alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### St. John’s University, Respondent, v Butler Rogers Baskett Architects, P.C., et al., Defendants, and Langan Engineering and Environmental Services, Inc., P.C., Appellant. (And Third-Party Actions.)

[962 NYS2d 348]

In an action, inter alia, to recover damages for breach of contract, injury to property, engineering malpractice, and architectural malpractice, the defendant Langan Engineering and Environmental Services, Inc., EC., appeals, as limited by its brief, from (1), so much of an order of the Supreme Court, Queens County (Grays, J.), dated June 30, 2010, as denied, as untimely, its first motion for summary judgment dismissing stated portions of the complaint, and (2) so much of an order of the same court dated February 14, 2011, as denied its second motion for summary judgment.

Ordered that the orders are affirmed insofar as appealed from, with one bill of costs.

The Supreme Court properly denied, as untimely, the first motion of the defendant Langan Engineering and Environmental Services, Inc., EC. (hereinafter Langan) for summary judgment dismissing stated portions of the complaint since Langan failed to demonstrate good cause for not filing the motion before the expiration of the 120-day deadline set forth in CPLR 3212 (b) *(see Brill v City of New York,*2 NY3d 648 [2004]). Contrary to Langan’s contention, *the*Supreme Court providently exercised its discretion in declining to consider the good cause arguments raised for the first time in its reply papers *(see Cabibel v XYZ Assoc., L.P.,*36 AD3d 498 [2007]), particularly in *729the absence of a surreply from the plaintiff *{see generally Matter of Harleysville Ins. Co. v Rosario,*17 AD3d 677, 678 [2005]; *Johnston v Continental Broker-Dealer Corp.,*287 AD2d 546 [2001]; *Matter of TIG Ins. Co. v Pellegrini,*258 AD2d 658 [1999]). As Langan failed to otherwise offer any explanation for its delay in making the motion, the Supreme Court properly denied the motion without consideration of the merits *{see Giuliano v 666 Old Country Rd., LLC,*100 AD3d 960 [2012]; *Buffolino v City of New York,*92 AD3d 633 [2012]; *Derby v Bitan,*89 AD3d 891, 892 [2011]; *John P Krupski & Bros., Inc. v Town Bd. of Town of Southold,*54 AD3d 899, 901 [2008]).

The Supreme Court also properly denied Langan’s second motion for summary judgment as violative of the rule against successive motions for summary judgment *{see Blanche, Verte & Blanche, Ltd. v Joseph Mauro & Sons,*91 AD3d 693 [2012]; *Kimber Mfg., Inc. v Hanzus,*56 AD3d 615 [2008]).

Eng, RJ., Dickerson, Hall and Lott, JJ., concur.
#### Carlos Humberto DIAZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 05-70950.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 4, 2006 *.

Filed Dec. 13, 2006.

Carlos Humberto Diaz, Eloy, AZ, pro se.

Ronald E. Lefevre, Chief Counsel, Office of the District Counsel Department of Homeland Security, San Francisco, CA, District Director, Office of the District Chief Counsel, U.S. Department of Homeland Security, Phoenix, AZ, Hillel Smith Fax, Anthony W. Norwood, Esq., U.S. Department of Justice Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.

*709Before: GOODWIN, LEAVY, and FISHER, Circuit Judges.

*

 The panel unanimously finds this case suitable for decision without oral argument. *See*Fed. R.App. P. 34(a)(2).

MEMORANDUM **

Carlos Humberto Diaz, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to remand and dismissing his appeal from an immigration judge’s (“IJ”) decision denying his applications for cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction to review Diaz’s legal claims pursuant to 8 U.S.C. § 1252(a)(2)(D). We review de novo questions of law, *Cabrera-Alvarez v. Gonzales,*423 F.3d 1006, 1009 (9th Cir. 2005), and we deny the petition for review.

Diaz’s contention that the IJ erred in finding that his prior conviction was an aggravated felony is unavailing. In the final administrative decision, the agency did not hold that Diaz was convicted of an aggravated felony. Instead, the BIA affirmed the denial of cancellation of removal on the ground that Diaz had previously been granted relief under former 8 U.S.C. § 1182(c). *See*8 U.S.C. § 1229b(c)(6).

Although Diaz contends that he is not waiving his applications for asylum, withholding of removal or CAT protection, he does not raise any issues or brief any arguments related to the agency’s finding that he did not demonstrate a well-founded fear of persecution or a likelihood of torture. Accordingly, Diaz has waived review of these issues. *See Martinez-Serrano v. INS,*94 F.3d 1256, 1259-60 (9th Cir.1996).

Diaz’s remaining contentions lack merit.

We deny Diaz’s motion to amend his petition for review based on extenuating circumstances. We cannot consider new evidence in a petition for review. *See 8*U.S.C. § 1252.

PETITION FOR REVIEW DENIED.

**

 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Opinion filed April 28, 2015.

Petition

– Ineffective Assistance of Counsel

– Original Jurisdiction

.

Willie Floyd, pro se

, Petitioner.

Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney

General, Tallahassee, for Respo ndent

.

PER CURIAM.

DENIED

.

THOMAS, CLARK, and WETHERELL, JJ., CONCUR. WILLIE FLOYD

,

Petitioner

,

v.

STATE OF FLORIDA

,

Respondent

.

_________________________ _____/ IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLO RIDA

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

CASE NO. 1D 14

- 4441
#### UNITED STATES of America, Plaintiff-Appellee, v. Kenneth STEELE, Defendant-Appellant.

No. 05-20146

Conference Calendar.

United States Court of Appeals, Fifth Circuit.

Oct. 25, 2006.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Jerome Godinich, Jr., Law Office of Jerome Godinich Jr., Houston, TX, for Defendant-Appellant.

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM: *

Counsel appointed to represent appellant Kenneth Steele has requested leave to withdraw and has filed a brief as required by *Anders v. California,*386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Steele has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities, and the appeal is DISMISSED. *See*5th Cir. R. 42.2.

*

 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
#### The People of the State of New York, Respondent, v Jody B. Gillett, Appellant.

[963 NYS2d 906]

*1445Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered March 21, 2012. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]). Defendant’s contention that County Court erred in failing to conduct a hearing on his challenge to the voluntariness of his statements to the police does not survive his guilty plea. “A guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings” *(People v Fernandez,*67 NY2d 686, 688 [1986]), and the exception set forth in CPL 710.70 (2) does not apply here because defendant pleaded guilty before the court issued a decision on his suppression motion *(see generally People v Elmer,*19 NY3d 501, 507-508 [2012]). Defendant’s challenge to the legal sufficiency of the evidence before the grand jury with respect to the third count of the indictment likewise does not survive the guilty plea *(see People v Smith,*28 AD3d 1202, 1202 [2006], *lv denied*7 NY3d 818 [2006]; *see generally People v Iannone,*45 NY2d 589, 600-601 [1978]). Finally, defendant’s contention that he was denied effective assistance of counsel “does not survive his guilty plea . . . because there was no showing that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney[’s] allegedly poor performance” *(People v Dean,*48 AD3d 1244, 1245 [2008], *lv denied*10 NY3d 839 [2008] [internal quotation marks omitted]).

Present—Scudder, PJ., Peradotto, Lindley, Valentino and Martoche, JJ.
See TEX. R. APP. P. 52.8(d) (“W hen denying relief, the court m ay hand down an opinion but 1

is not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and m em orandum opinions).

0

NUMBER 13-08-00363-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE LANAYE JULIAN

On Petition for Writ of Mandamus

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela

Per Curiam Memorandum Opinion

1

Relator, Lanaye Julian, filed a petition for writ of mandamus and an emergency

motion to stay the underlying proceedings in the above cause on June 5, 2008, contending

that the trial court abused its discretion in granting a motion for protective order filed by the

real party in interest, Maurice Julian. That same day, this Court granted the motion for

emergency stay and ordered all proceedings in the trial court stayed. The Court requested
2

that the real party in interest, Maurice Julian, by and through counsel, file a response to

relators' petition for writ of mandamus on or before June 16, 2008, and his response has

been filed herein.

The Court, having examined and fully considered the petition for writ of mandamus

and response thereto, is of the opinion that relator has not shown herself entitled to the

relief sought. Accordingly, the stay previously imposed by this Court is LIFTED. See TEX.

R. APP. P. 52.10(b) ("Unless vacated or modified, an order granting temporary relief is

effective until the case is finally decided."). The petition for writ of mandamus is DENIED.

See id. 52.8(a). 

PER CURIAM

Memorandum Opinion delivered and 

filed this 19th day of June, 2008.
<PAGE>


                                                      Exhibit 23.2

INDEPENDENT AUDITORS' CONSENT


     We consent to the incorporation by reference in Registration Statements
Nos. 33-56354, 33-70632, 33-72752, 33-83956, 33-94756, 333-06733, and 333-06939
on Form S-8, Registration Statements No. 333-11029, 333-11031, and 333-17453
on Form S-3, and Registration Statement No. 333-34021 on Form S-4 of
HFS Incorporated (the "Company") of our report dated January 24, 1997,
appearing in the Annual Report on Form 10-K of HFS Incorporated, related to the
combined financial position of Rental Car Operations of Avis, Inc. at
December 31, 1996 and results of their operations and their cash flows for
the period October 17, 1996 (Date of Acquisition) to December 31, 1996.




Deloitte & Touche LLP
New York, New York
March 31, 1997
* Pursuant to 5 TH C IR

. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-20790

(Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBIN ARTURO MARTINEZ-DELFA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court

for the Southern District of Texas

(USDC No. H-97-CR-64-1)

- - - - - - - - - - August 4, 1998

Before JOLLY, SMITH and WIENER, Circuit Judges.

PER CURIAM: *

Robin Arturo Martinez-Delfa appeals the sentence imposed

following his conviction on a plea of guilty to illegal re-entry

after deportation in violation of 8 U.S.C. § 1326(b). MartinezDelfa argues that the district court erred in finding that his

conviction in California for voluntary manslaughter was an

“aggravated felony” under the Sentencing Guideline s. MartinezDelfa also argues that the district court violated Fed. R. Crim. P.1 United States v. Ortiz-Gutierrez , 36 F.3d 80, 82 (9th

Cir. 1994).

2 United States v. Brito , 136 F.3d 397, 416 (5th Cir.),

cert. denied , 118 S. Ct. 1817 (1998); United States v. Carreon

, 11 F.3d 1225, 1231 (5th Cir. 1994).

2 32(b)(6)(D) when it failed to make specific findings other than by

adopting the presentence report (PSR).

Our review of the record and the argume nts and authorities

convince us that no reversible error was committed. The California

voluntary manslaughter con v iction is an aggravated felony for

purposes of the Sentencing Guidelines, as Martinez-Delfa received

a total term of imprisonment of more than five years. 1 Also, the

district court satisfied the mandates of Rule 32 when it overruled

the objection and adopted the PSR because the findings in the PSR

were “so clear” as not to leave us in a position requiring that we

“second guess” the basis for the district court’s decision. 2

AFFIRMED.
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-6306

TONY L. MOORE,

Plaintiff - Appellant,

v.

ANTHONY J. PADULA; MS. BELL; KEITH MCBRIDE; L. GREER,

Defendants - Appellees.

Appeal from the United States District Court for the District of 

South Carolina, at Orangeburg. Timothy M. Cain, District Judge. 

(5:11-cv-01033-TMC)

Submitted: June 12, 2014 Decided: June 25, 2014

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Tony L. Moore, Appellant Pro Se. Steven Michael Pruitt, 

MCDONALD, PATRICK, POSTON, HEMPHILL & ROPER, LLC, Greenwood, 

South Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Tony L. Moore appeals the district court’s order 

accepting the recommendation of the magistrate judge and denying 

relief on his 42 U.S.C. § 1983 (2012) complaint. We have 

reviewed the record and find no reversible error. Accordingly, 

we deny Moore’s motion to appoint counsel and affirm for the 

reasons stated by the district court. Moore v. Padula, No. 

5:11-cv-01033-TMC (D.S.C. Jan. 2, 2014). We dispense with oral 

argument because the facts and legal contentions are adequately 

presented in the materials before this court and argument would 

not aid the decisional process.

AFFIRMED
**EXHIBIT 15**
May 10, 2004
To the Board of Directors and Shareholders ofSears, Roebuck and Co.
We have made a review, in accordance with standards established by the AmericanInstitute of Certified Public Accountants, of the unaudited interim condensedconsolidated financial information of Sears, Roebuck and Co. for the 13-weeksended April 3, 2004 and March 29, 2003, as indicated in our report dated May10, 2004; because we did not perform an audit, we expressed no opinion on thatinformation.
We are aware that our report referred to above, which is included in yourQuarterly Report on Form 10-Q for the quarter ended April 3, 2004, isincorporated by reference in Registration Statement Nos. 2-64879, 2-80037,33-18081, 33-23793, 33-41485, 33-43459, 33-45479, 33-55825, 33-58851, 33-64345,333-08141, and 333-113532 of Sears, Roebuck and Co.; Registration Statement No.333-92082 of Sears, Roebuck and Co. and Sears, Roebuck Acceptance Corp.;Registration Statement Nos. 33-64775, 333-18591, and 333-43309 of Sears,Roebuck and Co. and Sears, Roebuck and Co. Deferred Compensation Plan;Registration Statement No. 333-102114 of Sears, Roebuck and Co. and the Sears401(K) Savings Plan (formerly, The Savings and Profit Sharing Fund of SearsEmployees and the Sears 401(K) Profit Sharing Plan) and Lands’ End, Inc.Retirement Plan; Registration Statement No. 33-44671 of Sears, Roebuck and Co.and Sears DC Corp.; Registration Statement No. 333-38131 of Sears, Roebuck andCo. and the Sears Associate Stock Ownership Plan; Registration Statement No.333-52056 of Sears, Roebuck and Co. and the 2000 Employee Stock Plan;Registration Statement No. 333-72514 of Sears, Roebuck and Co. and the 2001Broad-Based Stock Option Plan; and Registration Statement No. 333-87942 ofSears, Roebuck and Co. and the 2002 Non-Employee Director Stock Plan.
We also are aware that the aforementioned report, pursuant to Rule 436(c) underthe Securities Act of 1933, is not considered a part of the RegistrationStatement prepared or certified by an accountant or a report prepared orcertified by an accountant within the meaning of Sections 7 and 11 of that Act.
/s/ DELOITTE & TOUCHE LLPDeloitte & Touche LLPChicago, Illinois
<PAGE>   1


                       CONSENT OF INDEPENDENT ACCOUNTANTS



The Board of Directors
Spatializer Audio Laboratories, Inc.:


We consent to the use of our report incorporated herein by reference in the
registration statements on Form S-3 (No. 333-12035) and on Form S-8 (No.
33-98168) on the consolidated balance sheets of Spatializer Audio Laboratories,
Inc. and subsidiaries as of December 31, 1997 and 1996, and the related
consolidated statements of operations, shareholders' equity, and cash flows for
each of the years in the three-year period ended December 31, 1997, which report
appears in the December 31, 1997 annual report on Form 10-K of Spatializer Audio
Laboratories, Inc.



                                        /s/ KPMG Peat Marwick LLP


Los Angeles, California
June 24, 1998
#### Galina Olshantesky, Appellant, v New York City Transit Authority, Respondent.

[964 NYS2d 101]

Order, Supreme Court, New York County (Lottie E. Wilkins, J.), entered July 19, 2012, which, to the extent appealed from as limited by the briefs, denied plaintiffs motion to reinstate the jury verdict and to vacate the court’s declaration of a mistrial, unanimously modified, on the law and the facts, to reinstate the verdict on damages, and order a new trial as to liability only, and otherwise affirmed, without costs.

Immediately after receiving the verdict in this personal injury action, an off-the-record discussion with the jury revealed that they had consulted an online dictionary to define the term “substantial.”

Although plaintiff contends for the first time on appeal that the court erred in declaring a mistrial after the jury was discharged based on “unsworn testimony” of the jury foreperson, appellate review of the argument is appropriate because it involves an essential question of whether the trial court exceeded its power and the issue “is apparent upon the face of the record and could not have been avoided if raised at the proper juncture” *{Rafa Enters. v Pigand Mgt. Corp.,*184 AD2d 329, 330 [1st Dept 1992]).

The record shows that the jury had not been discharged when the court began its inquiry into the jury’s misconduct. Indeed, after the court received the jury’s verdict and thanked the jury for its service, the jury remained in the courtroom during an off-the-record discussion that revealed the misconduct and during a follow-up discussion on the record *{cf. Winters v Brooklyn & Queens Tr. Corp.,*236 App Div 819 [2d Dept 1932]; *International-Madison Bank & Trust Co. v Silverman,*234 App Div 619 [2d Dept 1931]).

In any event, regardless of whether the jury was discharged, the court properly engaged in an inquiry regarding external influences on the jury *{see Sharrow v Dick Corp.,*86 NY2d 54, 61 [1995]; *Alford v Sventek,*53 NY2d 743, 744 [1981]). Further, the court properly determined that the jury’s act of consulting an outside dictionary on a term critical to its decision constitutes misconduct warranting a mistrial, especially since the foreperson indicated that the jury was “confused” about the term “substantial” and the court was unable to give curative instructions *{compare Maslinski v Brunswick Hosp. Ctr.,*118 AD2d 834 [2d Dept 1986], *and Long v Payne,*198 App Div 667, 670-671 [4th Dept 1921], *with Kraemer v Zimmerman,*249 AD2d 159, 160 *601[1st Dept 1998], *and DiRende v Cipollaro,*234 AD2d 78, 78-79 [1st Dept 1996], *lv denied*90 NY2d 806 [1997]).

However, because the jury’s misconduct related only to the issue of liability, and there is no evidence that it affected the jury’s determination on damages, we reinstate the verdict on damages *(see Pope v 818 Jeffco Corp.,*74 AD3d 1165 [2d Dept 2010]).

Concur—Gonzalez, EJ., Mazzarelli, Moskowitz, Renwick and Manzanet-Daniels, JJ.
## 2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 2-24-2003 

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## The Honorable William W Schwarzer, Senior District Judge for the Northern

District of California, sitting by designation. NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 01-4064 UNITED STATES OF AMERICA

v. JOSEPH SHALATA, Appellant ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF PENNSYLVANIA (Dist. Court No. 3:CR-01-033) District Court Judge: Munley, J. Submitted Under Third Circuit LAR 34.1(a)

February 10, 2003 Before: ALITO and McKEE, Circuit Judges , and SCHWARZER, Senior District Judge * 

## (Opinion Filed: February 24, 2003) OPINION OF THE COURT

PER CURIAM:

## Defendant Joseph Shalata pled guilty to conspiracy to distribute in excess of 100

grams of heroin which resulted in the death of another person, in violation of 21 U.S.C. §846. The District Court imposed sentence and entered judgment, and this appeal followed. The defendant contends (1) that the District Court should have lessened his federal sentence by according him full-time credit for a related state conviction and sentence already served and (2) that his guilty plea was not entered voluntarily, knowingly, and intelligently. In accordance with the defendant’s instructions, defendant’s counsel submitted a brief presenting these claims to this Court. Pursuant to Anders v. California , 386 U.S. 738 (1967) , however, defendant’s counsel submitted a brief certifying that each of the issues raised by the defendant is without merit. We agree.

After reviewing counsel’s Andersbrief and engaging in an independent review of the record, see United States v. Youla , 241 F.3d 296, 299-300 (3d Cir. 2001), we find no non-frivolous issues meriting appeal. Accordingly, pursuant to Andersand Third Circuit Local Appellate Rule 109.2(b), we affirm the judgment of the District Court and grant defense counsel’s motion to withdraw .