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For December 3, 2010 through December 9, 2010, the following preliminary appeal statements were filed:

ANONYMOUS, MATTER OF, AN APPLICANT FOR ADMISSION TO THE BAR:
3rd Dept. App. Div. order of 10/20/10; 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 - ADMISSION TO PRACTICE - CHALLENGE TO APPELLATE DIVISION ORDER REFERRING APPLICATION FOR ADMISSION TO THE BAR TO THREE MEMBERS OF THE COMMITTEE ON CHARACTER AND FITNESS; App. Div. granted applicant's motion for an order vacating the 11/19/09 and 4/16/09 App. Div. orders denying his application for admission to the bar, and for reconsideration and admission to the bar, to the extent that the application is referred to three members of the Committee on Character and Fitness to investigate the application for admission, interview applicant, and render a report to the App. Div. as to whether applicant currently possesses the requisite character and general fitness for an attorney and counselor-at-law, and otherwise denied the motion.

ABREU, MATTER OF v VONCE (76 AD3d 1149):
3rd Dept. App. Div. order of 9/30/10; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; DISMISSAL AND NONSUIT - DISMISSAL OF PETITION BASED ON PETITIONER'S FAILURE TO SERVE PAPERS AS DIRECTED IN ORDER TO SHOW CAUSE - LACK OF PERSONAL JURISDICTION; PRISONS AND PRISONERS - DISCIPLINE OF INMATES - CPLR ARTICLE 78 PROCEEDING CHALLENGING PETITIONER'S CONFINEMENT IN THE PRISON'S SPECIAL HOUSING UNIT; Supreme Court, Albany County granted respondents' motion to dismiss the CPLR article 78 proceeding; App. Div. affirmed.

COUSINS, MATTER OF, AN ATTORNEY AND COUNSELOR-AT-LAW (— AD3d —, 2010 NY Slip Op 07413):
1st Dept. App. Div. order of 10/19/10; sua sponte examination whether a substantial constitutional question is directly involved or any jurisdictional basis otherwise exists to support an appeal as of right; ATTORNEY AND CLIENT - DISCIPLINARY PROCEEDINGS - CHALLENGE TO APPELLATE DIVISION ORDER THAT, AMONG OTHER THINGS, DISBARRED ATTORNEY EFFECTIVE NOVEMBER 18, 2010; App. Div., among other things, granted Departmental Disciplinary Committee's petition for an order confirming the determination and recommendation of the Hearing Panel, which confirmed the findings of fact, conclusions of law and recommendation of the Referee; confirmed the determination and recommendation of the Hearing Panel; and disbarred attorney effective November 18, 2010.

GAMBLE (COREY), PEOPLE v (72 AD3d 544):
1st Dept. App. Div. order of 4/22/10; modification; leave to appeal granted by Lippman, Ch. J., 11/29/10; CRIMES - EVIDENCE - WHETHER TRIAL COURT ERRED IN PRECLUDING CERTAIN EVIDENCE ABOUT ONE OF THE MURDER VICTIMS; RIGHT TO COUNSEL - WHETHER DEFENDANT WAS DENIED HIS RIGHT TO COUNSEL WHEN COURT OFFICERS, FOR SECURITY REASONS, WERE SEATED BEHIND DEFENDANT'S CHAIR, WHERE THEY MIGHT HEAR DEFENSE COUNSEL'S CONVERSATION WITH DEFENDANT; ALLEGED MISCONDUCT OF PROSECUTOR DURING TRIAL; Supreme Court, Bronx County convicted defendant of murder in the first and second degrees, and sentenced him to an aggregate term of life without parole and 25 years to life, respectively; App. Div. modified to the extent of vacating the DNA data bank fee, and otherwise affirmed.

HERRERA (ROLANDO), PEOPLE v (76 AD3d 891):
1st Dept. App. Div. order of 9/23/10; reversal; leave to appeal granted by Catterson, J., 11/9/10; Rule 500.11 review pending; CRIMES - SUPPRESSION HEARING - POLICE OFFICER PULLED OBJECT OUT OF DEFENDANT'S POCKET WITHOUT QUESTIONING OR FRISK - WHETHER POLICE OFFICER HAD A REASONABLE SUSPICION THAT DEFENDANT MIGHT BE CONCEALING A WEAPON; GRAVITY KNIFE; Supreme Court, Bronx County granted defendant's motion to suppress physical evidence and a statement; App. Div. reversed, denied defendant's motion to suppress and reinstated the criminal complaint.

McKANIC v AMIGOS DEL MUSEO DEL BARRIO (74 AD3d 639):
1st Dept. App. Div. order of 6/22/10; dismissal of appeal from nonappealable paper and affirmance; sua sponte examination 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; DISMISSAL AND NONSUIT - FAILURE TO COMPLY WITH ORDER DIRECTING DISCLOSURE - CHALLENGE TO APPELLATE DIVISION ORDER THAT, AMONG OTHER THINGS, AFFIRMED A SUPREME COURT ORDER DISMISSING THE COMPLAINT UPON PLAINTIFF'S FAILURE TO EXECUTE AUTHORIZATIONS FOR RELEASE OF FEDERAL TAX RETURNS; Supreme Court, New York County (1) directed plaintiff to execute authorizations for the release of certain federal tax returns or the action "will be dismissed upon defendant's submission of an affirmation of default and a proposed dismissal order"; (2) declined to sign plaintiff's order to show cause; (3) dismissed the complaint upon plaintiff's failure to comply with the order directing her to execute authorizations for the release of certain federal tax returns; and (4) denied as moot plaintiff's motion for a protective order; App. Div. dismissed the appeal from the order declining to sign an order to show cause and affirmed the remaining three orders.

PAIGE (TIRAY M.), PEOPLE v (77 AD3d 1193):
3rd Dept. App. Div. order of 10/28/10; affirmance; leave to appeal granted by McCarthy, J., 11/17/10; Rule 500.11 review pending; CRIMES - UNLAWFUL SEARCH AND SEIZURE - DEFENDANT REFUSED ENTRY TO STATE TROOPERS SEEKING TO EXECUTE AN ARREST WARRANT FOR ANOTHER RESIDENT WHOM DEFENDANT SAID WAS NOT HOME - TROOPERS KICKED DOOR OPEN AND ARRESTED DEFENDANT - REASONABLENESS OF TROOPER'S BELIEF THAT PERSON SUBJECT TO WARRANT WAS INSIDE THE RESIDENCE; Supreme Court, Franklin County convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree and obstructing governmental administration in the second degree, and imposed sentence; App. Div. affirmed.

SCOTT v ROCKAWAY PRATT, LLC (77 AD3d 60):
1st Dept. App. Div. order of 7/27/10; modification; leave to appeal granted by App. Div., 10/28/10; Rule 500.11 review pending; LANDLORD AND TENANT - RENT - ACTION TO RECOVER RENT OVERCHARGES PAID UNDER LEASES SUBJECT TO THE RENT STABILIZATION LAW OF 1969 - WHETHER THE PROPER BASE DATE FOR DETERMINING AN OVERCHARGE IS DEEMED TO BE FOUR YEARS BEFORE THE FILING OF THE OVERCHARGE COMPLAINT - CPLR 213-a - RENT STABILIZATION CODE (9 NYCRR) § 2520.6(f); Supreme Court, New York County denied the motion of defendant Rockaway Pratt, LLC for summary judgment dismissing the complaint; App. Div. modified by vacating the base rent finding and substituting therefor a finding that the base rent is the rent charged four years before the filing of the overcharge complaint, and otherwise affirmed.

SHARLOW (DARRYL), PEOPLE v (75 AD3d 568):
2nd Dept. App. Div. order of 7/13/10; reversal; leave to appeal granted by Pigott, J., 11/18/10; Rule 500.11 review pending; CRIMES - SENTENCE - POST-RELEASE SUPERVISION (PRS) - PRS IMPOSED IN RESENTENCE AFTER DEFENDANT'S CONDITIONAL RELEASE FROM PRISON BUT BEFORE THE MAXIMUM EXPIRATION DATE OF THE ORIGINAL SENTENCE TERM; ALLEGED VIOLATION OF DOUBLE JEOPARDY PRINCIPLES; Supreme Court, Kings County resentence that, upon defendant's conviction of burglary in the second degree and petit larceny (upon his plea of guilty), imposed a period of postrelease supervision in addition to the determinate term of imprisonment previously imposed on 11/1/02; App. Div. reversed, vacated the term of postrelease supervision, and reinstated the original sentence imposed on 11/1/02.

For December 10, 2010 through December 16, 2010, the following preliminary appeal statements were filed:

FUREY (SCOTT C.), PEOPLE v (77 AD3d 1357):
4th Dept. App. Div. order of 10/1/10; affirmance; leave to appeal granted by Graffeo, J., 12/2/10; JURY - SELECTION OF JURY - WHETHER TRIAL COURT ERRED IN DENYING DEFENDANT'S CHALLENGE FOR CAUSE OF A PROSPECTIVE JUROR MARRIED TO THE CAPTAIN OF THE POLICE DEPARTMENT AND SOCIALLY ACQUAINTED WITH EIGHT POLICE OFFICERS ON THE PROSECUTION'S WITNESS LIST - WHETHER TRIAL COURT ERRED IN DENYING DEFENDANT'S CHALLENGE FOR CAUSE OF A PROSPECTIVE JUROR WHO WAS UNABLE TO STATE UNEQUIVOCALLY THAT SHE COULD RENDER AN IMPARTIAL VERDICT; Oswego County Court convicted defendant of kidnaping in the second degree, burglary in the second degree, menacing in the third degree, criminal mischief in the fourth degree and assault in the third degree; App. Div. affirmed.

HIGHTOWER (JOSEPH), PEOPLE v (28 Misc 3d 131(A)):
App. Term, 1st Dept. order of 7/19/10; affirmance; leave to appeal granted by Smith, J., 12/2/10; CRIMES - LARCENY - SUFFICIENCY OF FACTUAL ALLEGATIONS IN ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH PETIT LARCENY (PENAL LAW § 155.05[1]) FOR SELLING A SWIPE ON AN UNLIMITED-FARE METROCARD, THUS ALLOWING THE PURCHASER TO ENTER THE SUBWAY STATION BEYOND THE TURNSTILES WITHOUT PERMISSION OR AUTHORITY TO DO SO; Criminal Court of the City of New York, New York County convicted defendant, upon his guilty plea, of petit larceny, and imposed sentence; App. Term affirmed.

QUINTO (SANTOS), PEOPLE v (77 AD3d 76):
2nd Dept. App. Div. order of 8/31/10; modification; leave to appeal granted by Ciparick, J., 11/30/10; CRIMES - TIMELINESS OF PROSECUTION - TOLL APPLICABLE TO SEX CRIMES AGAINST CHILD LESS THAN 18 YEARS OLD (CPL 30.10[3][f]) - WHETHER COMPLAINANT "REPORTED" THE SEX CRIMES CHARGED IN THE INDICTMENT IN 2002 WHEN SHE FALSELY TOLD POLICE, INITIALLY, THAT ONE OF HER CLASSMATES RAPED HER AND, THEREAFTER, THAT SHE HAD CONSENSUAL SEX WITH THAT CLASSMATE - TOLL DURING PERIOD WHEN WHEREABOUTS OF DEFENDANT CONTINUOUSLY UNKNOWN AND UNASCERTAINABLE BY THE EXERCISE OF REASONABLE DILIGENCE (CPL 30.10[4][a][ii]) - CHALLENGE TO APPELLATE DIVISION HOLDING THAT TOLL PROVIDED BY CPL 30.10[4][a][ii] WAS INAPPLICABLE TO NON-SEX-RELATED MISDEMEANORS AND VIOLATIONS; Supreme Court, Kings County granted defendant's motion to dismiss the indictment in its entirety as time-barred pursuant to CPL 210.20(1)(f) and 30.10(2)(b); App. Div. modified by deleting the provisions of the order granting those branches of the defendant's motion which were pursuant to CPL 210.20(1)(f), 30.10(2)(b) and 30.10(3)(f) to dismiss the charges of three counts of rape in the second degree in violation of Penal Law § 130.30(1), rape in the third degree in violation of Penal Law § 130.25(3), three counts of sexual misconduct in violation of Penal Law § 130.55, and substituting therefor provisions denying those branches of the motion; and affirmed the order as so modified.

RIGLE, MATTER OF v DAINES (78 AD3d 1249):
3rd Dept., App. Div. order of 11/4/10; confirmation of administrative determination; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; PHYSICIANS AND SURGEONS - DISCIPLINARY PROCEEDINGS - REVOCATION OF LICENSE TO PRACTICE MEDICINE - CLAIMED VIOLATION OF DUE PROCESS; App. Div. confirmed determination of respondent Administrative Review Board for Professional Medical Conduct which revoked petitioner's license to practice medicine in New York, and dismissed the CPLR article 78 petition.

STRACHMAN v THE PALESTINIAN AUTHORITY (73 AD3d 124):
1st Dept., App. Div. order of 3/30/10; affirmance; leave to appeal granted by App. Div., 12/2/10; JURY - RIGHT TO JURY TRIAL - DECLARATORY JUDGMENT ACTION - ACTION BY JUDGMENT CREDITORS SEEKING TO ESTABLISH DEFENDANT PALESTINIAN AUTHORITY'S OWNERSHIP OF FROZEN SECURITIES AND DEBT INSTRUMENTS; Supreme Court, New York County, among other things, denied the motion of defendant Palestinian Pension Fund for the State Administrative Employees of the Gaza Strip to strike plaintiff's demand for a jury trial; App. Div. affirmed.

For December 17, 2010 through December 23, 2010, the following preliminary appeal statements were filed:

EATON v WAYNE TEACHERS ASSOCIATION (78 AD3d 1588):
4th Dept. App. Div. order of 11/12/10; affirmance; sua sponte examination whether so much of the App. Div. order as affirmed that portion of Supreme Court's order that denied plaintiffs' motion to consolidate finally determines the action within the meaning of the Constitution and whether a substantial constitutional question is directly involved in so much of the Appellate Division order as affirmed the dismissal of the complaint to support an appeal as of right; DISMISSAL AND NONSUIT - CHALLENGE TO APPELLATE DIVISION ORDER AFFIRMING A SUPREME COURT ORDER DISMISSING THE COMPLAINT - DISMISSAL OF CLAIMS ALLEGING BREACH OF THE DUTY OF FAIR REPRESENTATION AS BARRED BY THE STATUTE OF LIMITATIONS CONTAINED IN CPLR 217(2)(a) - DISMISSAL OF INTENTIONAL TORT CLAIMS AS BARRED BY THE ONE-YEAR STATUTE OF LIMITATIONS; SUFFICIENCY OF PLAINTIFFS' ALLEGATIONS/PROOF; DENIAL OF MOTION FOR CONSOLIDATION AS MOOT; Supreme Court, Monroe County granted defendants' motion to dismiss the complaint pursuant to CPLR 3211, and denied as moot plaintiffs' cross motion to consolidate this action with Eaton v Hungerford (Index No. 07-044-87); App. Div. affirmed.

JOHNSON, MATTER OF v MARTINS and MATTER OF JACOBS v NASSAU COUNTY BOARD OF ELECTIONS (— AD3d —, 2010 NY Slip Op 09195):
2nd Dept. App. Div. order of 12/15/10; modification; leave to appeal granted by App. Div., 12/15/10; ELECTIONS - GENERAL ELECTION FOR THE PUBLIC OFFICE OF STATE SENATOR FOR THE 7th SENATORIAL DISTRICT - WHETHER THE COURTS BELOW ERRED IN FAILING TO ORDER A MANUAL RECOUNT OF THE ELECTION RESULTS UNDER ELECTION LAW § 16-113 - CHALLENGE TO CANVASS OF CERTAIN CONTESTED ABSENTEE AND AFFIDAVIT BALLOTS; Supreme Court, Nassau County, as relevant here, denied those branches of the petitions which were, in effect, to direct the opening and canvassing of 48 ballots voted in affidavit envelopes or by absentee ballots in the same general election, to direct the casting and canvassing of certain ballots and to prohibit the casting of certain other ballots in the same general election, and to direct a manual audit of the voter verifiable audit records of the same general election; App. Div. modified by (1) deleting the provisions of the order that denied those branches of the petitions which were, in effect, to direct the casting and canvassing of the absentee ballots designated as Exhibits 33, 154 and 166, and substituting therefor provisions granting those branches of the petitions and directing the Nassau County Board of Elections to cast and canvass the absentee ballots designated as Exhibits 33, 154 and 166, and (2) deleting the provisions of the order that denied those branches of the petitions which were, in effect, to prohibit the casting and canvassing of absentee ballots designated as Exhibits 8 and 127 and the ballots designated as Exhibits 182 and 183, and substituting therefor provisions granting those branches of the petitions and directing the Nassau County Board of Elections not to cast and canvass the absentee ballots designated as Exhibits 8 and 127 and the ballots designated as Exhibits 182 and 183; and affirmed the order insofar as appealed from as so modified.

KEATING (PADRAIC), PEOPLE v (74 AD3d 1094):
2nd Dept. App. Div. order of 6/15/10; denial of writ of error coram nobis; leave to appeal granted by Lippman, Ch. J., 12/8/10; Rule 500.11 review pending; APPEAL - EFFECTIVENESS OF APPELLATE COUNSEL - DENIAL OF APPELLANT'S APPLICATION FOR WRIT OF ERROR CORAM NOBIS; App. Div. denied appellant's application for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a 5/21/01 App. Div. order affirming a 12/13/96 Supreme Court, Richmond County, judgment of conviction.

RODRIGUEZ (RAFAEL), PEOPLE v (77 AD3d 420):
1st Dept. App. Div. order of 10/7/10; modification; leave to appeal granted by Ciparick, J., 12/1/10; Rule 500.11 review pending; CRIMES - EAVESDROPPING WARRANTS - WRITTEN NOTICE REQUIREMENT (CPL 700.50[3]) - CHALLENGE TO APPELLATE DIVISION ORDER UPHOLDING SUMMARY DENIAL OF DEFENDANT'S MOTION TO SUPPRESS EAVESDROPPING EVIDENCE UPON THE GROUND THAT "SUPPRESSION OF WIRETAP EVIDENCE ... NOTICE REQUIREMENT IS NOT WARRANTED WITHOUT A SHOWING OF PREJUDICE"; WHETHER DEFENDANT WAS ENTITLED TO A MISTRIAL UPON THE GROUND THAT THE TRIAL COURT UNDULY INTERFERED WITH DEFENSE COUNSEL'S CROSS-EXAMINATION OF AN ACCOMPLICE WHO WAS COOPERATING WITH AND TESTIFYING FOR THE PROSECUTION AND THEREBY CONVEYED TO THE JURY ITS BELIEF IN THE WITNESS'S CREDIBILITY; EVIDENCE - WHETHER THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE ON-LINE BOOKING SHEET CONTAINING DEFENDANT'S ALLEGED PHONE NUMBER; Supreme Court, New York County convicted defendant, after a jury trial, of criminal sale of a controlled substance in the first degree and conspiracy in the second degree, and sentenced him to concurrent terms of 17 years and 5 to 15 years; App. Div. modified to the extent of remitting the matter to Supreme Court for the sole purpose of imposing term of postrelease supervision in defendant's presence, and otherwise affirmed.

STEWART (WAYNE R.), PEOPLE v (70 AD3d 1367):
4th Dept. App. Div. order of 2/11/10; affirmance; leave to appeal granted by Pigott, J., 12/6/10; CRIMES - ASSAULT - "SERIOUS PHYSICAL INJURY" PURSUANT TO PENAL LAW §§ 10.00(10) AND 120.10(1) - SUFFICIENCY OF EVIDENCE TO SUPPORT CONVICTION OF ASSAULT IN THE FIRST DEGREE; Herkimer County Court convicted defendant, upon a jury verdict, of assault in the first degree; App. Div. affirmed.

TRUMP ON THE OCEAN, LLC, MATTER OF v CORTES-VASQUEZ (76 AD3d 1080):
2nd Dept. App. Div. order of 9/28/10; modification; leave to appeal granted by App. Div., 12/9/10; MUNICIPAL CORPORATIONS - ZONING - VARIANCE - DENIAL OF VARIANCE FOR PUBLIC DINING AND CATERING FACILITY AT JONES BEACH STATE PARK - VARIANCE SOUGHT FOR OCCUPIED BASEMENT TO BE CONSTRUCTED UNDER "DESIGN FLOOD ELEVATION"; Supreme Court, Nassau County granted that branch of the CPLR article 78 petition which was to annul the determination of the Southern Region, Hudson Valley Board of Review denying petitioner's application for a variance on the ground that it was arbitrary and capricious; App. Div. modified by adding a provision remitting the matter to the Southern Region, Hudson Valley Board of Review, to grant the requested variance, subject to any reasonable condition it deems appropriate.

For December 24, 2010 through December 30, 2010, the following preliminary appeal statements were filed:

DE PONCEAU, MATTER OF v FISCHER (2010 NY Slip Op 90332[U]):
3rd Dept. App. Div. order of 12/3/10; denial of motion; 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 or any jurisdictional basis otherwise exists to support an appeal as of right; PRISONS AND PRISONERS - CHALLENGE TO APPELLATE DIVISION ORDER DENYING A MOTION FOR A SUBPOENA DUCES TECUM; App. Div. denied a motion for a subpoena duces tecum.

METROPOLITAN TAXICAB BOARD OF TRADE v THE NEW YORK CITY TAXI & LIMOUSINE COMMISSION (71 AD3d 508):
1st Dept. App. Div. order of 3/16/10; affirmance; leave to appeal granted by Court of Appeals, 12/14/10; MUNICIPAL CORPORATIONS - REGULATION OF TAXICAB BUSINESS - NEW YORK CITY TAXI & LIMOUSINE COMMISSION (TLC) AMENDED RULES (1) ESTABLISHING THE AMOUNT OF VEHICLE LEASE CAPS BY RAISING THE LEASE AMOUNT FOR HYBRID AND FUEL EFFICIENT VEHICLES AND LOWERING THE LEASE AMOUNT FOR NON-FUEL EFFICIENT VEHICLES AND (2) PROVIDING THAT TAXICAB LEASE AMOUNTS MUST BE CALCULATED SO THAT SALES AND RENTAL TAXES OWED BY TAXI DRIVERS ARE INCLUDED WITHIN THE AMOUNT OF THE APPLICABLE STATUTORY LEASE CAP - WHETHER THE TLC ACTED ARBITRARILY AND CAPRICIOUSLY BY FAILING TO CONSIDER INDUSTRY COSTS WHEN PROMULGATING THE AMENDMENTS - WHETHER THE TLC RULE AMENDMENTS REGARDING SALES TAXES VIOLATE THE STATE TAX LAWS; Supreme Court, New York County denied a CPLR article 78 petition seeking to annul amendments to the New York City Taxi & Limousine Commission's rules and granted respondents' motion to dismiss the petition; App. Div. affirmed.

SPCA OF UPSTATE NEW YORK, INC. v AMERICAN WORKING COLLIE ASSOCIATION (74 AD3d 1464):
3rd Dept. App. Div. order of 6/3/10; reversal; leave to appeal granted by Court of Appeals, 12/16/10; COURTS - JURISDICTION - LONG-ARM JURISDICTION - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT, "CONSISTENT WITH THIS STATE'S NARROW APPROACH TO LONG-ARM JURISDICTION IN DEFAMATION CASES," DEFENDANTS IN THIS DEFAMATION ACTION WERE NOT SUBJECT TO JURISDICTION UNDER CPLR 302(a)(1) - ALLEGEDLY DEFAMATORY WRITINGS INDIVIDUAL DEFENDANT POSTED FROM VERMONT, WHERE SHE RESIDED, ONTO WEBSITE OF DEFENDANT NOT-FOR-PROFIT CORPORATION, WHICH IS INCORPORATED IN OHIO BUT HAS MEMBERS THROUGHOUT THE UNITED STATES, INCLUDING NEW YORK; Supreme Court, Warren County denied defendants' motion for summary judgment dismissing the complaint; App. Div. reversed, granted defendants' motion and dismissed the complaint.

WALSH, MATTER OF v SCOPETTA (73 AD3d 1192):
2nd Dept. App. Div. order of 5/25/10; affirmance; leave to appeal granted by Court of Appeals, 12/14/10; CIVIL SERVICE - RETIREMENT AND PENSION BENEFITS - ACCIDENTAL DISABILITY RETIREMENT (ADR) - WHETHER A FIREFIGHTER'S INJURIES THAT RESULTED FROM AN ASSAULT BY A FELLOW FIREFIGHTER MAY BE DEEMED TO HAVE RESULTED FROM A SERVICE-RELATED ACCIDENT AS A MATTER OF LAW FOR PURPOSES OF AN AWARD OF ADR BENEFITS; Supreme Court, Kings County denied those branches of the CPLR article 78 petition that sought to annul the determination of the New York City Fire Department Article 1-B Pension Fund dated April 21, 2008, which denied petitioner/plaintiff's application for accident disability retirement benefits based on injuries sustained by him as a result of an assault against him, and to compel the New York City Fire Department Article 1-B Pension Fund to grant his application for accidental disability retirement benefits, and dismissed the hybrid CPLR article 78 proceeding in the nature of mandamus and action for declaratory relief, among other things; App. Div. affirmed.