594 F.Supp. 579 (1984)
LORD JEFF KNITTING CO., INC., Plaintiff,
v.
WARNACO, INC., Defendant.
No. 84 Civ. 634 (WCC).
United States District Court, S.D. New York.
September 28, 1984.
*580 Liddy, Sullivan, Galway & Vaccaro, New York City, for plaintiff; Andrew V. Galway, Arlana S. Cohen, New York City, of counsel.
Amster, Rothstein & Engelberg, New York City, for defendant; Morton Amster, Karen Artz Ash, New York City, and David R. Tobin, Bridgeport, Conn., of counsel.

OPINION AND ORDER
CONNER, District Judge:
This is an action for alleged infringement of plaintiff's trademark THE MOORS, as applied to men's sweaters, by defendant's use of the trademark MOORINGS on men's sportswear including sweaters, slacks and shirts, and for alleged unfair competition and trademark dilution. Defendant has moved for a summary judgment dismissing the complaint in its entirety on the ground that, as a matter of law, there is no likelihood that confusion would result from the concurrent use by the parties of their respective marks. For the reasons explained hereinafter, the motion is denied.
Summary judgment may be granted only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Friedman v. Meyers, 482 F.2d 435, 438 (2d Cir.1973). On a motion for summary judgment, the court's function is not to resolve disputed issues of fact, but only to determine whether such issues exist. Heyman v. Commerce and Industry Co., 524 F.2d 1317, 1319-20 (2d Cir.1975); Kiki Undies Corp. v. Alexander's Dept. Stores, Inc., 390 F.2d 604, 605 (2d Cir.1968). Moreover, the court must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought. See Heyman, supra, 524 F.2d at 1320.
It is well settled that in an action for trademark infringement or unfair competition, the crucial issue is whether there is any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question. Mushroom Makers, Inc. v. R.G. Barry Corp., 580 F.2d 44, 47 (2d Cir.1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979). As to the nature of *581 that issue, the leading text in the field states unequivocally:
In the final analysis, the determination that confusion is probable, likely or remote, is a question of law which lies within the exclusive judgment of the court called upon to decide that issue.
3A Callmann's Unfair Competition, Trademarks and Monopolies § 20.08 at 31 (4th Ed.1983).
However, the Court of Appeals for the Second Circuit has recently indicated that where the issue is determined at least partly on the basis of non-documentary evidence, it is treated as an issue of fact subject to review on the "clearly erroneous" standard of Rule 52(a) F.R.Civ.P. Lever Bros. Co. v. American Bakeries Co., 693 F.2d 251, 254 n. 1 (2d Cir.1982).
In the seminal case of Polaroid Corp. v. Polorad Electronics Corp., 287 F.2d 492, 495 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961), Judge Friendly set forth a list of factors which should be considered in resolving the issue of likelihood of confusion:
Where the products are different, the prior owner's chance of success is a function of many variables: the strength of his mark, the degree of similarity between the two marks, the proximity of the products, the likelihood that the prior owner will bridge the gap, actual confusion, and the reciprocal of defendant's good faith in adopting its own mark, the quality of defendant's product, and the sophistication of the buyers. Even this extensive catalogue does not exhaust the possibilities  the court may have to take still other variables into account.
This list of factors has been refined, supplemented and applied in a long sequence of subsequent decisions, including Lever Bros. v. American Bakeries Co., supra; Mushroom Makers, Inc. v. R.G. Barry Corp., supra; McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126 (2d Cir.1979), and has been incorporated in the Restatement (Second) of Torts § 717.
In the present case, there is no dispute as to most of these subordinate Polaroid factors. For example, defendant concedes that plaintiff's mark THE MOORS is a "strong" one, in terms of its distinctiveness or "tendency to identify the goods sold under the mark as emanating from a particular, although possibly anonymous, source." McGregor-Doniger, Inc. v. Drizzle Inc., supra, 599 F.2d at 1131. Moreover, it is conceded that plaintiff's and defendant's marks are applied to the same types of goods, sold to the same class of customers through similar channels of distribution.
Nor can there be any dispute as to the similarities and differences between the two marks insofar as their appearance and sound are concerned. However, with respect to the meaning or connotation of the marks, the parties not surprisingly take opposing positions. Defendant urges that plaintiff's mark THE MOORS evokes the Scottish countryside, as, indeed, plaintiff's sales literature expressly states, while defendant's mark MOORINGS conjures up strictly nautical imagery. Plaintiff attempts to minimize this difference by pointing out that the verb "moor" also has a nautical connotation.
While the Court may have definite ideas of its own as to whether the difference in meaning between the two marks is sufficient to avoid confusion, the real issue is whether a substantial number of ordinary purchasers would likely be misled as to the source of the goods. The Court, an "inexpert observer," is thus required "to place itself in the shoes of the ordinary purchaser." Callmann, supra, § 20.08 at 31. Never an easy chore, this is a particularly chancy undertaking on the basis of a documentary record containing little of relevance except the marks themselves and the sales promotional materials.
In an effort to show actual confusion, plaintiff has submitted a letter from one of its retailers, calling attention to defendant's use of its MOORINGS mark. However, the writer of the letter was obviously not confused himself, but merely concerned that prospective purchasers might be. *582 Nevertheless, plaintiff should be given an opportunity to establish actual confusion if it can.
There is also a dispute between the parties as to defendant's good faith in selecting its mark. While there is considerable circumstantial evidence that defendant did not attempt to hitch a free ride on plaintiff's good will, the Court of Appeals for the Second Circuit has repeatedly emphasized that summary judgment is particularly inappropriate where an issue of intent is involved. See Patrick v. LeFevre, et al., 745 F.2d 153, at 159 (2d Cir.1984), and cases cited therein.
It thus appears that adjudication of the trademark and unfair competition claims on the basis of the present largely documentary record would not likely survive appellate review.
The claim for dilution under Section 368-d of the New York General Business Law rests upon an entirely different legal theory and involves entirely different factual elements. As the Court of Appeals for the Second Circuit explained in R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 658 n. 14 (1979):
Actions for infringement or unfair competition are designed to redress public confusion or competitive deception. A dilution action, however, protects against "the gradual whittling away of a firm's distinctive landmark." Allied Maintenance Corp. [v. Allied Mechanical Trades, Inc.], supra, 42 N.Y.2d [538] at 544, 399 N.Y.S.2d [628] at 632, 369 N.E.2d [1162] at 1166. Thus, as construed by the New York Court of Appeals, § 368-d extends the protection afforded trademarks beyond that provided under the Lanham Act, and creates an entirely separate cause of action designed to check the "cancerlike growth of dissimilar products or services which feeds upon the business reputation of an established distinctive trade-mark." Id. See Continental Corrugated Container Corp. v. Continental Group, Inc., 462 F.Supp. 200, 206-07 (S.D.N.Y.1978); Note, 46 Ford.L.Rev. 1315 (1978).
Likelihood of confusion, which is the ultimate test of trademark infringement and unfair competition, is not even a necessary element of a cause of action for dilution under Section 368-d:
New York's anti-dilution statute provides:
Likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name shall be a ground for injunctive relief in cases of infringement of a mark registered or not registered or in cases of unfair competition, notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services.

N.Y.Gen.Bus.Law § 368-d (emphasis added). Section 368-d's qualifying clause means exactly what its language denotes. Neither competition between the parties nor confusion about the source of products, Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 205 n. 8 (2d Cir.1979), appears to be necessary to state a cause of action for dilution. Allied, 42 N.Y.2d at 544-45, 399 N.Y.S.2d 628, 369 N.E.2d 1162.
Sally Gee, Inc. v. Myra Hogan, 699 F.2d 621, 624 (2d Cir.1983).
Instead, the two elements of a successful claim for trademark dilution are: (1) a mark that is "truly of distinctive quality" particularly a "famous" or "celebrated" trademark; and (2) "likelihood of dilution" or "whittling down" of the identity or reputation of the mark. Id., 699 F.2d at 625. Another relevant, even though not indispensable, factor is the "absence of predatory intent by the junior user." Id. at 626.
In their submissions, the parties have virtually ignored the dissimilar elements of the dilution claim, lumping it more or less indiscriminately with the infringement and unfair competition claims.
*583 Even assuming that plaintiff's mark THE MOORS has acquired sufficient recognition value to merit protection against dilution, there is an obvious issue concerning the likelihood that such value will be diluted as a result of defendant's concurrent use of the mark MOORINGS. And there is again the issue of defendant's intent in adopting its mark, which, as already noted, is an issue ill suited for summary resolution.
Since the parties have estimated that a non-jury trial on the merits of the action will take only three days, it appears that the most efficient course of action is to proceed with such a trial, rather than to grant summary judgment in favor of one party or the other and incur the substantial risk of a reversal on appeal. If it is reversed, the case would have to be tried anyway, but perhaps a year later, after further investment by the parties in their respective marks will make a loss of the case all the more punitive.
The motion for summary judgment is denied.
SO ORDERED.


     Case: 12-60713       Document: 00512310858         Page: 1     Date Filed: 07/17/2013

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 17, 2013
                                     No. 12-60713
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ALVARO HERNANDEZ-DOMINGUEZ, also known                                           as    Saul
Dominguez-Hernandez, also known as Alvaro Hernandez,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent

                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A094 859 787

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Alvaro Hernandez-Dominguez (Hernandez) petitions this court for review
of the decision of the Board of Immigration Appeals (BIA) denying his motion to
reopen following the denial of his application for cancellation of removal.
Although he raises myriad challenges to the determinations made by the
immigration judge (IJ) and the BIA with respect to both the denial of the motion
to reopen and the underlying denial of his application for cancellation, the only

       *
         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.
    Case: 12-60713     Document: 00512310858         Page: 2     Date Filed: 07/17/2013

                                  No. 12-60713

petition for review before this court is that challenging the denial of the motion
to reopen. Accordingly, this court’s jurisdiction is limited to those arguments
relating to the denial of the motion to reopen. See Stone v. INS, 514 U.S. 386,
394 (1995); Kane v. Holder, 581 F.3d 231, 237 n.14 (5th Cir. 2009).
      Motions to reopen are disfavored. Lara v. Trominski, 216 F.3d 487, 496
(5th Cir. 2000). We review the denial of a motion to reopen under a “highly
deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303
(5th Cir. 2005). The ruling will stand even if this court concludes that it is
erroneous, “so long as it is not capricious, racially invidious, utterly without
foundation in the evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach.” Id. at 304 (internal
quotation marks and citation omitted).
      To establish a claim of ineffective assistance in a motion to reopen, a
petitioner must meet the procedural requirements set forth in Matter of Lozada,
19 I & N Dec. 637 (BIA 1988). See Lara, 216 F.3d at 496; Rodriguez-Manzano
v. Holder, 666 F.3d 948, 953 (5th Cir. 2012). In addition, the petitioner must
demonstrate    substantial    prejudice       resulting   from    counsel’s   deficient
performance. Gutierrez-Morales v. Homan, 461 F.3d 605, 609 (5th Cir. 2006).
Hernandez has abandoned any challenge to the BIA’s determination that he
failed to comply with the procedural requirements of Lozada because he failed
to raise any challenge to that determination in his brief. See Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
      Although we need not address Hernandez’s challenge to the BIA’s
alternative basis for rejecting the claim, his failure to demonstrate substantial
prejudice, we note that his challenge lacks merit. An alien convicted of a crime
involving moral turpitude (CIMT) is statutorily ineligible for cancellation of
removal. Esparza-Rodriguez v. Holder, 699 F.3d 821, 823 (5th Cir. 2012). The
charging instrument in Hernandez’s case described both intentional and reckless
conduct; therefore, it did not establish recklessness as the operative mens rea for

                                          2
    Case: 12-60713    Document: 00512310858     Page: 3   Date Filed: 07/17/2013

                                 No. 12-60713

the offense. See id. Hernandez thus was not substantially prejudiced by his
former counsel’s failure to secure and present the document at the initial
hearing. See Gutierrez-Morales, 461 F.3d at 609.
      Hernandez does not make any argument challenging the BIA’s basis for
denying his motion to reopen as it related to his application for withholding of
removal or asylum. He thus has abandoned any argument relevant to the sole
basis upon which he was denied relief. See Soadjede, 324 F.3d at 833.
      Hernandez has not shown that the BIA abused its discretion in denying
his motion to reopen. Zhao, 404 F.3d at 303. Accordingly, his petition for review
is DENIED.

                                       3


166 F.3d 353
Richv.USX Corporation*
NO. 98-6263
United States Court of Appeals,Eleventh Circuit.
December 14, 1998

1
Appeal From:  N.D.Ala. , No.98-00130-CV-S-S

2
Affirmed.

*
 Fed.R.App.P. 34(a); 11th Cir.R. 34-3


                                    IN THE CASE OF

                            UNITED STATES, Appellee

                                            v.

                  Bobby HIBBARD, Chief Master Sergeant
                        U.S. Air Force, Appellant

                                     No. 02-0231
                              Crim. App. No. 34371

        United States Court of Appeals for the Armed Forces

                            Argued November 5, 2002

                           Decided February 6, 2003

     EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, BAKER, and ERDMANN, JJ., joined.

                                        Counsel

For Appellant: Lieutenant Colonel Robin S. Wink (argued); Lieutenant Colonel
     Beverly B. Knott, Major Patricia A. McHugh, and Major Jeffrey A. Vires
     (on brief).

For Appellee: Lieutenant Colonel LeEllen Coacher (argued); Lieutenant
     Colonel Lance B. Sigmon and Major Jennifer R. Rider (on brief).

Military Judge:   Michael J. Rollinger

         THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Hibbard, No. 02-0231/AF

   Judge EFFRON delivered the opinion of the Court.

   A general court-martial composed of officer members

convicted Appellant, contrary to his pleas, of one specification

each of maltreatment, rape, indecent assault, and making a false

official statement, and two specifications alleging dereliction

of duty, in violation of Articles 93, 120, 134, 107 and 92,

Uniform Code of Military Justice [hereinafter UCMJ] 10 USC §§

893, 920, 934, 907, and 892 (2002), respectively.   He was

sentenced to confinement for four years and reduction to pay

grade E-4.   The convening authority approved the findings and

approved a sentence of confinement for two years and reduction

to pay grade E-4.   The Court of Criminal Appeals affirmed in an

unpublished opinion.

     On Appellant’s petition, we granted review of the following

issue:

          WHETHER THE MILITARY JUDGE ERRED IN REFUSING
          TO INSTRUCT THE MEMBERS ON THE DEFENSE OF
          MISTAKE OF FACT AS TO THE COMPLAINANT'S
          CONSENT AS RELATED TO THE OFFENSE OF RAPE IN
          THE SPECIFICATION OF CHARGE II.

For the reasons stated below, we hold that the military judge

did not err when he declined to instruct the panel of members on

the defense of mistake of fact.

                                  2
United States v. Hibbard, No. 02-0231/AF

                            I.   BACKGROUND

                  A.    The Mistake of Fact Defense

     When an accused is charged with a crime in which knowledge

or intent is material as to an element, “it is a defense to an

offense that the accused held, as a result of ignorance or

mistake, an incorrect belief of the true circumstances such

that, if the circumstances were as the accused believed them,

the accused would be not guilty of the offense.”      Rule for

Courts-Martial 916(j) [hereinafter R.C.M.].     If the accused is

charged with a general intent offense such as rape, “the

ignorance or mistake must have existed in the mind of the

accused and must have been reasonable under all the

circumstances.”   Id.

     Rape is a general intent offense requiring proof that an

accused deliberately or purposefully committed an act of sexual

intercourse by force and without the victim’s consent.      See

Article 120(a); Manual for Courts-Martial, United States (2002

ed.) Part IV, para. 45.b.(1) [hereinafter MCM]; United States v.

Willis, 41 M.J. 435, 437 (C.A.A.F. 1995).     “[A]n honest and

reasonable mistake of fact as to the victim’s lack of consent”

is an affirmative defense to a charge of rape.     United States v.

True, 41 M.J. 424, 426 (C.A.A.F. 1995)(quoting United States v.

Taylor, 26 M.J. 127, 128 (C.M.A. 1988)).

                                   3
United States v. Hibbard, No. 02-0231/AF

     The military judge is required to instruct the court-

martial panel on the availability and legal requirements of an

affirmative defense, if “the record contains some evidence to

which the military jury may attach credit if it so desires.”

United States v. Brown, 43 M.J. 187, 189 (C.A.A.F. 1995)

(quoting United States v. Simmelkjaer, 18 C.M.A. 406, 410, 40

C.M.R. 118, 122 (1969)).   See R.C.M. 920(e)(3); United States v.

Davis, 53 M.J. 202, 205 (C.A.A.F. 2000).   An affirmative defense

“may be raised by evidence presented by the defense, the

prosecution, or the court-martial.”   R.C.M. 916(b) discussion.

     The defense theory at trial and the nature of the evidence

presented by the defense are factors that may be considered in

determining whether the accused is entitled to a mistake of fact

instruction, but neither factor is dispositive.   See United

States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998); Taylor, 26 M.J.

at 131. “Any doubt whether an instruction `should be given

should be resolved in favor of the accused.´”   Brown, 43 M.J. at

189 (quoting United States v. Steinruck, 11 M.J. 322, 324

(C.M.A. 1981)).

                      B.   Appellant's Trial

     Appellant was prosecuted for a number of offenses,

including a charge that he raped Technical Sergeant (TSgt) W

while both were stationed in Saudi Arabia at Eskan Village.

                                 4
United States v. Hibbard, No. 02-0231/AF

Appellant’s defense at trial was that he did not engage in

sexual intercourse with TSgt W.

             1.   Defense Counsel's Opening Statement

     The central theme of defense counsel’s opening statement

was that Appellant did not engage in an act of sexual

intercourse with TSgt W.   In support of this approach, defense

counsel suggested the evidence would show that TSgt W had

fabricated the rape charge.   According to defense counsel, TSgt

W wanted a transfer from Saudi Arabia to the United States.     The

apparent implication was that she would receive more sympathetic

consideration as a rape victim.   Defense counsel indicated the

evidence would show that TSgt W had not wanted to leave her

family in Little Rock, Arkansas, where she had been stationed

for sixteen years, and that she decided to accuse Appellant of

rape after Staff Sergeant (SSgt) S told her about inappropriate

sexual advances by Appellant.   Defense counsel suggested the

evidence would show that TSgt W's motive to fabricate and the

lack of medical evidence would prove that no sexual intercourse

occurred.

                    2.   The Victim's Testimony

     TSGT W was the prosecution's primary witness.   She provided

the following testimony about her interaction with Appellant –

who was her first sergeant – in the brief period between her

                                  5
United States v. Hibbard, No. 02-0231/AF

arrival at Eskan Village and the incident leading to the rape

charge.

     During the two days following her arrival, Appellant

provided TSGT W with an orientation – showing her around the

base, including her in social functions, and introducing her to

other Air Force personnel.    In the course of these activities,

Appellant pointed out a private swimming pool, indicating that

he was allowed to bring one guest to the pool. He told her not

to tell anyone else about it.

     In the afternoon of her third day at the base, Appellant

called TSgt W into his office on four different occasions,

asking her each time to accompany him to the private pool that

night.    Although TSgt W repeatedly attempted to avoid giving a

direct answer, Appellant pressed her to join him, and she

eventually agreed to do so.    That evening, Appellant met TSgt W

at her room, telling her that they would first go to his

apartment so that he could change into his swimsuit.    At the

apartment, Appellant asked TSgt W to enter his room.    Because

she was reluctant to be alone with him, she declined to do so,

and remained in the hallway while he changed.

     When they arrived at the private pool, no one else was

present.    TSgt W hesitated because she did not want to be alone

with Appellant, but she was also concerned about acting in a

manner that would be perceived as insulting to her first

                                  6
United States v. Hibbard, No. 02-0231/AF

sergeant.    After Appellant prodded her, she eventually went into

the pool area, and they both entered the pool.     At the time she

entered the pool, she was wearing shorts over her swimsuit.

After the pockets filled with water, causing discomfort, she

removed the shorts that covered her swimsuit.     Over the period

of about an hour, Appellant and TSgt W swam and talked, spending

time in both the pool and a nearby hot tub.

       While in the hot tub, Appellant asked TSgt W if she trusted

him.    She replied that she did.   He began to rub her feet.    A

few seconds later, Appellant let go of her feet, stood up, and

“came at” her -- touching her breasts, buttocks, thighs, and

back.    After trying to kiss her, he pulled aside her swimsuit

and inserted his finger into her vagina.     According to TSgt W,

this initial contact lasted “a couple of seconds,” leaving her

in shock, unable to move or speak.

       Appellant then left the hot tub and spread out a towel on

the deck.    TSgt W told Appellant, “I can’t do this.”   She next

found herself on her back on the towel, but could not recall the

details of moving from the hot tub to the towel.     Appellant

pulled down his swim trunks and “came down on [her] really

fast,” leaving her able to move only her upper chest area and

head.    She struggled to turn her head back and forth to avoid

Appellant’s attempts to kiss her, which led him to say, “come

                                    7
United States v. Hibbard, No. 02-0231/AF

on, kiss me.”   Appellant then inserted his penis into TSgt W’s

vagina.

     TSgt W, who began to cry “really hard,” had difficulty

breathing.   Appellant asked TSgt W if she wanted him to stop,

and she nodded an affirmative response.       It is unclear whether

he saw her response, but he did not stop.       When she realized

that he was not stopping, she began to cry “even harder.”       He

again asked if she wanted him to stop, and TSgt W was able to

say that she wanted him to stop.       Appellant then ended the act

of sexual intercourse.

     After terminating the sexual activity, Appellant said: “You

are a beautiful woman and we are both adults.”       He asked her to

come back to his room with him.    She refused.     He said that he

wanted to get to know her better, and that she should “just let

what comes natural happen” next time.       He also said that she

need not worry because he had undergone a vasectomy.       As they

were preparing to leave, he added: “Well, at least this was

consensual.”

      3. Defense Counsel’s Cross-Examination of the Victim

     The cross-examination of TSgt W by defense counsel

emphasized the defense contention that Appellant did not engage

in sexual intercourse with TSgt W.       Defense counsel highlighted

inconsistencies between TSgt W’s testimony at trial and prior

                                   8
United States v. Hibbard, No. 02-0231/AF

statements she made to investigating authorities.    In addition,

defense counsel explored TSgt W’s unhappiness with having to

leave her family.    Defense counsel did not ask any questions on

cross-examination to explore or highlight a mistake of fact

defense.

                        4.   The Defense Case

     The defense case on the merits sought to bolster the

proposition that Appellant did not engage in sexual intercourse

with TSgt W.    Appellant did not seek to establish a mistake of

fact defense.    Defense counsel submitted twenty-three affidavits

and multiple witnesses attesting to Appellant’s good military

character, his law-abiding nature, and his character for

truthfulness.    A fellow first sergeant testified that

Appellant’s public interaction with TSgt W was neither

inappropriate or unusual.    Defense counsel attempted to

discredit SSgt S’s allegations of inappropriate sexual advances

by Appellant.    Defense counsel also introduced evidence that a

guard walked past Appellant and TSgt W while they were in the

hot tub, and that they had exchanged greetings.    Appellant did

not testify, and the defense did not present any other evidence

of a mistake of fact defense during its case-in-chief.

                                  9
United States v. Hibbard, No. 02-0231/AF

               5. The Request for Instructions and
                  Defense Counsel’s Closing Argument

     Prior to closing arguments, defense counsel moved for a

mistake of fact instruction.   Defense counsel’s argument in

favor of the instruction addressed TSgt W’s remarks and actions

towards Appellant, suggesting that the record was unclear as to

whether TSgt W “communicated her non-desire” to Appellant.

Defense counsel did not cite or rely upon that aspect of TSgt

W's testimony stating that after the act was completed,

Appellant said: “Well, at least this was consensual.”    Likewise,

defense counsel did not contend that TSgt W affirmatively had

indicated a desire to engage in sexual intercourse.    The

military judge denied the motion, taking note of TSgt W's

testimony that Appellant had rushed toward her, pinned her down,

left her in a state of shock, and did not ask if she wanted him

to desist until after the act of penetration.   The military

judge, observing that the mistake of fact defense requires both

an honest and a reasonable belief, held that there was not

enough evidence to warrant an instruction.   He specifically

relied upon TSgt W’s description of the incident and the defense

theory of the case, which he described as “blanket denials of

any kind of contact whatsoever[.]”

     Defense counsel’s closing argument concentrated on the

defense theory that Appellant had not engaged in sexual

                                10
United States v. Hibbard, No. 02-0231/AF

intercourse with TSgt W.     Counsel did not ask the members to

consider that Appellant might have mistakenly believed that TSgt

W consented to sexual intercourse, but simply took note of the

Government’s burden to prove “lack of consent” and contended

that the Government could not do so beyond a reasonable doubt.

                           II. Discussion

     The issue of whether a jury was properly instructed is a

question of law, which we review de novo.    United States v.

McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002).    Even if not requested

by the defense, a military judge has a sua sponte duty to give

certain instructions when reasonably raised by the evidence,

including a defense instruction as to the affirmative mistake of

fact defense.   See id.; R.C.M. 920(e).

     In the present case, the military judge concluded, as a

matter of law, that there was insufficient evidence of a

reasonable and honest belief to require a mistake of fact

instruction.    The Court of Criminal Appeals suggested there was

some evidence that Appellant had an honest belief as to consent.

The court observed, however, that it was “difficult . . . to

imagine any court members attaching any credit” to the evidence.

United States v. Hibbard, No. ACM 34371, slip Op. at 5 (A.F. Ct.

Crim. App. Nov. 29, 2001).    The court concluded, as a matter of

law, that there was insufficient evidence of a reasonable belief

                                  11
United States v. Hibbard, No. 02-0231/AF

to require an instruction.   Id.    For the reasons set forth

below, it is appropriate to focus on the point of agreement

between the military judge and the Court of Criminal Appeals –

that the evidence did not reasonably raise the issue of whether

Appellant had a reasonable but mistaken belief as to consent.

Because we conclude that the military judge did not err in this

regard, we need not address aspects of the ruling by the

military judge or the opinion by the court below citing other

reasons for declining to give the instruction.

     On appeal, Appellant suggests that the following factors

support a mistake of fact instruction: (1) TSgt W willingly

accepted Appellant’s invitation to join him at night in a

private swimming pool; (2) she accepted a foot rub from

Appellant; (3) when Appellant engaged in sexual touching, she

did not tell him that she wanted him to stop; (4) they both got

out of the tub and laid down on a towel and had sexual

intercourse; (5) during intercourse, Appellant received “mixed

signals” in the form of heavy breathing and crying; and (6) when

he asked her after penetration if she wanted him to stop, he may

not have perceived her first response, but when he asked again

and she said “Yes” he stopped.     In addition, as noted by the

Court of Criminal Appeals, at the end of the incident appellant

said, “Well, at least this was consensual.” Id.

                                   12
United States v. Hibbard, No. 02-0231/AF

     The test for determining whether an affirmative defense of

mistake of fact has been raised is whether the record

contains some evidence of an honest and reasonable mistake to

which the members could have attached credit if they had so

desired.   R.C.M. 916(j); Davis, 53 M.J. at 205.   In the present

case, as noted above, our focus is limited to the “reasonable

mistake” prong of the test.   Therefore, in determining whether

the factors cited by Appellant reasonably raised the defense of

mistake of fact, we consider whether the record contains some

evidence of a reasonable mistake to which the members could have

attached credit if they had so desired.    In doing so, we

consider the totality of the circumstances at the time of the

offense.   Key circumstances in this case include: (1) the fact

that Appellant had a supervisory relationship with TSGT W, and a

responsibility to orient her to her new duty station; (2) his

use of the official duty environment to press her to join him at

the swimming pool that evening; (3) her manifest discomfort, as

reflected in her repeated efforts to avoid his invitation to

join him in the swimming pool, her unwillingness to enter his

apartment, and her hesitancy to enter the pool until prodded by

him; (4) his insistence that she respond to a question about

trust as a predicate for giving her a foot rub; (5) his sudden

rush at her, followed by aggressive sexual touching; (6) her

statement that this put her in a state of shock; (7) the absence

                                13
United States v. Hibbard, No. 02-0231/AF

of any evidence that she responded positively to his aggressive

sexual touching; (8) her repeated attempts to avoid his kisses;

and (9) his use of his body weight to restrict her upper body

movements.

     In our consideration of whether a mistake of fact

instruction is required, we take into account the manner in

which the issue was litigated as well as the material introduced

into evidence at trial.   See, e.g., United States v. Peel, 29

M.J. 235 (C.M.A. 1989).

     As noted by the military judge in the present case, defense

counsel concentrated throughout the trial on the theory that

Appellant had not engaged in sexual intercourse with TSgt W.

Defense counsel steadfastly adhered to the theory of no sexual

intercourse in his opening statement, during his cross-

examination of TSgt W, in the presentation of defense evidence,

and in his closing argument.

     With respect to cross-examination, defense counsel’s

approach to the prosecution’s key witness, TSgt W, is

informative – particularly because Appellant, at trial and on

appeal, has relied on her testimony as the basis for the

instruction.   At best, TSGT W’s testimony described a situation

that the defense might have explored in greater detail to

reasonably raise a mistake of fact.   Such an approach, however,

would have entailed an element of risk, because the cross-

                                14
United States v. Hibbard, No. 02-0231/AF

examination might have produced testimony that more firmly

demonstrated an absence of consent.   The fact that such an

approach would have been risky, however, does not mean that the

defense could leave the details unexplored and then expect to

receive a mistake of fact instruction.     Without such

exploration, TSGT W’s testimony did not describe a situation

that reasonably raised a mistake of fact as to her willingness

to engage in sexual intercourse.

     In the present case, defense counsel made no attempt on

cross-examination of TSgt W to explore and develop grounds for a

mistake of fact.   Instead, counsel used cross-examination to

highlight inconsistencies and establish motive in an attempt to

bolster his own theory that no sexual intercourse occurred.        See

Jones, 49 M.J. at 90.

     Although it is not necessary to present evidence of a

mistake of fact in the defense case on the merits or to discuss

such evidence in closing argument in order to obtain an

instruction in a proper case, see, e.g., United States v.

Sellers, 33 M.J. 364, 368 (C.M.A. 1991), it is appropriate for

an appellate court to take into account the absence of such a

presentation in assessing the significance of the evidence.     We

note that TSgt W’s testimony regarding Appellant’s remark     --

“Well, at least this was consensual” – was treated at trial as

an isolated remark unconnected to specific evidence of

                                15
United States v. Hibbard, No. 02-0231/AF

Appellant’s understanding or intent.    Defense counsel did not

seek to connect it to any other evidence at trial, nor did

defense counsel seek through argument to suggest that the case

involved sexual intercourse which Appellant believed to be

consensual.    Although the defense presentation at trial is not

dispositive in determining what affirmative defenses have been

reasonably raised by the evidence, we may take into account the

absence of a mistake of fact approach from the defense case when

considering evidence such as TSGT W’s testimony about

Appellant’s parting remark.    See Taylor, 26 M.J. at 131.    In

that context, Appellant’s cursory parting remark    -- that “at

least” the act was consensual –- need not be viewed as anything

more than an after-the-fact attempt to recast unpleasant

circumstances in a favorable light.    Cf. United States v.

Buckley, 35 M.J. 262 (C.M.A. 1992)(appellant's remark to victim

that he thought she was awake did not raise mistake of fact as

to consent).

     In summary, the evidence cited by the defense in light of

the totality of the circumstances, including the manner that the

issue was litigated at trial, was insufficient to reasonably

raise the issue of whether Appellant had a reasonable belief

that TSgt W consented to sexual intercourse.

                                 16
United States v. Hibbard, No. 02-0231/AF

                           III. Conclusion

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

                                17


925 F.2d 1474
U.S. Trust Co. of N.Y.v.Plotner*
NO. 90-5081
United States Court of Appeals,Eleventh Circuit.
FEB 08, 1991

1
Appeal From:  S.D.Fla.

2
REVERSED IN PART, VACATED IN PART.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 34-3


UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MAGGIE A. BROWN,
Plaintiff-Appellant,

v.

TOWN OF CHAPEL HILL, NORTH
CAROLINA; LOIS J. MAGNELL,
                                                                    No. 95-1247
individually and in her official
capacity as Transportation
Department Operations
Superintendent,
Defendants-Appellees.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., Chief District Judge.
(CA-93-497-1)

Submitted: November 28, 1995

Decided: March 19, 1996

Before ERVIN, WILKINS, and NIEMEYER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Daniel F. Read, Durham, North Carolina, for Appellant. Randall M.
Roden, Daniel W. Clark, THARRINGTON & SMITH, Raleigh,
North Carolina, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Maggie Ann Brown appeals from the district court's order of judg-
ment in favor of Defendant in her racial discrimination suit brought
under Title VII, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1994). We
find no reversible error by the district court; therefore, we affirm.

Brown, who is African-American, works for the Town of Chapel
Hill as a bus driver. She applied for a Bus Driver II position posted
internally by the Department of Transportation. The Department
selected a white applicant for the job. After unsuccessfully pursuing
a grievance with the Town, Brown filed a complaint with the Equal
Employment Opportunity Commission (EEOC). The EEOC found no
evidence of racial bias in the promotion decision and notified Brown
of her right to sue. Brown then filed her present action. A jury found
that she was not a victim of unlawful discrimination, and the district
court entered judgment in accordance with the verdict. Brown noted
her appeal.

Brown contends that the trial court improperly described certain
witness testimony as "speculative." Specifically, Brown refers to the
testimony of her fifth witness, Anita Hackney, another African-
American bus driver. Brown's counsel asked Hackney about state-
ments made by Superintendent Lois Magnell referring to her as one
of "you people." Brown and two other witnesses testified that they
understood Magnell's use of "you people" to describe African-
Americans in a derogatory manner. The court remarked that Hack-
ney's perception of Magnell's intent in referring to her in this manner
would be "speculative."

Brown lodged no contemporaneous objection to the judge's aside.
This court will not ordinarily consider grounds of objection not made
in the trial court. United States v. Anderson , 481 F.2d 685, 694 (4th

                    2
Cir. 1973), aff'd, 417 U.S. 211 (1974). In the absence of plain error,
a party's failure to object contemporaneously to an evidentiary ruling
waives her right to review. Fed. R. Evid. 103(a)(1), (d).

We find no such error in this case. Federal trial judges are entitled
to comment upon, explain, or emphasize certain evidence to the jury.
Quercia v. United States, 289 U.S. 466, 469 (1933). The judge "may
express his opinion upon the facts, provided he makes it clear to the
jury that all matters of fact are submitted to their determination." Id.
However, the judge may not "distort" evidence,"add to it," or offer
unsupported conjecture as fact. Id. at 470. Here, the judge's comment
was isolated and fairly characterized the inherent nature of the evi-
dence. The judge did not prevent Brown's witnesses from explaining
their reading of Magnell's comments. Moreover, the trial judge
clearly instructed the jury at the close of the trial that they were the
ultimate arbiters of fact and were to "disregard anything [he] may
have said during the trial in arriving at [their] findings as to the facts."
(R. Vol. 4 at 3-5); see United States v. Duncan , 598 F.2d 839, 864
(4th Cir.), cert. denied, 444 U.S. 871 (1979). Brown's claim of impro-
priety by the trial court is meritless.

Brown's remaining claims concern the use of certain evidence at
trial. We review a district court's evidentiary and procedural rulings
for abuse of discretion. Persinger v. Norfolk & W. Ry., 920 F.2d 1185,
1189 (4th Cir. 1990); Gill v. Rollins Protective Servs. Co., 836 F.2d
194, 196 (4th Cir. 1987). Brown asserts that the district court erred
in admitting into evidence two hearsay memoranda written by Mag-
nell, who did not testify at trial due to illness. The first memorandum,
Exhibit 19, is a list of the hiring criteria for the advertised Bus Driver
II position, dated August 24, 1992, addressed to Personnel Analyst
Betsy Harris. The second challenged document, Exhibit 29, is
addressed to Director of Transportation Robert Godding and contains
Magnell's hiring recommendation and her item-by-item analysis of
each applicant's rating on the criteria listed in Exhibit 19.* Counsel
noted timely objections to both documents at trial.

Brown asserts that the district court abused its discretion in admit-
ting these documents under the business records exception to the
_________________________________________________________________
*Magnell listed Appellant as her second choice for the promotion.

                     3
hearsay rule. See Fed. R. Evid. 803(6). She suggests that they were
prepared after-the-fact as a means of legitimating Magnell's discrimi-
natory actions. In addition, Brown asserts that these memoranda are
by their nature insufficiently trustworthy to fall within the hearsay
exception contemplated by Rule 803(6). Brown notes that the docu-
ments are not date-stamped, are computer printouts rather than busi-
ness forms, and are not signed or dated by hand.

Magnell's memoranda were prepared out of court and were offered
by the defense to prove the truth of the contents. Therefore they are
hearsay. Fed. R. Evid. 801(c). However, Rule 803(6) provides that
certain records kept in the ordinary course of business are admissible
as an exception to the hearsay rule. The nature of the records may be
established by a "qualified witness," who has sufficient knowledge of
the record-keeping system and the creation of the contested record to
establish their trustworthiness. Fed. R. Evid. 803(6); see Elizarraras
v. Bank of El Paso, 631 F.2d 366, 374 n.24 (5th Cir. 1980). The Sev-
enth Circuit has held that employee disciplinary records are admissi-
ble as business records in a Title VII action. Coates v. Johnson &
Johnson, 756 F.2d 524, 549-50 (7th Cir. 1985); cf. Paxton v. Union
Nat'l Bank, 688 F.2d 552, 567 (8th Cir. 1982) (giving weight to
defendant's "employment records which listed the reason why each
employee with less than two years of service had been discharged"),
cert. denied, 460 U.S. 1083 (1983).

We find that the district court did not abuse its discretion in admit-
ting these exhibits. Town Personnel Director Pat Thomas's descrip-
tion of the Town's personnel practices and her familiarity with the
exhibits show that, unlike accident reports prepared with an eye
toward litigation, these records were "routine reflections of the day to
day operations" of the Town's personnel and transportation depart-
ments. Palmer v. Hoffman, 318 U.S. 109, 114 (1943). Although the
truthfulness of documentation can always be called into question,
such possibilities are insufficient to discredit the district court's find-
ing that these memoranda were sufficiently trustworthy as a routine
part of Town hiring practices to come in under the Rule.

Brown also raises the issue of authenticity of the documents in not-
ing that they are merely computer printouts, rather than signed or
stamped forms. However, "[p]rovided a proper foundation is laid,

                     4
computer-generated evidence is no less reliable than original entry
books and should be admitted under the exception." JOHN W.
STRONG ET AL., MCCORMICK ON EVIDENCE § 294 (4th ed. 1992);
United States v. Vela, 673 F.2d 86, 90 (5th Cir. 1982). Moreover,
Thomas clarified that internal documents were generally not stamped.
We find Thomas's testimony sufficient to establish that the memo-
randa offered as exhibits were those submitted by Magnell and were,
therefore, authentic. See Rosenberg v. Collins , 624 F.2d 659, 665 (5th
Cir. 1980).

Brown faults the district court for honoring the jury's request to
submit the EEOC's determination letter into the jury room during
deliberations. Brown concedes that the submission of the EEOC
determination letter to the jury was within the discretion of the trial
judge. Chandler v. Roudebush, 425 U.S. 840, 863 n.39 (1976); Cox
v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972). Nothing
in the judge's statements on the record indicate that his decision was
based upon a misunderstanding of the law or was otherwise errone-
ous. Brown did not object to the document's admission into evidence,
and we find no abuse of discretion in sending it into the jury room.

For the reasons discussed above the district court's judgment in
favor of Defendant is affirmed. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

                    5


Scekic v SL Green Realty Corp (2015 NY Slip Op 07761)

Scekic v SL Green Realty Corp

2015 NY Slip Op 07761

Decided on October 22, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 22, 2015

Sweeny, J.P., Renwick, Saxe, Gische, JJ.

15948 113386/10 590275/11 590815/11 590948/12

[*1] Zoran Scekic, et al., Plaintiffs-Respondents,
vSL Green Realty Corp, et al., Defendants-Appellants, SITQ Systems Inc., et al., Defendants.
Structure Tone, Inc., Third Party Plaintiff- Respondent-Appellant,
React Industries, Inc., Third Party Defendant- Respondent-Appellant, FL Mechanical LLC, Third-Party Defendant- Appellant-Respondent, Schindler Elevator, Third-Party Defendant- Respondent-Appellant.
Structure Tone, Inc., et al., Second Third-Party Plaintiffs- Respondents-Appellants,
FRP Sheet Metal Contracting Corp., Second Third-Party Defendant- Respondent-Appellant. [And Another Third-Party Action]

Barry, McTiernan & Moore, LLC, New York (Laurel A. Wedinger of counsel), for SL Green Realty Corp and Structure Tone, Inc., appellants.
Baxter Smith & Shapiro, P.C., White Plains (Sim R. Shapiro of counsel), for 1515 Broadway Fee Owner LLC, appellant.
Wade Clark Mulcahy, New York (Georgia Coats of counsel), for FL Mechanical LLC, appellant-respondent.
Gallo Vitucci & Klar LLP, New York (Daniel P. Mevorach of counsel), for React Industries, Inc., respondent-appellant.
McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York (Michael B. Devins of counsel), for Schindler Elevator, respondent-appellant.
Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for FRP Sheet Metal Contracting Corp., respondent-appellant.
Sacks and Sacks, LLP, New York (Scott Singer of counsel), for respondents.

Order, Supreme Court, New York County (Doris Ling-Cohan,
J.), entered January 24, 2014, which, to the extent appealed from, granted plaintiffs partial summary judgment on their Labor Law § 240(1) claim; denied defendant 1515 Broadway Fee Owners' (1515 Broadway) summary judgment dismissal on plaintiffs' Labor Law § 200 and common-law negligence claims, denied it summary judgment on its third-party contractual indemnification claims against FL Mechanical LLC (FL Mechanical), React Industries, Inc. (React) and FRP Sheet Metal Contracting Corp. (FRP), and granted FL Mechanical summary judgment dismissal of the contractual indemnification claim against them, and denied it summary judgment on its purported cross claims against defendant Structure Tone, Inc.; denied defendants Structure Tone and SL Green Realty (SL Green) summary judgment dismissal of plaintiffs' Labor Law § 200 and common-law negligence claims, denied them summary judgment on their third-party claims against FRP for contractual and common-law indemnification and contribution, denied them summary judgment on their third-party claims against FL Mechanical and React for contractual indemnification for failure to procure insurance, and granted FRP summary judgment dismissal of the claims for common-law indemnification and failure to procure insurance, granted FL Mechanical summary judgment dismissal of the claims for contractual indemnification and failure to procure insurance, and granted React summary judgment dismissal of the claims for common-law indemnification and contribution; denied FRP summary judgment dismissal of SL Green and Structure Tone's claims for contractual indemnification; denied FL Mechanical summary judgment dismissal of React's cross claim for contractual indemnification; denied React summary judgment dismissal of all claims against it for contractual indemnification and failure to procure insurance; and denied Schindler summary judgment dismissal of all third-party and cross claims against it; unanimously modified, on the law, to dismiss the Labor Law § 200 and common-law negligence claims against 1515 Broadway, to dismiss all claims by and against SL Green, to reinstate Structure Tone's claims for contractual indemnification and failure to procure insurance against FL Mechanical, to reinstate Structure Tone's claim for failure to procure insurance against FRP, to dismiss all claims against Schindler Elevator, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing all claims by and against defendant SL Green Realty Corp. and all claims and cross claims against Schindler Elevator Corp.
Plaintiff Zoran Scekic was an employee of third party FL Mechanical, working on the HVAC for an Aeropostale retail store located at 1515 Broadway in Manhattan. Defendant 1515 Broadway is the owner of the building, defendant Structure Tone was the general contractor for the build-out. Structure Tone had hired defendant FRP for the HVAC. However, FRP typically only did the "dry side" of an HVAC installation, the duct work, contracting out the "wet side," or steamfitters' mechanical work, to third-party defendant React. Structure Tone was willing to contract with React, going so far as to prepare and partially execute documents hiring it, before learning that React had a mechanic's lien on the building, and could not enter into a contract for the job. A "gentleman's agreement" was reached whereby FRP would be the conduit for dealing with and paying React, which would still do the work. After this agreement was reached, React contracted with FL Mechanical to actually do the work.
On the morning of the accident, plaintiff was in the basement of Aeropostale reviewing [*2]the blueprints for his day's work when Michael Sansone, Structure Tone's project superintendent, asked him to move a pipe that was hanging too low on the first floor and blocking installation of the dry wall ceiling. Plaintiff and Sansone went to the first floor, where plaintiff observed that the pipe was hanging from a twenty foot ceiling, about eighteen feet in the air. Plaintiff told Sansone that FL Mechanical had sent its ladders and scaffolds back to its shop, and had nothing available to reach the pipe. Sansone allegedly (he denied it) told plaintiff to use an extension ladder located near the elevator, which turned out to be the property of Schindler Elevator. Plaintiff took the ladder and proceeded to work on moving the pipe when the ladder broke, causing plaintiff to plummet fifteen feet to the concrete floor and sustain injury.
On these facts, the motion court correctly granted summary judgment on plaintiff's Labor Law 240(1) claim. Proof that a ladder was defective or that it slipped, tipped, was placed improperly or otherwise failed to provide support gives rise to 240(1) liability (see Felker v Corning, Inc., 90 NY2d 219, 224-225 [1997]; Nascimento v Bridgehampton Constr. Corp.,, 86 AD3d 189, 191 [1st Dept 2011]).
Plaintiff, in his submissions to this Court, has abandoned his Labor Law 200 claims as against 1515 Broadway, the owner of the building, and SL Green, also an alleged owner of the building. The motion court correctly denied Structure Tone's motion for summary judgment dismissing plaintiff's Labor Law 200 claims; there is a question of fact concerning whether Sansone, for Structure Tone, instructed plaintiff to use Schindler's ladder in express contravention of the project's work rules, and whether that potential negligence was a proximate cause of plaintiff's accident.
We dismiss plaintiff's Labor Law 200 and Labor Law 240(1) claims against SL Green. There is simply no evidence in the record that SL Green was the owner of the premises - 1515 Broadway is. We note that in his submission to this Court, plaintiff stated that he would not object to a denial of his motion for partial summary judgment on 240(1) liability as against SL Green.
The record clearly shows that Schindler Elevator had no knowledge that its ladder was being used by plaintiff, who was not its employee, in contravention of the worksite's rules and construction site best practices. Schindler has made clear that it would not have consented to the use of its ladder if asked, and kept its equipment segregated from the other contractors' equipment. Moreover, there is no basis for any contractual indemnification claims against Schindler, as it did not contract with Structure Tone, but directly with Aeropostale for installation of the elevator. Imposing common-law indemnification or contribution liability on Schindler for plaintiff's improper use of its ladder or Structure Tone's improper direction to plaintiff to use it stretches the concepts of duty and foreseeability too far, regardless of whether Schindler's ladder was defective (see e.g. Frank v Beck Wainwright Holding Corp., 279 AD2d 606 [2d Dept 2001]).
Here, plaintiff's recovery properly lies with the remaining defendants, owner, 1515 Broadway, and Structure Tone, the owner's contractor. In its submission on appeal, 1515 Broadway seeks summary judgment against Structure Tone for common-law indemnification and contribution; however, 1515 Broadway does not appear to have asserted these cross claims against Structure Tone, giving the Court no basis to grant this relief.
The motion court correctly determined that questions of fact exist concerning the contractual indemnification claims. If there is anything that the record makes clear, it is that the precise roles and relationships between Structure Tone, FRP, React and FL Mechanical, and precisely what each subcontractor agreed to are unclear and need to be resolved by the trier of fact. To that end, we further modify the motion court's decision to deny FL Mechanical's motion for summary judgment dismissing Structure Tone's contractual indemnification claims and dismissing the breach of contract for failure to procure insurance claims. There is, at least, an issue of fact concerning whether FL Mechanical, through its contract with React, agreed to indemnify, defend and provide insurance for Structure Tone, the general contractor. Moreover, we modify to the extent the motion court concluded that React was a subcontractor of FRP; that too is an issue of fact to be decided at trial, once all the contractual relationships are established.
We have considered the parties' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 22, 2015
CLERK


880 F.2d 1321
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Davis Lee CARTER, Plaintiff-Appellant,v.Aileen E. LOVE, Warden;  Defendant-Appellee,State of Tennessee, Defendant.
No. 89-5593.
United States Court of Appeals, Sixth Circuit.
Aug. 1, 1989.

Before MERRITT and DAVID A. NELSON, Circuit Judges and CELEBREZZE, Senior Circuit Judge.

ORDER

1
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.  Upon examination of the record and appellant's brief, this panel unanimously agrees that oral argument is not needed.  Fed.R.App.P. 34(a).

2
David Lee Carter moves for counsel and miscellaneous relief, and appeals from the district court's order granting the defendant's motion for summary judgment and dismissing his 42 U.S.C. Sec. 1983 prisoner civil rights suit.

3
Carter claimed that the living conditions at Deberry Correctional Institute violated his constitutional rights.  Specifically, he claimed that he was exposed to inclement weather because windows throughout the prison were warped and broken.  He also claimed that the prison foundation was unstable due to several large cracks in the floors and walls, and that a generator outside the inmate dining hall emits poisonous fumes which permeate the dining hall during all stages of food preparation and consumption.  The defendant-appellee is the warden at Deberry.  Carter asked for compensatory and punitive damages.

4
The parties filed cross motions for judgment, and after an evidentiary hearing before a magistrate, the magistrate recommended dismissal of the action.  Despite being specifically advised to do so within 10 days, Carter never filed objections to the magistrate's report and recommendation.  After more than 10 days had elapsed, the district court entered an order adopting the magistrate's report and recommendation as the order of the court.

5
Upon consideration, we affirm the district court's dismissal.  A party who does not file timely objections to a magistrate's report and recommendation after being advised to do so waives his right to appeal.    United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981).

6
Accordingly, the motion for counsel and miscellaneous relief is denied and the district court's order is hereby affirmed.  Rule 9(b)(5), Rules of the Sixth Circuit.


118 Cal.Rptr.2d 159 (2002)
97 Cal.App.4th Supp. 1
The PEOPLE, Plaintiff and Respondent,
v.
Daniel J. BUSSEL, Defendant and Appellant.
No. BR 41234.
Appellate Division, Superior Court, Los Angeles County.
January 17, 2002.
*160 Ezekiel P. Perlo, Encino, and Edward J. Horowitz, Los Angeles, for Defendant and Appellant.
David A. Sklansky and John T. Philipsborn, San Francisco, for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant and Appellant
Rockard J. Delgadillo, City Attorney, Debbie Lew, Assistant City Attorney, and Candice I. Horikawa, Deputy City Attorney, for Plaintiff and Respondent.

OPINION AND JUDGMENT
LEE, J.
Appellant was charged in an amended misdemeanor complaint with vehicular *161 manslaughter, in violation of Penal Code section 192, subdivision (c)(2).[1] Appellant pleaded not guilty to the charge. At the conclusion of a jury trial, appellant was convicted, and he was later sentenced to summary probation for three years under a variety of terms and conditions, including the requirements to perform 300 hours of community service and to pay a fine of $750, plus penalty assessment, or to make a contribution of $2,000 to the Gamble House in lieu of the $750 fine and penalty assessment.[2] Appellant was not required to serve any time in custody.
In accordance with appellate procedure, we briefly summarize the evidence from the trial in the light most favorable to the verdict. (People v. Perez (2000) 82 Cal. App.4th 760, 763, 98 Cal.Rptr.2d 522.) Appellant was driving his 11 year old stepdaughter to school in the morning. He intended to make a right turn at an intersection, and as he approached it, he looked to his left for oncoming traffic. At the same time, two individuals, Betty Brown, a 73 year old female, the decedent, and Juan Huerta, began walking across an unmarked crosswalk at the intersection. Appellant's lane of traffic was controlled by a stop sign with a limit line. Appellant did not stop at the limit line or stop sign, but rather went through the intersection at about three or four miles per hour.[3]
Appellant did not see Brown and Huerta, who were to his right. His vehicle struck both persons. Brown and Huerta fell to the ground. Huerta suffered abrasions to his knees, while Brown sustained a head injury. Although Brown's head was bleeding at the scene, she did not appear to be seriously injured. She was taken to a hospital, however, where she later died of injuries from the accident.
Appellant presents the following arguments on appeal: (1) ordinary negligence is not enough to support a conviction for vehicular manslaughter; (2) if ordinary negligence is enough under current law, such law violates appellant's constitutional right to due process; (3) the trial court improperly instructed the jury; and (4) the evidence was insufficient to support the verdict. As reflected in the following discussion, we conclude that none of appellant's arguments have merit and affirm the judgment.
The question of whether ordinary negligence is sufficient to justify a conviction for vehicular manslaughter is not a new one. In People v. DeSpenza (1962) 203 Cal.App.2d 283, 21 Cal.Rptr. 275, the defendant was charged with vehicular manslaughter with gross negligence, but the trial court found the negligence was not "`of a gross variety'" and convicted him of misdemeanor vehicular manslaughter in violation of former section 192, subdivision 3(b). (DeSpenza, supra, at p. 284, 21 Cal. Rptr. 275.) On appeal, the defendant argued, as appellant here, that "`there must be a higher degree of negligence than is required to establish negligent default on a mere civil case.'" (Id. at p. 290, 21 Cal. Rptr. 275.) The DeSpenza court stated that "`the negligent driving of a vehicle is an unlawful act and an element of the misdemeanor offense.'" (Id, at p. 291, 21 Cal.Rptr. 275, quoting from People v. Wilson *162 (1947) 78 Cal.App.2d 108,116,177 P.2d 567.) The court also commented that the defendant's contention that something more than ordinary negligence, negligence in a civil context, was required for a vehicular manslaughter conviction was not the law in California. (DeSpenza, supra, at p. 290, 21 Cal.Rptr. 275.)
This same question was addressed by the California Supreme Court in In re Dennis B. (1976) 18 Cal.3d 687, 135 Cal. Rptr. 82, 557 P.2d 514, which is dispositive of the issue in this case. In Dennis B., a minor drove a car and, while changing lanes, negligently struck a motorcyclist who later died of his injuries. The petition alleging that the minor had committed vehicular manslaughter was sustained. One of the issues on appeal was whether ordinary negligence was a sufficient basis upon which to premise criminal liability, or was more required, such as a finding of criminal negligence or an intent to commit manslaughter. (Id. at p. 696, 135 Cal.Rptr. 82, 557 P.2d 514.) The minor made the same argument that appellant makes here, namely, that section 20 provides in relevant part "`[i]n every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence,'" and that the holding in People v. Stuart (1956) 47 Cal.2d 167, 302 P.2d 5, required a finding of criminal negligence to support a manslaughter conviction. (In re Dennis B., supra, at p. 696, 135 Cal. Rptr. 82, 557 P.2d 514.)
The Dennis B. court noted that Stuart held a pharmacist could not be convicted of involuntary manslaughter absent evidence of criminal negligence. (In re Dennis B., supra, 18 Cal.3d at p. 696, 135 Cal.Rptr. 82, 557 P.2d 514.) However, Stuart also specifically stated section 20 makes the union of act and intent or criminal negligence an essential element of every crime "`unless it is excluded expressly or by necessary implication.'" (In re Dennis B., supra, at p. 696, 135 Cal.Rptr. 82, 557 P.2d 514, quoting from People v. Stuart, supra, 47 Cal.2d at p. 171, 302 P.2d 5.) As noted in Dennis B., former section 192, subdivision 3(b), which then set forth the statutory language defining vehicular manslaughter, provided that a homicide was committed "`[i]n the commission of an unlawful act, not amounting to a felony, without gross negligence.....' Thus it was not necessary in this case [Dennis B.] for the People to prove criminal (`gross') negligence, as ordinary negligence may form the basis of a vehicular manslaughter conviction. [Citations.]" (In re Dennis B., supra, 18 Cal.3d at p. 696, 135 Cal.Rptr. 82, 557 P.2d 514, italics added.)
Appellant's brief goes into great detail regarding statutes and cases that pertain to types of manslaughter other than vehicular manslaughter. The Legislature, however, very carefully distinguished the different types of manslaughter. Section 192 defines voluntary, involuntary, and vehicular manslaughter, and provides in relevant part that:
"Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:
(a) Voluntaryupon a sudden quarrel or heat of passion.
(b) Involuntaryin the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.

(c) Vehicular
(1) Except as provided in Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; *163 or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.
(2) Except as provided in paragraph (3), driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence." (Italics added.)
The statutory language of section 192, subdivision (c)(2), unambiguously provides that a person may be convicted thereunder for certain acts committed without gross negligence. Under Dennis B., without gross negligence means ordinary negligence. We need not go to other code sections to interpret section 192, subdivision (c)(2), where the language is clear and unambiguous. {People v. Benson (1998) 18 Cal.4th 24, 30, 74 Cal.Rptr.2d 294, 954 P.2d 557; Delaney v. Superior Court (1990) 50 Cal.3d 785, 798, 268 Cal. Rptr. 753, 789 P.2d 934.)
Appellant places great reliance on People v. Cox (2000) 23 Cal.4th 665, 97 Cal. Rptr.2d 647, 2 P.3d 1189. A thorough analysis of this case shows that such reliance is misplaced. In Cox, the defendant punched the victim on the side of his head. The victim fell to the ground and later died of his injuries. An autopsy revealed that he died from an extensive skull fracture and internal bleeding. The defendant was charged with involuntary manslaughter under section 192, subdivision (b). The trial court instructed the jury that, as a matter of law, battery was an inherently dangerous offense, a predicate for involuntary manslaughter, and the prosecution did not have to provide any further proof regarding the circumstances of the underlying misdemeanor. (Cox, supra, at p. 669, 97 Cal.Rptr.2d 647, 2 P.3d 1189.)
The defendant was convicted. On appeal, he asserted that the trial court erred in instructing the jury that battery was inherently dangerous. Instead, argued the defendant, the court should have instructed the jury that the unlawful act or misdemeanor battery that caused the victim's death had to be found "dangerous under the circumstances of its commission" to support a conviction for involuntary manslaughter. (People v. Cox, supra, 23 Cal.4th at p. 669, 97 Cal.Rptr.2d 647, 2 P.3d 1189.) The Court of Appeal affirmed. The defendant then sought review in the Supreme Court.
The Supreme Court granted review to determine whether its holding in an earlier case, People v. Wells (1996) 12 Cal.4th 979, 50 Cal.Rptr.2d 699, 911 P.2d 1374, "requiring that the underlying unlawful act on which a charge of involuntary manslaughter is based must be shown to be dangerous under the circumstances of its commission, applies equally to all misdemeanors committed with general criminal intent on which a charge of involuntary manslaughter is predicated." (People v. Cox, supra, 23 Cal.4th at p. 670, 97 Cal.Rptr.2d 647, 2 P.3d 1189.) Wells had addressed the question of whether an unlawful act on which a charge of involuntary manslaughter is based "must be inherently dangerous, that is, dangerous in the abstract, or dangerous under the circumstances of its commission. We held [in Wells ] that `the offense must be dangerous under the circumstances of its commission. The inherent or abstract nature of a misdemeanor which underlies an involuntary manslaughter charge is not dispositive.'" (People v. Cox, supra, 23 Cal.4th at p. 670, 97 Cal.Rptr.2d 647, 2 P.3d 1189, quoting from People v. Wells, supra, 12 Cal.4th at p. 988, 50 Cal.Rptr.2d 699, 911 P.2d 1374.)
*164 The Cox opinion discussed the facts in the Wells case, wherein the defendant had been speeding on a hilly, curvy road when he lost control and struck another vehicle, killing a passenger in the latter automobile. The issue in Wells concerned the language present both in section 192, subdivision (b), as well as in section 192, subdivision (c)(1), namely, "in the commission of an unlawful act, not amounting to felony." Wells held that the same meaning had to be accorded to the same language in each of these subdivisions. (People v. Cox, supra, 23 Cal.4th at p. 671, 97 Cal. Rptr.2d 647, 2 P.3d 1189.) The Cox opinion noted that the Court of Appeal in Cox had misread Wells and held that the actual "dangerousness" of the misdemeanor was irrelevant. (Id. at p. 673, 2 P.3d 1189.)
Thus, Cox holds that where a defendant is charged with involuntary manslaughter under either basis contained in section 192, subdivision (b), the offense itself must be dangerous under the circumstances of its commission, and the abstract nature of the charge is not dispositive. (People v. Cox, supra, 23 Cal.4th at p. 674, 97 Cal.Rptr.2d 647, 2 P.3d 1189.) In footnote 4, upon which appellant places special reliance, the Cox court stated the Wells analysis, that the language "unlawful act, not amounting to felony," in section 192, subdivision (b), also applied to that same language in subdivision (c). (Cox, supra, at p. 674, fn. 4, 97 Cal.Rptr.2d 647, 2 P.3d 1189.) It is primarily from this footnote that appellant argues that the Supreme Court abrogated the holding in Dennis B., that ordinary negligence is sufficient to support a conviction for vehicular manslaughter, and established a new rule that more than ordinary negligence is required.
This position is without merit. As previously noted, Dennis B. in relevant part simply provides that where the charge is based on an unlawful act, the unlawful act must not simply be dangerous in the abstract, but also dangerous under the circumstances of its actual commission. CALJIC No. 8.90, which was read to the jury, is in full compliance with Wells and Cox, since it provides, following the language "an unlawful act not amounting to a felony," the additional language "which under the circumstances of its commission was dangerous to human life...."
Appellant's next contention is that if ordinary negligence is the current standard, any imposition of criminal liability as a consequence of ordinary negligence violates his due process rights. Appellant asserts two reasons in support of this contention: (1) section 192, subdivision (c)(2), is ambiguous, in that "without gross negligence" could mean something less than gross negligence but more than ordinary negligence; and (2) "the unjustifiable randomness of the imposition of criminal liability." The first argument is resolved by Dennis B., which reflects that there is no ambiguity and "without gross negligence" means "ordinary negligence." This point requires no further discussion.
We treat the second argument as a substantive due process challenge, namely, an argument that the Legislature acted arbitrarily in providing that an act of ordinary negligence can have criminal ramifications. Case law and common sense, however, do not support this position. "[S]ubstantive due process protects against arbitrary legislative action; it requires legislation not to be `unreasonable, arbitrary or capricious' but to have `a real and substantial relation to the object sought to be attained.' [Citation.] Thus, legislation does not violate substantive due process so long as it reasonably relates `to a proper legislative goal.' [Citations.]" (Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1125, 278 Cal.Rptr. 346, 805 P.2d 300; People v. *165 Hodges (1999) 70 Cal.App.4th 1348, 1356, 83 Cal.Rptr.2d 619.) Furthermore, "neither the availability of less drastic remedial alternatives nor the legislative failure to solve all related ills at once will invalidate a statute." {Hale v. Morgan (1978) 22 Cal.3d 388, 398, 149 Cal.Rptr. 375, 584 P.2d 512.)
Not only does the regulation of public highways by the state fall within the ambit of the general police power, but the state also has a substantial state and public interest to protect persons on its roads. {Escobedo v. State of California (1950) 35 Cal.2d 870, 875-876, 222 P.2d 1, overruled on other grounds in Rios v. Cozens (1972) 7 Cal.3d 792, 799, 103 Cal.Rptr. 299, 499 P.3d 979.) As regards section 192, subdivision (c)(2), the Legislature could rationally decide that, due to the special and heightened risks imposed by vehicles weighing thousands of pounds moving on a highway, no matter how slowly, criminal responsibility may be imposed on persons guilty of ordinary negligence that results in the death of another human being. Most jurisdictions that have addressed this issue have held that a vehicular manslaughter conviction may be premised on ordinary negligence. (See, e.g., Egle v. People (Colo.1966) 159 Colo. 217, 222 [411 P.2d 325]; State v. Russo (Conn.Super.Ct.1982) 38 Conn.Supp. 426, 429-32 [450 A.2d 857]; State v. Arena (Hawaii 1963) 46 Haw. 315, 317 [379 P.2d 594].)
Appellant's next contention is that the trial court improperly instructed the jury on the elements of vehicular manslaughter. CALJIC No. 8.90, which was read to the jury in the form below, provided as follows: "Defendant is accused in Count I of having committed the crime of Vehicular Manslaughter in violation of section 192(c)(2) of the Penal Code. [¶] Every person who drives a vehicle and unintentionally but unlawfully kills another human being is guilty of the crime of Vehicular Manslaughter not involving drugs or alcohol in violation of Penal Code section 192(c)(2). [¶] A killing is unlawful when a person commits an unlawful act not amounting to a felony which is dangerous to human life under the circumstances of its commission, or negligently commits an act ordinarily lawful which might produce death, which unlawful or negligent act is a cause of the death of another human being. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. The driver of a vehicle committed an unlawful act not amounting to a felony, which under the circumstances of its commission was dangerous to human life, namely, a violation of 21950(a) of the Vehicle Code or committed negligently an act ordinarily lawful which might cause death; and [¶] 2. The unlawful or negligent act was a cause of the death of another human being."
As is apparent, this instruction sets forth two elements to the offense. Appellant does not challenge the second element, that a person must die as a consequence of the unlawful or negligent act. Appellant's challenge relates to the first element, which can be satisfied in one of the following two ways: (1) the driver commits an unlawful act not amounting to a felony, which under the circumstances of its commission was dangerous to human life, namely, a violation of 21950, subdivision (a) of the Vehicle Code (failure to yield the right-of-way to pedestrian in crosswalk); or (2) the driver negligently commits an act ordinarily lawful which might cause death. Appellant argues that the second alternative, like the first, required language that the act "under the circumstances of its commission was dangerous to human life."
There are a number of difficulties with appellant's argument. First, appellant did not make this objection in the trial court. Appellant's only objection below to *166 CALJIC No. 8.90 was that "wherever it [CALJIC 8.90] talks of negligence, the word `criminally negligent' should beor the word `criminally' should be placed before `negligence.'" This is, obviously, a different objection from that asserted in this appeal. The failure to make a proper objection at trial normally results in a waiver of that issue on appeal. (People v. Rivera (1984) 162 Cal.App.3d 141, 146, 207 Cal.Rptr. 756.)
It is correct that an appellate court may review any instruction given, even though no objection was made in the lower court, if the substantial rights of a defendant are affected. (§§ 1259, 1469.) The cases equate "`substantial rights'" with reversible error, i.e., "did the error result in a miscarriage of justice?" (People v. Arredondo (1975) 52 Cal.App.3d 973, 978, 125 Cal.Rptr. 419.) In this instance, however, the trial court did not err in giving the challenged instruction to the jury. As stated previously, CALJIC No. 8.90 accurately sets forth the law contained in section 192, subdivision (c)(2). Furthermore, alternative instruction No. 2 required that the jury, if it found appellant guilty under this alternative, had to find that his actions were such that "might cause death." This is essentially the same requirement as determining that his actions, under the circumstances, were "dangerous to human life." To include the language sought by appellant would have been repetitive. A trial court is not required to give an instruction which would be duplicative of other instructions already given. (People v. Turner (1994) 8 Cal.4th 137, 203, 32 Cal.Rptr.2d 762, 878 P.2d 521.)
Lastly, as previously noted, appellant's reliance on People v. Wells, supra, 12 Cal.4th 979, 50 Cal.Rptr.2d 699, 911 P.2d 1374, and People v. Cox, supra, 23 Cal.4th 665, 97 Cal.Rptr.2d 647, 2 P.3d 1189, is misplaced. The additional language is required, under such authority, to be placed in alternative instruction No. 1, not alternative instruction No. 2 in section 192, subdivision (c)(2).
Appellant's final argument is that the evidence was insufficient to support the verdict. The evidence, however, was more than sufficient to support a conviction under either of the alternatives set forth in section 192, subdivision (c)(2) and CALJIC No. 8.90. Failing to stop for pedestrians in a crosswalk is manifestly dangerous to human life under the circumstances and likely to cause death. Although a person struck by a slow-moving vehicle might not always sustain mortal injuries, this is a very reasonable possibility, in light of the heavy weight of a vehicle and its metal exterior.
The judgment is affirmed.
We concur: BEVERLY, P.J., and KRIEGLER, J.
NOTES
[1]  All further statutory references are to the Penal Code unless otherwise indicated.
[2]  The Gamble House is a charitable organization and facility where the decedent in this matter served for many years as a docent.
[3]  The evidence at trial was largely uncontradicted, with one exception: the police officer who arrived at the scene of the accident testified that appellant said he "rolled" through the stop sign and limit line without stopping, while appellant testified he did not make this statement to the officer and he did, in fact, stop before the stop sign and limit line.