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For April 30, 2010 through May 6, 2010, the following preliminary appeal statements were filed:

BRUNNER (MICHAEL), PEOPLE v (67 AD3d 464):
1st Dept. App. Div. order of 11/10/09; affirmance; leave to appeal granted by Lippman, Ch.J., 4/21/10; CRIMES - RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - COUNSEL'S FAILURE TO MOVE TO DISMISS INDICTMENT ON SPEEDY TRIAL GROUNDS PURSUANT TO CPL 30.30; ALLEGED SANDOVAL VIOLATION; WITNESSES - FAILURE TO CALL WITNESS - DENIAL OF DEFENDANT'S REQUEST FOR MISSING WITNESS CHARGE AS TO CERTAIN POLICE OFFICERS; Supreme Court, New York County convicted defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and resisting arrest, and sentenced him, as a second felony offender, to an aggregate term of 4 1/2 years; App. Div. affirmed.

HOFFLER, MATTER OF v JACON (72 AD3d 1183):
3rd Dept. App. Div. judgment of 4/1/10; dismissal of CPLR article 78 petition; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; PROCEEDING AGAINST BODY OR OFFICER - PROHIBITION - WHETHER DOUBLE JEOPARDY PRINCIPLES BAR RESPONDENTS FROM TRYING PETITIONER ON AN INDICTMENT CHARGING HIM WITH MURDER IN THE FIRST AND SECOND DEGREES WHERE PETITIONER'S PREVIOUS CONVICTION ON THAT INDICTMENT WAS REVERSED BY THE APPELLATE DIVISION UPON THE GROUND THAT THE TRIAL WAS RENDERED A NULLITY BECAUSE THE PROSPECTIVE JURORS HAD NOT BEEN PROPERLY SWORN TO TRUTHFULLY ANSWER THE QUESTIONS POSED TO THEM REGARDING THEIR QUALIFICATIONS TO SERVE AS JURORS; APPELLATE DIVISION'S FAILURE TO ADDRESS PETITIONER'S LEGAL SUFFICIENCY AND WEIGHT OF THE EVIDENCE CLAIMS ON HIS DIRECT APPEAL OF THE PRIOR MURDER CONVICTION; App. Div. dismissed a CPLR article 78 petition seeking to prohibit respondents from trying petitioner on an indictment charging him with murder in the first degree and murder in the second degree.

MEBANE (SCOTT), PEOPLE ex rel. v LACLAIR (70 AD3d 1075):
3rd Dept. App. Div. order of 2/4/10; affirmance; sua sponte examination whether any jurisdictional basis exists to support an appeal as of right; HABEAS CORPUS - CHALLENGE TO APPELLATE DIVISION ORDER HOLDING THAT THE DEPARTMENT OF CORRECTIONAL SERVICES ACTED WITHIN ITS AUTHORITY IN DETERMINING THAT PETITIONER'S SENTENCES ON CONVICTIONS IN 2007 WERE TO RUN CONSECUTIVE TO HIS PRIOR UNDISCHARGED TERMS OF IMPRISONMENT - PENAL LAW § 70.25(2-a); Supreme Court, Franklin County denied petitioner's application for a writ of habeas corpus; App. Div. affirmed.

NEW YORK STATE PSYCHIATRIC ASSOCIATION v NEW YORK STATE DEPARTMENT OF HEALTH (71 AD3d 852):
2nd Dept. App. Div. order of 3/16/10; modification; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution and whether a substantial constitutional question is directly involved to support an appeal as of right; HEALTH - MEDICARE REIMBURSEMENT PAYMENTS - CONSTITUTIONALITY OF PROVISIONS IN THE 2008 BUDGET BILL (L. 2008, ch 58, part C) PROVIDING THAT LICENSED PSYCHIATRISTS ARE NOT ENTITLED TO BE PAID THE FULL MEDICARE PART B COINSURANCE AMOUNT FOR SERVICES RENDERED BETWEEN APRIL 1, 2007 AND APRIL 11, 2008 TO CERTAIN INDIVIDUALS WHO ARE ELIGIBLE FOR BOTH MEDICAID AND MEDICARE BENEFITS AND/OR FOR CLAIMS PROCESSED BETWEEN APRIL 1, 2007 AND APRIL 11, 2008; Supreme Court, Nassau County denied plaintiffs/petitioners' motion for summary judgment on causes of action for declaratory relief and granted the cross motion of defendant/respondent for summary judgment on those causes of action and, in effect, denied the amended petition in a hybrid action for a judgment declaring that those portions of sections 53 and 54 of part C of the New York State 2008 budget which provide that licensed psychiatrists are not entitled to be paid the full Medicare Part B coinsurance amount for services rendered between April 1, 2007 and April 11, 2008 to certain individuals who are eligible for both Medicaid and Medicare benefits and/or for claims processed between April 1, 2007 and April 11, 2008 are unconstitutional, and in effect, proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the New York State Department of Health to pay licensed psychiatrists the full Medicare Part B coinsurance amount for those individuals pursuant to the 2006 amendment to Social Services Law § 367-a(1)(d)(iii) for services rendered and/or claims processed between April 1, 2007 and April 11, 2008; App. Div. modified the amended order (1) by deleting the provision thereof denying the motion for summary judgment on the causes of action for declaratory relief and substituting therefor a provision granting the motion to the extent of declaring that those portions of sections 53 and 54 of part C of the New York State 2008 budget bill which provide that licensed psychiatrists are not entitled to be paid the full Medicare Part B coinsurance amount for services rendered to certain individuals who are eligible for both Medicaid and Medicare benefits and/or for claims processed between August 12, 2007 and April 11, 2008 are unconstitutional and declaring that the New York State Department of Health must pay to licensed psychiatrists the full Medicare Part B coinsurance for those individuals for services rendered or claims processed between August 12, 2007 and April 11, 2008, and otherwise denying the motion; and (2) by deleting the provision thereof granting the cross motion for summary judgment and substituting therefor a provision granting the cross motion only to the extent that the services or claims at issue were rendered or processed prior to August 12, 2007, and otherwise denying the cross motion; and (3) by deleting the provision thereof, in effect, denying the amended petition and substituting therefor a provision granting the amended petition to the extent of directing the defendant/respondent to pay to licensed psychiatrists the full Medicare Part B coinsurance amount for those individuals pursuant to the 2006 amendment to Social Services Law § 367-a(1)(d)(iii) for services rendered or claims processed between August 12, 2007 and April 11, 2008, and otherwise denying the amended petition; affirmed the amended order as so modified; and remitted the matter to Supreme Court, Nassau County for the entry of a judgment, among other things, declaring that those portions of sections 53 and 54 of Part C of the New York State 2008 budget bill which provide that licensed psychiatrists are not entitled to be paid the full Medicare Part B coinsurance amount for services rendered to certain individuals who are eligible for both Medicaid and Medicare benefits and/or for claims processed between August 12, 2007 and April 11, 2008 are unconstitutional.

WOODS, MATTER OF v NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES (72 AD3d 474):
1st Dept. App. Div. order of 4/8/10; affirmance with dissents; PROCEEDING AGAINST BODY OR OFFICER - CPLR ARTICLE 78 PROCEEDING TO REVIEW A DETERMINATION OF RESPONDENT NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES NOT TO PLACE PETITIONER ON A "SPECIAL ELIGIBLE LIST" PURSUANT TO MILITARY LAW §§ 243(7) AND 243(7-b) - PETITIONER SEEKING APPOINTMENT AS FIREFIGHTER; CIVIL SERVICE; Supreme Court, New York County denied a CPLR article 78 petition and dismissed the proceeding; App. Div. affirmed.

For May 7, 2010 through May 13, 2010, the following preliminary appeal statements were filed:

CADICHON v FACELLE (71 AD3d 520):
1st Dept. App. Div. order of 3/18/10; affirmance and dismissal; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution and whether the two-justice dissent at the App. Div. is on a question of law; DISMISSAL AND NONSUIT - WANT OF PROSECUTION - CHALLENGE TO APPELLATE DIVISION ORDER THAT, AMONG OTHER THINGS, AFFIRMED A SUPREME COURT ORDER DENYING PLAINTIFFS' MOTION TO VACATE THE DISMISSAL OF THE ACTION PURSUANT TO CPLR 3216; Supreme Court, Bronx County denied plaintiffs' motion to vacate the dismissal of the action pursuant to CPLR 3216 (8/26/08 order) and thereafter denied plaintiffs' motion to reargue and renew (1/29/09 order); App. Div. affirmed the 8/26/08 order and so much of the 1/29/09 order as denied plaintiffs' motion to renew, and dismissed the appeal from so much of the 1/29/09 order as denied plaintiffs' motion to reargue.

GRANT (JOHN), PEOPLE v (70 AD3d 711):
2nd Dept. App. Div. order of 2/2/10; affirmance; leave to appeal granted by Fisher, J., 5/6/10; Rule 500.11 review pending; CRIMES - INDICTMENT - SUFFICIENCY OF EVIDENCE BEFORE GRAND JURY - ROBBERY IN THE FIRST DEGREE - USE OR THREATENED IMMEDIATE USE OF A DANGEROUS INSTRUMENT - NOTE USED BY DEFENDANT DURING ROBBERY STATING THAT HE HAD A GUN AND WOULD SHOOT IF BANK TELLER SAID ANYTHING; Supreme Court, Richmond County granted that branch of defendant's omnibus motion which was to dismiss the indictment to the extent of reducing the charge of robbery in the first degree to the charge of robbery in the third degree; App. Div. affirmed.

HARNETT (DAVID M.), PEOPLE v (72 AD3d 232):
3rd Dept. App. Div. order of 2/25/10; affirmance with dissents; leave to appeal granted by Stein, J., 5/5/10; CRIMES - SEX OFFENDERS - PLEA OF GUILTY - WHETHER DEFENDANT'S GUILTY PLEA TO SEXUAL ABUSE IN THE FIRST DEGREE WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED WHERE THE TRIAL COURT FAILED TO INFORM HIM PRIOR TO ENTRY OF THAT PLEA THAT HIS CONVICTION WOULD SUBJECT HIM TO THE PROVISIONS OF THE SEX OFFENDER MANAGEMENT AND TREATMENT ACT (MENTAL HYGIENE LAW ARTICLE 10), WHICH COULD RESULT IN CONFINEMENT OR INTENSIVE SUPERVISION BEYOND THE EXPIRATION OF HIS PRISON SENTENCE; Schenectady County Court convicted defendant, upon his guilty plea, of sexual abuse in the first degree; App. Div. affirmed.

HESS, MATTER OF v WEST SENECA CENTRAL SCHOOL DISTRICT (71 AD3d 1568):
4th Dept. App. Div. order of 3/26/10; affirmance with dissents; Rule 500.11 review pending; SCHOOLS - NOTICE OF CLAIM - LATE NOTICE OF CLAIM - CHALLENGE TO APPELLATE DIVISION ORDER HOLDING THAT SUPREME COURT DID NOT ABUSE ITS DISCRETION IN GRANTING AN APPLICATION SEEKING LEAVE TO SERVE A LATE NOTICE OF CLAIM ON SCHOOL DISTRICT; Supreme Court, Erie County granted that part of claimant's application seeking leave to serve a late notice of claim on respondent West Seneca Central School District; App. Div. affirmed.

MATTER OF LIQUIDATION OF MIDLAND INSURANCE COMPANY. AMERICAN STANDARD, INC.; SWISS REINSURANCE AMERICA CORPORATION (71 AD3d 221):
1st Dept. App. Div. order of 2/8/10; reversal; leave to appeal granted by App. Div., 4/29/10; INSURANCE - LIQUIDATION OF INSURER - CHOICE OF LAW - WHETHER NEW YORK SUBSTANTIVE LAW GOVERNS THE INTERPRETATION AND APPLICATION OF INSOLVENT INSURER'S INSURANCE POLICIES; Supreme Court, New York County granted the motion of the major policyholders (MPHs) for partial summary judgment declaring that for each policyholder an individualized choice-of-law review must be undertaken following the "grouping of contacts" approach and giving predominant weight to the policyholder's principal place of business, and denied the intervening reinsurers' cross motion for partial summary judgment on the applicability of New York substantive law to all policyholder claims under the Midland policies in the liquidation; App. Div. reversed, denied the MPHs motion and granted the intervening reinsurers' cross motion, declaring that New York substantive law governs the interpretation and application of the Midland insurance policies at issue.

RICHES, MATTER OF v NEW YORK CITY COUNCIL (— AD3d —, 2010 NY Slip Op 03046):
1st Dept. App. Div. order of 4/15/10; affirmance with dissents; sua sponte examination whether the two-justice dissent at the App. Div. is on a question of law; MUNICIPAL CORPORATIONS - SUMMARY JUDICIAL INQUIRY PURSUANT TO NEW YORK CITY CHARTER § 1109 - WHETHER THE APPELLATE DIVISION CORRECTLY HELD THAT SUPREME COURT PROPERLY EXERCISED ITS DISCRETION IN DISMISSING A PROCEEDING REQUESTING A SUMMARY JUDICIAL INQUIRY CONCERNING THE NEW YORK CITY COUNCIL'S PRACTICE OF ALLOCATING FUNDS TO NON-EXISTENT ENTITIES DURING ITS INITIAL BUDGETING PROCESS; Supreme Court, New York County dismissed a proceeding for a summary judicial inquiry pursuant to New York City Charter § 1109; App. Div. affirmed.

RONI, LLC v ARFA (72 AD3d 413):
1st Dept. App. Div. order of 4/1/10; affirmance with dissents; Rule 500.11 review pending; ATTORNEY AND CLIENT - WHETHER THE COMPLAINT STATES A CAUSE OF ACTION AGAINST ATTORNEYS FOR AIDING AND ABETTING PROMOTERS' ALLEGED BREACH OF FIDUCIARY DUTY IN INFLATING PURCHASE PRICE OF PROPERTIES BY RECEIVING SECRET COMMISSIONS; Supreme Court, New York County, upon renewal and reargument, adhered to an 4/15/09 Supreme Court order granting the motion of defendants Mintz Levin Cohn Ferris Glovsky & Popeo, P.C. (Mintz Levin) and Jeffrey A. Moerdler and the cross motion of Edward Lukashok, Aubrey Realty Co., Aubrey Realty, LLC, 42nd Street Realty, LLC, Tammaz Realty, LLC, and Elul Acquisition, LLC to dismiss the claims of aiding and abetting breach of fiduciary duty as against Mintz Levin, Moerdler and Lukashok; App. Div. affirmed.

SIRICO (THOMAS), PEOPLE v (66 AD3d 1047):
2nd Dept. App. Div. order of 10/27/09; affirmance; leave to appeal granted by Smith, J., 3/19/10; CRIMES - JURORS - JURY INSTRUCTIONS - WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR A JURY CHARGE ON INTOXICATION PURSUANT TO PENAL LAW § 15.25; EVIDENCE - ADMISSIBILITY OF TAPE RECORDING AND TESTIMONY REGARDING 911 TELEPHONE CALL; SUFFICIENCY OF THE EVIDENCE TO PROVE MURDER IN THE SECOND DEGREE; Suffolk County Court convicted defendant of murder in the second degree, and imposed sentence; App. Div. affirmed.

STUART (CLAUDE), MATTER OF (2010 NY Slip Op 66316[U]):
2nd Dept. App. Div. order of 3/23/10; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right and whether any jurisdictional basis exists to support an appeal as of right; ATTORNEY AND CLIENT - DISCIPLINARY PROCEEDINGS - CHALLENGE TO APPELLATE DIVISION ORDER DENYING SUSPENDED ATTORNEY'S MOTION FOR REINSTATEMENT AS AN ATTORNEY AND COUNSELOR-AT-LAW; App. Div. denied suspended attorney's motion for reinstatement.

WALKER, MATTER OF v FISCHER (71 AD3d 1309):
3rd Dept. App. Div. order of 3/18/10; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; PRISONS AND PRISONERS - DISCIPLINE OF INMATES - WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE DETERMINATION OF GUILT WITH RESPECT TO CHARGES OF SMUGGLING, EXTORTION AND POSSESSING UNAUTHORIZED PROPERTY; DUE PROCESS - PRISONER'S ABILITY TO PRESENT A WITNESS AND CERTAIN EVIDENCE; Supreme Court, Clinton County dismissed petitioner's CPLR article 78 application to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules; App. Div. affirmed.