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For February 4, 2022 through February 10, 2022 no preliminary appeal statements were filed.


For February 11, 2022 through February 17, 2022, the following preliminary appeal statements were filed:

MATTER OF CURRY-MALCOLM v NYS DIVISION OF HUMAN RIGHTS (199 AD3d 1394):
4th Dept. App. Div. order of 11/12/21; dismissal; sua sponte examination of whether any jurisdictional basis exists for the appeal; Civil Rights--State Division of Human Rights--Dismissal of complaints; New York State Division of Human Rights determination dismissed the complaints of petitioner; App. Div. confirmed the determination and dismissed the petition.

PEOPLE v SERRANO (LUIS) (200 AD3d 1340):
3rd Dept. App. Div. order of 12/16/21; affirmance; leave to appeal granted by Colangelo, J., 2/1/22; Rule 500.11 review pending; Crimes--Right to Remain Silent-- Whether defendant was denied his right to a fair trial as a result of the People eliciting testimony that defendant invoked his right to counsel and his right against self-incrimination; Crimes--Identification of Defendant--Whether People improperly elicited testimony that photograph of defendant in a photo array was a mug shot; Crimes--Lesser Included Offense--Whether the trial court properly denied request to charge assault in the third degree as a lesser included offense; County Court, Schenectady County, convicted defendant of assault in the first degree, criminal possession of a weapon in the third degree and criminal mischief in the fourth degree, and imposed sentence; App. Div. affirmed.

PEOPLE v STROUD (KYSEAN) (200 AD3d 1629):
4th Dept. App. Div. order of 12/23/21; affirmance; leave to appeal granted by Whalen, J., 1/28/22; Rule 500.11 review pending; Crimes--Unlawful Search and Seizure--Whether police were justified in stopping a car based on the odor of marihuana alone; whether the officers' act of stopping the car was based on a hunch (see People v Sobotker, 43 NY2d 559 [1978]); whether police testimony was inconsistent and incredible; whether there was adequate foundation to establish police were qualified to detect odor of marihuana; County Court, Erie County, convicted defendant upon his plea of guilty of criminal possession of a weapon in the second degree and unlawful possession of marihuana in the second degree; App. Div. affirmed and remitted for proceedings pursuant to CPL 460.50 (5).

SUN v KELLY (200 AD3d 555):
1st Dept. App. Div. order of 12/16/21; dismissal; sua sponte examination of whether any jurisdictional basis exists for the appeal; Appeal--Dismissal; Supreme Court, Bronx County, granted defendants' motion to dismiss the complaint; App. Div. dismissed the appeal.

For February 18, 2022 through February 24, 2022, the following preliminary appeal statements were filed:

MATTER OF MONGIELO v MONGIELO:
Family Court, Niagara County, order of 12/15/21; denial; sua sponte examination of whether the order appealed from finally determines the proceeding within the meaning of the Constitution and whether any basis exits for an appeal as of right; Parent, Child and Family--Support; Family Court, Niagara County, remitted respondent's objection to a Support Magistrate for a determination of whether the figures for arrears are correct, and otherwise denied respondent's objections to the order of support.

MATTER OF RIZZO v DINAPOLI (201 AD3d 1098):
App. Div. 3rd Dept. order of 1/6/22; dismissal, with two-Justice dissent; Rule 500.11 review pending; Civil Service--Retirement and Pension Benefits--Accidental Disability Retirement--Whether substantial evidence supports respondent's determination that petitioner's disability was not the result of an accident within the meaning of the Retirement and Social Security Law; heavy wind caused door to close on petitioner, resulting to injuries to her hand and shoulder; Office of the State Comptroller, New York State, denied petitioner's application for accidental disability retirement benefits; App. Div. confirmed the determination and dismissed the CPLR article 78 petition.

SHAW v CITY OF ROCHESTER (200 AD3d 1551):
App. Div. 4th Dept. order of 12/23/21; affirmance, with dissents; Torts--False arrest and Imprisonment--Whether defendants raised a triable issue of fact on the issue of probable cause to arrest plaintiff, thereby warranting denial of plaintiff's motion for partial summary judgment on false imprisonment cause of action; arresting officer, who received report of altercation, approached plaintiff, whom witness identified as being involved in altercation; after which plaintiff made physical contact with arresting officer, plaintiff arrested for obstructing governmental administration; Supreme Court, Monroe County, inter alia, upon a jury verdict dismissed plaintiff's complaint, App. Div. affirmed.

For February 25, 2022 through March 3, 2022, the following preliminary appeal statements were filed:

PEOPLE v BALDWIN (DAKOTA W.) (197 AD3d 1442):
3rd Dept. App. Div. order of 9/23/21; affirmance; leave to appeal granted by Wilson, J., 1/27/22; Crimes--Sentence--Whether Appellate Division erred in requiring a showing of extraordinary circumstances or an abuse of discretion to invoke its interest of justice jurisdiction to reduce a sentence; County Court, Chemung County, convicted defendant of attempted assault in the second degree; App. Div. affirmed.

BECK v CITY OF NIAGARA FALLS (201 AD3d 1313):
4th Dept. App. Div. order of 1/28/22; reversal, with two Justices dissenting; Rule 500.11 review pending; Judgments--Summary Judgment--Whether summary judgment was properly granted in favor of defendant Patriot Field Services, Inc., which leased part of a building abutting street near accident injuring plaintiff; plaintiff alleged injured by steel beam that fell from forklift when it hit a defect in surface of street; Supreme Court, Niagara County, denied the motion of defendant Patriot Field Services, Inc. seeking summary judgment dismissing the complaint and all cross claims against it; App. Div. reserved, granted the motion, and dismissed the complaint and all cross claims against defendant Patriot Field Services, Inc.

MATTER OF LALLO v NYC DEPT. OF EDUCATION (194 AD3d 614):
1st Dept. App. Div. order of 5/25/21; affirmance; sua sponte examination of whether a substantial constitutional question is directly involved in the order appealed; Schools--Teachers--Termination of Employment--Whether arbitrator's findings sustaining specifications against petitioner are supported by the evidence; whether penalty of termination shocks the conscience; Supreme Court, New York County, denied petitioner's article 75 petition to annual an arbitrator's decision and award, dated June 14, 2016, terminating her employment with respondent; App. Div. affirmed.

LYNCH v CITY OF NY (194 AD3d 416):
1st Dept. App. Div. order of 5/4/21; modification; leave to appeal granted by the Court of Appeals; Civil Service--Retirement and Pension Benefits--Whether defendant City of New York wrongfully denied transfers, purchase, and buy-back of credit for prior service with a public employer to tier 3 members of the New York City Police Pension Fund; Proceeding Against Body or Officer--Conversion of Declaratory Judgment Action to Article 78 Proceeding; Supreme Court, New York County, inter alia, granted defendants' motion to convert the declaratory judgment action to an article 78 proceeding, and granted in part and denied in part the motion and cross motion for summary judgment; App. Div. modified the order and judgment to grant the part of the plaintiffs' motion seeking summary judgment on their first, second, third and fourth causes of action and declaring that defendants have wrongfully denied transfers, purchase, and buy-back of credit pursuant to Retirement and Social Security Law §§ 43, 513 (b), and 645 (2) and Administrative Code of City of NY §§ 13-143 and 13-218, "so declared" that the City wrongfully denied such transfers, and otherwise affirmed.

PEOPLE v TALLUTO (DANIEL) (201 AD3d 1333):
4th Dept. App. Div. order of 1/28/22; affirmance with dissents; Crimes--Sex Offenders--Whether defendant was properly designated a sexually violent offender (see Correction Law 168-a[7][b]; defendant convicted of a felony in another jurisdiction "for which [he] is required to register as a sex offender in [that] jurisdiction "(see Correction Law 168-a[3][b]), but defendant would not qualify as a sexually violent offender had he committed same conduct in New York; County Court, Oswego County, determined that defendant is a level one risk pursuant to the Sex Offender Registration Act and designated him a sexually violent offender; App. Div. affirmed.

TOWN OF SOUTHAMPTON v DEC (194 AD3d 1310):
3rd Dept. App. Div order of 5/27/21; affirmance and modification; leave to appeal granted by the Court of Appeals; Mines and Minerals--Mined Land Reclamation Law- -Whether section 23-2703 (3) of the Mined Land Reclamation Law bars the Department of Environmental Conservation from processing the renewal and modification permits sought for a preexisting mine because the local zoning code prohibits mining in the Suffolk County District where the mine is located; Supreme Court, Albany County, denied a motion by the County of Suffolk to intervene; and thereafter among other things, dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review two determinations of respondent Department of Environmental Conservation granting certain Mined Land Reclamation permits to respondent Sand Lot Corporation; App. Div. affirmed order and modified judgment by reversing so much of the judgment as dismissed the petition, granted the petition, annulled the determinations of respondent Department of Environmental Conservation granting certain Mine Land Reclamation permits, and, as so modified, affirmed.