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For November 23, 2012 through November 29, 2012, the following preliminary appeal statements were filed:

DEVITO v FELICIANO (84 AD3d 645):
1st Dept. App. Div. order of 5/26/11; affirmance; leave to appeal granted by Court of Appeals, 10/18/12; NEGLIGENCE - PROXIMATE CAUSE - JURY FINDING THAT AUTOMOBILE ACCIDENT WAS NOT A SUBSTANTIAL FACTOR IN BRINGING ABOUT PLAINTIFF'S INJURIES - WHETHER TRIAL COURT ERRED IN REFUSING TO GIVE A MISSING WITNESS CHARGE WHERE DEFENDANT DID NOT CALL AS WITNESSES TWO PHYSICIANS WHO, AT DEFENDANT'S REQUEST, CONDUCTED INDEPENDENT MEDICAL EXAMINATIONS OF PLAINTIFF; Supreme Court, Bronx County dismissed the complaint after a jury trial; App. Div. affirmed.

EUJOY REALTY CORPORATION v VAN WAGNER COMMUNICATIONS, LLC (73 AD3d 546):
1st Dept. App. Div. order of 5/18/10; reversal with dissents; LANDLORD AND TENANT - LEASE - TERMINATION OF LEASE AGREEMENT - LEASED ADVERTISING BILLBOARD - REVIEW OF SIGN OBSTRUCTED BY CONSTRUCTION ON NEARBY SITE - ACTION FOR RENT DUE AND COUNSEL FEES; Supreme Court, New York County denied plaintiff landlord's motion for summary judgment, granted that part of defendant tenant's cross motion that sought summary judgment dismissing the complaint and denied the part that sought, in the alternative, leave to amend the answer to add the affirmative defense of estoppel; App. Div. reversed, granted plaintiff's motion, denied defendant's motion, and remanded the matter for an assessment of counsel fees; Supreme Court awarded judgment in favor of plaintiff in the total sum of $197,487.39.

PEOPLE ex rel. GSSIME v MARTUSCELLO (2012 NY Slip Op 89407[U]):
3rd Dept. App. Div. order of 11/1/12; denied application; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; HABEAS CORPUS - AVAILABILITY OF RELIEF; App. Div. granted motion for poor person relief to the extent that the filing fee is waived, and denied petitioner's application for a writ of habeas corpus.

NINETEEN EIGHTY-NINE, LLC v ICAHN ENTERPRISES L.P./ICAHN v RAYNOR (99 AD3d 546):
1st Dept. App. Div. order of 10/16/12; affirmance; sua sponte examination whether part of the Appellate Division order finally determines the action within the meaning of the Constitution and whether a substantial constitutional question is directly involved to support an appeal as of right; TORTS -INTERFERENCE WITH CONTRACTUAL RELATIONS - CLAIMS FOR TORTIOUS INTERFERENCE WITH CONTRACT, INJURIOUS FALSEHOOD AND ABUSE OF PROCESS - WHETHER THE NOERR-PENNINGTON DOCTRINE WARRANTED DISMISSAL OF PLAINTIFFS' CLAIMS BASED UPON DEFENDANT'S FILING OF A LAWSUIT IN 2010 AND A SECURITIES AND EXCHANGE COMMISSION "SCHEDULE 13D"; Supreme Court, New York County denied plaintiffs' motion for leave to amend the complaint and granted defendants' motion to dismiss the complaint; App. Div. affirmed.

JOHNSON (MARTIN), PEOPLE v (88 AD3d 503):
1st Dept. App. Div. order of 10/13/11; affirmance; leave to appeal granted by Jones, J., 10/19/12; CRIMES - RIGHT TO PUBLIC TRIAL - CLOSURE OF COURTROOM - WHETHER UNDERCOVER OFFICER'S TESTIMONY ESTABLISHED AN OVERRIDING INTEREST THAT WARRANTED CLOSURE OF THE COURTROOM TO ALL BUT DEFENDANT'S FAMILY; JURY INSTRUCTIONS - COURT'S FAILURE TO DELIVER THE "NO PRIOR SALE CONVICTIONS" ELEMENT OF THE JURY CHARGE; Supreme Court, New York County convicted defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentenced him, as a second felony drug offender, to concurrent terms of 3 years; App. Div. affirmed.

KICKERTZ, MATTER OF v NEW YORK UNIVERSITY ( (99 AD3d 502):
1st Dept. App. Div. order of 10/11/12; reversal with dissents; sua sponte examination whether the order appealed from finally determines the proceeding within the meaning of the Constitution; COLLEGES AND UNIVERSITIES - DISCIPLINARY PROCEEDINGS - DISMISSAL OF STUDENT WITHOUT POSSIBILITY OF REINSTATEMENT - JUDICIAL REVIEW OF ACADEMIC DISCRETION - WHETHER THE APPELLATE DIVISION ERRED IN DETERMINING MERITS OF CPLR ARTICLE 78 PROCEEDING WITHOUT PERMITTING RESPONDENT TO ANSWER PROCEEDING GIVEN DENIAL OF PRE-ANSWER DISMISSAL MOTION ARISING OUT OF SAME FACTS - WHETHER RESPONDENT SUBSTANTIALLY ADHERED TO ITS OWN PUBLISHED RULES AND GUIDELINES IN REACHING ITS DETERMINATION AND WHETHER THE DETERMINATION WAS BASED ON A RATIONAL INTERPRETATION OF THE RELEVANT EVIDENCE; Supreme Court, New York County denied the petition to annul the determination of respondent New York University that expelled petitioner from its dental college and dismissed the CPLR article 78 proceeding; App. Div. reversed, vacated the judgment and granted the petition.

MARVIN P., MATTER OF v RICE (2012 NY Slip Op 86145[U]):
2nd Dept. App. Div. order of 10/3/12; grant of motions; sua sponte examination whether the order appealed from finally determines the proceeding within the meaning of the Constitution and whether a substantial constitutional question is directly involved to support an appeal as of right; MOTIONS AND ORDERS - CHALLENGE TO APPELLATE DIVISION ORDER 1) GRANTING A MOTION FOR LEAVE TO APPEAL TO THAT COURT FROM A SUPREME COURT ORDER DETERMINING THAT PETITIONER DOES NOT HAVE A DANGEROUS MENTAL DISORDER AND IS NOT DANGEROUSLY MENTALLY ILL, AND ORDERING HIS RELEASE FROM A SECURE PSYCHIATRIC FACILITY, AND 2) GRANTING A STAY OF THE SUPREME COURT ORDER PENDING DETERMINATION OF THE APPEAL; Supreme Court, Orange County found that Marvin P. does not have a dangerous mental disorder and is not dangerously mentally ill, and ordered the preparation of an order of conditions and that Marvin P. be released from a secure psychiatric facility; App. Div. granted motions by Kathleen M. Rice and the State Commissioner of Health for leave to appeal to the App. Div. from the 8/17/12 order and to stay enforcement of that order pending determination of the appeals.

LUCHEY, MATTER OF v BOARD OF EDUCATION OF CITY SCHOOL DISTRICT OF THE CITY OF NIAGARA FALLS (92 AD3d 1276):
4th Dept. App. Div. order of 2/17/12; affirmance; leave to appeal granted by Court of Appeals, 11/19/12; CIVIL SERVICE - TERMINATION OF EMPLOYMENT - RESIDENCY REQUIREMENT - CPLR ARTICLE 78 PROCEEDING TO ANNUL DETERMINATION TERMINATING PETITIONER'S TENURED EMPLOYMENT WITH SCHOOL DISTRICT BASED ON PETITIONER'S VIOLATION OF SCHOOL DISTRICT'S RESIDENCY POLICY; STANDARD OF REVIEW; Supreme Court, Niagara County, among other things, granted a CPLR article 78 petition challenging respondents' termination of her employment from a tenured position because she was in violation of respondents' residency requirements, and directed respondents to reinstate petitioner to her tenured position; App. Div. affirmed.

O'TOOLE (DONALD), PEOPLE v (96 AD3d 435):
1st Dept. App. Div. order of 6/7/12; reversal; leave to appeal granted by Pigott, J., 11/20/12; CRIMES - COLLATERAL ESTOPPEL - WHETHER THE PEOPLE WERE BARRED FROM PRESENTING ON DEFENDANT'S RETRIAL EVIDENCE THAT HIS ACCOMPLICE POINTED WHAT APPEARED TO BE A PISTOL AT THE COMPLAINING WITNESS DURING THE ALLEGED ROBBERY, WHERE DEFENDANT WAS ACQUITTED OF ROBBERY IN THE FIRST DEGREE AT THE FIRST TRIAL BUT CONVICTED OF ROBBERY IN THE SECOND DEGREE AND THE APPELLATE DIVISION HAD REVERSED THAT CONVICTION; Supreme Court, New York County convicted defendant, after a jury trial, of robbery in the second degree, and sentenced him, as a second violent felony offender, to a term of 15 years; App. Div. reversed and remanded for a new trial.

DEPARTMENTAL DISCIPLINARY COMMITTEE FOR THE FIRST JUDICIAL DEPARTMENT; MATTER OF SUSAN:
1st Dept. App. Div. order of 9/20/12; denial of motion to quash; sua sponte examination whether the order appealed from finally determines the proceeding within the meaning of the Constitution and whether a substantial constitutional question is directly involved to support an appeal as of right; ATTORNEY AND CLIENT - DISCIPLINARY PROCEEDINGS - MOTION TO QUASH SUBPOENA DUCES TECUM; App. Div. denied respondent's motion for an order pursuant to CPLR 2304 quashing a subpoena duces tecum commanding her appearance with all documents requested with respect to certain complaints against her.

For November 30, 2012 through December 6, 2012, the following preliminary appeal statements were filed:

ASSOCIATION FOR A BETTER LONG ISLAND, MATTER OF v NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (97 AD3d 1085):
3rd Dept. App. Div. order of 7/26/12; affirmance; leave to appeal granted by Court of Appeals, 11/27/12; PARTIES - STANDING - CHALLENGE TO ENVIRONMENTAL REGULATIONS REQUIRING AN "INCIDENTAL TAKE" PERMIT FOR ANY ACTIVITIES LIKELY TO RESULT IN THE "TAKING" OF ANY ENDANGERED OR THREATENED SPECIES - CHALLENGE BY OWNERS OF PROPERTY THAT CONTAINS OR IS IN PROXIMITY TO ENDANGERED OR THREATENED SPECIES, BUT WHO HAVE NOT FILED APPLICATIONS FOR AN "INCIDENTAL TAKE" PERMIT - SPECULATIVE HARM - PROCEDURAL CHALLENGES - RIPENESS OF SUBSTANTIVE CHALLENGES; Supreme Court, Albany County, in a combined proceeding pursuant to CPLR article 78 and declaratory judgment action, granted the state respondents' motion to dismiss the petition; App. Div. affirmed.

BOYER (DANIEL), PEOPLE v (91 AD3d 1183):
3rd Dept. App. Div. order of 1/26/12, as amended by order entered 3/29/12; affirmance; leave to appeal granted by Read, J., 9/12/12; CRIMES - SENTENCE - PERSISTENT VIOLENT FELONY OFFENDER - WHETHER A PRIOR CONVICTION CAN BE CONSIDERED A PREDICATE FELONY CONVICTION FOR SENTENCING PURPOSES WHERE THE CONVICTION WAS LATER DETERMINED TO BE SUBJECT TO RESENTENCING UNDER PEOPLE v SPARBER (10 NY3d 457), THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION SOUGHT RESENTENCING AND RESENTENCING OCCURRED AFTER THE CRIME DEFENDANT COMMITTED IN THIS CASE; PLEA OF GUILTY - WHETHER THE PLEA WAS KNOWING, VOLUNTARY AND INTELLIGENT; Albany County Court convicted defendant upon his guilty plea of the crime of attempted burglary in the second degree; App. Div. affirmed.

GONZALEZ, MATTER OF v DIVISION OF HOUSING AND COMMUNITY RENEWAL OF THE STATE OF NEW YORK (95 AD3d 681):
1st Dept. App. Div. order of 5/22/12; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; LANDLORD AND TENANT - RENT REGULATION - WHETHER SUBSTANTIAL EVIDENCE SUPPORTS DIVISION OF HOUSING AND COMMUNITY RENEWAL'S (DHCR's) FINDING THAT THE BUILDING AT ISSUE HAD BEEN SUBSTANTIALLY REHABILITATED WITHIN THE MEANING OF RENT STABILIZATION CODE (9 NYCRR) § 2520.11(e) AND DHCR's OPERATIONAL BULLETIN 95-2; LACHES; ESTOPPEL; Supreme Court, New York County denied a CPLR article 78 petition to annul a determination of respondent DHCR affirming an order of the DHCR Rent Administrator granting respondent-owners' application for a substantial rehabilitation exemption from rent stabilization; thereafter, Supreme Court dismissed the proceeding; App. Div. affirmed.

JACOBSEN v NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (97 AD3d 428):
1st Dept. App. Div. order of 7/10/12; affirmance; leave to appeal granted by App. Div., 10/2/12; Rule 500.11 review pending; CIVIL RIGHTS - DISCRIMINATION BASED ON DISABILITY - OCCUPATIONAL LUNG DISEASE - WRONGFUL TERMINATION - EMPLOYEE'S ABILITY TO PERFORM ESSENTIAL JOB DUTIES - REASONABLE ACCOMMODATION; SUMMARY JUDGMENT - EXISTENCE OF TRIABLE ISSUES OF FACT; Supreme Court, New York County granted defendant's motion for summary judgment dismissing the complaint; App. Div. affirmed.

WL, LLC, MATTER OF v NEW YORK STATE DEPARTMENT OF ECONOMIC DEVELOPMENT (97 AD3d 24):
3rd Dept. App. Div. order of 5/3/12; modification; leave to appeal granted by Court of Appeals, 11/29/12; PROCEEDING AGAINST BODY OR OFFICER - ELIGIBILITY TO PARTICIPATE IN EMPIRE ZONE PROGRAM - WHETHER EMPIRE ZONE DESIGNATION BOARD GAVE PETITIONER (1) ADEQUATE NOTICE OF ITS INTENT TO REVOKE PETITIONER'S CERTIFICATION AS AN EMPIRE ZONE BUSINESS ENTERPRISE AND (2) A MEANINGFUL OPPORTUNITY TO BE HEARD BEFORE MAKING THE CHALLENGED DETERMINATION - WHETHER PETITIONER WAS ENTITLED TO A HEARING BEFORE THE BOARD AND WHETHER THE MANNER IN WHICH THE BOARD CONSIDERED PETITIONER'S APPEAL AFFORDED PETITIONER DUE PROCESS; STANDARD OF REVIEW USED BY THE APPELLATE DIVISION; DISMISSAL OF CAUSES OF ACTION SEEKING A DECLARATORY JUDGMENT; EXCLUSION OF PETITIONER'S YEAR 2000 INVESTMENTS; WHETHER THE CHALLENGED DETERMINATION WAS ARBITRARY AND CAPRICIOUS; Supreme Court, Albany County dismissed petitioner's application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to review a determination of respondent Empire Zone Designation Board revoking petitioner's certification as an empire zone business enterprise; App. Div. modified by reversing so much of the judgment as dismissed that part of the petition/complaint seeking a declaration that the April 2009 amendments to General Municipal Law § 959 may not be applied retroactively to January 1, 2008; granted the petition/complaint to that extent and declared that said amendments shall be applied prospectively; and affirmed the judgment as so modified.

For December 7, 2012 through December 13, 2012, the following preliminary appeal statements were filed:

BARNES, MATTER OF v FINOCCHIO (98 AD3d 1289):
4th Dept. App. Div. order of 9/28/12; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; PROCEEDING AGAINST BODY OR OFFICER - CHALLENGE TO APPELLATE DIVISION ORDER AFFIRMING JUDGMENT DENYING A CPLR ARTICLE 78 PETITION; Supreme Court, Monroe County denied a CPLR article 78 petition; App. Div. affirmed.

BAY CREST ASSOCIATION, INC. v PAAR (99 AD3d 744):
2nd Dept. App. Div. order of 10/10/12; dismissal in part and affirmance in part; sua sponte examination whether defendant Louis Paar is aggrieved from so much of the App. Div. order as dismissed his appeal to that court upon the ground that he was not aggrieved by a portion of the Supreme Court order, whether the order appealed from finally determines the action within the meaning of the Constitution and whether a substantial constitutional question is directly involved to support an appeal as of right; JUDGMENTS - RELIEF FROM JUDGMENT - FAILURE TO ESTABLISH STATUTORY GROUNDS FOR VACATUR; SATISFACTION - COLLECTION OF UNPAID ASSESSMENTS OWED TO HOMEOWNERS' ASSOCIATION; Supreme Court, Suffolk County, among other things, granted plaintiff's motion for payment pursuant to CPLR 2606; denied defendants' cross motion for relief from the judgment pursuant to CPLR 5015; denied defendants' motion brought by order to show cause signed on 11/23/10; and denied defendants' motion for criminal and civil contempt and legal malpractice; App. Div. 1) dismissed the appeal by defendant Louis Paar from so much of the 12/16/10 Supreme Court order as granted that branch of plaintiff's motion which was pursuant to CPLR 2606 for payment from funds belonging to defendant Suzanne De Lisi and held in two accounts by the Suffolk County Treasurer in satisfaction of a judgment insofar as entered against her, upon the ground that defendant Louis Paar is not aggrieved by that part of the order; 2) dismissed as academic the appeal from so much of the 12/16/10 Supreme Court order as denied that branch of defendants' motion which was for release to them of the funds held in the two accounts by the Suffolk County Treasurer; and 3) affirmed the 12/16/10 Supreme court order insofar as reviewed.

CAPRIO v NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE (37 Misc 3d 964):
Supreme Court, New York County judgment of 11/5/12; sua sponte examination whether a direct appeal lies pursuant to CPLR 5601(b)(2); TAXATION - PERSONAL INCOME TAX - DUE PROCESS CHALLENGE TO ALLEGED RETROACTIVE APPLICATION OF 2010 AMENDMENT TO SECTION 632(a)(2) OF THE NEW YORK TAX LAW AS APPLIED TO PLAINTIFFS WHO WERE ASSESSED ADDITIONAL TAXES FOR THE 2007 AND 2008 TAXABLE YEARS; Supreme Court, New York County, dismissed the complaint seeking a judgment declaring certain provisions of the New York Tax Law invalid as applied to plaintiffs.

EXPEDIA, INC. v CITY OF NEW YORK DEPARTMENT OF FINANCE (89 AD3d 640):
1st Dept. App. Div. order of 11/29/12; reversal; TAXATION - HOTEL AND MOTEL OCCUPANCY TAX - EXTENSION OF TAX TO ENCOMPASS SERVICE FEES CHARGED BY TRAVEL INTERMEDIARIES - CONSTITUTIONALITY; Supreme Court, New York County granted defendants' motion to dismiss the first cause of action seeking a declaration that Local Law No. 43 (2009) of the City of New York violates the Constitution of the State of New York and declared in favor of the New York City Department of Finance and the City of New York that there is no constitutional violation; App. Div. reversed, denied defendants' motion and, upon a search of the record, declared that Local Law No. 43 violates the New York State Constitution.

SALH, MATTER OF v TAX APPEALS TRIBUNAL OF THE STATE OF NEW YORK (99 AD3d 1124):
3rd Dept. App. Div. judgment of 10/25/12; confirmation of determination; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; TAXATION - BUSINESS AND FINANCIAL TAX - BULK SALES - LIABILITY OF PURCHASER OF BUSINESS FOR TAX DEFICIENCY OF PREVIOUS OWNER - EQUITABLE ESTOPPEL; App. Div. confirmed determination of the Tax Appeals Tribunal which sustained a sales and use tax assessment imposed under Tax Law articles 28 and 29, and dismissed the CPLR article 78 petition.

STATE OF NEW YORK, MATTER OF v FLOYD Y. (— AD3d —, 2012 NY Slip Op 07386):
1st Dept. App. Div. order of 11/8/12; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; CRIMES - SEX OFFENDERS - CIVIL COMMITMENT OR SUPERVISION - SEX OFFENDER MANAGEMENT AND TREATMENT ACT (SOMTA) - WHETHER THE TRIAL COURT ERRED BY PERMITTING THE STATE'S EXPERT WITNESS TO TESTIFY, WITHOUT LIMITATION, AS TO HEARSAY STATEMENTS THAT FORMED THE BASIS OF HER OPINION THAT RESPONDENT HAS A MENTAL ABNORMALITY, INCLUDING STATEMENTS REGARDING ACTS THAT DID NOT RESULT IN A CRIMINAL CHARGE OR CONVICTION - ALLEGED DUE PROCESS VIOLATION; Supreme Court, New York County, upon a jury finding of mental abnormality, and upon a finding made after a dispositional hearing that respondent is a dangerous sex offender requiring confinement, committed him to a secure treatment facility; App. Div. affirmed.

TREISTMAN, MATTER OF v CAYLEY (2012 NY Slip Op 89061[U]):
Family Court, Ulster County order of 6/25/12; 3rd Dept. App. Div. order of 10/25/12; denials of motions; sua sponte examination whether the appeal is timely, whether the orders appealed from finally determine the proceeding within the meaning of the Constitution, whether a direct appeal lies pursuant to CPLR 5601(b)(2) and whether a substantial constitutional question is directly involved to support an appeal as of right; MOTIONS AND ORDERS - CHALLENGE TO APPELLATE DIVISION ORDER DENYING PETITIONER'S MOTIONS FOR LEAVE TO APPEAL TO THAT COURT AND FOR A STAY PENDING APPEAL - CHALLENGE TO FAMILY COURT ORDER DENYING MOTIONS FOR SANCTIONS AND ENLARGEMENT OF TRIAL DATE PENDING FURTHER DISCOVERY; Family Court, Ulster County denied petitioner's motion for sanctions and motion for enlargement of the trial date pending further discovery; App. Div. denied petitioner's motions for leave to appeal to the App. Div. and for a stay pending appeal.