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For February 19, 2010 through February 25, 2010, the following preliminary appeal statements were filed:

BOVIS LEND LEASE LMB, INC. v GARITO CONTRACTING, INC. (65 AD3d 872):
1st Dept. App. Div. order of 9/8/09; modification with dissents; leave to appeal granted by App. Div., 2/9/10; Rule 500.11 review pending; INSURANCE - DUTY TO DEFEND AND INDEMNIFY - APPELLATE DIVISION DETERMINED THAT PLAINTIFF GENERAL CONTRACTOR, AN ADDITIONAL INSURED UNDER A POLICY ISSUED TO DEFENDANT SUBCONTRACTOR, IS NOT ENTITLED TO INDEMNIFICATION BASED UPON THE JURY VERDICT IN THE UNDERLYING PERSONAL INJURY ACTION IN WHICH THE JURY CONCLUDED THAT THE SUBCONTRACTOR'S NEGLIGENCE WAS NOT A SUBSTANTIAL FACTOR IN CAUSING THE PERSONAL INJURY PLAINTIFF'S ACCIDENT - RENEWAL - WHETHER APPELLATE DIVISION ERRED IN NOT FOLLOWING ITS PRIOR DECISION IN THIS CASE - APPLICATION OF WORTH CONSTRUCTION CO. v ADMIRAL INS. CO. (10 NY3d 411); Supreme Court, New York County granted motions of defendant insured Garito Contracting, Inc. and defendant insurer Twin City Fire Insurance Co. to renew their prior motions for dismissal of the complaint and summary judgment, respectively, and, upon renewal, adhered to the prior order declaring that plaintiff general contractor Bovis Lend Lease LMB, Inc. is an additional insured entitled to coverage; App. Div. modified to the extent of declaring that Bovis Lend Lease LMB is not entitled to indemnification.

CARGILL FINANCIAL SERVICES INTERNATIONAL, INC. v BANK FINANCE AND CREDIT, LIMITED (70 AD3d 456):
1st Dept. App. Div. order of 2/11/10; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support the appeal taken as of right and whether the App. Div. order finally determines the action; ATTACHMENT - BANK ACCOUNTS - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT IT WAS WITHIN THE TRIAL COURT'S DISCRETION TO DENY PLAINTIFF'S APPLICATION TO ATTACH ALL FUNDS IN CORRESPONDENT BANK ACCOUNTS BECAUSE THE ATTACHMENT OF ALL FUNDS "WOULD HAVE INTERFERED WITH INNOCENT THIRD PARTIES' ACCESS TO THEIR MONEY"; Supreme Court, New York County denied plaintiff's application for an order of attachment of all funds contained in defendant's correspondent accounts located in New York and vacated a temporary restraining order previously granted by the court; App. Div. affirmed.

KAUFMAN v QUICKWAY, INC. (64 AD3d 978):
3rd Dept. App. Div. order of 7/9/09; reversal; leave to appeal granted by Court of Appeals, 2/18/10; Rule 500.11 review pending; DISMISSAL AND NONSUIT - DISMISSAL OF COMPLAINT - SUMMARY JUDGMENT - WHETHER WITNESS'S HEARSAY STATEMENT IN AFFIDAVIT CREATED AN ISSUE OF FACT SUFFICIENT TO DEFEAT A MOTION FOR SUMMARY JUDGMENT; DRAM SHOP ACT ACTION - GENERAL OBLIGATIONS LAW § 11-101(1) - ALCOHOLIC BEVERAGE CONTROL LAW § 65 - ALLEGEDLY SELLING ALCOHOLIC BEVERAGE TO VISIBLY INTOXICATED PURCHASER; Supreme Court, Delaware County denied defendants' motion for summary judgment dismissing the complaint; App. Div. reversed and granted defendants' motion.

McALPIN (CHRIS), PEOPLE v (68 AD3d 431):
1st Dept. App. Div. order of 12/3/09; reversal with dissents; leave to appeal granted by McGuire, J., 2/11/10; Rule 500.11 review pending; CRIMES - PLEA OF GUILTY - VACATUR - POST-RELEASE SUPERVISION (PRS) - WHETHER COURT WAS REQUIRED TO ADVISE DEFENDANT OF PRS DURING PLEA ALLOCUTION WHERE DEFENDANT WAS TOLD THAT HE WOULD RECEIVE A "DEFERRED SENTENCE" WITH A POSSIBILITY OF PROBATION AND YOUTHFUL OFFENDER TREATMENT IF HE ENROLLED IN AND SUCCESSFULLY COMPLETED A CERTAIN PROGRAM OR, IF HE FAILED TO DO SO OR WAS ARRESTED FOR ANOTHER CRIME IN THE INTERIM, THAT HE WOULD BE SENTENCED TO A MINIMUM OF THREE YEARS AND A MAXIMUM OF 15 YEARS IN PRISON - COLLATERAL OR DIRECT CONSEQUENCES OF PLEA; PRESERVATION - WAIVER - SUFFICIENCY OF RECORD FOR APPELLATE REVIEW; Supreme Court, New York County convicted defendant, upon his guilty plea, of robbery in the second degree, and sentenced him to a term of 3 1/2 years followed by five years' post-release supervision; App. Div. reversed, vacated the plea, reinstated the indictment and remitted for further proceedings.

MEEGAN, JR., MATTER OF v BROWN (63 AD3d 1673):
4th Dept. App. Div. order of 6/12/09; affirmance; leave to appeal granted by Court of Appeals, 2/16/10; CIVIL SERVICE - COMPENSATION AND BENEFITS - WHETHER, UNDER PUBLIC AUTHORITIES LAW § 3858(2)(c)(i) AND (iii), PROMOTIONAL SALARY STEP INCREASES WERE SUSPENDED AND DID NOT ACCRUE DURING A WAGE FREEZE PERIOD SO THAT, UPON THE LIFTING OF THE WAGE FREEZE, UNION EMPLOYEES WERE ENTITLED ONLY TO ONE SALARY STEP INCREASE RATHER THAN FOUR SALARY STEP INCREASES; Supreme Court, Erie County, among other things, granted in pertinent part the amended petitions in proceedings No. 1 and 2 and granted plaintiffs' motion for summary judgment in action No. 1; App. Div. affirmed.

WASHINGTON, PEOPLE ex rel., v NAPOLI (69 AD3d 1066):
3rd Dept. App. Div. order of 1/14/10; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; HABEAS CORPUS - SENTENCE - CONSECUTIVE SENTENCES - WHETHER PETITIONER'S SENTENCES WERE TO RUN CONCURRENTLY OR CONSECUTIVELY WITH THE UNDISCHARGED PORTIONS OF HIS PREVIOUS SENTENCES; CHALLENGE TO STATUS AS SECOND FELONY OFFENDER; Supreme Court, Chemung County denied petitioner's application for a writ of habeas corpus, without a hearing; App. Div. affirmed.



For February 26, 2010 through March 4, 2010, the following preliminary appeal statements were filed:

ACEVEDO v THE PIANO BUILDING LLC (70 AD3d 124):
1st Dept. App. Div. order of 12/10/09; affirmance; leave to appeal granted by App. Div., 2/9/10; LANDLORD AND TENANT - RENT REGULATION - WHETHER AN APARTMENT COVERED BY THE LOFT LAW MAY REVERT TO RENT STABILIZATION AFTER THE LANDLORD PURCHASED THE PRIOR OCCUPANT'S RIGHTS UNDER MULTIPLE DWELLING LAW § 286(12) IN A PRE- 1974 BUILDING CONTAINING SIX OR MORE RESIDENTIAL UNITS - WOLINSKY v KEE YIP REALTY CORP. (2 NY3d 487 [2004]); Supreme Court, New York County, among other things, granted plaintiff Rosenthal's motion for summary judgment and declared his unit subject to rent stabilization pursuant to the Emergency Tenant Protection Act of 1974; App. Div. affirmed.

BROWN, MATTER OF v FISCHER (2009 NY Slip Op 77094[U]):
3rd Dept. App. Div. order of 6/26/09; grant of motion to dismiss appeal; sua sponte examination whether there is any jurisdictional basis for an appeal as of right; APPEALS - APPELLATE DIVISION - DISMISSAL OF APPEAL; PROCEEDING AGAINST BODY OR OFFICER - CPLR ARTICLE 78 PROCEEDING TO REVIEW DETERMINATION BY PRISON OFFICIALS; Supreme Court, Albany County granted respondents' motion to dismiss the CPLR article 78 petition to challenge a determination purportedly made by respondents to house petitioner in the prison infirmary and keep him out of the general prison population; App. Div. granted respondents' motion to dismiss the appeal.

MOORE v CITY OF NEW YORK (68 AD3d 946):
2nd Dept. App. Div. order of 12/15/09; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; MUNICIPAL CORPORATIONS - TORT LIABILITY - POLICE - ACTION FOR DAMAGES FOR CIVIL RIGHTS VIOLATIONS PURSUANT TO 42 USC § 1983 - POLICE DEPARTMENT'S FAILURE TO HAVE POLICY LIMITING OVERTIME; Supreme Court, Kings County issued judgment in favor of defendants and against plaintiff, in effect, dismissing the amended complaint in an action to recover damages for civil rights violations pursuant to 42 USC § 1983; App. Div. affirmed.

RIVERA v KLEINMAN (67 AD3d 482):
1st Dept. App. Div. order of 11/10/09; affirmance; leave to appeal granted by Court of Appeals, 2/23/10; PHYSICIANS AND SURGEONS - MEDICAL MALPRACTICE - FAILURE TO FOLLOW DOCTOR'S ADVICE AS SUPERSEDING CAUSE OF INJURY; SUMMARY JUDGMENT; Supreme Court, Bronx County granted defendants' motions for summary judgment dismissing the complaint; App. Div. affirmed.

SINGH v THE CITY OF NEW YORK DIVISION OF HOUSING PRESERVATION AND DEVELOPMENT (60 AD3d 503):
1st Dept. App. Div. order of 3/17/09; affirmance; sua sponte examination whether the App. Div. order finally determines the action and whether any jurisdictional basis exists to support an appeal as of right; JUDGMENTS - COLLATERAL ESTOPPEL; DENIAL OF MOTION FOR RENEWAL; Supreme Court, Bronx County denied plaintiff's motion for renewal of a prior order that had denied his motion for partial summary judgment for $500,000 in damages and granted defendant's cross motion to dismiss the complaint; App. Div. affirmed.

BLEECKER STREET TENANTS CORP. v BLEEKER JONES LLC (65 AD3d 240):
1st Dept. App. Div. order of 6/23/09; reversal; leave to appeal granted by Court of Appeals, 2/23/10; LANDLORD AND TENANT - CHALLENGE TO RENEWAL OPTION CLAUSE IN LEASE AGREEMENT - WHETHER THE EXCEPTION TO THE PROHIBITION AGAINST REMOTE VESTING OF OPTIONS APPURTENANT TO A LEASE IS APPLICABLE TO THE SUBJECT RENEWAL OPTION CLAUSE; SUMMARY JUDGMENT; Supreme Court, New York County granted motion by the Bleeker Jones defendants for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment; App. Div. reversed, denied defendants' motion for summary judgment dismissing the complaint, and granted plaintiff's cross motion for summary judgment to the extent of declaring that the renewal options clause of the lease is void under EPTL 9-1.1(b) and that Bleeker Jones LLC and Bleecker Jones Leasing and their subtenants and/or assignees are month-to-month tenants.

CORREA (EDGAR), PEOPLE v (70 AD3d 532):
1st Dept. App. Div. order of 2/23/10; reversal; leave to appeal granted by Acosta, J., 2/24/10; COURTS - CLAIMED IMPROPRIETY IN TRANSFER OF CASE FROM CRIMINAL COURT TO SUPREME COURT; SUBJECT MATTER JURISDICTION OF TRIAL COURT; Supreme Court, Bronx County convicted defendant, after a nonjury trial, of harassment in the second degree, and sentenced him to a term of 15 days; App. Div. reversed and dismissed the misdemeanor information.

Da CRUZ v TOWMASTERS OF NEW JERSEY, INC. (22 AD3d 629):
Supreme Court stipulation of 10/28/09, bringing up for review 2nd Dept. App. Div. order of 10/17/05; reversal; leave to appeal granted by Court of Appeals, 2/23/10; LIMITATIONS OF ACTIONS - WHETHER ONE PARTY'S SATISFACTION OF UNCONSOLIDATED LAWS § 7107'S CONDITION PRECEDENT TO SUIT (REQUIRING ACTIONS AGAINST THE PORT AUTHORITY TO BE COMMENCED WITHIN ONE YEAR OF ACCRUAL) SATISFIES THE CONDITION WITH RESPECT TO ALL PARTIES; AMENDED COMPLAINT - RELATION BACK TO THIRD-PARTY COMPLAINT; DISMISSAL AND NONSUIT; Supreme Court, Kings County denied the motion of defendant Port Authority of New York and New Jersey to dismiss the complaint as against it; App. Div. reversed, granted the motion of defendant Port Authority of New York and New Jersey to dismiss the complaint, dismissed the complaint insofar as asserted against that defendant and severed the action against the remaining defendants; the parties stipulated to discontinue the action against remaining defendants.

FARKAS (ISIDORE), PEOPLE v (65 AD3d 700):
2nd Dept. App. Div. order of 8/25/09; reversal; leave to appeal granted by Smith, J., 2/23/10; CRIMES - RIGHT TO SPEEDY TRIAL - THEFT-RELATED CHARGES CONTAINED IN INDICTMENT FILED OVER ONE YEAR AFTER ISSUANCE TO DEFENDANT OF DESK APPEARANCE TICKET AND LATER FILING OF MISDEMEANOR COMPLAINT THAT CHARGED ONLY ASSAULT-RELATED CHARGES - WHETHER THEFT-RELATED CHARGES ARE BARRED BY CPL 30.30 BECAUSE OF THE LAPSE OF TIME BETWEEN THE ISSUANCE OF THE DESK APPEARANCE TICKET AND THE INDICTMENT; Supreme Court, Kings County granted that branch of defendant's motion that was to dismiss counts one, two, three, four, seven and eight of the indictment pursuant to CPL 30.30; App. Div. reversed, denied defendant's motion to dismiss counts one, two, three, four, seven and eight of the indictment; reinstated those counts of the indictment; and remitted the matter for further proceedings.

FOOTE v ALBANY MEDICAL CENTER HOSPITAL (71 AD3d 25):
3rd Dept. App. Div. order of 12/3/09; reversal; leave to appeal granted by App. Div., 2/24/10; DAMAGES - "WRONGFUL BIRTH" MEDICAL MALPRACTICE ACTION - WHETHER TRIABLE ISSUES OF MATERIAL FACT PRECLUDED THE GRANT OF SUMMARY JUDGMENT TO DEFENDANTS WHERE DEFENDANTS ARGUED THAT PLAINTIFFS FAILED TO ESTABLISH A LEGALLY COGNIZABLE INJURY BECAUSE ALL MEDICAL AND EDUCATIONAL SERVICES NEEDED BY THEIR SON ARE BEING PROVIDED TO THEM UNDER GOVERNMENT PROGRAMS; Supreme Court, Albany County granted defendants' motion for summary judgment dismissing the complaint; App. Div. reversed and remitted to Supreme Court for further proceedings not inconsistent with the court's decision.

HASSELL (WILLIAM), PEOPLE v (66 AD3d 575):
1st Dept. App. Div. order of 10/22/09; affirmance; leave to appeal granted by Read, J., 3/4/10; Rule 500.11 review pending; CRIMES - SENTENCE - RESENTENCE - ADDITION OF POST-RELEASE SUPERVISION TO SENTENCE AFTER DEFENDANT'S RELEASE FROM PRISON; Supreme Court, New York County resentenced defendant to a term of 3 1/2 years with 5 years' post-release supervision; App. Div. affirmed.

KELLY (ROBERT), PEOPLE v (68 AD3d 895):
2nd Dept. App. Div. order of 12/8/09; affirmance; leave to appeal granted by Ciparick, J., 3/2/10; JURY - DELIBERATIONS - AT TRIAL, COURT OFFICERS TEMPORARILY REMOVED ONE JUROR FROM JURY ROOM WITHOUT DIRECTING THE REMAINING JURORS TO REFRAIN FROM DELIBERATING UNTIL ALL JURORS WERE TOGETHER AGAIN; ALLEGED MODE OF PROCEEDINGS ERROR; Supreme Court, Kings County convicted defendant, after a jury trial, of robbery in the first degree and burglary in the first degree, and imposed sentence; App. Div. affirmed.

MOORE (ISHAM), PEOPLE v (66 AD3d 707):
2nd Dept. App. Div. order of 10/6/09; affirmance; leave to appeal granted by Belen, J., 2/22/10; Rule 500.11 review pending; CRIMES - RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - FAILURE TO REQUEST JUSTIFICATION CHARGE; LESSER INCLUDED OFFENSE - RECKLESS ASSAULT IN THE SECOND DEGREE; Supreme Court, Kings County convicted defendant, upon a jury verdict, of assault in the second degree, and imposed sentence; App. Div. affirmed.

SMITH (REMY), PEOPLE v (61 AD3d 579):
1st Dept. App. Div. order of 4/28/09; affirmance; leave to appeal granted by Jones, J., 3/2/10; CRIMES - JURORS - JURY INSTRUCTION - WHETHER THE TRIAL COURT ERRED IN INFORMING THE JURY "IF YOU FIND [THE VICTIM] WAS TRUTHFUL AND ACCURATE IN HER TESTIMONY TO YOU, HER TESTIMONY WITHOUT ANY OTHER EYEWITNESS TO WHAT HAPPENED INSIDE THE CAR, UNDER THE LAW SATISFIES THE PROOF BEYOND A REASONABLE DOUBT"; PRECLUSION OF CERTAIN ARGUMENT BY DEFENDANT'S COUNSEL IN SUMMATION; Supreme Court, New York County convicted defendant, after a jury trial, of two counts of assault in the first degree, attempted coercion in the first degree and criminal possession of a weapon in the second degree, and sentenced her to an aggregate term of eight years; App. Div. affirmed.

THOMAS (CLYDE, JR.), PEOPLE v (66 AD3d 1244):
3rd Dept. App. Div. order of 10/29/09; affirmance; leave to appeal granted by Read, J., 3/4/10; Rule 500.11 review pending; CRIMES - SENTENCE - RESENTENCE - ADDITION OF POST-RELEASE SUPERVISION TO SENTENCE AFTER DEFENDANT'S RELEASE FROM PRISON; St. Lawrence County Court resentenced defendant to a term of 6 1/2 years with 5 years' post-release supervision; App. Div. affirmed.

TISLON, PEOPLE ex rel. v ROCK:
Supreme Court, Washington County order of 2/3/10; dismissal of petition; sua sponte examination whether basis exists for an appeal as of right pursuant to CPLR 5601(b)(2); HABEAS CORPUS - AVAILABILITY OF RELIEF; Supreme Court dismissed relator's habeas corpus petition.