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For December 16, 2016 through December 22, 2016, the following preliminary appeal statements were filed:

CMSG RESTAURANT GROUP, LLC v STATE OF NEW YORK (145 AD3d 136):
1st Dept. App. Div. order of 11/3/16; modification; sua sponte examination of whether a substantial constitutional question is directly involved to support an appeal as of right; TAXATION - SALES AND USE TAXES - CHALLENGE TO "AMUSEMENT TAX" (TAX LAW § 1105[f][1]) AND "CABARET TAX" (TAX LAW § 1105[f][3]) AS UNCONSTITUTIONAL ON THEIR FACE AND AS APPLIED TO PLAINTIFF MEN'S ENTERTAINMENT CLUB; Supreme Court, New York County, granted defendants' motion to dismiss the complaint, and denied plaintiffs' motion for preliminary and permanent injunctions; App. Div. modified solely to declare Tax Law § 1105(f)(1) and (3) constitutional, and otherwise affirmed.

MATTER OF FLOYD v GLENN GARDENS ASSOCIATES, HPD (2016 NY Slip Op 86943[U]):
1st Dept. App. Div. order of 9/29/16; denial of motion; sua sponte examination whether the order 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; APPEAL - APPELLATE DIVISION - DENIAL OF MOTION FOR RECONSIDERATION; Supreme Court, New York County, denied petitioner's CPLR article 78 petition and dismissed the proceeding; App. Div. denied petitioner's motion for reconsideration of the Appellate Division's 6/16/16 order denying her motion for a stay, and denying, with leave to renew, petitioner's application for leave to prosecute the appeal as a poor person.

RAMSARAN (GANESH R.), PEOPLE v (141 AD3d 865):
3rd Dept. App. Div. order of 7/14/16; reversal; leave to appeal granted by Pigott, J., 11/28/16; Rule 500.11 review pending; CRIMES - RIGHT TO COUNSEL - WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR (1) FAILING TO OBJECT TO COMMENTS MADE BY THE PROSECUTOR DURING SUMMATION THAT MISCHARACTERIZED THE NATURE OF DNA EVIDENCE, (2) FAILING TO OBJECT TO IRRELEVANT AND PREJUDICIAL TESTIMONY, AND (3) PRESENTING A CONFUSING SUMMATION; County Court, Chenango County, convicted defendant of murder in the second degree and imposed sentence; App. Div. reversed and remitted the matter for a new trial.

For December 23, 2016 through December 29, 2016, the following preliminary appeal statements were filed:

EPAKCHI (DARIA N.), PEOPLE v (52 Misc 3d 134(A)):
App. Term, 2nd Dept., 9th and 10th Judicial Districts order of 6/23/16; reversal; leave to appeal granted by DiFiore, Ch.J., 11/30/16; CRIMES - ACCUSATORY INSTRUMENT - WHETHER A SIMPLIFIED TRAFFIC INFORMATION MAY BE RE-FILED AFTER ANOTHER SIMPLIFIED TRAFFIC INFORMATION ALLEGING THE SAME OFFENSE WAS DISMISSED FOR FAILURE TO TIMELY PROVIDE A SUPPORTING DEPOSITION - NECESSITY OF SHOWING SPECIAL CIRCUMSTANCES WARRANTING REPROSECUTION; District Court, Suffolk County, Traffic and Parking Violations Agency, denied defendant's motion to dismiss the uniform traffic ticket, and directed the parties to proceed to trial; the same court then convicted defendant after a nonjury trial, of failing to stop at a stop sign; App. Term reversed, vacated the District Court judgment, granted defendant's motion to dismiss the simplified traffic information, and remitted the fine, if paid.

KEYSPAN GAS EAST CORPORATION v MUNICH REINSURANCE AMERICAN, INC. (143 AD3d 86):
1st Dept. App. Div. order of 9/1/16; reversal; leave to appeal granted by App. Div., 12/8/16; INSURANCE - ACTION AGAINST INSURER - COVERAGE - LONG-TERM ENVIRONMENTAL PROPERTY DAMAGE CAUSED BY POLLUTION FROM MANUFACTURED GAS PLANTS - ALLOCATION OF RISK OF LOSS ATTRIBUTABLE TO A CONTINUOUS HARM OCCURRING, IN PART, DURING PERIODS WHEN LIABILITY INSURANCE WAS UNAVAILABLE IN THE MARKETPLACE - WHETHER THE POLICIES AT ISSUE CONTAIN ANTI- STACKING LANGUAGE REQUIRING AN ALL-SUMS ALLOCATION METHOD; Supreme Court, New York County, among other things, denied defendant Century Indemnity Company's motion for partial summary judgment declaring that it is not responsible for any part of the costs of cleanup for periods of time where insurance was unavailable before 1953 and after 1986; App. Div. reversed, granted defendant's motion for partial summary judgment, and declared that defendant Century Indemnity Company is not responsible for any part of the costs of cleanup for periods of time where insurance was unavailable before 1953 and after 1986.

KOLCHINS v EVOLUTION MARKETS, INC. (128 AD3d 47):
1st Dept. App. Div. order of 4/2/15; modification; leave to appeal granted by App. Div., 10/15/15; motion to dismiss appeal pending; CONTRACTS - BREACH OR PERFORMANCE OF CONTRACT - WHETHER THE PARTIES' EMAILS AND OTHER CORRESPONDENCE CONSTITUTED A BINDING OFFER AND ACCEPTANCE OF AN EXTENSION OF A 2009 EMPLOYMENT AGREEMENT - WHETHER RESPONDENT IS ENTITLED TO A "PRODUCTION BONUS" DEPENDENT ON ACTIVE EMPLOYMENT AT THE TIME OF PAYMENT; Supreme Court, New York County, insofar as appealed from, denied defendant's motion to dismiss the first cause of action for breach of contract; App. Div. modified to dismiss so much of the first cause of action as seeks to recover a Special Non-Compete Payment under plaintiff's 2009 Employment Agreement, and otherwise affirmed.

ORTIZ, MATTER v ANNUCCI (143 AD3d 1209):
3rd Dept. App. Div. order of 10/27/16; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; PRISONS AND PRISONERS - CALCULATION OF SENTENCE - JAIL TIME CREDIT - WHETHER PRISONER WAS ENTITLED TO JAIL TIME CREDIT ON SENTENCE IMPOSED FOR ATTEMPTED MURDER CONVICTION FOR THE TIME PRISONER SPENT IN CUSTODY ON PRIOR ATTEMPTED ROBBERY CONVICTION - DOUBLE JEOPARDY - WHETHER REMOVAL OF JAIL TIME CREDIT FOR TIME THAT PRISONER SERVED ON PRIOR ATTEMPTED ROBBERY SENTENCE CONSTITUTED MULTIPLE PUNISHMENTS FOR PRISONER'S ATTEMPTED MURDER CONVICTION; Supreme Court, Albany County, dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to compel the Department of Corrections and Community Supervision to credit petitioner for jail time served on a previously imposed sentence; App. Div. affirmed.

RODRIGUEZ v CITY OF NEW YORK (142 AD3d 778):
1st Dept. App. Div. order of 9/1/16; affirmance; leave to appeal granted by App. Div., 12/15/16; NEGLIGENCE - COMPARATIVE NEGLIGENCE - WHETHER PLAINTIFF WAS REQUIRED TO ESTABLISH THE ABSENCE OF COMPARATIVE NEGLIGENCE IN ORDER TO OBTAIN SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY; Supreme Court, New York County, insofar as appealed from, denied defendant's motion to strike the claim for lost earnings or, in the alternative, to compel plaintiff to provide copies of his tax returns and/or authorizations for such returns; App. Div. affirmed.

RICARDO T., JR., MATTER OF (RICARDO T., SR.) (2016 NY Slip Op 66638[U]):
2nd Dept. App. Div. order of 3/9/16; denial of motion; sua sponte examination whether the order finally determines the proceeding within the meaning of the Constitution; APPEAL - APPELLATE DIVISION - DENIAL OF MOTION TO VACATE DISMISSAL ORDER; App. Div. denied appellant's motion, in effect, to vacate a 7/30/15 Appellate Division order dismissing an appeal from a 3/6/14 Family Court, Orange County order as untimely taken, and for leave to file a late notice of appeal.

TIRONE v BUCZEK (145 AD3d 1658):
4th Dept. App. Div. order of 9/30/16; affirmance; sua sponte examination whether the 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; MORTGAGES - FORECLOSURE - CHALLENGE TO STANDING OF PLAINTIFF TRUSTEES TO BRING FORECLOSURE ACTION - LOST NOTE; Supreme Court, Erie County, among other things, granted plaintiffs a judgment of foreclosure and sale; App. Div. affirmed.

VASQUEZ v NATIONAL SECURITIES CORPORATION (139 AD3d 503):
1st Dept. App. Div. order of 5/12/16; affirmance; leave to appeal granted by App. Div., 12/13/16; ACTIONS - CLASS ACTIONS - WHETHER THE NOTICE PROVISION OF CPLR 908 APPLIES TO AN ACTION PLEADED AS A CLASS ACTION BUT DISMISSED PRIOR TO CLASS CERTIFICATION - NOTICE TO PUTATIVE CLASS OF IMPENDING DISMISSAL; Supreme Court, New York County, granted plaintiff's motion to give notice of the impending dismissal of the complaint to putative class members pursuant to CPLR 908; App. Div. affirmed.

For December 30, 2016 through January 5, 2017, the following preliminary appeal statements were filed:

ARISTY-FARER v STATE OF NEW YORK (143 AD3d 101):
1st Dept. App. Div. order of 9/8/16; modification; leave to appeal granted by App. Div. 12/15/16; SCHOOLS - STATE AID TO SCHOOL DISTRICTS - WHETHER PLAINTIFFS' COMPLAINTS ADEQUATELY STATED A CLAIM UNDER THE EDUCATION ARTICLE OF THE NEW YORK CONSTITUTION (ART XI, § 1) BASED ON THEIR ALLEGATIONS THAT THE UNDERFUNDING OF SCHOOL DISTRICTS THROUGHOUT THE STATE DEPRIVES STUDENTS OF THE OPPORTUNITY FOR A SOUND BASIC EDUCATION - WHETHER PLAINTIFFS' COMPLAINTS BASED ON THE EDUCATION ARTICLE SHOULD BE DISMISSED INSOFAR AS THEY RELATE TO DISTRICTS AS TO WHICH THERE WERE NO PARTICULARIZED PLEADINGS; PARTIES - STANDING - WHETHER PLAINTIFF EDUCATIONAL ADVOCACY GROUP HAS STANDING TO ASSERT EDUCATION ARTICLE CLAIMS AS TO SCHOOL DISTRICTS OTHER THAN THE SEVEN SCHOOL DISTRICTS IN WHICH THE INDIVIDUALLY NAMED PLAINTIFFS RESIDE; Supreme Court, New York County, denied defendants' motion to dismiss the complaint in the Aristy-Farer action (4/9/14 order); denied defendant's motion to dismiss the complaint in the New Yorkers for Students' Educational Rights (NYSER) action (11/18/14 order); and granted the City of Yonkers' motion to intervene in the NYSER action as a party plaintiff (11/18/14 order); App. Div. modified the order entered 4/9/14, by dismissing the second and third causes of action, and otherwise affirmed; modified the order entered 11/18/14 in the Aristy-Farer action, by dismissing the third cause of action except insofar as it challenges the adequacy of defendant State's education funding accountability mechanisms, and otherwise affirmed; and reversed the order entered 11/18/14 in the NYSER action and denied the City's motion to intervene.

CASTRO, MATTER OF v SCHRIRO (140 AD3d 644):
1st Dept. App. Div. order of 6/28/16; reversal, leave to appeal granted by App. Div., 11/22/16; Rule 500.11 review pending; CIVIL SERVICE - TERMINATION OF EMPLOYMENT - PLEADING - PETITION - WHETHER PROBATIONARY PUBLIC EMPLOYEE'S PLEADINGS SUFFICIENTLY RAISED AN ISSUE AS TO BAD FAITH OR ANY OTHER IMPROPER REASON FOR HIS TERMINATION, THEREBY WARRANTING DENIAL OF THE PRE-ANSWER MOTION TO DISMISS; Supreme Court, New York County, denied the petition seeking to annul respondents' determination terminating petitioner's employment as a probationary correctional officer, and granted respondents' cross motion to dismiss the proceeding; App. Div. reversed, reinstated the petition and remanded the matter to Supreme Court for further proceedings.

MORGAN STANLEY MORTGAGE LOAN TRUST 2006-13ARX v MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC (143 AD3d 1):
1st Dept. App. Div. order of 8/11/16; reversal; leave to appeal granted by App. Div., 12/13/16; Rule 500.11 review pending; CONTRACTS - BREACH OR PERFORMANCE OF CONTRACT - RESIDENTIAL MORTGAGE-BACKED SECURITIES - WHETHER DEFENDANT'S ALLEGED BREACH OF A CONTRACTUAL OBLIGATION TO NOTIFY THE TRUSTEE OF DEFECTIVE LOANS GIVES RISE TO DAMAGES NOT GOVERNED BY THE "SOLE REMEDIES" RESTRICTIONS IN THE PARTIES' AGREEMENTS - WHETHER ALLEGATIONS OF GROSS NEGLIGENCE AFFECT THE ENFORCEABILITY OF CONTRACT PROVISIONS LIMITING A PARTY'S LIABILITY; Supreme Court, New York County, among other things, granted defendant's motion to dismiss the first and second causes of action to the extent they seek damages inconsistent with the terms of the repurchase protocols and the fifth cause of action; App. Div. reversed and denied defendant's motion.

PEREZ (RAFAEL), PEOPLE v (142 AD3d 410):
1st Dept. App. Div. order of 8/4/16; affirmance of one judgment and modification of another; leave to appeal granted by Gische, J., 11/29/16; Rule 500.11 review pending; CRIMES - UNLAWFUL SEARCH AND SEIZURE - WHETHER THE POLICE, WHO WERE INVESTIGATING A PATTERN OF ROBBERIES AT A NEW YORK HOUSING AUTHORITY BUILDING, WERE JUSTIFIED IN MAKING AN INVESTIGATORY STOP OF DEFENDANT AND IN SUBSEQUENTLY SEARCHING DEFENDANT FOR A WEAPON; IDENTIFICATION OF DEFENDANT - WHETHER THE SHOW UP IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE; CONFESSION - WHETHER DEFENDANT'S STATEMENTS TO POLICE WERE SPONTANEOUS; SENTENCE - WHETHER VACATUR OF DEFENDANT'S SENTENCE ON A CRIME FOR WHICH HE WAS SENTENCED AS A SECOND FELONY OFFENDER WAS WARRANTED WHERE THE SENTENCE ON THE PREDICATE CRIME WAS VACATED AND THE MATTER REMANDED FOR A YOUTHFUL OFFENDER DETERMINATION; Supreme Court, Bronx County, convicted defendant, upon a plea of guilty, of assault in the second degree, and sentenced him to a term of six months, concurrent with five years' probation (3/7/05 judgment); and thereafter convicted defendant, after a jury trial, of robbery in the first degree and violation of probation, and sentenced him, on the robbery conviction, as a second felony offender, to a term of 15 years, and on the violation of probation, to a concurrent term of five years (11/29/06 judgment); App. Div. affirmed the 11/29/06 judgment and modified the 3/7/05 judgment, by vacating the sentence and remanding for a youthful offender determination, and, as so modified, affirmed.

WEISSBROD, MATTER OF v DoPICO (2011 NY Slip Op 33058[U]):
Supreme Court, New York County, judgment of 11/22/11; dismissal of claims; sua sponte examination whether the order appealed from finally determines the proceeding within the meaning of the Constitution and whether an appeal lies as of right under CPLR 5601(b)(1) or 5601(b)(2); PROCEEDING AGAINST BODY OR OFFICER - CPLR ARTICLE 78 PROCEEDING TO CHALLENGE CONSTITUTIONALITY OF THE JUDICIARY LAW - CLAIMED DUE PROCESS AND EQUAL PROTECTION VIOLATIONS; Supreme Court transferred three of the claims asserted in the petition to the App. Div. and dismissed the remainder of the claims.