Return to New Filings Page


For February 27, 2015 through March 5, 2015, the following preliminary appeal statements were filed:

COLUMBIA COUNTY SUPPORT COLLECTION UNIT, MATTER OF v RISLEY (122 AD3d 1097):
3rd Dept. App. Div. order of 11/20/14; affirmance; leave to appeal granted by Court of Appeals, 2/17/15; PARENT, CHILD AND FAMILY - SUPPORT - WILLFUL VIOLATION OF ORDERS OF SUPPORT - REVOCATION OF SUSPENDED SENTENCES OF INCARCERATION AND IMPOSITION OF CONSECUTIVE TERMS OF INCARCERATION - WHETHER FAMILY COURT ACT § 454(3)(a) PERMITS CONSECUTIVE COMMITMENTS FOR VIOLATIONS OF PRIOR CHILD SUPPORT ORDERS; Family Court, Ulster County, granted applications by petitioner County Support Collection Unit on behalf of mother, in three proceedings pursuant to Family Court Act article 4, to hold respondent father in willful violation of a prior order of support, and that committed respondent to three consecutive six month terms of imprisonment; App. Div. affirmed.

GLICK, MATTER OF v HARVEY (121 AD3d 498):
1st Dept. App. Div. order of 10/14/14; modification; leave to appeal granted by Court of Appeals, 2/24/15; MUNICIPAL CORPORATIONS - PUBLIC TRUST DOCTRINE - IMPLIED DEDICATION OF LAND FOR PUBLIC USE - USE OF PARTS OF PARCELS FOR PARK-LIKE PURPOSES - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT PETITIONERS FAILED TO MEET THEIR BURDEN OF SHOWING THAT MUNICIPALITY'S ACTS AND DECLARATIONS MANIFESTED A PRESENT, FIXED AND UNEQUIVOCAL INTENT TO DEDICATE PARCELS AT ISSUE AS PUBLIC PARKLAND; Supreme Court, New York County, granted the amended petition's first cause of action to the extent of declaring that the City respondents had alienated public parkland without approval by the New York State Legislature in violation of the Public Trust Doctrine and enjoining respondent New York University from beginning any construction, in connection with the expansion project at issue, that will result in any alienation of the three parcels found by the court to be public parkland, unless and until the State Legislature authorizes the alienation of any parkland to be impacted by the project; App. Div. modified to grant the cross motions to dismiss the first cause of action, vacate the declaratory and injunctive relief, deny the petition, and dismiss the CPLR article 78 proceeding, otherwise affirmed, and directed the clerk to enter judgment accordingly.

FRIENDS OF THAYER LAKE LLC v BROWN (126 AD3d 22):
3rd Dept. App. Div. order of 1/15/15; affirmance with two-Justice dissent; NAVIGABLE WATERS - PUBLIC RIGHT OF USE - NAVIGABILITY - CAPACITY FOR TRANSPORT - SUMMARY JUDGMENT - WHETHER THE APPELLATE DIVISION CORRECTLY HELD THAT THE MUD POND WATERWAY IS NAVIGABLE-IN-FACT; Supreme Court, Hamilton County, among other things, denied plaintiffs' cross motion for summary judgment, dismissed plaintiffs' first and second causes of action, denied plaintiffs' third cause of action for a declaratory judgment, granted the motions by the State and Brown defendants for a declaration that the Mud Pond Waterway is navigable-in-fact, declared the Mud Pond Waterway to be navigable- in-fact, granted the State's motion for summary judgment seeking a declaration that plaintiffs' interference with the right of public navigation constitutes a public nuisance, declared that plaintiffs' interference with the right of public navigation constitutes a public nuisance, and enjoined plaintiffs from directly or indirectly interfering in any way with the right of public navigation on the Mud Pond Waterway; App. Div. affirmed.

SINCERBEAUX (DENNIS J.), PEOPLE v (121 AD3d 1577):
4th Dept. App. Div. order of 10/3/14; affirmance; leave to appeal granted by Court of Appeals, 2/17/15; CRIMES - SEX OFFENDERS - SEX OFFENDER REGISTRATION ACT (SORA) - WHETHER POINTS WERE IMPROPERLY ASSESSED UNDER RISK FACTOR 9 BECAUSE DEFENDANT'S CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD WAS NOT SEXUAL IN NATURE, AND WHETHER THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE IMPOSITION OF POINTS UNDER RISK FACTORS 1 AND 5; County Court, Wayne County, determined that defendant is a level three risk pursuant to SORA; App. Div. affirmed.

For March 6, 2015 through March 12, 2015, the following preliminary appeal statements were filed:

AOKI, MATTER OF v AOKI (117 AD3d 499):
1st Dept. App. Div. order of 5/13/14; reversal; leave to appeal granted by Court of Appeals, 2/24/15; POWERS - POWER OF APPOINTMENT - VALIDITY OF IRREVOCABLE PARTIAL RELEASE - CONSTRUCTIVE FRAUD - WHETHER THE APPELLATE DIVISION ERRED IN DETERMINING THAT (1) THE BURDEN- SHIFTING FRAMEWORK FOR CONSTRUCTIVE FRAUD BY A FIDUCIARY APPLIES ONLY WHERE THE FIDUCIARY WAS A PARTY TO OR HAD AN INTEREST IN THE SUBJECT TRANSACTION AND (2) THE CONSTRUCTIVE FRAUD DOCTRINE DID NOT APPLY BECAUSE DECEDENT'S ATTORNEYS WERE NOT PARTIES TO NOR HAD AN INTEREST IN THE RELEASES AT ISSUE, WHERE THE ATTORNEYS ALLEGEDLY BENEFITTED INDIRECTLY FROM THE SIGNING OF THE RELEASES; Surrogates's Court, New York County, denied the motion of respondents Devon and Steven Aoki for summary judgment declaring valid two partial releases of a power of appointment executed by decedent Rocky Aoki; thereafter, the same court, after a non-jury trial, invalidated the two partial releases based upon the alleged constructive fraud of Rocky Aoki's attorneys; App. Div. reversed, vacated the decree, granted the motion by respondents Devon and Steven Aoki for summary judgment declaring valid the two partial releases of the power of appointment, and declared that the releases are valid.

AMBAC ASSURANCE CORP. v COUNTRYWIDE HOME LOANS, INC. (124 AD3d 129):
1st Dept. App. Div. order of 12/4/14; reversal; leave to appeal granted by App. Div., 3/3/15; DISCLOSURE - MATERIAL EXEMPT FROM DISCLOSURE - COMMUNICATIONS SUBJECT TO ATTORNEY-CLIENT PRIVILEGE - WAIVER OF PRIVILEGE AS TO COMMUNICATIONS MADE BETWEEN ATTORNEY AND CLIENT IN KNOWN PRESENCE OF THIRD PARTY - COMMON-INTEREST EXCEPTION - WHETHER THE APPELLATE DIVISION CORRECTLY HELD THAT THE COMMON-INTEREST EXCEPTION APPLIES EVEN WHERE THE PARTIES' COMMON LEGAL INTEREST DOES NOT INVOLVE PENDING OR REASONABLY ANTICIPATED LITIGATION - APPLICATION TO COMMUNICATIONS RELATING TO PENDING MERGER; Supreme Court, New York County, denied the motion by defendant Bank of America Corp. (BAC) to vacate the order of a Special Referee, holding that documents relating to a pending merger between BAC and defendant Countrywide Financial Corp. are not protected from disclosure by the common-interest doctrine; App. Div. reversed, granted the motion and remanded the matter for further proceedings.

MATTER OF ANONYMOUS, FOR ADMISSION AS AN ATTORNEY AND COUNSELOR-AT-LAW (2014 NY Slip Op 64175[U]):
1st Dept. App. Div. order of 2/18/14; denial of renewed application for admission; sua sponte examination whether the two-Justice dissent at the App. Div. is on a question of law; ATTORNEY AND CLIENT - ADMISSION TO PRACTICE - CONVICTED FELON - WHETHER THE APPELLATE DIVISION ERRED IN DENYING PETITIONER'S THIRD APPLICATION FOR ADMISSION TO THE BAR; App. Div. denied petitioner's renewed application for admission to the bar of the State of New York.

ARAGON (ANTONIO), PEOPLE v (44 Misc 3d 140(A)):
1st Dept. App. Term order of 7/29/14; affirmance; leave to appeal granted by Read, J., 2/24/15; CRIMES - ACCUSATORY INSTRUMENT - FACIAL SUFFICIENCY - POSSESSION OF WEAPON - BRASS METAL KNUCKLES - WHETHER THE ACCUSATORY INSTRUMENT WAS FACIALLY SUFFICIENT WHERE IT ALLEGED THAT POLICE RECOVERED FROM DEFENDANT "ONE SET OF BRASS METAL KNUCKLES"; Criminal Court of the City of New York, New York County, convicted defendant, upon a plea of guilty, of disorderly conduct, and imposed sentence; App. Term affirmed.

SADEK v WESLEY (117 AD3d 193):
1st Dept. App. Div. order of 4/15/14; reversal; leave to appeal granted by App. Div., 2/26/15; WITNESSES - EXPERT WITNESS - PRECLUSION OF TESTIMONY - TRIAL COURT GRANTED MOTION TO PRECLUDE NEUROLOGICAL EXPERT FROM TESTIFYING UPON THE GROUND THAT EXPERT'S FIRST REPORT, WHICH STATED THERE WAS A PROBABLE CAUSAL RELATIONSHIP BETWEEN MOTOR VEHICLE ACCIDENT AND PLAINTIFF'S EMBOLIC STROKE, WAS NEGATED BY EXPERT'S SUPPLEMENTAL REPORT BECAUSE THAT REPORT DID NOT SUFFICIENTLY ESTABLISH CAUSATION - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT EXPERT'S FIRST REPORT PROVIDED A SUFFICIENT BASIS TO ALLOW THE EXPERT TO TESTIFY AS TO THE CAUSE OF PLAINTIFF'S EMBOLIC STROKE AND THE SUPPLEMENTAL REPORT ONLY PROVIDED GROUNDS TO IMPEACH EXPERT'S ANTICIPATED TRIAL TESTIMONY; WHETHER THE APPELLATE DIVISION CORRECTLY DETERMINED THAT NEW EXPERT'S PROPOSED TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED BECAUSE IT DID NOT ENTIRELY CONCERN A NEW THEORY OF CAUSATION TO THE EXTENT HE WAS PREPARED TO TESTIFY THAT THE ACCIDENT WAS A PROBABLE CAUSE OF DISLODGING THE BLOOD CLOT THAT CAUSED PLAINTIFF'S STROKE - NECESSITY FOR A FRYE HEARING - WHETHER EVIDENCE AT FRYE HEARING SUFFICIENTLY ESTABLISHED THE RELIABILITY OF EXPERT'S ASSERTIONS AS TO CAUSATION - TIMING OF IN LIMINE MOTIONS; Supreme Court, New York County, granted defendant's motion in limine to preclude the testimony of plaintiff's neurological expert and directed entry of judgment dismissing the complaint; App. Div. reversed and restored the matter to the trial calendar.

SPEAKS (LOUIS), PEOPLE v (124 AD3d 689):
2nd Dept. App. Div. order of 1/14/15; affirmance; leave to appeal granted by Hill, J., 2/26/15; CRIMES - IDENTIFICATION OF DEFENDANT - LINEUP - NO REQUIREMENT THAT LINEUP PARTICIPANTS BE NEARLY IDENTICAL TO DEFENDANT - WHETHER THE LINEUP IN WHICH DEFENDANT WAS IDENTIFIED BY A WITNESS WAS UNDULY SUGGESTIVE; CRIMES - EVIDENCE - WHETHER THE ADMISSION OF TESTIMONY OF A DETECTIVE RECOUNTING DESCRIPTION OF PERPETRATOR GIVEN BY NONTESTIFYING AND TESTIFYING WITNESSES VIOLATED THE HEARSAY RULE OR DEFENDANT'S RIGHT OF CONFRONTATION; WHETHER DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS ATTORNEY FAILED TO OBJECT TO THE PROSECUTOR'S ALLEGEDLY IMPROPER COMMENTS DURING SUMMATION; Supreme Court, Kings County, convicted defendant of two counts of robbery in the first degree and two counts of robbery in the second degree, upon a jury verdict, and imposed sentence; App. Div. affirmed.

WAGNER, MATTER OF:
Surrogate's Court letter of 1/29/15; sua sponte examination whether a direct appeal lies pursuant to CPLR 5601(b)(2) and whether the 1/29/15 letter from the Surrogate's Court is an appealable paper within the meaning of CPLR 5512(a); APPEAL - APPEALABLE PAPER - LETTER FROM SURROGATE'S COURT; Surrogate's Court, Seneca County, returned as unfiled documents submitted by Jaan Aarismaa IV.

For March 13, 2015 through March 19, 2015, the following preliminary appeal statements were filed:

HARRIS v CITY OF NEW YORK (2015 NY Slip Op 62831[U]):
2nd Dept. App. Div. order of 2/2/15; denial of reargument; sua sponte examination whether App. Div. orders finally determine 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 SERVE COMPLAINT - FAILURE TO APPEAR - REASONABLE EXCUSE FOR DEFAULT; JUDGMENTS - RES JUDICATA - ISSUES THAT WERE OR COULD HAVE BEEN RAISED IN PRIOR ACTION; Supreme Court, Kings County, as relevant here, (1) granted the motion of defendant Ezra Cohen pursuant to CPLR 3012(b) to dismiss the action insofar as asserted against him for failure to serve a timely complaint; (2) denied plaintiff's cross motion pursuant to CPLR 3012(d) to extend the time to serve the complaint upon defendant Ezra Cohen; (3) denied plaintiff's separate motion pursuant to CPLR 3215 for leave to enter judgment against defendants NAPCO Holdings, LLC, Peter Nakos, and Brooklyn Housing and Family Services on the issue of liability, upon those defendants' failure to appear or answer; (4) granted so much of the cross motion by those defendants which were pursuant to CPLR 5015(a)(1) to vacate their defaults in appearing and answering, pursuant to CPLR 2004 to extend their time to appear or answer, and pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them; and (5) in effect, granted so much of the cross motion of the New York City defendants which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them, based on the doctrine of res judicata; App. Div. affirmed and, thereafter, denied plaintiff's motion for leave to reargue the appeal.

LITTLETON CONSTRUCTION LTD. v HUBER CONSTRUCTION, INC. (125 AD3d 1404):
4th Dept. App. Div. order of 2/6/15; reversal with a two-Justice dissent; CONTRACTS - BREACH OF CONTRACT - JOINT VENTURE FOR PUBLIC SCHOOL RENOVATION PROJECTS - CLAIM THAT OPERATING AGREEMENT BETWEEN PARTIES WAS FRAUDULENT - WHETHER MATERIAL ISSUES OF FACT WERE RAISED REGARDING FORGERY OF THE DOCUMENT; SUMMARY JUDGMENT; Supreme Court, Erie County, as relevant here, denied in part defendants' motion for summary judgment dismissing the amended complaint; App. Div. reversed, granted defendants' motion for summary judgment in its entirety, and dismissed the amended complaint.

RIVERA v MONTEFIORE MEDICAL CENTER (123 AD3d 424):
1st Dept. App. Div. order of 12/4/14; affirmance; leave to appeal granted by App. Div., 3/3/15; DISCLOSURE - SCOPE OF DISCLOSURE - MEDICAL EXPERT - ADEQUACY OF RESPONSE TO DEMAND FOR INFORMATION CONCERNING EXPERT WITNESS - CHALLENGE TO APPELLATE DIVISION HOLDING THAT TRIAL COURT PROPERLY DENIED AS UNTIMELY PLAINTIFF'S APPLICATION DURING TRIAL TO PRECLUDE DEFENDANT'S EXPERT FROM TESTIFYING THAT A SUDDEN HEART ATTACK, RATHER THAN PNEUMONIA, CAUSED DECEDENT'S DEATH ON GROUND THAT SUCH TESTIMONY CAME AS A SURPRISE BECAUSE DEFENDANT'S EXPERT DISCLOSURE STATEMENT PURSUANT TO CPLR 3101(d) LACKED SPECIFICITY AS TO EXPERT'S OPINION ON CAUSATION - WHETHER TRIAL MOTION WAS UNTIMELY BECAUSE PLAINTIFF FAILED TO OBJECT TO LACK OF SPECIFICITY IN DEFENDANT'S EXPERT DISCLOSURE STATEMENT UPON RECEIPT OF THAT DOCUMENT - WHETHER EXPERT TESTIMONY CONCERNING HEART ATTACK SHOULD HAVE BEEN PRECLUDED AS UNDULY SPECULATIVE; Supreme Court, Bronx County, as relevant here, granted defendant's motion to reduce the jury's award for future economic loss attributable to household services by reducing the award from $680,000 to $340,000, and denied plaintiff's cross motion to strike the testimony of defendant's expert concerning the cause of the decedent's death and to set aside the award of $0 for conscious pain and suffering; App. Div. affirmed.