Return to New Filings Page


For January 20, 2023 through January 26, 2023, the following preliminary appeal statements were filed:

MATTER OF AARON MANOR REHABILITATION v ZUCKER (205 AD3d 1193):
3rd Dept. App. Div. order of 5/12/22; affirmance; leave to appeal granted by the Court of Appeals, 1/10/23; Health--Medicaid Reimbursement Rates--Whether Public Health Law § 2808(20)(d), which was enacted on April 3, 2020 and required the elimination of residual equity reimbursement retroactive to April 1, 2020 "notwithstanding any contrary provision of law, rule or regulation," supersedes the prohibition in Public Health Law § 2807(7) on retroactive rate changes; Supreme Court, Albany County, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, among other things, partially granted respondents' motion for summary judgment dismissing the petition/complaint; App. Div. affirmed.

ALCANTARA v ANNUCCI (203 AD3d 1483):
3rd Dept. App. Div. order of 3/31/22; modification; leave to appeal granted by the Court of Appeals, 1/10/23; Crimes--Sex Offenders--Whether the Fishkill Correctional Facility satisfies the criteria governing residential treatment facilities under Correction Law § 2(6); Whether the Fishkill Correctional Facility satisfies the criteria governing residential treatment facilities under Correction Law § 73; Whether individuals held at a residential treatment facility under Correction Law § 73(10) can be held at the Fishkill Correctional Facility without the Department of Corrections and Community Supervision permitting or facilitating access to community-based employment, educational, and training opportunities for those residents; Supreme Court, Albany County, among other things, partially denied defendants' motion for summary judgment dismissing the complaint; App. Div. modified, by reversing so much of the judgment as partially denied defendants' motion for summary judgment, upon a search of the record, granted the motion in its entirety, and dismissed the complaint and, as so modified, affirmed.

BLUE (ANTHONY), PEOPLE v (202 AD3d 546):
1st Dept. App. Div. order of 2/15/22; affirmance; leave to appeal granted by Wilson, J., 12/21/22; Crimes--Search Warrant--Whether text messages and other information obtained from defendant's cell phone were properly admitted when the forensic examination of the phone occurred more than 10 days after issuance of warrant (see CPL 690.30 [1]); Crimes--Right to Speedy Trial--Whether defendant's statutory speedy trial rights were violated; whether time ostensibly attributed to a co-defendant's motion practice under CPL 30.30 (4) (d) was erroneously excluded when defendant had not yet been arraigned on the indictment; Supreme Court, New York County, convicted defendant of five counts of burglary in the second degree, and sentenced him to five consecutive times of five years; Supreme Court, New York County, denied defendant's 44.10 motion; App. Div. affirmed.

CORR (MATTHEW), PEOPLE v (208 AD3d 136):
2nd Dept. App. Div. order of 6/29/22; affirmance; leave to appeal granted by the Court of Appeals, 1/5/23; Crimes--Sex Offenders--Whether, for the purpose of calculating the "twenty years from the initial date of registration" that a level one sex offender must register under Correction Law §168-h(1), the 20-year registration period should include the duration of time registered as a sex offender in another state prior to residing in New York; Supreme Court, Kings County, after a hearing, designated defendant a level one sex offender under Correction Law article 6-C; App. Div. affirmed.

FRANKLIN (CID C.), PEOPLE v (207 AD3d 476):
2nd Dept. App. Div. order of 7/6/22; reversal; leave to appeal granted by Singas, J., 12/30/22; Crimes--Right of Confrontation--Whether the introduction of a form prepared by an employee of the Criminal Justice Agency violated defendant's rights under the Confrontation Clause because the employee who created the form did not testify; Supreme Court, Queens County, convicted defendant of criminal possession of a weapon in the second degree, upon a jury verdict, and imposed sentence; App. Div. reversed and ordered a new trial.

GURVEY v SNY (72 Misc 3d 1211[A], 2021 NY Slip Op 50697[U]):
Court of Claims order of 4/26/21; dismissal; sua sponte examination of whether any jurisdictional basis exists for the appeal; Appeal--Whether the claim was properly dismissed; alleged constitutional violations; Court of Claims granted defendants' motion, dismissed the claim, and denied claimant's cross motion.

KELSEY v LENORE R. (— AD3d —, 2022 NY Slip Op 07270):
3rd Dept. App. Div. order of 12/22/22; affirmance; sua sponte examination of whether any jurisdictional basis exists for the appeal; Sufficiency of Pleading--Fraud-- Whether plaintiff sufficiently stated cause of action for fraud; Sanctions--alleged unconstitutionality of CPLR 8303-a; Supreme Court, Columbia County, granted defendant's motion to dismiss the complaint and sanctioned plaintiff in the amount of $3,000.00; App. Div. affirmed.

LIGGETT v LEW REALTY (211 AD3d 473):
1st Dept. App. Div. order of 12/8/22; reversal; sua sponte examination of whether the order appealed from finally determines the action within the meaning of the Constitution; Landlord and Tenant--Rent Regulation--Whether stipulation entered into by plaintiff's predecessor tenant and building owner–which provided that the initial legal regulated rent was $1,650 per month, but required tenant to pay only $650 per month, plus applicable Rent Guideline Board increases–was void as an impermissible waiver of rent stabilization rights; Supreme Court, New York County, denied defendant's motion to dismiss the complaint; App. Div., with two Justices dissenting, reversed and granted the motion to dismiss the complaint.

MCDONALD (BRYAN), PEOPLE v (207 AD3d 669):
2nd Dept. App. Div. order of 7/20/22; affirmance; leave to appeal granted by the Court of Appeals on 1/5/23; Crimes--Sex Offenders--Whether, for the purpose of calculating the "twenty years from the initial date of registration" that a level one sex offender must register under Correction Law § 168-h(1), the 20-year registration period should include the duration of time registered as a sex offender in another state prior to residing in New York; Supreme Court, Kings County, after a hearing, designated defendant a level one sex offender under Correction Law article 6-C; App. Div. affirmed.

RYAN, MATTER OF THE ESTATE OF (— AD3d —, 2023 NY Slip Op 00011):
3rd Dept. App. Div. order of 1/5/23; affirmance; sua sponte examination of whether a substantial constitutional question is directly involved to support an appeal as of right; Courts--Surrogate's Court--Whether Surrogate's Court providently exercised its discretion in dismissing the SCPA 1809 proceeding due to a pending Supreme Court action asserting the same essential claims; alleged constitutional violations; Surrogate's Court, Albany County, among other things, in a proceeding pursuant to SCPA 1809, denied petitioner's motion for summary judgment determining the validity of the claim against decedent's estate and sua sponte dismissed the proceeding; App. Div. affirmed.

MATTER OF SALIS (— AD3d —, 2022 NY Slip Op 06757):
1st Dept. App. Div. order of 11/29/22; disbarment; sua sponte examination of whether a substantial constitutional question is directly involved to support an appeal as of right; Attorney and Client--Disciplinary Proceedings--Disbarment; App. Div., inter alia, disbarred appellant.

STONEHAM v BARSUK (210 AD3d 1479):
4th Dept. App. Div. order of 11/18/22; affirmance; leave to appeal granted by the Appellate Division, 12/27/22; Rule 500.11 review pending; Labor--Safe Place to Work- -Whether plaintiff was engaged in protected activity within meaning of Labor Law § 240(1); plaintiff, who was replacing leaking air tank on flatbed trailer's brake system, utilized a front-end loader to lift the trailer; front-end loader lifting trailer rolled backward, dropping trailer on top of plaintiff; Supreme Court, Chautauqua County, denied plaintiff's motion for partial summary judgment and granted the cross motions of defendant David J. Barsuk for summary judgment dismissing the Labor Law § 240 (1) cause of action against him; App. Div., with dissents, affirmed.

WANG v JAMES (207 AD3d 1176):
4th Dept. App. Div. order of 7/8/22; affirmance; leave to appeal granted by the Court of Appeals, 1/10/23; Public Officers--Duty to Defend or Indemnify Public Employee--Whether Correction Law § 24-a, providing defense and indemnification from the state, extends to Dr. Jun Wang, a private physician who provided pathology services for a prison-approved surgical biopsy of an incarcerated individual; Supreme Court, Onondaga County, in a proceeding pursuant to CPLR article 78, denied the petition; App. Div. affirmed.