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For October 21, 2011 through October 27, 2011, the following preliminary appeal statements were filed:

HUDSON VALLEY FEDERAL CREDIT UNION v NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE (85 AD3d 415):
1st Dept. App. Div. order of 6/2/11; affirmance; leave to appeal granted by Court of Appeals, 10/18/11; TAXATION - MORTGAGE RECORDING TAX - TAX LAW § 253 - WHETHER FEDERAL CREDIT UNIONS ARE EXEMPT FROM MORTGAGE RECORDING TAX UNDER EITHER THE FEDERAL CREDIT UNION ACT OF 1934 (12 USC Ch. 14) OR THE SUPREMACY CLAUSE OF THE UNITED STATES CONSTITUTION; ACTION FOR DECLARATORY JUDGMENT; Supreme Court, New York County dismissed the complaint; App. Div. affirmed.

HUFF v RODRIGUEZ (88 AD3d 1274; 64 AD3d 1221):
4th Dept. App. Div. order of 10/7/11; affirmance; bringing up for review App. Div. order of 7/10/09; reversal with dissents; sua sponte examination whether an appeal lies pursuant to CPLR 5601(d); TRIAL - ARGUMENT AND CONDUCT OF COUNSEL - COMMENTS MADE BY DEFENDANTS' ATTORNEY IN SUMMATION THAT PLAINTIFF DID NOT CALL HER EXPERT WITNESS BECAUSE HIS TESTIMONY WOULD NOT SUPPORT PLAINTIFF'S CLAIM THAT DEFENDANT DRIVER CAUSED THE AUTOMOBILE ACCIDENT; Supreme Court, Erie County dismissed the complaint upon a jury verdict in favor of defendant on liability; App. Div., with two Justices dissenting, reversed, reinstated the complaint and granted a new trial on liability; thereafter, Supreme Court adjudged defendants 100% negligent for a 10/18/00 motor vehicle accident; App. Div. affirmed.

MARCHAND, MATTER OF v NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (84 AD3d 808):
2nd Dept. App. Div. order of 5/3/11; affirmance; leave to appeal granted by Court of Appeals, 10/18/11; HIGHWAYS - HIGHWAY BY USE - WHETHER PRIVATE DIRT PATH USED BY PUBLIC HAD BECOME A VILLAGE STREET BY PRESCRIPTION UNDER VILLAGE LAW § 6-626 - NECESSITY FOR VILLAGE TO MAINTAIN AND REPAIR STREET; ABANDONMENT - WHETHER PATH THEREAFTER CEASED TO BE A VILLAGE STREET BY PRESCRIPTION BECAUSE IT WAS ABANDONED BY NONUSE; Supreme Court, Nassau County, among other things, in a hybrid CPLR article 78 proceeding and declaratory judgment action, declared that the subject property continued to be a village street by prescription under Village Law § 6-626 and a public right-of-way; App. Div. affirmed.

MARTINEZ (HECTOR), PEOPLE v (84 AD3d 550):
1st Dept. App. Div. order of 5/17/11; affirmance; leave to appeal granted by Tom, J., 9/29/11; CRIMES - MURDER - DEPRAVED INDIFFERENCE MURDER - SUFFICIENCY OF EVIDENCE - SHOOTING INTO GROUP CONSISTING OF INTENDED TARGET AND TWO BYSTANDERS; TIMELINESS OF PROSECUTION; DISCLOSURE - NOTICE OF INTENTION TO OFFER EVIDENCE - WHETHER THE TRIAL COURT ERRED IN GRANTING THE PEOPLE'S REQUEST FOR A BRIEF DELAY IN DISCLOSING THE EXISTENCE OF A NEWLY DISCOVERED WITNESS WHO MADE A PHOTOGRAPHIC IDENTIFICATION OF DEFENDANT SHORTLY BEFORE OPENING STATEMENTS; DENIAL OF DEFENDANT'S MOTION TO SUPPRESS STATEMENTS HE MADE TO POLICE; ALLEGED PROSECUTORIAL MISCONDUCT; CLAIMED INEFFECTIVE ASSISTANCE OF COUNSEL; Supreme Court, New York County convicted defendant of murder in the second degree, assault in the second degree, and criminal possession of a weapon in the second degree; App. Div. affirmed.

RICHARDS, MATTER OF v CUOMO (88 AD3d 1043):
3rd Dept. App. Div. order of 10/6/11; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; PROCEEDING AGAINST BODY OR OFFICER - PROHIBITION - WHEN REMEDY AVAILABLE - PETITIONER CHALLENGES APPLICATION OF PARTICULAR PENAL LAW PROVISION TO HIM; Supreme Court, Franklin County dismissed a CPLR article 78 petition; App. Div. affirmed.

677 NEW LOUDON CORPORATION, MATTER OF v STATE OF NEW YORK TAX APPEALS TRIBUNAL (85 AD3d 1341):
3rd Dept. App. Div. judgment of 6/9/11; confirmation of determination; leave to appeal granted by Court of Appeals, 10/20/11; TAXATION - SALES AND USE TAXES - WHETHER EXOTIC DANCE PERFORMANCES AT PETITIONER'S ESTABLISHMENT CONSTITUTE "DRAMATIC OR MUSICAL ARTS PERFORMANCES," THEREBY EXEMPTING MONIES PAID FOR SUCH PERFORMANCES FROM TAXATION UNDER TAX LAW § 1105(f)(1) - ADMISSIONS CHARGES AND PRIVATE DANCE SALES; App. Div. confirmed respondent Tax Appeals Tribunal's determination which sustained a sales and use tax assessment imposed under Tax Law articles 28 and 29, and dismissed the CPLR article 78 proceeding.

SOLOMON (MICHAEL), PEOPLE v (73 AD3d 1440):
4th Dept. App. Div. order of 5/7/10; affirmance; leave to appeal granted by Pigott, J., 6/7/11; CRIMES - RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - CHALLENGE TO APPELLATE DIVISION RULING THAT DEFENDANT FAILED TO ESTABLISH THAT ANY CONFLICT CREATED BY DEFENSE COUNSEL'S SIMULTANEOUS REPRESENTATION OF A KEY PROSECUTION WITNESS AFFECTED THE CONDUCT OF THE DEFENSE - WHETHER DEFENSE COUNSEL PROVIDED MEANINGFUL REPRESENTATION - DEFENSE COUNSEL'S FAILURE TO PRESERVE VARIOUS ARGUMENTS FOR APPELLATE REVIEW; CONFESSION; EVIDENCE - TAPE RECORDED CONVERSATIONS BETWEEN THE VICTIM AND DEFENDANT; Niagara County Court convicted defendant, upon a jury verdict, of rape in the first degree, course of sexual conduct against a child in the first degree, course of sexual conduct against a child in the second degree, 10 counts of rape in the second degree, 7 counts of criminal sexual act in the second degree, and 4 counts of use of a child in a sexual performance; App. Div. affirmed.

TOWN OF WALLKILL, MATTER OF v CIVIL SERVICE EMPLOYEES ASSOCIATION (84 AD3d 968):
2nd Dept. App. Div. order of 5/10/11; reversal; leave to appeal granted by Court of Appeals, 10/18/11; CIVIL SERVICE - DISCIPLINARY PROCEEDINGS - WHETHER DISCIPLINE OF TOWN POLICE OFFICERS IS A PERMISSIBLE SUBJECT OF COLLECTIVE BARGAINING UNDER THE TAYLOR LAW OR IS A PROHIBITED SUBJECT OF COLLECTIVE BARGAINING UNDER TOWN LAW § 155 - VALIDITY OF TOWN OF WALLKILL LOCAL LAW NO. 2 OF 2007; Supreme Court, Orange County, in three related hybrid CPLR article 75 proceedings for, among other things, a stay of municipal police disciplinary arbitrations, and actions for a judgment declaring that Local Law No. 2 of 2007 valid and affords the Town of Wallkill the right to prescribe the manner of administration of all pending police disciplinary matters within its jurisdiction, among other things, denied the petitions, granted respondents/defendants' cross petitions to compel arbitration, declared Local Law No. 2 of 2007 invalid insofar as it is inconsistent with the disciplinary provisions of a collective bargaining agreement applicable to police officers who are members of the Town of Wallkill Police Benevolent Association, Inc., vacated disciplinary actions taken against respondents/defendants Dennis Rolan, Adam Bruce, Paul Besser, Charles Bodensieck, Darrell Algarin, Thomas Klevenko and Steven Walsh pursuant to Local Law No. 2 of 2007, and directed the parties to proceed to arbitration; App. Div. reversed, granted the petitions to stay arbitration, permanently stayed the related arbitration proceedings, denied the motion of the Town of Wallkill for summary judgment declaring that Local Law No. 2 of 2007 of the Town of Wallkill affords it the right to prescribe the manner of administration of all pending police disciplinary matters within its jurisdiction, and reinstated the disciplinary actions taken against respondents/defendants Dennis Rolan, Adam Bruce, Paul Besser, Charles Bodensieck, Darrell Algarin, Thomas Klevenko and Steven Walsh pursuant to Local Law No. 2 of 2007.

For October 28, 2011 through November 3, 2011, the following preliminary appeal statements were filed:

BENTORIA HOLDINGS, INC. v TRAVELERS INDEMNITY COMPANY (84 AD3d 1135):
2nd Dept. App. Div. order of 5/24/11; affirmance; leave to appeal granted by App. Div., 10/20/11; INSURANCE - EXCLUSIONS - EARTH MOVEMENT EXCLUSION - POLICY PROVISION EXCLUDING COVERAGE FOR LOSS OR DAMAGE CAUSED BY EARTH MOVEMENTS SUCH AS EARTHQUAKES, LANDSLIDES, AND MINE SUBSIDENCE, AND BY "EARTH SINKING ... RISING OR SHIFTING," "WHETHER NATURALLY OCCURRING OR DUE TO MAN MADE OR OTHER ARTIFICIAL CAUSES" - WHETHER EARTH MOVEMENT EXCLUSION CLEARLY AND UNAMBIGUOUSLY APPLIES TO DAMAGE RESULTING FROM EXCAVATION ON AN ADJACENT LOT - SUMMARY JUDGMENT; ACTIONS - CONSOLIDATION AND SEVERANCE - DENIAL OF MOTION TO SEVER ACTION INSOFAR AS ASSERTED AGAINST ONE OF SEVERAL DEFENDANTS; Supreme Court, Kings County denied that branch of defendant Travelers Indemnity Company's motion that sought summary judgment dismissing the complaint insofar as asserted against it and, in effect, denied an alternative branch of that defendant's motion which was to sever the action insofar as asserted against it; App. Div. affirmed.

COUNTY OF ERIE, MATTER OF v CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 815 (82 AD3d 1633):
4th Dept. App. Div. order of 3/25/11; affirmance; leave to appeal granted by Court of Appeals, 10/20/11; ARBITRATION - STAY OF ARBITRATION - CPLR ARTICLE 78 PROCEEDING TO STAY ARBITRATION OF A GRIEVANCE RELATED TO OVERTIME FILED BY THE UNION ON BEHALF OF ELECTION CLERKS AT THE ERIE COUNTY BOARD OF ELECTIONS - WHETHER ELECTION LAW § 3-300 PREVENTS A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE COUNTY AND THE UNION FROM APPLYING TO BOARD OF ELECTIONS EMPLOYEES; Supreme Court, Erie County, among other things, granted the petition for a permanent stay of arbitration; App. Div affirmed.

KOSOWSKI, MATTER OF v DONOVAN (84 AD3d 1089):
2nd Dept. App. Div. order of 5/17/11; affirmance; leave to appeal granted by Court of Appeals, 10/25/11; ELECTIONS - POLITICAL PARTIES - SPECIAL PROCEEDING PURSUANT TO ELECTION LAW ARTICLE 16 SEEKING DECLARATION THAT THE COUNTY COMMITTEE OF THE NASSAU CONSERVATIVE PARTY WAS ILLEGALLY CONSTITUTED AND SEEKING TO ANNUL ACTIONS UNDERTAKEN BY THAT COMMITTEE; TIMELY COMMENCEMENT OF PROCEEDING UNDER ELECTION LAW § 16-102 - NUMBER OF COMMITTEE MEMBERS REQUIRED BY ELECTION LAW § 2-104; Supreme Court, Nassau County denied the petition to, among other things, invalidate the election of officers by the County Committee of the Conservative Party of Nassau County, and dismissed the proceeding; App. Div. affirmed.

ODDO ASSET MANAGEMENT v BARCLAYS BANK PLC (84 AD3d 692):
1st Dept. App. Div. order of 5/31/11; affirmance; leave to appeal granted by Court of Appeals, 10/18/11; PLEADING - SUFFICIENCY OF PLEADING - BREACH OF FIDUCIARY DUTY - TORTIOUS INTERFERENCE WITH CONTRACT - WHETHER MANAGERS OF TWO INVESTMENT FUNDS WITH NO CONTRACTUAL RELATIONSHIP WITH PLAINTIFF ASSET MANAGEMENT COMPANY OWED PLAINTIFF A FIDUCIARY DUTY - WHETHER PLAINTIFF SUFFICIENTLY PLEADED ITS CLAIM OF TORTIOUS INTERFERENCE WITH ITS CONTRACT WITH THE INVESTMENT FUNDS; Supreme Court, New York County dismissed the complaint; App. Div. affirmed.

STATE OF NEW YORK, MATTER OF v SHANNON S. (85 AD3d 1646):
4th Dept. App. Div. order of 6/10/11; affirmance; leave to appeal granted by Court of Appeals, 10/20/11; CRIMES - SEX OFFENDERS - CIVIL COMMITMENT OR SUPERVISION - SUFFICIENCY OF THE EVIDENCE ESTABLISHING THAT RESPONDENT HAS A MENTAL ABNORMALITY WITHIN THE MEANING OF MENTAL HYGIENE LAW § 10.03(i) - "PARAPHILIA NOT OTHERWISE SPECIFIED" - NECESSITY THAT SPECIFIC MENTAL ABNORMALITY BE LISTED IN THE DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM); APPLICABLE STANDARD OF PROOF; NECESSITY FOR EXPLICIT FACTUAL FINDING THAT A LESS RESTRICTIVE ALTERNATIVE IS INAPPROPRIATE BEFORE COURT MAY ISSUE A CONFINEMENT ORDER; WHETHER THE APPELLATE DIVISION ERRED IN DETERMINING THAT ORDER ISSUED FOLLOWING PROBABLE CAUSE HEARING IS NOT APPEALABLE - CONTENTION THAT CONFINEMENT FOLLOWING PROBABLE CAUSE HEARING IS APPROPRIATE ONLY WHERE THERE HAS BEEN A FINDING OF DANGEROUSNESS; WHETHER TRIAL COURT IMPROPERLY REOPENED THE PROOF; Supreme Court, Chautauqua County, among other things, committed respondent to a secure treatment facility; App. Div. affirmed.