it is foreseeable that someone else might be damaged by the nonfeasance” ’ [citation omitted] Oathout v Johnson, 88 AD2d 1010). In the instant case, although a negligent signal light repair is alleged to have occurred on December 31, 1983, there is no evidence of any negligence despite the completion of discovery. In any event, '[e]ven when the negligence consists of <mask> in the promised performance, rather than nonfeasance, there is no liability for injuries thereby sustained by members of the general public, at large or of an indeterminate class’ (Oathout v Johnson, supra, at 1010). Accordingly, summary judgment was properly granted.” It appears to this court that the contractual relationship with the City and the contractor responsible for street lighting in Pizarro, Francois and Thompson, and the relationship between the City and American Golf in this instance is quite different. The illumination of streets is a governmental function (Thompson v City of New York, 164 AD2d 773 [1st Dept 1990]), whereas the license agreement herein is between the City and a private commercial company for the promotion of a recreational function. It must also be noted that the contract in Thomspon between Acolyte and the City explicitly stated that the contract "was intended to benefit the city, and not the general public.” (Thompson v City of New York, 157 AD2d, at 635.) In addition, users of the golf course pay a fee to American Golf, unlike members of the general public who benefit from the provision of street lighting without payment of a fee. A further distinction between the lighting contractors in Pizarro, Francois and Thompson and the instant action is that movant herein is a concessionaire obligated to pay the City ongoing annual license fees as a percentage of the gross revenue, and submit quarterly statements to the City. (Art VI.)


Accordingly, the court finds that Garibaldi’s application of the credit/cash ratio to all of the credit card deposit records of the corporation, in order to estimate the total amount of undisclosed cash that was diverted to the individual defendants, was warranted, given the defendants’ misfeasance and <mask> in providing adequate records. Accordingly, this court finds the application of the credit/cash ratio of 45.6% credit card payments to 54.4% cash payments to be reliably based upon the available records and such method of calculating the amount of cash diverted to be appropriate. Based upon Garibaldi’s calcula*694tions, the court finds that $3,719,407 of the $11,246,703 in projected gross revenue for the period 2003 to the filing of the complaint on June 13, 2011, was diverted by defendants.


Disclosure has been made to those investigating the <mask> of a public official (see, e.g., People ex rel. Hirschberg v Board of Supervisors of County of Orange, 251 NY 156, 170-171; Matter of Quinn, 293 NY 787, affg 267 App Div 913); a police commissioner investigating police corruption (e.g., Matter of City of New Rochelle, 35 Misc 2d 254; Matter of Scro, 200 Misc 688); to the Governor’s special investigating counsel (Matter of Crain, 139 Misc 799); and to grievance committees of the various Appellate Divisions.


*990It is directory and ministerial only and has as its purpose the giving of sufficient time to the Board of Elections for the preparation of ballots and voting machinery. Here the board was given sufficient notice. To hold otherwise, would give to the Secretary of State or his agents or to a County Clerk or his agents the power to thwart the Constitution of the State of New York either by nonfeasance or <mask> by merely delaying the notice of receiving and filing of resignation or the certification of vacancy until later than three months before the general election. Her certification was legally and properly made in compliance with section 67 of the Election Law which is directory and ministerial only. (See Election Law, § 67; NY Const, art VI § 21, subd a.)


This court recognizes that much of the criticism of imputed contributory negligence arose before the advent of comparative negligence, when contributory negligence was a complete bar to recovery. Indeed Kalechman was decided before New York adopted comparative negligence. Nevertheless, comparative negligence does not dictate a different ruling as plaintiff is not guilty of any <mask>, misfeasance, or nonfeasance. Moreover, this court is bound by legislative intent. In its 1975 report to the Legislature, the Judicial Conference, referring to comparative negligence, stated: "However, this article is not intended to create vicarious liability or to expand the doctrine of imputed contributory negligence, and should be interpreted in harmony with recent decisional law which severely restricts, if it does not entirely eliminate, the doctrine of imputed or vicarious contributory negligence. Kalechman v. Drew Auto Rental, Inc., 33 N.Y.2d 397 (1973).” (Twenty-First Ann Report of NY Judicial Conference, 1976, p 242; see, also, Avis Rent-a-Car System v Johnson, 90 Misc 2d 263.)


As to the third cause which purports to allege misappropriation and conversion, it is not contended that the right of the defendant to take possession of the assets of her husband’s estate as her own is in any way restricted, except as it is charged with a lien by the statute aforesaid. The fact that the defendant possessed herself of the estate, though by the laws of Israel it is burdened with the lien for unpaid debts, does not in and of itself raise any inference of wrongdoing. The third cause must therefore fall as conversion implies an act of <mask> such as misappropriation, destruction or alteration of the property of another. The motion is granted as to the third cause but denied as to the first and second causes pleaded in the amended complaint.


Thus, due to claimant’s failure to prove that defendant City had prior written notice pursuant to the Pothole Law, this action must be dismissed against defendant City, unless defendant City has been affirmatively negligent. (Kelly v City of New York, supra.) Claimant has made no showing that defendant City’s misfeasance or <mask> caused his injury. Therefore, this action is dismissed as to defendant City.


Defendant responds that while in the ordinary case the period during which a codefendant is standing trial on another case might not be chargeable to the People under subdivision (4) (d), in the instant case the People "sent” the codefendant out of the State in disregard of defendant’s speedy trial rights. Having thus prejudiced defendant, they then compounded their <mask> by failing to diligently secure Manieri’s return for almost five months.


With respect to the other points raised by plaintiff I conclude : first, that, though the alleged violation of the ‘1 Dram Shop Act” by Kilburn must be classified as intentional and wrongful, the ultimate damage to the injured persons in the automobilé collision was not intended and therefore the clause excluding intentional acts does not apply, nor should indemnity for violation of the “ Dram Shop Act” at least with respect to actual damages be held to be against public policy under the rule of Messersmith v. American Fid. Co. (232 N. Y. 161) and Sperling v. Great Amer. Ind. Co. (7 N Y 2d 442, mot. for lv. to rearg. den. 8 N Y 2d 785); secondly, that, while engaging in a co-venture with another might activate the exclusion in this insurance contract, of liability “ assumed by the insured under any contract or agreement” if the injured persons relied solely upon Kilburn’s vicarious responsibility as the driver’s partner, here the main thrust of the injured person’s theory rests upon Kilburn’s own <mask>. At this stage, prior to trial of the main action, where it may be found that there is any theory alleged in the complaint which would result in liability of the insured covered by the policy, the insurer should be called upon to defend the action.


In the instant proceedings, petitioner has failed to establish by a preponderance of the evidence submitted to DHCR that it did not know or had no reason to know that the tenant was being overcharged. In that regard, petitioner failed to adduce any evidence of any kind. Instead, as noted above, petitioner explained only his alleged efforts to cure the defect upon receiving the rent overcharge order. It failed, however, to offer any proof of its efforts upon the acquisition of the property, such as any attempt to procure the rent history of the apartment from DHCR or from the prior owner. Significantly, had such inquiry been made, it would have been easily discovered that the rent charged to the current tenant when he took possession was significantly higher (51%) than what the prior tenant had been charged.5 This Draconian increase should have raised serious doubts about its legality, absent an explanation. Nor did petitioner produce any evidence, like a comparison of the rent charged to similar apartments, that would have indicated that the rent that was being charged to the tenant was appropriate. Thus, since upon an inquiry petitioner should have been placed on notice that there was a problem with his tenant regarding his rent, it cannot be considered a blameless successor who should escape liability for the <mask> originated from its predecessor and exacerbated by its own nonfeasance.


Plaintiffs second claim is based, not on <mask>, but on nonfeasance, namely, Martin’s alleged failure to provide adequate security. Liability for an act of omission rests on the existence of a duty to act. (See, generally, Febesh v Elcejay Inn Corp., 157 AD2d 102.) Martin asserts that the duty to provide security to campers belonged to the camp, Grand Duke and Post, and that he personally had no such duty. He argues, in essence, that he had neither the “special relationship” (see, e.g., Reyes v City of New York, 238 AD2d 563) nor landowner status (see, e.g., Nallan v Helmsley-Spear, Inc., 50 NY2d 507) from which such duty arises.


Workman v. Verde Wellness Center, Inc. (Ariz. Ct. App. 2016) 240 Ariz. 597, 382 P.3d 812 ( Workman ) and *373Tenney v. Rosenthal (1959) 6 N.Y.2d 204, 189 N.Y.S.2d 158, 160 N.E.2d 463 ( Tenney ) both concerned whether, under a statute authorizing a director to bring an action on behalf of a corporation to remedy <mask> by another director, the plaintiff lost standing to pursue the action if, after filing it, he or she was removed as a director. ( Workman , at pp. 603-605, 382 P.3d 812 ; Tenney , at pp. 207-213, 189 N.Y.S.2d 158, 160 N.E.2d 463.) In each case the court, faced with a statute's silence on the continuous directorship requirement, refused to read one into it. ( *126Workman , at p. 604, 382 P.3d 812 ; Tenney , at pp. 209-210, 189 N.Y.S.2d 158, 160 N.E.2d 463.) Both courts cited policy considerations ( Workman , at p. 604, 382 P.3d 812 ; Tenney , at p. 210, 189 N.Y.S.2d 158, 160 N.E.2d 463 ), with the court in Tenney explaining: "Strong reasons of policy dictate that, once he properly initiates an action on behalf of the corporation to vindicate its rights, a director should be privileged to see it through to conclusion. Other directors, themselves charged with fraud, misconduct or neglect, should not have the power to terminate the suit by effecting the ouster of the director-plaintiff. It is no answer to say that, if wrongs were committed, others are available to commence a new and appropriate action." ( Tenney , at p. 210, 189 N.Y.S.2d 158, 160 N.E.2d 463 ; see Workman , at pp. 604-605, 382 P.3d 812 ["it is reasonable to infer that the board removed [the plaintiff] in response to her claims, particularly in light of the allegations of wrongdoing she made against the other directors"].)


The State’s misfeasance or <mask> would certainly be a proper excuse for a failure to timely file (cf., e.g., Finster v State of New York, slip opn, at 2 [Ct Cl, C1 No. 79500, mot No. 41404, Dec. 14, 1989, Benza, J.]) and, while we do not believe the Legislature intended superior rights for prisoners, we also think it did not intend to continue obstructions to a prisoner’s right to sue. The State has a legal obligation to allow prisoner suits and that includes the allowance of proper proof of service. In the face of claimant’s evidence of delivery, the burden was on defendant to explain why claimant’s instructions were not complied with. (Cf., 17 NY Jur 2d, Carriers, §§ 275, 339.) It failed to do so (see, Cole v State of New York, supra) and we believe the duty it breached is of sufficient importance and relevance to a prisoner’s right to sue to warrant the application of estoppel. (See, 57 NY Jur 2d, op. cit.)


In the instant case, however, no such conflict exists between General Municipal Law § 205-b and Vehicle and Traffic Law § 1104. Section 205-b provides for an immunity for volunteer firefighters for simple negligence, allowing liability only for “wilful negligence or <mask>.” This immunity is specifically not extended to fire districts. Indeed, “[t]he statute erased any immunity formerly extended to fire districts, and replaced it with the common-law rule of master and servant, and the doctrine of respondeat superior.” (Nardone v Milton Fire Dist., *485261 App Div 717, 720 [3d Dept 1941], affd 288 NY 654 [1942]; but see, Fuerguson v East Meadow Fire Dist., Sup Ct, Nassau County, Nov. 20, 1998, Bucaria, J., index No. 32787-97; Morris v Stanchio, Sup Ct, Suffolk County, Nov. 5, 1998, Doyle, J., index No. 16276-97.) While General Municipal Law § 205-b specifically defines the liability of fire districts, there simply is no reference in Vehicle and Traffic Law § 1104 to fire districts at all. The court will not read such protection for fire districts into Vehicle and Traffic Law § 1104, as such a reading would bring the statute into direct conflict with the plain language of section 205-b which specifically provides for liability of fire districts.


Each county has a county treasurer who is its sole financial officer, and whose powers and duties are specially defined by statute, but who is in no sense the agent of the county. He is elected the same as pH other county and town officers to assist in carrying on the local machinery of the State government, and has assigned to him by law certain independent powers and duties. For lfis conduct as such officer he is amenable to the laws of the land and the judgment of his countrymen, but we have been referred to no case where a county has been held responsible either for the misfeasance or <mask> of its county treasurer, and after an extended search we have been unable to find one. It is true the county treasurer stands as the financial agent of his county. He receives the money belonging to it and pays the same out upon proper order, and the receipt of money belonging to the county by its treasurer is a receipt by the county, and an action can be maintained against a county for the recovery of money illegally collected and paid to its treasurer. (Newman v. Supervisors of Livingston, 45 N. Y., 616.) In that case a tax had been illegally levied and collected against the plaintiff and paid into the treasury of the county. The action was not brought to recover for the misfeasance of any of the officers either .town or county, by whose instrumentality the wrong had been perpetrated, but it was brought for the recovery of money in the possession of the defendant which did not belong to it, and did belong to the plaintiff, and the action was maintained on that ground alone.


Here, Chastain's claims for <mask> against Geary were dismissed by the trial court through an Order entered on March 27, 2017, with a corresponding docket entry reading "Judgment Entered." The Order dismissing Chastain's claims was not denominated a "Judgment" and the docket entry was not signed by the judge. Thus, the requirements of Rule 74.01(a) were not met, as Missouri courts have routinely held that the separate document and docket entry cannot be considered together to satisfy the rule's requirements. See, e.g. , Amoso Realty, LLC v. Milton , 513 S.W.3d 373, 376 (Mo. App. E.D. 2016) (holding that signed order denying motion to intervene and associated with docket entry stating "SEE ORDER AND JUDGMENT" was not a final, appealable judgment); Orf v. Orf , 208 S.W.3d 306, 307 (Mo. App. E.D. 2006) (holding that signed written order not denominated a "judgment" and corresponding docket entry stating "Judgment *846Entered" but not signed or initialed by the judge is not a final, appealable judgment).


While the issue confronting the court in People v Reilly (supra) involved forcible rape, the same court was also faced with the constitutionality of subdivision 3 of section 130.35, the same statutory provision as at bar, in the case of People v Fauntleroy (94 Misc 2d 606). The court again upheld the constitutionality of subdivision 3 of section 130.35 against an equal protection attack incorporating the opinion set forth in People v Reilly (supra). While this court would not go so far as to say that females are physiologically incapable of committing the crime of rape, the touchstone of the governmental justification lies in the social <mask> which the statute was originally directed to cure. If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. As stated in West Coast Hotel Co. v Parrish (300 US 379, 400), the Legislature is free to recognize degrees of harm and it may confine its restriction to those classes of causes where the need is deemed to be clearest.


Defendant moved for summary judgment dismissing the malpractice complaint, asserting plaintiff’s inability to demonstrate that, but for his asserted <mask>, she would have prevailed in the arbitration proceeding against her husband’s insurance company (see, Oppenheim & Co. v Bernstein, 198 AD2d 163). Defendant’s principal arguments are that plaintiff has failed to produce the insurance policy issued by the United States Automobile Association, under which she claims a right of recovery and that, in any event, she is not a "covered person” so as to qualify for protection under the asserted terms of the policy. Whether or not plaintiff is a "covered person” depends on whether she was a "family member” residing in the insured’s household at the time of the accident. Finding the various documents submitted by the parties "insufficient to establish plaintiff’s residency at the time of the claim”, Supreme Court denied defendant’s motion.


*219The supposed authority for the objection is found in a dictum by the Appellate Division for the First Department in Mulligan v. Bond & Mortgage Guarantee Co. (193 App. Div. 741, at p. 745) where the court is reported as saying: “ The requirement of a bond from a trustee appointed by the court, who is to receive money or property, is to insure the beneficiaries and parties interested in the fund to be administered against loss through a depletion of the fund by misfeasance or <mask>.”


Also unavailing is Ambac's contention that Countrywide should be judicially estopped from asserting that public disclosure of its <mask> put Ambac on inquiry notice based on its purportedly contrary position in Footbridge Ltd. v Countrywide Home Loans, Inc. (2010 WL 3790810, 2010 US Dist LEXIS 102134 [SD NY, Sept. 28, 2010, No. 09 Civ 4050 (PKC)]). Significantly, whether the plaintiff's action was timely under New York law was not an issue before the Footbridge court, which decided a motion to dismiss an RMBS fraud claim under federal and New York law. Given that Footbridge involved different parties, different issues, different legal standards, and different investments, the doctrine of judicial estoppel cannot be invoked here (see generally American Motorists Ins. Co. v O'Brien-Kreitzberg & Assoc., 234 AD2d 30 [1st Dept 1996]). THIS CONSTITUTES THE DECISION AND ORDER


Section 1006 of the Optional County Government Law makes provision for the removal of a county manager, as follows: 1‘ The county manager shall be removable by the board of supervisors, (1) because he was at the time of his appointment or has since become ineligible to hold such office as herein provided, (2) for <mask> or nonfeasance in office, (3) upon conviction of a crime or of a misdemeanor involving moral turpitude, (4) for failure to perform his duties as provided in this act in an honorable, competent and reasonably efficient manner or (5) if he becomes morally, physically or mentally unfit to act in behalf of the county, but if he is to be removed he shall be given, upon demand, a written statement of the reasons alleged for the proposed removal and shall have the right to a hearing thereon at a public meeting of the board of supervisors prior to the date on which his removal is to take effect.3 3


In their original and supplemental memoranda of law,4 counsel for the plaintiff address the element of causation, they implicitly adopt the “but for” test, and state that but for the negligent advice and opinions of the defendants, the Marks’ schemes would indeed have failed. At one point in the supplemental memorandum, counsel even identify a specific, crucial point where a proper opinion letter would have stopped at least part of the schemes: it is stated that “the evidence will establish that” the corporation’s register *269and transfer agent would have refused to issue the stock which was the vehicle for the fraud, absent the defendants’ opinion letter. Unfortunately, such unsworn statements cannot remedy deficiencies in pleadings. The complaint itself is devoid of any such allegations of causation with regard to any of the acts of <mask> alleged against any of the defendants.


The annotation this court cited is rather dubious authority for the proposition that statutes for the removal of personal representatives in general, and former section 531 in particular, were designed solely to address administrative <mask>. At most, the annotation cites an 1892 intermediate appellate court decision from New York, which affirmed the denial of a request to remove an executor because "there had been no misconduct on the part of the executors, in the sense of any moral wrong, [so] there was no ground for their removal ...." (Annot., Remedies in event of executor's or testamentary trustee's delay in exercise of power to sell real estate conferred by will (1941) 132 A.L.R. 1473, 1479, citing Wilcox v. Quinby (1892) 20 N.Y.S. 5, 5.)


Consequently, reunification services are not meant to be discretionary. ( In re A.G ., supra , 12 Cal.App.5th at pp. 1004-1005, 219 Cal.Rptr.3d 239.) " 'When a child is removed from a parent's custody, the juvenile court ordinarily must order child welfare services for the minor and the parent for the purpose of facilitating reunification of the family.' " ( M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 174, 83 Cal.Rptr.3d 864, italics added; see also § 361.5, subd. (a).) From "roughly the jurisdictional hearing (§ 355) to the six-month review hearing (§ 366.21, subd. (e) ), [reunification] services are afforded essentially as a matter of right ( § 361.5, subd. (a) ) unless the trial court makes one of a series of statutorily specified findings relating to parental mental disability, abandonment of the child, or other specific <mask> ( § 361.5, subd. (b) )." ( Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 845, 69 Cal.Rptr.3d 96, 172 P.3d 402, fn. omitted.) Reunification services are thus presumed at the outset of the dependency proceedings. ( Ibid . ; In re Nolan W ., supra , 45 Cal.4th at p. 1228, 91 Cal.Rptr.3d 140, 203 P.3d 454.) For this reason, reunification services are provided even when a parent is institutionalized or incarcerated. (See § 361.5, subd. (e).) The clear and convincing evidence standard applied in section 361.5, subdivision (b), "reflects a legislative intent to condition denial of reunification services on a heightened level of proof beyond the preponderance of the evidence standard." ( K.F. v. Superior Court (2014) 224 Cal.App.4th 1369, 1388, 169 Cal.Rptr.3d 571.)


To hold under these facts that Election Law § 6-144 invalidates DiNapoli’s certificate of acceptance as untimely filed is to promote disorder in the progression of events leading to election of public officials. Even those who diligently comply with the Election Law run the risk of having their candidacy vitiated by inadvertence, carelessness, misfeasance, <mask> or partisan politics by Board of Elections personnel.


The claimed illegality is dramatized and colored by allegations that the defendants, Ludera and Pordum, together with certain unidentified public officials and other legislators misrepresented the terms of the so-called Tutuska lease, and that the resolution of January 19, 1971 terminating the relationship between the county and Kenford and Dome was adopted as a consequence of their ‘ ‘ fraud, collusion and <mask> in office ’ ’ pursuant to ‘1 their alleged activities and conspiracies. ’ ’ It is also alleged that the defendants named (but presumably not served) as John Doe, Bichard Doe, X Corporation and Y Corporation participated in a conspiracy to block construction of the Dome Stadium “ with the intent and purpose of gratifying and enhancing political and financial interests. ’ ’


Argumedo pleaded guilty to misdemeanor obstruction of justice in violation of Penal Code section 148, subdivision (a)(1),4 a crime not specifically enumerated as one disqualifying a person from holding public office. Because article VII, section 8, subdivision (b) of the California Constitution and Government Code section 1021 authorize disqualification from office only upon conviction of the specified offenses, the *134question here is whether the 2010 record of Argumedo's conviction for obstruction of justice unambiguously establishes <mask> in office, not whether the City, five and a half years later in a civil trial, established facts showing Argumedo committed malfeasance in office through documents and witness testimony not admitted in the criminal proceedings.


In considering petitioner’s application, this court takes cognizance of the fact that the majority of released Grand Jury testimony has been for the purpose of aiding criminal investigations or dealing with possible <mask> in public office. However, it is clear that the scope of public interest is quite broad and should not be restricted solely to criminal matters. As was pointed out in Marinelli v State of New York (71 Misc 2d 62, 63), "an inspection can be had in aid of proceedings other than criminal, but only to protect the rights of the public”. Thus, while the administrative needs of a municipality may be less dramatic than an investigation of crime, both functions are necessary to protect the public.


The provisions of the Highway Law regulating the manner of contracting for the expenditure of the moneys raised for highway purposes were incorporated in the Highway Law by the legislature as a safeguard for the protection of the moneys of the people, and it is the duty of the highway superintendent to conduct his office and perform his duties in the manner prescribed by the act and not according to his own individual notions or judgment. Not only did the express provisions of the law require the respondent to expend the moneys in the manner required by law, but the respondent actually entered into an agreement with the town board fixing and prescribing the manner in which the moneys should be expended. The respondent must have known that having made such an agreement with the town board he was bound by its provisions and could not expend the moneys as he saw fit, and in utter disregard of the provisions of *287said agreement which so minutely described how every cent of the money should be used. It does not appear from the evidence that the respondent misappropriated any of the moneys entrusted to him by the people and I believe that when he spent the money on other town highways than those specified and authorized by said agreement he was acting in good faith and that he honestly believed he was doing the best thing for the interests of the people; nevertheless he knowingly violated one of the most essential and important provisions of the Highway Law and in this respect was guilty of <mask> in office and laid himself open to these charges and to removal from office. Upon the uncontradioted evidence in this proceeding, the respondent is subject to removal. The finding of the town board that the charges have not been sustained is not in accordance with the evidence.


It is difficult to compare parties, such as petitioners, who live in apartments in a time of recognized housing shortage and whose quality of life will be altered by the “ co-oping ” of their building, to securities traders who have it wholly within their discretion whether to buy or sell any particular security. In the case of the latter, it is, of course, the general rule that nonpurchasers cannot complain of misrepresentations in prospectuses and like publications (see Birnbaum v. Newport Steel Corp., 193 F. 2d 461). But to petitioners herein, a decision not to purchase is itself a step with far-reaching consequences, consequences different in degree and quality from that of deciding whether to buy or not buy a given security on a given day. This was recognized in the Schumann and Pensic cases (supra). As stated in Schumann (65 Misc 2d, at p. 257), “ The Attorney-General having approved the prospectus for filing, the only appropriate standard by which this court can review the adequacy of the prospectus is the article 78 standard ” and that the Attorney-General’s 1 ‘ administrative nonfeasance or <mask> [is] subject to article 78 review by the courts.” Nor is Tuvim (N. Y. L. J., March 22, 1971, p. 2, col. 6, supra), to the contrary for there the court merely held, pursuant to the general rule, that fraud is not actionable where there is no proof of reliance on the claimed misrepresentation.


Here, the probate court never ruled upon Carol's motion to remove Robert as guardian and conservator; instead, the January 23, 2018 ruling accomplished two things: first, upon the recommendation by the GAL and the probate court's own independent *655review of Robert's <mask> during the course of the proceedings, the probate court removed Robert as guardian and conservator for Larry; second, the probate court granted Carol's petition for appointment of successor conservator and guardian, thereby appointing Carol in both successor roles.6 Accordingly, Robert's standing argument on appeal is misplaced.


The executors herein purchased Interborough Rapid Transit five per cent bonds in April, 1916, par value $100,000. These securities did not fall within the class of legal investments as determined by the legislature of this state and the law laid down in King v. Talbot, 40 N. Y. 76; Matter of Wotton, 59 App. Div. 584; affd., 167 N. Y. 629. It will be recalled that, by section 5 of article 12 of the will, the executors were given the right to change as they may see fit any investments left by the decedent, “ and to retain the securities representing the same as proper investments; ” were not to be holden for any loss under the terms of section 7, article *1412, unless it shall occur through their own gross neglect or willful <mask>; and were authorized by section 8 of article 12 to allot specific securities, and the relative value shall be conclusive upon all persons interested. The trustees purchased these bonds in good faith and in the exercise of prudence. Matter of Vom Saal, 82 Misc. Rep. 531. It is my opinion that they had a right to purchase these securities under the ruling laid down by Mr. Justice Mills, of this department, in Matter of United States Trust Co. (Colgate’s Will), 189 App. Div. 75, decided October 3, 1919. The authority to executors in the Colgate case is indeed quite similar to the authority accorded by the will of the decedent in the instant case.


Subdivision 13 of said section provides that no revocation order shall be issued if the commissioner shall determine that: "(a) * * * the person involved was not aware that financial security was not in effect and the failure to have such financial security in effect was caused solely by the negligence or <mask> of a person other than such person.”


"(b) He may be removed at any time by the board of supervisors for neglect of duty, <mask> or misconduct in office, or other good cause shown, upon written accusation to be filed with the board of supervisors, by a person not a member of the board, and heard by the board and sustained by a three-fifths vote of the board. When an accusation has been so filed with the board, the board may direct the district attorney to investigate and present the accusation or may employ private counsel for that purpose. All testimony before the board shall be under oath or affirmation administered by the board. The board is hereby vested with the power to compel the attendance of witnesses and the production of books, papers and testimony and shall make such processes available to the accused. A copy of the accusation shall be personally served upon the accused and he shall be given not less than 10 days' time in which to file a written answer to the accusation. If, after hearing, it appears to the satisfaction of the board that the accusation has been substantiated, the board shall so notify the accused by mail. Such notice shall specifically state the findings and judgment of the board, and the board shall thereupon forthwith remove the accused from office and shall immediately appoint his successor."


Nor is there any inconsistency between the jury finding that the individual defendants were not grossly negligent and its finding of gross negligence on the part of the owner-partnerships. The partnerships themselves, as entities which own property, may be viewed as having acted with gross negligence, regardless of whether its general partners individually are themselves found to have acted with the same degree of culpability. In fact, a partnership may be liable for the <mask> of an employee, even without affirmative malfeasance by any partner (see, Caplan v Copian, 268 NY 445; Matter of Peck, 206 NY 55).


Tt has been repeatedly decided, both in England and in this country, that corporations possess no powers except those which are specifically granted by their charter. No power can be taken by implication; it must be conferred by statute. The power conferred by the 5th section, can only be enforced in the manner pointed out by the act. They are merely of a legislative character; to make, enact, publish and amend by-laws for clearing off and cleaning the streets, alleys and highways, and to prevent, abate, or remove nuisances. “ It is,” say the court in Boom v. The City of Utica, (2 Barb. S. C. Rep. 104,109,) “ a mere grant of authority to adopt general rules and regulalations respecting the removal of nuisances.” And see Camden and Amboy R. R. and Transportation Co. v. Remer, (4 Barb. 127 ;) Halstead v. Mayor of New-York, (3 Comst. 430;) Hart v. Mayor &c. of Albany, (9 Wend. 571, 588;) Hodges v. City of Buffalo, (2 Denio, 110;) Dunham v. Trustees of Rochester, (5 Cowen, 462.) By these cases it is established that a corporation, when it proceeds to do an act, must show its power, and bring itself within it, by proof. The 16th section of the act declares the village to be a separate road district of the town of Plattsburgh, and transfers the duties of executing the highway laws from the town to the village officers. “ They shall have the same powers, and be charged with the same duties over the roads in the said village, as commissioners of highways in towns have or possess.” They are therefore independent officers, so far as their duties as commissioners of highways are concerned, governed and controlled and directed by the several acts of the legislature regulating highways. They are, to be sure, for certain purposes officers of the corporation, and when acting for the benefit of the corporation, it may be liable for their acts; but not when they are acting as independent officers, whose duties arc specifically prescribed by law. In the case of The Mayor &c. of New- York v. Badley, (2 Denio. 433,) it was held that an action on the case for <mask> will lie against *436a corporation ; and that a municipal corporation was responsible for the negligence or unskillfulness of its agents and servants-when employed in the construction of a work for the benefit of the city or town, subject to the government of such corporation. In that case a recovery was had against the corporation of the city of New-York for injuries occasioned to third persons, by the negligent and unskillful construction of a dam on the Croton river ; it appearing that the title to the land upon which the same was erected, was vested in the corporation. The recovery was based upon the express ground that the dam was the property of the corporation, and that such corporation was legally hound to see that its corporate power was not used by any one,so as to become noxious to the occupiers of property on the river below. And the court remarked that although the corporation did not appoint the water commissioners who constructed the dam, and although they had no right to interfere in the appointment or removal of the engineers and others who were employed-in the construction of the work, nor even to withhold the payment of their wages, yet the case was likened to a man who has-work going on upon his own premises and for his own benefit, and who must be civilly answerable for those whom he employs ; that it shall he intended that he has control over those who work upon his premises, and he shall not be allowed to dis-charge himself from that intendment of law, by any act or contract of his own. The court remark u That a municipal corporation, though not liable for acts- requiring the exercise of discretion, when those acts are for the benefit of the public ; or for the acts of independent officers whom it is obliged to appoint,- and whose duties are specifically prescribed by law, yet it is liable for the acts of the agents it voluntarily employs, to do-business for its own private benefit, the same as any other corporation or individual.” (See cases there cited.)


Separately, the proof showed that one of the liens satisfied by the 2010 refinancing concerned an additional $80,000 lien against the marital residence, when it was still separate property, incurred to finance defendant’s second business venture with his cousin, Gus Votsis and the third investor. Inasmuch as the 2010-2011 refinancing concerned what had shortly before become marital property, the lien thereby constituted marital funds (in the form of a marital debt, Nidositko, 92 AD3d at 656, citing Loria v Loria, 46 AD3d 768, 770 [2d Dept 2007]). Although defendant might argue that the 2010-2011 series of transactions would be beyond the reach of the court under Mahoney-Buntzman v Buntzman (12 NY3d 415, 420-421 [2009]), the extraordinary history of financial <mask> in this case requires consideration of it in determining whether any credit by reason thereof is warranted. (12 NY3d at 421-422, citing Do*658mestic Relations Law § 236 [B] [5] [d] [11].) The court determines that no credit to defendant arising from the refinancing is appropriate.


We first examine the question of Federal law: The ERISA exemption has been the subject of two recent decisions by the United States Supreme Court. The first, Guidrey v Sheet Metal Workers Pension Fund (493 US 365), disapproved the judicial creation of generalized equitable exceptions to ERISA’s prohibition on the alienation of pension benefits, even where employee misconduct or <mask> may have been involved. The second, Patterson v Shumate (504 US 753), *421reiterated the Court’s position that the creation of equitable exceptions to the ERISA antialienation provision must be left to Congress.


The thrust of defendant’s contention in support of this application is that his treatment, examination, evaluation, recommendation and opinion are immune from forming the basis of a civil action such as this one inasmuch as they were rendered pursuant to a judicial directive and in relation to judicial proceedings (see, Tolisano v Texon, 144 AD2d 267, revd 75 NY2d 732 for the reasons stated in the dissenting opn of the App Div, 1st Dept, opn of Smith, J.; Schiffman v Kaplan, NYLJ, July 31, 1990, at 20, col 3 [Sup Ct, Nassau County]; Ferguson v Wolkin, 131 Misc 2d 304; Davis v Tirrell, 110 Misc 2d 889). He contends that the sole focus of the services he performed in this case was the postjudgment domestic dispute *281that brought plaintiff and her ex-husband before Justice Francis in June of 1985. With regard to plaintiff’s allegation that he transcended his role in these proceedings by counseling the plaintiff pertaining to her relationship with her daughter, defendant correctly points out that such treatment fell squarely within the realm of Justice Francis’ referral "ordering the child and both parents to be counseled, examined by Dr. Kenneth Condrell”. Indeed, plaintiff’s own bill of particulars in attempting to lend some substance to the general allegations of <mask>, negligence and malpractice made in her complaint, recites that the injury said to have been proximately caused by defendant’s conduct was the order of Justice Francis transferring custody of the daughter which "made direct reference to the reports and testimony of the defendant”. This is not a situation, therefore, where the malpractice claimed relates to a method of defendant’s treatment but rather from the defendant’s opinion and conclusion with respect to plaintiff’s fitness to be a custodial parent. Plaintiff’s attempt to extend the physician-patient duty expounded in Twitchell v MacKay (supra), must fail by reason of this shortcoming. In short, while plaintiff alleges that defendant was negligent in his counseling of both plaintiff and her daughter, the fact that any such counseling was done under the aegis of and pursuant to the directive of this court in determining the issue of child custody cannot be gainsaid. This court is of the view that the privilege of immunity which usually applies to judicial proceedings also attaches to defendant’s conduct in this case so as to insulate both defendant and his conduct from being the predicate for a subsequent civil action. To the extent that none of the cases previously cited have gone so far as to state that such a privilege extends not only to the examiner’s testimony but also to any reports, recommendations, evaluations, treatment or counseling rendered by him, this appears to be a case of first impression. As was noted by Justice Smith in his dissenting opinion in Tolisano: "[p]ublic policy requires that a witness’s testimony be privileged in order that those called upon to discharge their public duty freely do so with knowledge that they will be insulated from the harassment and financial hazard of subsequent litigation” (144 AD2d, supra, at 271). This court is further persuaded by the approach taken by the District Court of California in a case decided under similar facts which would extend the privilege to an individual such as the defendant herein so long as his or her conduct occurred *282during the course of the judicial proceedings and was reasonably related to them and provided further that it was connected with and logically related to the purpose of the proceeding (Goatee v Lightner, 224 Cal App 3d 387, 274 Cal Rptr 697 [4th Dist 1990]).


The complaint sets forth that on November 26, 1950 plaintiffs suffered injuries as a result of the negligence of the individual defendant in the operation of his automobile; that an action was commenced against the individual defendant; that said defendant defaulted and a judgment in various amounts was rendered in favor of the plaintiffs against said individual defendant; that that defendant was insured by the defendant insurance companies; that said companies disclaimed liability under the policy and have refused to pay the judgments obtained against the individual defendant. Defendant insurance Companies served an answer containing a general denial and as a separate affirmative defense therein alleged that the individual defendant had breached the terms of the policy by failure to give notice of the accident, co-operate with the insurers or give notice to the insurers that an action had been commenced. The proposed amended complaint contains additional causes of action, in <mask> and nonfeasance, against two individual defendants, attorneys at law, alleging that plaintiffs retained such attorneys on or about December 9, 1950 to prosecute the action against the individual defendant, that said attorneys failed to give notice of the accident to the defendant insurers and failed to obtain a copy of defendant’s report to the Bureau of Motor Vehicles, and that by reason of said negligence defendant insurance companies have disclaimed liability.


Practice Plan membership can be terminated “for cause” when a Practice Plan member’s clinical privileges or medical staff membership have been suspended or terminated in writing by the CEO for reasons described in the paragraph after an internal RPCI hearing, if requested, pursuant to the RPCI medical staff by-laws (10 NYCRR 88-4.3 [b] [4]). For the purpose of the regulations, Practice Plan membership shall be terminated if the suspension was for grave cause, including gross professional incompetence; serious <mask>, misfeasance or nonfeasance; serious and protracted medical disability; misconduct in office; and felony or other serious criminal offense. Nowhere in the rules and regulations is there a provision suggesting that a violation of the regulation can result in criminal prosecution.


The defendants’ contention that the plaintiffs entire action is barred since the statements and pleadings of Continental and its counsel are immunized under the principle that statements made during the course of litigation are nonactionable is without merit. All the cases cited for authority by the defendants involve claims for defamation based upon statements or views expressed during a prior litigation. The plaintiffs claims here concern, inter alia, alleged acts of fraud, collusion, and <mask> perpetrated for self-serving purposes that resulted in legal fees to the plaintiff. These are, as the court has held supra, legally cognizable causes of action and the defendants cite no authority to establish that oral and written statements proffered to support these claims, as opposed to cases involving defamation, are immunized. Indeed, the court’s research indicates that the principle relied upon by the defendants is limited strictly as a defense in defamation actions (see, Toker v Poliak, 44 NY2d 211, 218 [1978]; Matter of Dunn v Ladenburg Thalmann & Co., 259 AD2d 544 [1999]; Baratía v Hubbard, 136 AD2d 467 [1988]) and, under certain circumstances, the privilege may be lost if it is determined it has been “abused” (see, Halperin v Salvan, 117 AD2d 544, 548 [1986]; Youmans v Smith, 153 NY 214, 220 [1897]).


Petitioner contends that the <mask> or negligence was on the part of his agent or insurance company. It would seem that this is the most likely circumstance which would lead to an erroneous cancellation. Yet a strict construction of the two subdivisions would lead to an inevitable conclusion. Should a clerk in an insurance office through error or inadvertence send a notice of termination to the commissioner, revocation would follow, and there would be no relief for the owner.


We conclude the record of Argumedo's conviction does not unambiguously show his guilty plea to obstruction of justice constitutes a conviction for <mask> in office as set forth in article VII, section 8, subdivision (b) of the California Constitution. As set forth above, case law indicates the crime of malfeasance in office evidences moral corruption and dishonesty as do convictions for bribery, perjury and forgery (the other crimes specifically enumerated in article VII, section 8, subdivision (b) of the California Constitution ). (See Otsuka v. Hite , supra , 64 Cal.2d at p. 608, 51 Cal.Rptr. 284, 414 P.2d 412.) A conviction for obstruction of justice does not necessarily imply moral corruption and dishonesty. Further, a conviction for obstruction of justice does not imply conduct that occurred "in office," a necessary element of malfeasance in office. The trial court did not state for *282the record the particular factual basis it found for the plea, and Argumedo did not admit any specific facts.


Pamela passed away during the pendency of this case. Elizabeth was appointed after the original administrator was removed for <mask>. yearly installments. For the years 1980, 1981 and 1982, Murray was to pay interest only, which was $19,200 per year; thereafter, he was to pay principal and accrued interest, amortized over a period of ten years. The 1980 Agreement provided the indebtedness bore interest of 8% per annum but the failure to make any payments when due would trigger an automatic increased interest rate of 12% per annum for the period of the unpaid installment. In addition, Murray agreed to maintain and pay premiums upon a $385,000 life insurance policy that was previously transferred to Mother's Estate. Murray made six payments on the debt until 1986 and made no further payments. He also stopped paying premiums on the life insurance policy.


If the Trust purported to absolve Thomas of any liability as successor trustee, we would have to interpret that provision as void as it would be in contravention of clear public policy and contrary to the language of the Trust. (See Tunstall v. Wells (2006) 144 Cal.App.4th 554, 564, 50 Cal.Rptr.3d 468 [before a court may invalidate a trust instrument based on conflict with public policy, that public policy must be "sufficiently clear"].) But what if the Trust's terms permit Thomas to prevent a successor trustee from obtaining the documents by which they might establish Thomas's <mask>, bad faith, or intentional misconduct? Are Trust provisions that may, in effect, absolve Thomas from liability also void because they are in contravention of public policy or contrary to the terms of the Trust?


On October 9, 1974 the three individual petitioners and the Clerk of the Board were served with papers in a proceeding commenced before the Commissioner to remove them, pursuant to the provisions of section 306 of the Education Law. The proceeding named the three petitioners individually and collectively, as a majority of the Board. On October 11, 1974 the Board met and directed the Board’s attorney to represent the three petitioners collectively as the Board majority, but took no action to designate counsel for the petitioners individually. Thereafter, several of the petitioners in the removal proceed*866ing appealed to the Commissioner, pursuant to section 310 of the Education Law, seeking to stay and rescind any resolution passed at the Board meeting of October 17, 1974, On November 21, 1974 the Commissioner gave his decision wherein he: (1) affirmed the right of the Board to act; (2) ordered that no district school moneys be paid for defense of the three petitioners, acting collectively as a "majority” of the Board, until final determination of the removal proceeding and, then, only after certification by the court or Commissioner that the three petitioners appeared to have acted in good faith with respect to the exercise of their duties; and (3) ordered that no district funds be paid at any time for costs of the defense for the three petitioning school Board members "against charges based on claims of personal <mask>, or lack of qualifications to serve, regardless of the determination made in relation to such charges.”1


This case presents an example of the responsibilities which plaintiffs seek to shift to this court through a broad reading of the statute. Plaintiffs’ complaint alleges that the negotiators for a teachers’ contract were given a percentage increase up to which the Board of Education would approve a new contract. An agreement was reached which, while ostensibly keeping within the authorized percentage for a salary increase, actually obligated the district to pay substantially greater teacher salaries. While not detailing the actual fraud, the complaint alleges that the negotiators knew or should have known of this disparity between the stated percentage increase and the actual dollar increase but somehow concealed such information from the Board of Education. The method of concealment is nowhere alleged nor apparent. The Superintendent is charged with "negligence” and the approving Board of Education with either negligence or breach of their fiduciary duty. Plaintiffs have alleged (but not proved) what may be described as a lack of competence on the part of the Board of Education. It has not been alleged or established that it was not possible to understand the economic consequences of the contract from its terms. It has not been alleged or established that the "fraud” consisted of anything other than one or two individuals’ superior understanding of the negotiated deal which they neglected or refused to share with their employer. Even assuming plaintiffs could prove such employee or contractor misconduct or <mask>, it is not clear that there is or should be any other remedy than either discharge or an action by the Board of Education for breach. What plaintiffs really seek to litigate, at best, are rights enforceable by the Board of Education.


While such events were taking place some four and one-half years before the arrest of Peter Corso, a scenario had already been created by reason of investigative <mask> and nonfeasance which would make it virtually impossible to evaluate the police activity in an effort to determine the significance of the information provided with respect to other persons capable of the murder. Measured against the strength of the People’s case, which was built upon something less than firm ground — the testimony of an admitted murderer, hijacker, arsonist, robber and liar — one cannot help but come to the conclusion that the missing evidence would have to affect the outcome of a trial in favor of the defendant. Although it might be argued that this evidence does not bear any direct relation to the second count of the indictment, the actions of the prosecution team, which of necessity includes the investigating detectives with respect to the underlying charge, resulting in the loss of evidence, or lack of evidence, in apparent violation of existing police regulations, casts a negative shadow upon the second charge. But for the growth of the poisonous tree, in the form of the murder charge, the fruit, in the form of the drug charge, would never have blossomed.


Plaintiff has failed to meet her burden to establish the terms of the contract under which she claims a right to recovery of insurance proceeds. She has failed to . demonstrate that a condition of the policy which would extend protection to her was fulfilled at the time of the accident or even to submit an affidavit sufficient to raise a triable issue with respect to her fulfillment of that condition. Accordingly, plaintiff cannot establish that, but . for the asserted <mask> of defendant, she would have recovered benefits under her husband’s insurance policy, and the complaint against defendant *91must be dismissed. Concur—Sullivan, J. P., Ross, Asch and Rubin, JJ.


Thus, where a case, as the one at bar, goes beyond simple negligence at a hospital, e.g., leaving a light bulb under the sheets (Dillon v Rockaway Beach Hosp. & Dispensary, 284 NY 176), or engaging in any of the acts of ordinary negligence, as catalogued in Twitchell (78 AD2d, at p 127), and entails the very essence of a physician’s actions and methods in performing a surgical procedure, a determination of what is or is not appropriate cannot be made in the abstract any more than can the actions of an astronaut or computer technician who selects one computer key rather than another. Accordingly, when defendant doctor was called upon, as alleged in plaintiffs complaint, to act with due skill, care, and judgment, and if as alleged, he "carried out his function in a negligent or improper fashion * * * the legal concept for any <mask> or misfeasance by defendant would quite properly fall under the label of medical malpractice (see Calhoun v Gale, 29 AD2d 766)” (Twitchell v MacKay, 78 AD2d, at p 129).


The prior restraint on statements which police officials might make in the future as to the competence of the police classes of 1968 and 1969 represents an intolerable infringement on First Amendment rights. (Nebraska Press Assn. v Stuart, 427 US 539, 559.) "Prior restraint of publication or censorship in advance of publication is generally forbidden and may be unconstitutional unless the existence of certain conditions necessitate such action for the public safety, public welfare, or the preservation of the social order.” (Rosemont Enterprises v Irving, 49 AD2d 445, 449.) The alleged humiliation or embarrassment of the petitioners hardly rise to the level of protecting public safety, welfare and the social order. The relief requested is so vague as to impose not only a chilling effect, but a freezing effect on the exercise of free speech. The court is asked to restrain future "broad allegations of misconduct, <mask> and incompetence”. In the light of such vague language, how could anyone guide his future conduct? The request to restrain future criticism of the alleged class raises serious policy questions. The decision of the United States Supreme Court in New York Times Co. v Sullivan (376 US 254) and the decisions of other courts, have made it plain that newspapers are to be given the broadest possible scope in commenting upon matters of governmental, administrative and public interest. The question of whether police recruiting standards should be relaxed is not only a *806matter of great interest, but seriously concerns the safety of every citizen of the city. Discussion about standards and the analysis of the effects of the relaxation of such standards is totally appropriate for public discussion despite the pain and embarrassment it might cause to some of the persons comprehended within a group. The newspaper article points out a number of specific examples of misconduct and ineptitude amongst graduates of the classes of 1968 and 1969, and further points out that over 20% of the group has been involved in disciplinary proceedings. While that raises a serious question as to the standards involved in choosing them in the first place, it does not stigmatize everyone in the group. Eighty per cent of the group have never been confronted with a disciplinary charge. If average I.Q.’s were low, it is likewise clear that half the group scored much higher than the average.


Applied contends the fraud claims relate back because, like the contract and conversion claims, they involve "Thomas's <mask> with respect to his stock option agreements." Similarly, the dissent refers to "Thomas's misappropriation of stock options in violation of the stock option agreements and Applied's property interests." But we are aware of no authority supporting the proposition the relation-back doctrine applies wherever a plaintiff can define the defendant's misconduct in sufficiently general terms to encompass all of the claims at issue. (See Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 698, 103 Cal.Rptr.3d 209 [amended medical malpractice complaint that alleges different negligent act does not relate back].) Neither appellant nor the dissent has been able to identify any cases applying the relation back doctrine in circumstances similar to those in the present case, where the sets of claims involve different injuries occurring years apart. We conclude Applied has not shown the relation-back doctrine applies.


“ (4) to such owner or operator if the commissioner shall determine that the failure to have liability coverage as described above was caused solely by the negligence or <mask> of a person other than the person whose license or registration has been suspended or is subject to suspension, and that the person .seeking to avoid such suspension was not aware of the lack of such liability coverage. However, with respect to the provisions of (4) above, the burden of proof shall be upon the person seeking to avoid such suspension action. Provided further, that such facts shall be established by clear and convincing evidence, either by the .submission of affidavits or at a hearing called in the discretion of the commissioner. ’ ’


In the cases of Blunt v. Akin, 15 Wend. 522, and Waggoner v. Jermaine, 3 Denio, 306, it is said, that for maintaining a *46nuisance, a grantee in possession is liable as well as the grantor by whom the nuisance is erected, if the latter, by his covenants, is bound to uphold the occupier, or affirms the continuance of the nuisance. But in those cases, there was confessedly a known upholding of the nuisance in question; the question of negligence was in no wise involved; <mask>, and not negligence, was the ground of the action. The relation of landlord and tenant was not shown to exist between the occupier and the erector. And the action was not by another tenant hiring a part of the premises after the erection of the nuisance upon another part.


Nothing about the CFPB’s statutory structure changes our analysis. Congress has characterized the CFPB as “independent,” 12 U.S.C. § 5491(a), and has purported to make the Director removable only “for inefficiency, neglect of duty, or <mask> in office,” id. § 5491(c)(3). 4 But those indications of independence do not prevent the President from using the Vacancies Reform Act, because Congress has specified that the CFPB “shall be considered an Executive agency,” id. § 5491(a), which brings it within section 3347(a), and because the CFPB’s Director does not fall within the category of officers whom Congress has excluded from coverage under the Vacancies Reform Act.


Although the inmate must trigger the UMDDA application by affirmatively requesting final disposition of the pending charges in writing, appellate courts have held that "substantial compliance" is sufficient. See Burnett, 297 Kan. at 453; Sweat v. Darr, 235 Kan. 570, 575, 684 P.2d 347 (1984). So at the very least, the inmate must submit a written request. See Burnett, 297 Kan. at 453; State v. Eaton, No. 122,031, 2020 WL 7409961, at *5-7 (Kan. App. 2020) (unpublished opinion) (finding county attorney's actual notice coupled with inmate's written application mailed to district court "substantial compliance" under UMDDA); State v. Lomon, No. 116,497, 2017 WL 1535229, at *1 (Kan. App. 2017) (unpublished opinion) (finding inmate substantially complied by mailing handwritten request to county attorney, although he failed to send application to district court because correctional facility's refusal to forward application to county attorney or district court does not count against inmate). "[A]bsent some claim that prison officials thwarted the inmate's request by misfeasance or <mask>," the inmate's burden is "substantial compliance" under the UMDDA. Griffin, 312 Kan. at 724.


I neither condone the defendant’s reprehensible conduct, nor maintain that it was not violative of his professional ethics and Hippocratic oath. If, however, the defendant has committed a crime, let him be brought before the criminal halls of justice. For violation of his Hippocratic oath, if there be any, let him suffer the sanctions of the Medical Ethics Board or other appropriate medical authority. But let him not be convicted of his acts of misfeasance and <mask> by *898virtue of an action in malpractice. I might parenthetically add, that if the plaintiff is to succeed I am in total agreement with my colleagues that the plaintiff is not entitled to punitive damages and am likewise in full accord that her recovery should not exceed $25,000.


Moreover, the failings of community school boards cannot be blamed on BOE. The decentralization law gave BOE limited powers to oversee the boards. To the extent that defendants allege that corruption and waste by community school boards had a negative effect on student outcomes, the blame must lie with the State for perpetuating a form of school governance that generated corruption and waste. Though problems with decentralization became clear by the early 1980’s, the State did not diminish the powers of community school boards until 1996. This legislation, however belated, appears to have reduced <mask> in the City’s public schools. In addition, BOE is subject to extensive financial reporting rules and regulations. It is also served by an active Special Commissioner for Investigation who is charged with investigating corruption, fraud, conflicts of interest and other forms of unethical conduct. Both of these are checks on widespread illegality.


The plaintiff’s theory of liability against the architect is essentially predicated upon the claim that he failed to supervise the work of the general contractor and subcontractors. In addition, the plaintiff further alleges the architect failed to enforce proper safety precautions and detect safety violations to prevent the occurrence of the accident to the plaintiff’s decedent. The plaintiff does not allege that her decedent was the victim of architectural <mask>.


In revising the Penal Law, effective September 1, 1967, some 30 or more miscellaneous sections of the former Penal Law, specifying as crimes particular misconduct, both omissions and commissions, of public officials, were eliminated. Culpability thereunder had been designated by such terms as ‘ ‘ knowingly *513permitted”, ‘ ‘ willfully neglects ”, “ willfull omission”, ‘ ‘ neglectfully ’ ’, etc., which were vague, difficult to define and more difficult to apply. Also, these many and varied offenses of <mask> and nonfeasance by public servants which accumulated by additions to the Penal Law down through the years and applied to a great variety of public offices, while they pointed up undesirable conduct by public servants, many of them were of such a general petty nature as to be undeserving of the stigma of criminality.


Plaintiffs complaint alleges three causes of action. The first and second causes of action purport to allege claims for professional malpractice against defendant, whereas the remaining cause of action is characterized as one which sounds in fraud. The gravamen of plaintiffs negligence/malpractice claim is that defendant allegedly took the parties’ "professional relationship beyond the status as a mere court-op-pointed evaluator to a deeper, more significant relationship whereby he counseled the plaintiff vis-a-vis [sic] her relationship with her daughter”. Defendant’s <mask> is also said to have consisted of his having taken a "more active role in the dynamics of the plaintiffs relationship with her daughter”. Plaintiff cites the decision of the Appellate Division, Fourth Department, in Twitchell v MacKay (78 AD2d 125), in support of her contention that a professional relationship existed between the parties notwithstanding its genesis and that a professional malpractice claim might emerge from such a situation where the treatment rendered deviates from accepted standards of care.


■ The defendant was therefore a surety for both Rachel Depew and Bornt P. TYinant, and they were equally bound, so far as he was concerned as surety, to look after the estate; and neither could be permitted as against the sureties to take advantage of any liability growing o.ut of an omission to observe this duty, whatever relations might exist between them and creditors. The relation established between them and their sureties was such that both were equally bound so to administer the estate that the sureties should incur no liability. The undertaking of the sureties was that both principals would administer the estate; and if one of them converted it, it *498must necessarily have been because the other did not unite in the actual administration which appears to have been the case here. And, therefore, whatever loss was occasioned was the result of the negligence of the one who failed -to discharge her duties. The sureties indeed are entitled to indemnity from the principals for any loss resulting from the conduct of the latter, and not at all to be subjected to liability to them occasioned by their own misfeasance or <mask>. It was held in Van Horne v. Everson (13 Barb., 526), where it appeared that the principal had neglected to pay, and the land of his sureties was sold for the debt and he purchased it, that he acquired no title against his sureties. He could not take advantage of his own wrong. The ruling was in accordance with the dictates of natural justice and equity. The remedy of the plaintiff herein seems to be against the co-principal or his representatives.


It appears from the evidence that it was well known to the public prior to respondent’s re-election that his accounts and acts as highway superintendent were under investigation by the state auditors and that these matters and charges of <mask> were made public in the local press and discussed by the electors. After a full discussion and consideration of these very charges against the respondent, the electorate of the town returned the respondent to office, re-electing him for a term of two years commencing on the 1st day of November, 1913.