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For April 6, 2012 through April 12, 2012, the following preliminary appeal statements were filed:

DIGGINS (ISAAC), PEOPLE v (84 AD3d 667):
1st Dept. App. Div. order of 5/26/11; affirmance; leave to appeal granted by Lippman, Ch.J., 3/30/12; CRIMES - RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - DEFENSE COUNSEL DID NOT PARTICIPATE IN PROCEEDINGS AGAINST AN ABSCONDING DEFENDANT WHO WAS TRIED IN ABSENTIA; Supreme Court, New York County denied defendant's CPL 440.10 motion to vacate a 6/15/04 judgment of the same court; App. Div. affirmed.

FAIR v SMITH (93 AD3d 964):
3rd Dept. App. Div. order of 3/8/12; affirmance; sua sponte examination whether a substantial constitutional question is directly involved; PRISONS AND PRISONERS - FREEDOM OF WORSHIP - PRISONER TOLD THAT HE HAD TO WEAR A COLLARED SHIRT TO COVER THE BEADED NECKLACES WORN AS A PART OF HIS OBSERVANCE OF THE YORUBA/SANTERIA FAITH - CLAIMED VIOLATION OF CONSTITUTIONAL RIGHTS; Supreme Court, Ulster County granted defendants' motion to dismiss the complaint; App. Div. affirmed.

HOWARD (MALIK), PEOPLE v (92 AD3d 176):
1st Dept. App. Div. order of 1/12/12; affirmance with dissents; Rule 500.11 review pending; CRIMES - ROBBERY - WHETHER THERE WAS SUFFICIENT EVIDENCE FOR A FIRST DEGREE ROBBERY CHARGE (PENAL LAW § 160.15[4]) WHERE THE "WEAPON" DISPLAYED DURING THE ROBBERY WAS NOT A LOADED, OPERABLE FIREARM - BB OR AIR GUN; AFFIRMATIVE DEFENSE; CLAIMED SUGGESTIVE SHOW-UP IDENTIFICATION; EFFECTIVENESS OF DEFENSE COUNSEL; Supreme Court, Bronx County convicted defendant, after a jury trial, of robbery in the first degree, and sentenced him, as a second violent felony offender, to a term of 14 years and 5 years post-release supervision; App. Div. affirmed.

FELDMAN v LEVINE (90 AD3d 477):
1st Dept. App. Div. order of 12/13/11; reversal; leave to appeal granted by Court of Appeals, 3/29/12; EVIDENCE - SCIENTIFIC EVIDENCE - WHETHER ESTIMATION OF RATE OF PROGRESSION OF CANCER INVOLVED THE TYPE OF NOVEL SCIENTIFIC METHODOLOGY CONTEMPLATED FOR A FRYE HEARING; Supreme Court, New York County dismissed the complaint; App. Div. reversed, vacated the judgment, denied defendant's motion, reinstated the jury verdict awarding plaintiff the principal sum of $1,200,000 and directed the clerk to enter judgment accordingly.

LANCASTER, MATTER OF v INCORPORATED VILLAGE OF FREEPORT (92 AD3d 885):
2nd Dept. App. Div. order of 2/21/12; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; PUBLIC OFFICERS - DUTY TO DEFEND OR INDEMNIFY PUBLIC EMPLOYEE - TERMINATION OF OBLIGATION - FAILURE TO COOPERATE - WHETHER NONDISPARAGEMENT CLAUSES IN STIPULATIONS OF SETTLEMENT AND DISCONTINUANCE CONSTITUTE PRIOR RESTRAINTS ON FREE SPEECH - RESPONDENTS' ALLEGED SUBVERSION OF CERTAIN PETITIONERS' OBLIGATIONS TO VILLAGE RESIDENTS - WHETHER THE CHALLENGED DETERMINATION WAS ARBITRARY AND CAPRICIOUS - ALLEGED VIOLATION OF THE OPEN MEETINGS LAW; Supreme Court, Nassau County, in two related hybrid CPLR article 78 proceedings and actions for declaratory relief, denied the petition in proceeding number one and dismissed that proceeding, and denied the petition in proceeding number 2 and dismissed that proceeding; both petitions challenged a determination of the Board of Trustees of the Village of Freeport that revoked a prior resolution providing a defense and indemnification to petitioners in certain civil actions; App. Div. affirmed.

MACRI, MATTER OF v KELLY (92 AD3d 53):
1st Dept. App. Div. order of 12/27/11; affirmance; leave to appeal granted by Court of Appeals, 4/3/12; CIVIL SERVICE - RETIREMENT AND PENSION BENEFITS - WORLD TRADE CENTER PRESUMPTION - PREEXISTING CONDITION - WHETHER THERE WAS CREDIBLE EVIDENCE TO REBUT THE WORLD TRADE CENTER PRESUMPTION ACCORDED TO PETITIONER'S CLAIM FOR ACCIDENTAL LINE-OF-DUTY DEATH BENEFITS; Supreme Court, New York County granted a CPLR article 78 petition seeking, among other things, to annul respondents' decision to disapprove the designation of the death of petitioner's husband as a line-of-duty World Trade Center death, and to compel such designation; App. Div. affirmed.

MIGLINO v BALLY TOTAL FITNESS OF GREATER NEW YORK (92 AD3d 148):
2nd Dept. App. Div. order of 12/27/11; modification; leave to appeal granted by App. Div., 3/19/12; NEGLIGENCE - DUTY - WHETHER HEALTH CLUBS HAVE DUTY TO USE AUTOMATED EXTERNAL DEFIBRILLATOR (AED) DURING EMERGENCY - GENERAL BUSINESS LAW § 627-a - STATUTORY OR COMMON LAW CAUSE OF ACTION FOR FAILURE TO USE AED - "GOOD SAMARITAN" DEFENSE; Supreme Court, Suffolk County denied defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action; App. Div. modified by deleting the provision denying that branch of the defendants' motion pursuant to CPLR 3211(a)(7) which was to dismiss the complaint insofar as asserted against Bally Total Fitness Corporation, and substituting therefore a provision granting that branch of the motion.

ORSI v HARALABATOS (89 AD3d 997):
2nd Dept. App. Div. order of 11/22/11; reversal; leave to appeal granted by Court of Appeals, 3/27/12; PHYSICIANS AND SURGEONS - MALPRACTICE - POST- OPERATIVE CARE - SUMMARY JUDGMENT - EXISTENCE OF TRIABLE ISSUE OF FACT AS TO PROXIMATE CAUSE - PRESERVATION OF ARGUMENT FOR APPELLATE REVIEW; Supreme Court, Suffolk County, as relevant here, denied the motion of defendants Haralabatos and Stony Brook Orthopaedic Associates for summary judgment dismissing the complaint insofar as asserted against them; App. Div. reversed and granted the motion of defendants Haralabatos and Stony Brook Orthopaedic Associates for summary judgment dismissing the complaint insofar as asserted against them.

PEREZ, MATTER OF v RHEA (87 AD3d 476):
1st Dept. App. Div. order of 8/25/11; reversal; leave to appeal granted by Court of Appeals, 3/29/12; PUBLIC HOUSING - TERMINATION OF TENANCY - WHETHER PENALTY WAS SO DISPROPORTIONATE TO OFFENSE OF UNDER-REPORTING INCOME AS TO BE SHOCKING TO ONE'S SENSE OF FAIRNESS; Supreme Court, New York County dismissed a CPLR article 78 proceeding seeking to annul and vacate or, in the alternative, remand for imposition of a lesser penalty, the determination of the New York City Housing Authority (NYCHA), which terminated petitioner's tenancy based upon findings that she failed to report employment income; App. Div. reversed, granted the petition to the extent of vacating the penalty of termination and remanding the matter to NYCHA for the imposition of a lesser penalty.

For April 13, 2012 through April 19, 2012, the following preliminary appeal statements were filed:

COHEN v CUOMO (35 Misc 3d 478):
Supreme Court, New York County judgment of 4/13/12; denial of petition and issuance of declaratory judgment; ELECTIONS - REDISTRICTING PLAN - WHETHER THE NEW YORK LEGISLATURE VIOLATED ARTICLE III, SECTION 4 OF THE NEW YORK CONSTITUTION BY USE OF TWO DIFFERENT COUNTING METHODOLOGIES IN DIFFERENT PARTS OF THE STATE, CREATING AN ADDITIONAL DISTRICT IN THE UPSTATE REGION; Supreme Court, New York County denied petition, and declared that the formula prescribed in article III, § 4 of the New York State Constitution does not forbid New York from increasing the size of the New York State Senate to 63 seats in 2012.

GARDNER, MATTER OF v COXSACKIE-ATHENS CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION (92 AD3d 1093):
3rd Dept. App. Div. judgment of 2/16/12; grant of petition and annulment of determination; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right and whether the App. Div. order finally determines the proceeding within the meaning of the Constitution; PROCEEDING AGAINST BODY OR OFFICER - CERTIORARI - CPLR ARTICLE 78 PROCEEDING TO ANNUL DETERMINATION OF RESPONDENT SCHOOL DISTRICT TERMINATING PETITIONER'S EMPLOYMENT BASED ON INAPPROPRIATE BEHAVIOR IN RESPONSE TO STUDENTS ENGAGING IN AN AUTHORIZED SENIOR PRANK; APPLICATION OF WAITING PERIOD PROVISION OF EDUCATION LAW § 3813 TO CIVIL SERVICE LAW § 76 APPEAL; PRESERVATION OF CHALLENGE TO WRITTEN DESIGNATION REQUIREMENT OF CIVIL SERVICE LAW § 75(2); APPOINTMENT OF HEARING OFFICER; App. Div. annulled the determination terminating petitioner's employment as head custodian of Coxsackie-Athens High School, and granted the petition to the extent of restricting petitioner to his former position with back pay and benefits.

K2 INVESTMENT GROUP, LLC v AMERICAN GUARANTEE & LIABILITY INSURANCE COMPANY (91 AD3d 401):
1st Dept. App. Div. order of 1/3/12; affirmance with dissents; sua sponte examination whether the two-justice dissent at the App. Div. provides a jurisdictional basis to support an appeal as of right by K2 Investment Group, LLC and ATAS Management Group; INSURANCE - MALPRACTICE INSURANCE - DISMISSAL OF CAUSES OF ACTION ALLEGING BAD FAITH BASED UPON INSURER'S ALLEGED GROSS DISREGARD OF ITS INSURED'S INTERESTS; Supreme Court, New York County judgment in plaintiffs' favor against defendant on the causes of action to enforce a default judgment, and dismissing the causes of action alleging bad faith; App. Div. affirmed.

KOEHL, MATTER OF v LEMPKE (85 AD3d 1610):
4th Dept. App. Div. order of 1/26/12; denial of motion for reimbursement of costs; sua sponte examination whether the order appealed from finally determines the proceeding within the meaning of the Constitution and whether a substantial constitutional question is directly involved to support an appeal as of right; MOTIONS - APPELLATE DIVISION ORDER DENYING PETITIONER'S MOTION FOR REIMBURSEMENT OF ALL COSTS EXPENDED IN LITIGATING A CPLR ARTICLE 78 PROCEEDING; App. Div. denied petitioner's motion for reimbursement of all costs expended in litigating a CPLR article 78 proceeding.

KOZIOL, MATTER OF v WALSH-HOOD (72 AD3d 1634):
3rd Dept. App. Div. judgment of 2/23/12; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; PROCEEDING AGAINST BODY OR OFFICER - PROHIBITION - MANDAMUS - CLEAR LEGAL RIGHT TO RELIEF - ABSENCE OF ADEQUATE REMEDY AT LAW - JUDGES ALLEGEDLY ACTING IN EXCESS OF JURISDICTION - ALLEGED DUE PROCESS VIOLATIONS - ALLEGED COURT SYSTEM BIAS - CLAIM THAT DOMESTIC RELATIONS LAW §§ 236 AND 240 ARE UNCONSTITUTIONAL - CHILD SUPPORT AND CUSTODY DISPUTE; App. Div. dismissed a CPLR article 78 petition to, among other things, prohibit respondents from enforcing certain orders of child support and custody.

SAPERSTON, MATTER OF v HOLDAWAY (93 AD3d 1271):
4th Dept. App. Div. order of 3/23/12; modification; sua sponte examination whether the order appealed from finally determines the proceeding within the meaning of the Constitution and whether the two-justice dissent at the App. Div. is on a question of law; PARENT AND CHILD - CUSTODY - WHETHER THE APPELLATE DIVISION ERRED IN DETERMINING THAT FAMILY COURT'S DETERMINATION WITH RESPECT TO PRIMARY PHYSICAL CUSTODY LACKS A SOUND AND SUBSTANTIAL BASIS IN THE RECORD; Family Court, Erie County granted the parties joint custody of their child and designated the father the primary residential parent in this proceeding pursuant to Family Court Act article 6; App. Div. modified by awarding primary physical custody of the child to mother, affirmed the order as so modified, and remitted to Family Court for further proceedings to fashion an appropriate visitation schedule.

UHL (CHRISTOPHER M.), MATTER OF (88 AD3d 1052):
3rd Dept. App. Div. orders of 2/27/12 and 10/6/11; denial of motion to vacate disbarment order; disbarment order; sua sponte examination whether the 2/27/12 App. Div. order finally determines the proceeding within the meaning of the Constitution and whether a substantial constitutional question is directly involved to support an appeal as of right; ATTORNEY AND CLIENT - DISCIPLINARY PROCEEDINGS - CHALLENGE TO APPELLATE DIVISION ORDER DISBARRING ATTORNEY WHO WAS CONVICTED IN FEDERAL COURT OF SIX COUNTS OF TAX EVASION AND AN ORDER DENYING A MOTION TO VACATE THE DISBARMENT ORDER; App. Div., among other things, disbarred respondent effective immediately and, thereafter, denied respondent's motion to vacate the disbarment order.

WILLIAMS (BILL), PEOPLE v (91 AD3d 679):
2nd Dept. App. Div. order of 1/10/12; modification; leave to appeal granted by Smith, J., 4/5/12; CRIMES - WITNESSES - EXPERT WITNESS - WHETHER THE TRIAL COURT ERRED IN ADMITTING EXPERT TESTIMONY REGARDING SEXUAL ABUSE OF CHILDREN - EXPERT TESTIMONY CONCERNING TYPICAL CONDUCT OF SEXUAL ABUSERS AND CONSISTENCY OF COMPLAINANT'S BEHAVIOR WITH CHILD SEX ABUSE SYNDROME; EFFECTIVENESS OF DEFENSE COUNSEL; Supreme Court, Kings County convicted defendant, after a nonjury trial, of rape in the first degree, criminal sexual act in the first degree, sexual conduct against a child in the second degree, sexual abuse in the second degree, and endangering the welfare of a child, and sentenced him, as a persistent violent felony offender, to indeterminate terms on the various counts, with some of the terms to run consecutively to each other, and all other terms to run concurrently, for an aggregate sentence of imprisonment of 66 years to life; App. Div. modified, (1) by vacating the convictions of sexual abuse in the second degree under counts 8 and 15-17 of the indictment, vacating the sentences imposed on those counts of the indictment, and dismissing those counts of the indictment, and (2) by providing that the sentence imposed upon defendant's conviction of course of sexual conduct against a child in the second degree shall run concurrently with all other sentences.