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For October 31, 2014 through November 6, 2014, the following preliminary
appeal statements were filed:
C. (ANTHONY), PEOPLE v (119 AD3d 471):
1st Dept. App. Div. order of 7/17/14; affirmance; leave to appeal granted by
Freedman, J., 10/9/14; Rule 500.11 review pending; CRIMES - SENTENCE -
YOUTHFUL OFFENDER - WHETHER SUPREME COURT PROPERLY
EXERCISED ITS DISCRETION IN DENYING DEFENDANT YOUTHFUL
OFFENDER TREATMENT; Supreme Court, New York County, convicted defendant,
upon his guilty plea, of robbery in the first degree, and sentenced him, as a juvenile
offender, to a term of three to nine years; App. Div. affirmed.
MATTER OF FIZZINOGLIA (118 AD3d 994):
2nd Dept. App. Div. order of 6/25/14; affirmance; leave to appeal granted by Court
of Appeals, 10/23/14; WILLS - ELECTIVE SHARE OF SURVIVING SPOUSE -
WHETHER A PRENUPTIAL AGREEMENT DISQUALIFIED SURVIVING SPOUSE
AS A DISTRIBUTEE OF DECEDENT'S ESTATE - WHETHER THE PRENUPTIAL
AGREEMENT WAS INVALID AND UNENFORCEABLE ON THE GROUNDS
THAT AN ESSENTIAL TERM WAS OMITTED FROM THE AGREEMENT AND
THE AGREEMENT WAS UNCONSCIONABLE OR PROCURED THROUGH
FRAUD, DURESS, OVERREACHING OR OTHER INEQUITABLE CONDUCT;
Surrogate's Court, Putnam County, among other things, in effect, determined that the
prenuptial agreement between petitioner and the decedent was valid, dismissed the
petition, and revoked temporary letters of administration that had been issued to her; App.
Div. affirmed.
SUTTNER v A.W. CHESTERTON COMPANY (115 AD3d 1218):
4th Dept. App. Div. order of 3/21/14; affirmance; leave to appeal granted by Court
of Appeals, 10/21/14; PRODUCTS LIABILITY - FAILURE TO WARN OF DANGER -
WHETHER THE COURTS BELOW ERRED IN HOLDING THAT VALVE
MANUFACTURER HAD A DUTY TO WARN OF THE DANGERS INHERENT IN
THE USE OF ASBESTOS-CONTAINING GASKETS THAT WERE COMPONENTS
OF THE VALVES, BUT WHICH DEFENDANT DID NOT MANUFACTURE OR
SELL; Supreme Court, Erie County, order denied Crane's CPLR 4404(a) motion to set
aside the verdict and for judgment as a matter of law; thereafter, Supreme Court, Erie
County, awarded plaintiff money damages against defendant Crane Co. upon the jury
verdict; App. Div. affirmed.
For November 7, 2014 through November 13, 2014, the following preliminary
appeal statements were filed:
GITELSON v QUINN (118 AD3d 403):
1st Dept. App. Div. order of 6/3/14; reversal; leave to appeal granted by App. Div.,
10/30/14; sua sponte examination of whether the appeal should be dismissed as untimely;
CONTRACTS - MISTAKE - MUTUAL MISTAKE - ACTION TO ENFORCE ORAL
AGREEMENT TO, AMONG OTHER THINGS, COMMENCE A LOST WILL
PROCEEDING - EXISTENCE OF ISSUE OF FACT AS TO WHETHER DEFENDANT
WAS NEGLIGENT IN HER SEARCH FOR THE ORIGINAL WILL - WHETHER THE
APPELLATE DIVISION ERRED IN RULING THAT DEFENDANT WAS NOT
ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT BASED
ON MUTUAL MISTAKE; Supreme Court, New York County, granted defendant's
motion for summary judgment dismissing the complaint; App. Div. reversed and denied
defendant's motion.
GREATER NEW YORK TAXI ASSOCIATION v THE NEW YORK CITY TAXI
AND LIMOUSINE COMMISSION (121 AD3d 21):
1st Dept. App. Div. order of 6/10/14; reversal; leave to appeal granted by App.
Div., 10/23/14; MUNICIPAL CORPORATIONS - REGULATION OF TAXICAB
BUSINESS - WHETHER NEW YORK CITY TAXI AND LIMOUSINE COMMISSION
(TLC) EXCEEDED ITS AUTHORITY BY ISSUING RULE REQUIRING NEW
TAXICABS TO BE SPECIFIC MODEL MADE BY SINGLE MANUFACTURER -
WHETHER THE TLC VIOLATED THE SEPARATION OF POWERS DOCTRINE BY
DESIGNATING A NON-HYBRID, NON-ACCESSIBLE VEHICLE AS THE CITY'S
OFFICIAL TAXICAB; Supreme Court, New York County, declared invalid the
amendments to Title 35, Chapters 67 and 51 of the Rules of the City of New York that
created the "Taxi of Tomorrow" project mandating that the Nissan NV200 would be New
York City's Official Taxicab Vehicle" effective October 2013; App. Div. reversed and
stated "it should be declared that the Revised Taxi of Tomorrow rules and Hybrid
Specifications are valid."
GROSS (GORDON), PEOPLE v (118 AD3d 1383):
4th Dept. App. Div. order of 6/20/14; affirmance; CRIMES - RIGHT TO
COUNSEL - EFFECTIVE REPRESENTATION - FAILURE TO OBJECT TO THE
PROSECUTION'S PRESENTATION OF AND REFERENCE TO TESTIMONY OF
CERTAIN NON-EXPERT WITNESSES ON THE GROUND THAT SUCH
TESTIMONY BOLSTERED THE TESTIMONY OF THE VICTIM OF A CHILD SEX
CRIME - WHETHER THE APPELLATE DIVISION CORRECTLY RULED THAT
THE TESTIMONY DID NOT CONSTITUTE IMPROPER BOLSTERING BECAUSE
IT WAS NOT ADMITTED FOR ITS TRUTH, AND THAT COUNSEL'S FAILURE TO
OBJECT TO THAT TESTIMONY THEREFORE DID NOT CONSTITUTE
INEFFECTIVE ASSISTANCE - WHETHER DEFENSE COUNSEL WAS
INEFFECTIVE FOR FAILING TO CONSULT WITH OR PRESENT TESTIMONY
FROM A MEDICAL EXPERT ON DEFENDANT'S BEHALF; Wayne County Court,
denied defendant's motion pursuant to CPL 440.10 to vacate a judgment convicting him
of, among other things, course of sexual conduct against a child in the first degree; App.
Div. affirmed.
HENRY, MATTER OF v FISCHER (120 AD3d 868):
3rd Dept. App. Div. order of 8/7/14; affirmance; leave to appeal granted by Court
of Appeals, 10/28/14; Rule 500.11 review pending; PRISONS AND PRISONERS -
DISCIPLINE OF INMATES - WHETHER PETITIONER'S CHALLENGES TO
ALLEGED VIOLATIONS OF HIS RIGHTS TO PRESENT DOCUMENTARY
EVIDENCE AND CALL WITNESSES AT HIS DISCIPLINARY HEARING WERE
PRESERVED FOR JUDICIAL REVIEW; WAIVER OF PETITIONER'S RIGHTS TO
PRESENT DOCUMENTARY EVIDENCE AND CALL WITNESSES; Supreme Court,
Albany County, dismissed petitioner's CPLR article 78 application to review a
determination of respondent finding petitioner guilty of violating certain disciplinary
rules; App. Div. affirmed.
PATTERSON, MATTER OF v GRAZIANO:
Supreme Court, Erie County, judgment of 10/21/14; sua sponte examination of
whether there is a jurisdictional predicate for a direct appeal pursuant to CPLR 5601 (b)
(2); PROCEEDING AGAINST BODY OR OFFICER - MANDAMUS - CPLR
ARTICLE 78 PROCEEDING TO VACATE RESPONDENT'S DETERMINATION
DENYING PETITIONER RELEASE ON PAROLE; Supreme Court, Erie County,
dismissed the petition to vacate respondent's determination denying petitioner release on
parole and imposing a 24-month hold on petitioner.
PEREZ (FREDERICO), PEOPLE v (116 AD3d 511):
1st Dept. App. Div. order of 4/10/14; affirmance; leave to appeal granted by
Smith, J., 10/30/14; CRIMES - PLEA OF GUILTY - SUFFICIENCY OF
ALLOCUTION - WAIVER OF CONSTITUTIONAL RIGHTS - WHETHER A
GUILTY PLEA TO A VIOLATION, WHICH REQUIRED ONLY THE PAYMENT OF
A $100 FINE, MUST BE VACATED UNDER PEOPLE v TYRELL (22 NY3d 359
[2013]) BECAUSE DEFENDANT WAS NOT ADVISED OF HIS CONSTITUTIONAL
RIGHTS UNDER BOYKIN v ALABAMA (395 US 238[1969]); Supreme Court, Bronx
County, convicted defendant, upon his guilty plea, of disorderly conduct, and sentenced
him to a $100 fine; App. Div. affirmed.
PERLBINDER HOLDINGS, LLC v SRINIVASAN (114 AD3d 494):
1st Dept. App. Div. order of 2/13/14; reversal; leave to appeal granted by Court of
Appeals, 10/28/14; MUNICIPAL CORPORATIONS - ZONING - VARIANCE -
OUTDOOR ADVERTISING - WHETHER THE APPELLATE DIVISION ERRED IN
CONSTRUING PETITIONER'S APPEAL TO THE BOARD OF STANDARDS AND
APPEALS OF THE CITY OF NEW YORK (BSA) AS A VARIANCE APPLICATION
AND DIRECTING BSA, ON REMAND, TO CONSIDER THE VARIANCE REQUEST
UNDER NEW YORK CITY CHARTER § 666 (7) - WHETHER PETITIONER WAS
ENTITLED TO MAINTAIN ITS ADVERTISING SIGN, WITHOUT A VARIANCE,
BASED ON ITS GOOD-FAITH RELIANCE ON A PERMIT ISSUED BY THE NEW
YORK CITY DEPARTMENT OF BUILDINGS (DOB) AND A 2008
DETERMINATION BY THE MANHATTAN BOROUGH BUILDING
COMMISSIONER APPROVING THE ERECTION OF THE SIGN - WHETHER THE
APPELLATE DIVISION ERRED IN FINDING AS A MATTER OF LAW THAT
PETITIONER'S RELIANCE ON A PERMIT WAS IN GOOD FAITH; Supreme Court,
New York County, denied a petition to annul a resolution of respondent BSA, which
upheld a DOB decision that revoked petitioner's permits for an outdoor advertising sign,
and to annul violations issued by DOB, and dismissed the proceeding brought pursuant to
CPLR article 78; App. Div. reversed, granted the petition to the extent of annulling
respondent BSA's resolution, and remanded to BSA for further proceedings consistent
with the court's opinion.
RUSSO, MATTER OF v NEW YORK CITY DEPARTMENT OF EDUCATION (119 AD3d 416):
1st Dept. App. Div. order of 7/3/14; modification with a two-Justice dissent; leave
to appeal granted by App. Div., 10/30/14; Rule 500.11 review pending; SCHOOLS -
TEACHERS - INCOMPETENCE - WHETHER THE APPELLATE DIVISION ERRED
IN CONCLUDING THAT PENALTY OF TERMINATION WAS SHOCKING TO
SENSE OF FAIRNESS AND REMANDING TO AGENCY FOR IMPOSITION OF A
LESSER PENALTY; Supreme Court, New York County, in this proceeding pursuant to
Education Law §3020-a(5) and CPLR 7511, to vacate an arbitration award finding
petitioner guilty of incompetence and imposing a penalty of termination, denied the
petition, and granted respondent's cross motion to dismiss the petition; App. Div.
modified to deny the cross motion to dismiss the petition, and to grant the petition to the
extent of remanding the matter to respondent, New York City Department of Education,
for imposition of a lesser penalty, and otherwise affirmed.
SIERRA CLUB, MATTER OF v VILLAGE OF PAINTED POST (115 AD3d 1310):
4th Dept. App. Div. order of 3/28/14; reversal; leave to appeal granted by Court of
Appeals, 10/23/14; PARTIES - STANDING - ENVIRONMENTAL PROTECTION -
COMPLAINT OF TRAIN NOISE NEWLY INTRODUCED INTO NEIGHBORHOOD -
WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT RESIDENT
LACKED STANDING BECAUSE HE FAILED TO ESTABLISH INJURY
DIFFERENT FROM THAT OF PUBLIC AT LARGE - ALLEGED PRESUMPTION OF
STANDING BASED UPON RESIDENT'S PROXIMITY TO A RAIL LINE THAT
TRAVERSED THE ENTIRE VILLAGE AND TRAIN NOISE; SEQRA REVIEW;
Supreme Court, Steuben County, denied in part the motion of respondents Village of
Painted Post, Painted Post Development, LLC and SWEPI, LP to dismiss the CPLR
article 78 petition and granted petitioners summary judgment on the first cause of action;
App. Div. reversed, granted the motion of respondents Village of Painted Post, Painted
Post Development, LLC and SWEPI, LP to dismiss the petition in its entirety and
dismissed the petition as against those respondents.