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

AFTON C., MATTER OF (71 AD3d 887):
2nd Dept. App. Div. order of 3/16/10; reversal; leave to appeal granted by Court of Appeals, 9/23/10; PARENT AND CHILD - ABUSED OR NEGLECTED CHILD - WHETHER THE APPELLATE DIVISION ERRED IN DISMISSING NEGLECT PROCEEDINGS AS A MATTER OF LAW WHERE THE FATHER "WAS AN 'UNTREATED' LEVEL THREE SEX OFFENDER WHO, AFTER HIS RELEASE, HAD RETURNED TO THE FAMILY HOME WHERE THE SUBJECT CHILDREN RESIDED" AND THE MOTHER ALLOWED THE FATHER TO RETURN TO THE HOME; Family Court, Dutchess County fact-finding order that, as relevant here, after a hearing, found that father neglected the subject children; App. Div. reversed, denied the petitions and dismissed the proceedings.

CALDERON v WALGREEN CO. (72 AD3d 1532):
4th Dept. App. Div. order of 4/30/10; affirmance with dissents; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution, to be considered with appellants' motion to vacate the Court's 9/15/10 order dismissing the appeal pursuant to section 500.16(a) of the Court's Rules of Practice; NEGLIGENCE - PLAINTIFF INJURED WHEN SCAFFOLDING HE WAS DISMANTLING TIPPED BACKWARD, CAUSING HIM TO FALL TO GROUND - DEFENDANTS' EXPERT OPINED THAT PLAINTIFF'S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF THE ACCIDENT; LABOR LAW § 240(1); SUMMARY JUDGMENT; Supreme Court, Monroe County granted plaintiff's motion for partial summary judgment and denied in part defendants' cross motion for summary judgment; App. Div. affirmed.

TOWN OF HEMPSTEAD v EAST COAST RESOURCE GROUP, LLC (67 AD3d 777):
Supreme Court, Nassau County judgment of 6/24/10, bringing up for review a 2nd Dept. App. Div. order of 11/10/09; reversal; leave to appeal granted by Court of Appeals, 9/23/10; CONTRACTS - BREACH OR PERFORMANCE - BREACH OF INSURANCE PROCUREMENT PROVISION - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT THE TOWN WAS ENTITLED TO SUMMARY JUDGMENT ON ITS CAUSE OF ACTION ALLEGING THAT DEFENDANT BREACHED AN AGREEMENT TO OBTAIN INSURANCE IN THE TOWN'S OWN NAME, AS AN ADDITIONAL INSURED UNDER DEFENDANT'S INSURANCE POLICY; Supreme Court, Nassau County, among other things, denied plaintiff's motion for summary judgment on its cause of action to recover damages for breach of an insurance procurement provision, and judgment was entered accordingly; App. Div. reversed the judgment, reinstated that cause of action, granted plaintiff's motion for summary judgment on the cause of action and modified accordingly the Supreme Court order denying plaintiff's summary judgment motion; thereafter, Supreme Court entered judgment awarding damages to plaintiff.

HOUSTON, MATTER OF DiMANGO (76 AD3d 710):
2nd Dept. App. Div. judgment of 8/31/10; denial of CPLR article 78 petition; sua sponte examination whether petitioner's conviction following a trial renders moot this matter in the nature of prohibition and whether a substantial constitutional question is directly involved to support an appeal as of right; PROCEEDING AGAINST BODY OR OFFICER - PROHIBITION - CHALLENGE TO APPELLATE DIVISION JUDGMENT DISMISSING A CPLR ARTICLE 78 PROCEEDING SEEKING TO PROHIBIT RESPONDENT SUPREME COURT JUSTICE FROM CONTINUING WITH FURTHER PROCEEDINGS IN AN UNDERLYING CRIMINAL ACTION; App. Div. denied a CPLR article 78 petition seeking to prohibit respondent Supreme Court Justice from continuing with further proceedings in a criminal action entitled People v Houston, under Indictment No. 7919/09.

PRATTS (JESUS), PEOPLE v (74 AD3d 536):
2nd Dept. App. Div. order of 6/10/10; affirmance; leave to appeal granted by Jones, J., 10/1/10; CRIMES - SENTENCE - DRUG LAW REFORM ACT (DLRA) - ELIGIBILITY OF REINCARCERATED PAROLE VIOLATOR - WHETHER A DEFENDANT REINCARCERATED FOR A PAROLE VIOLATION IS ELIGIBLE FOR RESENTENCING UNDER CPL 440.46; Supreme Court, Bronx County denied defendant's CPL 440.46 motion for resentencing; App. Div. affirmed.

WYCKOFF HEIGHTS MEDICAL CENTER v COUNTRY-WIDE INSURANCE COMPANY (71 AD3d 1009):
2nd Dept. App. Div. order of 3/23/10; affirmance; leave to appeal granted by Court of Appeals, 9/21/10; INSURANCE - NO-FAULT AUTOMOBILE INSURANCE - WHETHER A NO-FAULT CARRIER MAY DENY A HEALTH CARE PROVIDER'S CLAIM FOR HEALTH SERVICE EXPENSES BASED UPON THE FACT THAT A NOTICE OF ACCIDENT WAS NOT TIMELY FILED, WHERE THE HEALTH CARE PROVIDER TIMELY SUBMITTED A WRITTEN PROOF OF CLAIM FOR HEALTH SERVICE EXPENSES; In an action to recover no-fault medical payments under two insurance contracts, Supreme Court, Nassau County granted that branch of plaintiffs' motion which was for summary judgment on the complaint insofar as asserted by plaintiff New York and Presbyterian Hospital, as assignee of Joaquin Benitez, and denied that branch of defendant's cross motion which was for summary judgment dismissing the complaint insofar as asserted by that plaintiff; thereafter, judgment was entered in favor of that plaintiff and against defendant in the principal sum of $56,235.43; App. Div. affirmed.

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

AGINA (ALAA), PEOPLE v (74 AD3d 831):
2nd Dept. App. Div. order of 6/1/10; reversal; leave to appeal granted by Smith, J., 10/1/10; CRIMES - EVIDENCE - PRIOR BAD ACTS - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT PRIOR BAD ACTS WERE NOT ADMISSIBLE TO PROVE THE PERPETRATOR'S IDENTITY THROUGH A UNIQUE MODUS OPERANDI WHERE THE VICTIM WAS DEFENDANT'S WIFE BUT DEFENDANT DENIED INFLICTING THE INJURIES; Supreme Court, Queens County convicted defendant, upon a jury verdict, of attempted assault in the first degree, assault in the second degree and unlawful imprisonment in the first degree, and imposed sentence; App. Div. reversed and ordered a new trial.

ASHLEY (PATRICK R.), PEOPLE v (71 AD3d 1286):
3rd Dept. App. Div. order of 3/15/10; affirmance; leave to appeal granted by Jones, J., 9/2/10; Rule 500.11 review pending; CRIMES - CHALLENGE TO WAIVER OF APPEAL AND GUILTY PLEA; ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL; SENTENCE - WHETHER DEFENDANT'S SENTENCE AS A SECOND FELONY OFFENDER WAS ILLEGALLY PREDICATED ON HIS 1999 ROBBERY CONVICTIONS IN WHICH THE COURT FAILED TO IMPOSE A MANDATORY PERIOD OF POST-RELEASE SUPERVISION - PRESERVATION OF ARGUMENT FOR APPELLATE REVIEW; St. Lawrence County Court convicted defendant, upon his plea of guilty, of attempted robbery in the first degree; App. Div. affirmed.

CORNELL (BARAK), PEOPLE v (75 AD3d 1157):
4th Dept. App. Div. order of 7/9/10; reversal with dissents; leave to appeal granted by Nancy Smith, J., 9/28/10; Rule 500.11 review pending; CRIMES - PLEA OF GUILTY - FAILURE TO ADVISE DEFENDANT THAT SENTENCE INCLUDED A PERIOD OF POST-RELEASE SUPERVISION; Chautauqua County Court convicted defendant, upon his guilty plea, of arson in the second degree; App. Div. reversed, vacated the plea and remitted the matter to Chautauqua County Court for further proceedings on the indictment.

DAVIDSON v COACH USA, INC. (74 AD3d 1813, 1814):
4th Dept. App. Div. orders of 6/11/10; affirmance; leave to appeal granted by App. Div., 10/1/10; CONFLICT OF LAWS - LAW GOVERNING TORT ACTIONS - ACTION SEEKING DAMAGES FOR INJURIES OR WRONGFUL DEATH RESULTING FROM COLLISION OF TRACTOR-TRAILER PARKED ON SHOULDER OF HIGHWAY IN NEW YORK AND A CHARTERED BUS TRANSPORTING A YOUNG WOMEN'S HOCKEY TEAM FROM ONTARIO, CANADA - WHETHER COURTS BELOW ERRED IN DETERMINING THAT CANADIAN LAW APPLIED AS TO NONECONOMIC DAMAGES; EVIDENCE - JUDICIAL NOTICE - WHETHER THE APPELLATE DIVISION ERRED IN CONCLUDING THAT SUPREME COURT DID NOT ABUSE ITS DISCRETION BY TAKING JUDICIAL NOTICE OF ONTARIO LAW REGARDING NONECONOMIC DAMAGES DESPITE DEFENDANTS' FAILURE TO RAISE THE APPLICABILITY OF SUCH LAW AS AN AFFIRMATIVE DEFENSE AND TO PROVIDE THE SUBSTANCE OF THE LAW IN THEIR PLEADINGS PURSUANT TO CPLR 3016(e) - INTERPLAY BETWEEN CPLR 3016(e) AND CPLR 4511(b); App. Div. affirmed separate 3/24/09 Supreme Court, Livingston County orders granting defendants' motions and determining that the law of Ontario, Canada concerning noneconomic damages applies to this action for personal injury and wrongful death.

ETERNAL FLAME OF HOPE MINISTRIES, INC., MATTER OF v KING (76 AD3d 775):
3rd Dept. App. Div. order of 8/23/10; affirmance with dissents; Rule 500.11 review pending; TAXATION - EXEMPTIONS - WHETHER PETITIONER WAS ENTITLED TO SUMMARY JUDGMENT DECLARING THAT CERTAIN OF ITS PROPERTY IS SUBJECT TO THE REAL PROPERTY TAX EXEMPTION PURSUANT TO RPTL 420-a(1)(a), WHICH PROVIDES THAT REAL PROPERTY OWNED AND PRIMARILY USED "BY A CORPORATION OR ASSOCIATION ORGANIZED OR CONDUCTED EXCLUSIVELY FOR RELIGIOUS, CHARITABLE, HOSPITAL, EDUCATIONAL [PURPOSES], OR [FOR THE] MORAL OR MENTAL IMPROVEMENT OF MEN, WOMEN OR CHILDREN . . . SHALL BE EXEMPT FROM TAXATION"; Supreme Court, Sullivan County, among other things, in a proceeding pursuant to RPTL article 7, granted petitioner's motion for summary judgment striking certain real property from the tax assessment rolls of the Town of Highland; App. Div. affirmed.

ROACH v COACH USA, INC. (74 AD3d 1813):
4th Dept. App. Div. orders of 6/11/10; affirmance; leave to appeal granted by App. Div., 10/1/10; CONFLICT OF LAWS - LAW GOVERNING TORT ACTIONS - ACTION SEEKING DAMAGES FOR INJURIES OR WRONGFUL DEATH RESULTING FROM COLLISION OF TRACTOR-TRAILER PARKED ON SHOULDER OF HIGHWAY IN NEW YORK AND A CHARTERED BUS TRANSPORTING A YOUNG WOMEN'S HOCKEY TEAM FROM ONTARIO, CANADA - WHETHER COURTS BELOW ERRED IN DETERMINING THAT CANADIAN LAW APPLIED AS TO NONECONOMIC DAMAGES; EVIDENCE - JUDICIAL NOTICE - WHETHER THE APPELLATE DIVISION ERRED IN CONCLUDING THAT SUPREME COURT DID NOT ABUSE ITS DISCRETION BY TAKING JUDICIAL NOTICE OF ONTARIO LAW REGARDING NONECONOMIC DAMAGES DESPITE DEFENDANTS' FAILURE TO RAISE THE APPLICABILITY OF SUCH LAW AS AN AFFIRMATIVE DEFENSE AND TO PROVIDE THE SUBSTANCE OF THE LAW IN THEIR PLEADINGS PURSUANT TO CPLR 3016(e) - INTERPLAY BETWEEN CPLR 3016(e) AND CPLR 4511(b); App. Div. affirmed separate 3/24/09 Supreme Court, Livingston County orders granting defendants' motions and determining that the law of Ontario, Canada concerning noneconomic damages applies to this action for personal injury and wrongful death.

RODRIGUEZ (MANUEL), PEOPLE v (73 AD3d 541):
1st Dept. App. Div. order of 5/18/10; modification; leave to appeal granted by Graffeo, J., 9/30/10; CRIMES - SENTENCE - POST-RELEASE SUPERVISION - FAILURE OF COURT TO PRONOUNCE A TERM OF POST-RELEASE SUPERVISION - REMITTAL FOR PRESENTENCING PURSUANT TO PEOPLE v SPARBER (10 NY3d 457) - WHETHER A RESENTENCING COURT HAS DISCRETION TO RECONSIDER THE LENGTH OF A PREVIOUSLY IMPOSED TERM OF IMPRISONMENT - IF THE SENTENCING COURT LACKS SUCH DISCRETION, WHETHER THE APPELLATE DIVISION MAY MODIFY THE LENGTH OF A PREVIOUSLY IMPOSED TERM OF IMPRISONMENT PURSUANT TO ITS INTEREST OF JUSTICE JURISDICTION; Supreme Court, New York County resentenced defendant to a term of 25 years with 3 years' post-release supervision; App. Div. modified to the extent of reducing the sentence to a term of 20 years with 3 years' post-release supervision.

RONI LLC v ARFA (74 AD3d 442):
1st Dept. App. Div. order of 6/3/10; affirmance; leave to appeal granted by App. Div., 9/23/10; Rule 500.11 review pending; PLEADING - SUFFICIENCY OF PLEADING - BREACH OF FIDUCIARY DUTY - FRAUD - INVESTORS' ACTION AGAINST DEFENDANTS WHO PROMOTED THE INVESTORS' MEMBERSHIP INTERESTS IN LIMITED LIABILITY COMPANIES (LLCs) THAT PURCHASED AND MANAGED MULTI-FAMILY RESIDENTIAL BUILDINGS IN HARLEM AND THE BRONX; Supreme Court, New York County, among other things, denied motion of defendants Arfa, Shpigel and American Elite Properties, Inc. to dismiss plaintiffs' accounting, breach of fiduciary duty and constructive fraud causes of action; App. Div. affirmed.

SOWELL (VICTOR), PEOPLE v (2010 NY Slip Op 81856[U]):
Order of Covello, J. at 2nd Dept. App. Div., 9/9/10; denial of CPL 450.15 and 460.15 application; sua sponte examination whether there is any jurisdictional basis for this appeal taken as of right in a criminal matter; APPEAL - APPEAL AS OF RIGHT IN CRIMINAL MATTER - VACATUR OF JUDGMENT OF CONVICTION; Supreme Court, Kings County denied defendant's motions to vacate the 3/16/88 judgment convicting him of second-degree murder and third-degree possession of a weapon; App. Div. denied defendant's application pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal.