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For October 26, 2012 through November 1, 2012, the following preliminary appeal statements were filed:

ABRAHAM (AKIVA DANIEL), PEOPLE v (94 AD3d 1332):
3rd Dept. App. Div. order of 4/26/12; affirmance; leave to appeal granted by Pigott, J., 10/12/12; CRIMES - INSURANCE FRAUD - CONCEALING CAUSE OF FIRE - DEFENDANT IN INSURANCE FRAUD PROSECUTION ACQUITTED OF ARSON - REPUGNANT OR INCONSISTENT VERDICT - SUFFICIENCY OF THE EVIDENCE - ARGUMENT AND CONDUCT OF COUNSEL - ALLEGED PROSECUTORIAL MISCONDUCT; Supreme Court, Albany County convicted defendant of insurance fraud in the second degree; App. Div. affirmed.

AKWESASNE CONVENIENCE STORE ASSOCIATION v STATE OF NEW YORK:
Supreme Court, Erie County order of 9/18/12; denial of summary judgment motion; sua sponte examination whether a direct appeal as of right lies under CPLR 5601(b)(2); TAXATION - TAX ON CIGARETTES AND TOBACCO PRODUCTS - CONSTITUTIONAL CHALLENGE TO CHAPTER 134, PART D, OF THE 2010 SESSION LAWS - WHETHER STATUTE, AS APPLIED TO INDIAN TRADERS AND RESERVATION CIGARETTE SELLERS, IMPERMISSIBLY BURDENS INDIAN COMMERCE AND IS PREEMPTED BY THE INDIAN COMMERCE AND SUPREMACY CLAUSES OF THE UNITED STATES CONSTITUTION; Supreme Court, Erie County granted defendants' motion for summary judgment dismissing the complaint and denied plaintiffs' cross motion for summary judgment awarding them declaratory and injunctive relief.

CANGRO v REITANO (92 AD3d 483):
1st Dept. App. Div. order of 2/9/12; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; JUDGMENTS - RES JUDICATA; COMPLAINT - FAILURE TO STATE A CAUSE OF ACTION UPON WHICH RELIEF MAY BE GRANTED; LIBEL AND SLANDER - PRIVILEGED STATEMENTS; Supreme Court, New York County granted defendant's motion to dismiss the complaint; App. Div. affirmed.

JFK HOLDING COMPANY, LLC v CITY OF NEW YORK (98 AD3d 273):
1st Dept. App. Div. order of 7/3/12; reversal with dissents; leave to appeal granted by App. Div., 10/11/12; LANDLORD AND TENANT - LEASE - BREACH OF LEASE CONDITION - DETERIORATION OF PREMISES - WHETHER TRIABLE ISSUES OF FACT EXIST AS TO WHETHER THE SALVATION ARMY USED COMMERCIALLY REASONABLE EFFORTS TO OBTAIN CERTAIN PAYMENTS TO WHICH IT WAS ENTITLED UNDER A SERVICES AGREEMENT WITH OTHER DEFENDANTS - WHETHER DEFENDANT SALVATION ARMY WAS NONETHELESS ENTITLED TO SUMMARY JUDGMENT UNDER A LIMITATION OF DAMAGES PROVISION IN ITS LEASE - RES JUDICATA; Supreme Court, New York County granted the motion of defendant Salvation Army to dismiss the complaint as against it; App. Div. reversed, vacated the judgment in Salvation Army's favor, reinstated the third cause of action for breach of contract and remanded the matter for further proceedings.

KOCH, MATTER OF v SHEEHAN (95 AD3d 82):
4th Dept. App. Div. order of 3/23/12; affirmance; leave to appeal granted by Court of Appeals, 10/18/12; SOCIAL SERVICES - DISQUALIFICATION OR TERMINATION AS A MEDICAID PROVIDER - SCOPE OF AUTHORITY OF OFFICE OF MEDICAID INSPECTOR GENERAL - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT THE DETERMINATION OF THE OFFICE OF THE NEW YORK STATE MEDICAID INSPECTOR GENERAL (OMIG) WAS ARBITRARY AND CAPRICIOUS - WHETHER OMIG HAD THE AUTHORITY TO EXCLUDE PETITIONER FROM THE MEDICAID PROGRAM PURSUANT TO 18 NYCRR 515.7(e) BASED ON A CONSENT ORDER IN WHICH PETITIONER DID NOT CONTEST HAVING COMMITTED MISCONDUCT BY PRACTICING MEDICINE WITH NEGLIGENCE IN THE TREATMENT OF TWO EMERGENCY ROOM PATIENTS WHO WERE NOT ALLEGED TO BE MEDICAID PATIENTS; Supreme Court, Erie County granted the petition in a CPLR article 78 proceeding and thereby vacated the determination by respondent New York State Medicaid Inspector General to exclude petitioner from participating in the New York State Medicaid Program and reinstated him retroactively to March 10, 2010 as a participating physician in the Medicaid Program; App. Div. affirmed.

SCHREIER (DAVID W.), PEOPLE v (96 AD3d 1453):
4th Dept. App. Div. order of 6/8/12; affirmance; leave to appeal granted by Read, J., 10/24/12; CRIMES - UNLAWFUL SURVEILLANCE - SUFFICIENCY OF EVIDENCE - VICTIM VIDEOTAPED AT HOME THROUGH WINDOW - WHETHER THE EVIDENCE WAS SUFFICIENT TO ESTABLISH, AMONG OTHER THINGS, THAT THE RECORDING WAS MADE "SURREPTITIOUSLY" AND AT A PLACE AND TIME WHEN THE VICTIM HAD A REASONABLE EXPECTATION OF PRIVACY (PENAL LAW § 250.45[1]); Monroe County Court convicted defendant, upon a nonjury verdict, of unlawful surveillance in the second degree; App. Div. affirmed.

For November 2, 2012 through November 8, 2012, the following preliminary appeal statements were filed:

PLAZA v NEW YORK HEALTH AND HOSPITALS CORPORATION (97 AD3d 466):
1st Dept. App. Div. order of 7/17/12; affirmance; leave to appeal granted by App. Div., 10/16/12; Rule 500.11 review pending; MUNICIPAL CORPORATIONS - NOTICE OF CLAIM - LATE NOTICE - GENERAL MUNICIPAL LAW § 50-e - WHETHER DEFENDANT ACQUIRED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS CONSTITUTING CLAIM VIA MEDICAL RECORDS; SUMMARY JUDGMENT - ISSUE OF FACT; Supreme Court, Bronx County granted defendant's motion for summary judgment dismissing the complaint; App. Div. affirmed.

PIGNATARO (ANTHONY S.), PEOPLE v (93 AD3d 1250):
4th Dept. App. Div. order of 3/16/12; affirmance; leave to appeal granted by Read, J., 10/24/12; CRIMES - SENTENCE - POST-RELEASE SUPERVISION - WHETHER A TRIAL COURT IS AUTHORIZED TO RESENTENCE A DEFENDANT TO A TERM OF IMPRISONMENT WITHOUT POST-RELEASE SUPERVISION WHEN THE PEOPLE CONSENT - PENAL LAW § 70.85; CONSTITUTIONAL CHALLENGE TO PENAL LAW § 70.85 AND CORRECTION LAW § 601-d AS APPLIED TO DEFENDANT; SUFFICIENCY OF PLEA ALLOCUTION; TRIAL COURT'S REFUSAL TO ALLOW WITHDRAWAL OF PLEA; Supreme Court, Erie County resentenced defendant pursuant to Penal Law § 70.85; App. Div. affirmed.

THOMAS (ADRIAN P.), PEOPLE v (93 AD3d 1019):
3rd Dept. App. Div. order of 3/22/12; affirmance; leave to appeal granted by Smith, J., 10/23/12; CRIMES - WITNESSES - EXPERT WITNESS - WHETHER TRIAL COURT ERRED IN NOT ADMITTING EXPERT TESTIMONY ON THE SUBJECT OF FALSE AND COERCED CONFESSIONS; VOLUNTARINESS OF CONFESSION - POLICE THREATS TO ARREST DEFENDANT'S WIFE; SUFFICIENCY OF EVIDENCE TO SUPPORT CONVICTION FOR DEPRAVED INDIFFERENCE MURDER; JUROR NOTES ON JURY INSTRUCTIONS; Supreme Court, Rensselaer County convicted defendant, upon a jury verdict, of murder in the second degree; App. Div. affirmed.

For November 9, 2012 through November 15, 2012, the following preliminary appeal statements were filed:

CARTER (DARNELL D.), PEOPLE v (96 AD3d 1520):
4th Dept. App. Div. order of 6/15/12; modification; leave to appeal granted by Ciparick, J., 10/4/12; CRIMES - SENTENCE - CONCURRENT AND CONSECUTIVE TERMS - WHETHER CONSECUTIVE SENTENCES UNDER PENAL LAW § 70.25(2) WERE PERMISSIBLE WHERE DEFENDANT WAS CONVICTED OF MURDER IN THE SECOND DEGREE AND POSSESSION OF A WEAPON IN THE SECOND DEGREE, AND THE POSSESSION CHARGE DID NOT REQUIRE INTENT AS AN ELEMENT; Niagara County Court convicted defendant, upon a jury verdict, of two counts of murder in the second degree, two counts of robbery in the first degree, criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree; App. Div. modified by directing that all sentences imposed shall run concurrently.

GRANGER, MATTER OF v MISERCOLA (96 AD3d 1694):
4th Dept. App. Div. order of 6/29/12; affirmance; leave to appeal granted by Court of Appeals, 10/30/12; PARENT AND CHILD - VISITATION - WHETHER THERE IS SUBSTANTIAL EVIDENCE IN THE RECORD TO SUPPORT A GRANT OF VISITATION RIGHTS TO AN INCARCERATED PARENT; STANDARD OF REVIEW; BEST INTEREST OF THE CHILD - FAMILY COURT ACT ARTICLE 6; Family Court, Jefferson County granted the father's petition for visitation; App. Div. affirmed.

ROCKY POINT DRIVE-IN, L.P. v TOWN OF BROOKHAVEN (93 AD3d 653):
2nd Dept. App. Div. order of 3/6/12; reversal; leave to appeal granted by Court of Appeals, 10/25/12; MUNICIPAL CORPORATIONS - ZONING - NONCONFORMING USE - DELAY IN PROCESSING OF SITE PLAN APPLICATION - WHETHER APPELLATE DIVISION MISAPPLIED THE "SPECIAL FACTS EXCEPTION" BY REQUIRING PLAINTIFF TO PROVE THAT DEFENDANTS ACTED IN BAD FAITH IN DELAYING THE PROCESSING OF THE APPLICATION; DECLARATORY JUDGMENT ACTION; Supreme Court, Suffolk County granted judgment in favor of plaintiff and against defendants declaring that defendants' intentional bad faith delay in reviewing and processing plaintiff's site plan application constitutes "special facts" which entitle plaintiff to have its site plan application reviewed in accordance with the zoning designation that was in effect on the day that plaintiff's site plan application was filed, and that plaintiff is not required to apply for or obtain a variance; App. Div. reversed and declared that plaintiff is not entitled to have its site plan application reviewed in accordance with the zoning designation that was in effect on the day that plaintiff's site plan application was filed, and dismissed the cross appeal as academic.