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For January 1, 2010 through January 7, 2010, the following preliminary appeal statements were filed:

ANONYMOUS, MATTER OF, AN APPLICANT FOR ADMISSION TO THE BAR (67 AD3d 1248):
3rd Dept. App. Div. order of 11/19/09; denial of motion; 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; ATTORNEY AND CLIENT - ADMISSION TO PRACTICE - CHALLENGE TO APPELLATE DIVISION ORDER DENYING BAR APPLICANT'S MOTION TO VACATE APPELLATE DIVISION ORDER DENYING HIS APPLICATION FOR ADMISSION TO THE BAR AND FOR OTHER RELIEF; App. Div. denied applicant's motion to vacate a 4/16/09 order denying his application for admission to the Bar, and for other relief.

DEJESUS v ALBA (63 AD3d 460):
1st Dept. App. Div. order of 6/9/09; reversal with dissents; leave to appeal granted by App. Div., 11/5/09; Rule 500.11 review pending; MOTOR VEHICLES - INJURIES TO PEDESTRIANS - WHETHER TRIABLE ISSUE OF FACT EXISTED PRECLUDING SUMMARY JUDGMENT FOR DEFENDANTS; Supreme Court, Bronx County denied defendants' motion for summary judgment dismissing the complaint; App. Div. reversed, granted defendants' motion for summary judgment and directed the Clerk to enter judgment in defendants' favor dismissing the complaint.

EANONYMOUS, MATTER OF, AN APPLICANT TO THE BAR:
2nd Dept. App. Div. order of 12/1/09; denial of motion; 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; ATTORNEY AND CLIENT - ADMISSION TO PRACTICE - CHALLENGE TO APPELLATE DIVISION ORDER DENYING APPLICANT'S MOTION FOR LEAVE TO REARGUE HIS PETITION FOR ADMISSION OR FOR LEAVE TO APPEAL TO THE COURT OF APPEALS; App. Div. denied applicant's petition for admission to the bar and dismissed the proceeding; thereafter, the same court denied applicant's motion for reargument or leave to appeal to the Court of Appeals.

L&L PAINTING COMPANY, INC. v CONTRACT DISPUTE RESOLUTION BOARD OF THE CITY OF NEW YORK (68 AD3d 594):
1st Dept. App. Div. order of 12/17/09; affirmance with dissents; Rule 500.11 review pending; PROCEEDING AGAINST BODY OR OFFICER - CONTRACTS - WHETHER A RATIONAL BASIS SUPPORTED THE CONTRACT RESOLUTION BOARD OF THE CITY OF NEW YORK'S DETERMINATION THAT THE CONTRACT DOCUMENTS WERE AMBIGUOUS; Supreme Court, New York County denied a CPLR article 78 petition to annual a determination of respondent Contract Dispute Resolution Board that rejected petitioners' claim for compensation for additional work under a contract with respondent Department of Transportation; App. Div. affirmed.

LEVY (MORDEKHAY), PEOPLE v (65 AD3d 1057):
2nd Dept. App. Div. order of 9/8/09; affirmance; leave to appeal granted by Ciparick, J., 12/14/09; CRIMES - TRADEMARK COUNTERFEITING - PENAL LAW § 165.72 - WHETHER A TRADEMARK MUST BE REGISTERED FOR THE GOODS ON WHICH THEY APPEAR - WHETHER THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY THAT A DEFENDANT MUST KNOW THAT A TRADEMARK IS COUNTERFEIT; SEARCH WARRANT - PROBABLE CAUSE SUPPORTING SEARCH WARRANT; Supreme Court, Queens County convicted defendant of two counts of trademark counterfeiting in the second degree, upon a jury verdict, and imposed sentence; App. Div. affirmed.

LIFE RECEIVABLES TRUST v GOSHAWK SYNDICATE 102 AT LLOYD'S (66 AD3d 495):
1st Dept. App. Div. order of 10/13/09; affirmance; leave to appeal granted by App. Div., 12/22/09; Rule 500.11 review pending; ARBITRATION - PROPER FORUM - ARBITRATION AGREEMENT SUBJECT TO AMERICAN ARBITRATION ASSOCIATION RULES - WHETHER MOTION COURT AND APPELLATE DIVISION ERRED IN FINDING THAT ISSUES OF ARBITRABILITY WERE FOR THE ARBITRATOR TO DETERMINE; FEDERAL ARBITRATION ACT; Supreme Court, New York County denied plaintiff's motion to stay or enjoin arbitrations pending before the American Arbitration Association; App. Div. affirmed.

MIDLER v CRANE (67 AD3d 569):
1st Dept. App. Div. order of 11/19/09; affirmance with dissents; Rule 500.11 review pending; PHYSICIANS - MALPRACTICE - INCONSISTENT VERDICTS - VERDICT FINDING THAT DEFENDANT RHEUMATOLOGIST WAS NOT NEGLIGENT IN FAILING TO DIAGNOSE PLAINTIFF'S LUPUS BUT WAS NEGLIGENT IN FAILING TO PROPERLY MONITOR PLAINTIFF - VERDICT FINDING THAT ENDOCRINOLOGIST WAS NEGLIGENT IN NOT GIVING RHEUMATOLOGIST RESULTS OF URINALYSIS, BUT THAT SUCH NEGLIGENCE WAS NOT A SUBSTANTIAL FACTOR IN CAUSING PLAINTIFF'S INJURIES; JURY CHARGE - WHETHER TRIAL COURT ERRED IN NOT INSTRUCTING THE JURY THAT IT COULD FIND FOR DEFENDANT PHYSICIAN IF IT DETERMINED THAT HE HAD COMMITTED AN "ERROR IN PROFESSIONAL JUDGMENT"; Supreme Court, New York County judgment awarding plaintiff the principal sums of $500,000 for past pain and suffering and $2 million for future pain and suffering; thereafter, the same court denied defendant's post-trial motion to set aside or reduce the verdict; App. Div. affirmed.

MONTES (OMAR), PEOPLE v (67 AD3d 586):
1st Dept. App. Div. order of 11/24/09; affirmance; leave to appeal granted by Abdus-Salaam, J., 12/22/09; CRIMES - RIGHT OF CONFRONTATION - CROSS EXAMINATION AND IMPEACHMENT - WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL OR TO STRIKE THE TESTIMONY OF A WITNESS DEFENDANT PREVIOUSLY CROSS EXAMINED WHERE THE WITNESS WAS UNAVAILABLE TO BE RECALLED AFTER IT WAS ESTABLISHED THAT SHE "WAS NOT HONEST WHEN SHE ... FAILED TO STATE THAT [ANOTHER INDIVIDUAL AT THE SCENE OF A SHOOTING DEATH] GAVE HER THE GUN OR GUNS WHEN HE RAN PAST HER AFTER THE SHOOTING OCCURRED"; Supreme Court, New York County convicted defendant, after a jury trial, of criminal possession of a weapon in the third degree and sentenced him to a term of 7 years; App. Div. affirmed.

MUHAMMAD (MUJAHID), PEOPLE v (66 AD3d 424):
1st Dept. App. Div. order of 10/6/09; affirmance; leave to appeal granted by Graffeo, J., 12/28/09; CRIMES - JURORS - JURY INSTRUCTIONS - WHETHER THE TRIAL COURT'S CHARGE TO THE JURY WAS SUFFICIENT TO APPRISE THE JURY THAT THE PEOPLE WERE REQUIRED TO PROVE DEFENDANT KNEW HE POSSESSED THE SUBJECT CREDIT CARDS - ADEQUACY OF PATTERN JURY INSTRUCTION FOR CRIMINAL POSSESSION OF A FORGED INSTRUMENT IN THE SECOND DEGREE (PENAL LAW § 170.25); Supreme Court, New York County convicted defendant of two counts of criminal possession of a forged instrument in the second degree, and sentenced him, as a second felony offender, to concurrent terms of 3 to 6 years; App. Div. affirmed.

OURSLER v BRENNAN (67 AD3d 36):
4th Dept. App. Div. order of 8/28/09; reversal; leave to appeal granted by App. Div., 12/30/09; INTOXICATING LIQUORS - DRAM SHOP ACT - GENERAL OBLIGATIONS LAW § 11-101 - GUILTY PARTICIPATION - WHETHER PLAINTIFF'S PURCHASE OF TWO ALCOHOLIC BEVERAGES FOR HIS WIFE (DECEDENT) AT CORPORATE DEFENDANT'S ESTABLISHMENT DURING PARTY AT WHICH SHE BECAME INTOXICATED CONSTITUTED "GUILTY PARTICIPATION" ON HIS PART AS A MATTER OF LAW, THUS REQUIRING DISMISSAL OF HIS DRAM SHOP ACT CAUSE OF ACTION BROUGHT IN HIS INDIVIDUAL CAPACITY; CAUSATION - INTERVENING EVENTS BETWEEN SALE OF ALCOHOL AND DECEDENT'S DEATH; CONTRIBUTION - WHEN CLAIM FOR CONTRIBUTION AVAILABLE - CPLR 1401 - WHETHER DEFENDANT SUBJECT TO LIABILITY UNDER WRONGFUL DEATH STATUTE MAY SEEK CONTRIBUTION FROM DEFENDANT SUBJECT TO LIABILITY PURSUANT TO DRAM SHOP ACT; Supreme Court, Erie County granted those parts of the motion of defendant Malbeat, Inc., doing business as Malwitz's Island Lanes, for summary judgment dismissing the plaintiff's fourth cause of action under the Dram Shop Act and defendant Robert E. Brennan's cross claim for contribution against Malbeat; App. Div. reversed the order insofar as appealed from, denied in part the summary judgment motion of defendant Malbeat and reinstated plaintiff's fourth cause of action under the Dram Shop Act and defendant Robert E. Brennan's cross claim for contribution against Malbeat.

RATAJCZAK v YOONESSI (2009 NY Slip Op 90199[U]):
4th Dept. App. Div. order of 12/2/09; denial of third-party plaintiffs' motion; sua sponte examination whether the orders appealed from finally determine the action within the meaning of the Constitution and whether any jurisdictional basis exists to support an appeal as of right; CHALLENGE TO, AMONG OTHER THINGS, AN APPELLATE DIVISION ORDER DENYING THIRD-PARTY PLAINTIFFS' MOTION, UPON RENEWAL, TO VACATE THE DISMISSAL OF AN APPEAL TAKEN FROM A SUPREME COURT ORDER DISMISSING THE THIRD-PARTY ACTION AND DENYING THE THIRD-PARTY PLAINTIFFS' MOTION TO VACATE A STIPULATION OF DISCONTINUANCE IN THE MAIN ACTION; App. Div. denied third-party plaintiffs' motion, upon renewal, to vacate the dismissal of an appeal taken from a 6/27/08 Supreme Court, Erie County order.



For January 8, 2010 through January 14, 2010, the following preliminary appeal statements were filed:

ELENA D.B., MATTER OF:
2nd Dept. App. Div. order of 7/14/09; affirmance; 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; INCAPACITATED AND MENTALLY DISABLED PERSONS - GUARDIAN FOR PERSONAL NEEDS OR PROPERTY MANAGEMENT - CHALLENGE TO APPELLATE DIVISION ORDER HOLDING THAT SUPREME COURT PROPERLY REVOKED A POWER OF ATTORNEY AND PROVIDENTLY EXERCISED ITS DISCRETION IN APPOINTING A NEUTRAL THIRD-PARTY GUARDIAN; Supreme Court, Westchester County, after a hearing, denied John C.B.'s and Elena B.S.'s cross petitions to appoint John C.B. as permanent guardian of Elena D.B., granted the petition to the extent of appointing another as guardian for the personal needs and property management of Elena D.B., and revoked a power of attorney in favor of John C.B.; App. Div. affirmed.

BLACK (JAMEL), PEOPLE v (65 AD3d 1370):
2nd Dept. App. Div. order of 9/29/09; affirmance; leave to appeal granted by Graffeo, J., 1/6/10; CRIMES - JURORS - CHALLENGE TO JURY - CLAIMED RACIAL DISCRIMINATION IN JUROR CHALLENGES - WHETHER TRIAL JUDGE ERRED IN DENYING DEFENDANT'S APPLICATION PURSUANT TO BATSON v KENTUCKY (476 US 79) CHALLENGING THE PEOPLE'S USE OF PEREMPTORY CHALLENGES TO REMOVE PROSPECTIVE AFRICAN- AMERICAN PANEL MEMBERS ON THE BASIS OF THEIR PLACE OF RESIDENCE, LACK OF EMPLOYMENT AND LACK OF HIGH SCHOOL DIPLOMA; Supreme Court, Kings County convicted defendant, upon a jury verdict, of robbery in the first degree, assault in the third degree, criminal possession of stolen property in the fifth degree, criminal possession of a weapon in the third degree, and imposed sentence; App. Div. affirmed.

KAUR, MATTER OF v NEW YORK STATE URBAN DEVELOPMENT CORPORATION (72 AD3d 1):
1st Dept. App. Div. order of 12/3/09; grant of EDPL 207 petitions; EMINENT DOMAIN - PUBLIC USE - ACQUISITION OF WEST HARLEM ACREAGE FOR DEVELOPMENT OF NEW CAMPUS FOR COLUMBIA UNIVERSITY - PETITIONS PURSUANT TO EMINENT DOMAIN PROCEDURE LAW § 207 CHALLENGING DETERMINATION APPROVING THE PROPERTY ACQUISITION - CIVIC PROJECT OR LAND USE IMPROVEMENT PROJECT; CLOSING OF THE RECORD DURING PENDENCY OF FREEDOM OF INFORMATION LAW PROCEEDINGS; App. Div. granted the petitions challenging the determination of respondent New York State Urban Development Corporation d/b/a Empire State Development Corporation dated 12/18/08 which approved the acquisition of certain real property for the project commonly referred to as the Columbia University Educational Mixed Use Development Land Use Improvement and Civic Project, and annulled the determination.

MILLENNIUM PARTNERS, L.P. v SELECT INSURANCE COMPANY (68 AD3d 420):
1st Dept. App. Div. order of 12/1/09; affirmance; 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; INSURANCE - DUTY TO DEFEND AND INDEMNIFY - WHETHER SUMMARY JUDGMENT DISMISSING THE COMPLAINT WAS PROPERLY GRANTED TO INSURER UPON GROUND THAT INSURED'S CLAIM FOR DEFENSE COSTS WAS SUBJECT TO A POLICY EXCLUSION BECAUSE IT AROSE FROM LOSSES THE INSURED INCURRED AS A RESULT OF BEING REQUIRED TO DISGORGE IMPROPERLY ACQUIRED FUNDS - EXISTENCE OF DISPUTED ISSUES OF FACT AS TO WHETHER FUNDS WHERE IMPROPERLY ACQUIRED; Supreme Court, New York County dismissed the complaint as against defendant Select Insurance Company; App. Div. affirmed.

RICHELIS S., MATTER OF (68 AD3d 1643):
4th Dept. App. Div. order of 12/30/09; reversal; sua sponte examination whether the order appealed from finally determines the proceeding within the meaning of the Constitution and whether the dissent at the App. Div. is on a question of law; PARENT AND CHILD - TERMINATION OF PARENTAL RIGHTS - WHETHER ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT THE FATHER VIOLATED THE CONDITIONS OF A SUSPENDED JUDGMENT; Family Court, Erie County, in a proceeding pursuant to Social Services Law § 384-b, dismissed the petition seeking to revoke a suspended judgment and terminate respondent's parental rights; App. Div. reversed, granted the petition, committed the guardianship and custody of the child to petitioner, and remitted the matter to Family Court for the initial freed child permanency hearing.

SPORT ROCK INTERNATIONAL, INC. v AMERICAN CASUALTY COMPANY OF READING, PA. (65 AD3d 12):
1st Dept. App. Div. order of 5/12/09; modification; leave to appeal granted by App. Div., 12/8/09; INSURANCE - DUTY TO DEFEND AND INDEMNIFY - EFFECT OF "OTHER INSURANCE" CLAUSES IN TWO INSURANCE POLICIES COVERING THE SAME INSURED FOR THE SAME RISK - CHALLENGE TO APPELLATE DIVISION'S HOLDING THAT COVERAGE AFFORDED BY INSURER ISSUING POLICY WITH EXCESS "OTHER INSURANCE" CLAUSE (THE "EXCESS INSURER") WAS EXCESS TO COVERAGE AFFORDED BY INSURER ISSUING POLICY CONTAINING PRO RATA "OTHER INSURANCE" CLAUSE (THE "PRIMARY INSURER"), THAT PRIMARY INSURER WAS RESPONSIBLE FOR PROVIDING DEFENSE IN UNDERLYING ACTION AND REIMBURSING EXCESS INSURER FOR ANY DEFENSE COSTS THAT HAD BEEN INCURRED BY EXCESS INSURER, AND THAT EXCESS INSURER WILL NOT BE OBLIGATED TO CONTRIBUTE TO THE DEFENSE OR INDEMNIFICATION OF THE INSURED UNTIL THE PRIMARY INSURER'S COVERAGE IS EXHAUSTED; SUMMARY JUDGMENT; Supreme Court, New York County granted plaintiffs' motion for summary judgment to the extent of declaring that defendant American Casualty Company of Reading, PA. is obligated to defend plaintiff Sport Rock International, Inc. in an underlying action, and otherwise denied the motion; App. Div. modified to further declare that the coverage afforded Sport Rock International in the underlying action under the policy issued to it by plaintiff Evanston Insurance Company is excess over the primary coverage afforded Sport Rock International therein as an additional insured under the policy American Casualty Company of Reading, PA. issued to nonparty Petzl, that Evanston will not be obligated to contribute to Sport Rock International, Inc.'s defense or indemnification in the underlying action until Sport Rock International's coverage from American Casualty Company has been exhausted, and that American Casualty Company is obligated to reimburse Evanston up to the applicable limit of American Casualty's policy for all costs Evanston has heretofore incurred in defending Sport Rock International in the underlying action, and otherwise affirmed.

HALL v JACOBY AND MYERS LAW OFFICES, INC. (2009 NY Slip Op 82076[U]):
1st Dept. App. Div. order of 9/1/09; denial of motion for leave to prosecute appeal as a poor person and for related relief; sua sponte examination whether the Appellate Division order finally determines the action and whether any jurisdictional basis otherwise exists to support an appeal as of right; CHALLENGE TO APPELLATE DIVISION ORDER DENYING MOTION FOR POOR PERSON AND RELATED RELIEF; App. Div. denied plaintiff's motion for leave to prosecute, as a poor person, a purported appeal from an unidentified order of the Supreme Court, New York County, for leave to have the appeal heard upon the original record and upon a reproduced appellant's brief, and for related relief.

STEWART, MATTER OF v CHAUTAUQUA COUNTY BOARD OF ELECTIONS (— AD3d —, 2010 NY Slip Op 00210):
4th Dept. App. Div. order of 1/12/10; modification with dissents; ELECTIONS - BALLOTS - AFFIDAVIT BALLOT CHALLENGED REGARDING RESIDENCY - TWO BALLOTS NOT READABLE BY OPTICAL SCAN VOTING MACHINE - TWO ABSENTEE BALLOTS FROM VOTERS WHO FAILED TO STATE THE DATES AND REASONS FOR THEIR ABSENCES ON ELECTION DAY PURSUANT TO ELECTION LAW § 8-400(3)(c); Supreme Court, Chautauqua County, among other things, directed that certain ballots be counted; App. Div. dismissed the cross appeal taken by petitioner Beightol from the order insofar as it directed the opening of two absentee ballots and modified the Supreme Court order by vacating the first ordering paragraph and invalidating the J.K. affidavit ballot and by vacating the fourth ordering paragraph and validating the two unread optical scan ballots from the Town of Poland, and directed respondent Board of Elections not to count the J.K. affidavit ballot and to count the two unread optical scan ballots from the Town of Poland.

ALONZO (JOSE), PEOPLE v (62 AD3d 720):
2nd Dept. App. Div. order of 5/5/09; affirmance; leave to appeal granted by Read, J., 1/19/10; CRIMES - INDICTMENT - DISMISSAL OF INDICTMENT COUNTS AS MULTIPLICITOUS - CPL 210.20 - WHETHER GROPING OF TWO BODY PARTS CONSTITUTED A SINGLE CONTINUOUS ACT; Westchester County Court granted that branch of defendant's omnibus motion which was to dismiss counts two and five of the indictment; App. Div. affirmed.

APONTE (HERBERT), PEOPLE v (24 Misc 3d 118):
App. Term 2nd, 11th and 13th Judicial Districts order of 6/29/09; affirmance; leave to appeal granted Read, J., 1/19/10; CRIMES - STALKING - ATTEMPTED STALKING - WHETHER THE CRIME OF ATTEMPTED STALKING IN THE THIRD DEGREE IS A LEGALLY COGNIZABLE OFFENSE; INTENT; Criminal Court, Queens County convicted defendant of attempted stalking in the third degree and harassment in the first degree; App. Term affirmed.

PEOPLE OF THE STATE OF NEW YORK v WELLS FARGO INSURANCE SERVICES, INC. (62 AD3d 404):
1st Dept. App. Div. order of 5/5/09; affirmance; leave to appeal granted by Court of Appeals, 1/19/10; INSURANCE - AGENTS AND BROKERS - WHETHER COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY BY INSURANCE BROKER; ATTORNEY GENERAL - ENJOINING FRAUDULENT OR ILLEGAL ACTS - WHETHER COMPLAINT STATED A CAUSE OF ACTION FOR FRAUD UNDER EXECUTIVE LAW § 63(12) WITH SUFFICIENT PARTICULARITY; Supreme Court, New York County dismissed the complaint, pursuant to a 1/15/08 Supreme Court order that, among other things, granted defendants' motion to dismiss the causes of action for breach of fiduciary duty and fraud under Executive Law § 63(12); App. Div. affirmed.

DICKINSON, MATTER OF v DAINES (68 AD3d 1646):
4th Dept. App. Div. order of 12/30/09; reversal with dissents; PROCEEDING AGAINST BODY OR OFFICER - MANDAMUS - CPLR ARTICLE 78 PROCEEDING SEEKING A JUDGMENT VACATING AN AMENDED DECISION AFTER FAIR HEARING AND REINSTATING A PRIOR DECISION AFTER FAIR HEARING REVERSING THE DEPARTMENT OF SOCIAL SERVICES' DENIAL OF MEDICAID BENEFITS TO PETITIONER - 90-DAY PERIOD FOR DEPARTMENT OF HEALTH TO TAKE "FINAL ADMINISTRATIVE ACTION" (18 NYCRR 358-6.4); Supreme Court, Onondaga County granted a CPLR article 78 petition to the extent of directing the Onondaga County Department of Social Services to comply with a 12/21/07 decision after fair hearing; App. Div. reversed and dismissed the petition.

LEHMAN v NORTH GREENWICH LANDSCAPING, LLC (65 AD3d 1291):
2nd Dept. App. Div. order of 9/29/09; reversal; leave to appeal granted by Court of Appeals, 1/19/10; NEGLIGENCE - MAINTENANCE OF PREMISES - DUTY TO SAFELY MAINTAIN PARKING LOT - WHETHER SNOW REMOVAL CONTRACT WAS COMPREHENSIVE AGREEMENT THAT DISPLACED DUTY OF DEFENDANT HORTON SCHOOL ASSOCIATES TO MAINTAIN PARKING LOT; SUMMARY JUDGMENT - WHETHER TRIABLE ISSUE OF FACT EXISTS; SNOW AND ICE - SLIP AND FALL ON ICE; Supreme Court, Westchester County denied defendant North Greenwich Landscaping, LLC's motion for summary judgment dismissing the complaint and all cross claims against it; App. Div. reversed and granted defendant North Greenwich Landscaping, LLC's motion for summary judgment dismissing the complaint and all cross claims against it.

LEROY M., MATTER OF (65 AD3d 500):
1st Dept. App. Div. order of 8/25/09; reversal; leave to appeal granted by Court of Appeals, 1/19/10; INFANTS - JUVENILE DELINQUENTS - SEARCH OF JUVENILE SUSPECT'S HOME AFTER THEFT OF LAPTOP COMPUTER FROM A MIDDLE SCHOOL - EFFECT OF SUSPECT'S SISTER'S CONSENT TO THE POLICE OFFICER'S SEARCH OF THEIR HOME; EVIDENCE - SUPPRESSION HEARING; Family Court, Bronx County adjudicated respondent a juvenile delinquent upon a fact- finding determination that respondent had committed an act which, if committed by an adult, would constitute the crime of criminal possession of stolen property in the fifth degree, and placed him with the Office of Children and Family Services for a period of 12 months; App. Div. reversed, granted the motion to suppress and dismissed the petition.

MASON (STEVEN), PEOPLE v (66 AD3d 487):
1st Dept. App. Div. order of 10/13/09; affirmance; leave to appeal granted by Graffeo, J., 1/21/10; CRIMES - EAVESDROPPING WARRANTS - MOTION TO SUPPRESS ELECTRONICALLY GATHERED EVIDENCE - WHETHER THE PEOPLE SATISFIED THE "EXHAUSTION" REQUIREMENT IN CPL 700.15(4) AND SHOWED "THAT NORMAL INVESTIGATIVE PROCEDURES HAVE BEEN TRIED AND HAVE FAILED, OR REASONABLY APPEAR TO BE UNLIKELY TO SUCCEED IF TRIED, OR TO BE TOO DANGEROUS TO EMPLOY"; Supreme Court, New York County convicted defendant of enterprise corruption, two counts of grand larceny in the second degree and attempted grand larceny in the second degree, and sentenced him, as a second felony offender, to an aggregate term of 7 1/2 to 15 years; App. Div. affirmed.

MCCLUSKEY v GABOR AND GABOR (2009 NY Slip Op 92377[U]):
2nd Dept. App. Div. order of 12/23/09; dismissal of appeal; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution, whether a substantial constitutional question is directly involved to support an appeal as of right and whether any jurisdictional basis otherwise exists for an appeal as of right; APPEAL - APPELLATE DIVISION - DISMISSAL OF APPEAL - WHETHER APPEAL TO APPELLATE DIVISION LIES FROM SUPREME COURT ORDER DENYING REARGUMENT; LEGAL MALPRACTICE ACTION; Supreme Court, Nassau County denied plaintiff's motion for leave to reargue; App. Div. granted defendants' motion to dismiss the appeal and dismissed the appeal.

NGOYI, MATTER OF, A DISBARRED ATTORNEY:
3rd Dept. App. Div. order of 12/21/09; denial of motion to vacate order; 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; ATTORNEY AND CLIENT - DISCIPLINARY PROCEEDINGS - CHALLENGE TO APPELLATE DIVISION ORDER DENYING MOTION TO VACATE ORDER OF DISBARMENT ENTERED UPON DEFAULT; App. Div. denied respondent's motion to vacate an order of disbarment entered on 9/3/09 upon his default.

RABB (REGINALD), PEOPLE v ((66 AD3d 487):
1st Dept. App. Div. order of 10/13/09; affirmance; leave to appeal granted by Graffeo, J., 1/21/10; CRIMES - EAVESROPPING WARRANTS - MOTION TO SUPPRESS ELECTRONICALLY GATHERED EVIDENCE - WHETHER THE PEOPLE SATISFIED THE "EXHAUSTION" REQUIREMENT IN CPL 700.15(4) AND SHOWED "THAT NORMAL INVESTIGATIVE PROCEDURES HAVE BEEN TRIED AND HAVE FAILED, OR REASONABLY APPEAR TO BE UNLIKELY TO SUCCEED IF TRIED, OR TO BE TOO DANGEROUS TO EMPLOY"; Supreme Court, New York County convicted defendant of enterprise corruption, two counts of grand larceny in the second degree, attempted grand larceny in the second degree, and criminal possession of a weapon in the fourth degree, and sentenced him, as a second felony offender, to an aggregate term of 8 1/2 to 17 years; App. Div. affirmed.

WILEY, MATTER OF v DAWSON (2010 NY Slip Op 60143[U]): (2009 NY Slip Op 90011[U]):
2nd Dept. App. Div. orders of 1/5/10 and 12/1/09; denial of motions to, among other things, vacate an order dismissing an appeal and dismissal of appeal; sua sponte examination whether the orders appealed from finally determine the action within the meaning of the Constitution, whether a substantial constitutional question is directly involved to support an appeal as of right and whether any jurisdictional basis otherwise exists for an appeal as right; APPEAL - APPELLATE DIVISION - DISMISSAL OF APPEAL ON THE GROUND THAT NO APPEAL LIES FROM AN ORDER ENTERED ON THE DEFAULT OF THE APPEALING PARTY - DENIAL OF MOTION TO VACATE ORDER DISMISSING APPEAL; Family Court, Westchester County on respondent Dawson's failure to appear, among other things, confirmed Support Magistrate's findings that respondent Dawson wilfully failed to obey the terms of the parties' judgment of divorce; App. Div. dismissed appeal on the basis that no appeal lies from an order entered upon the default of the appealing party and thereafter denied respondent Dawson's motions to, among other things, vacate the order dismissing his appeal.