Return to New Filings Page


For March 2, 2012 through March 8, 2012, the following preliminary appeal statements were filed:

BECK-NICHOLS, MATTER OF v BIANCO (89 AD3d 1405):
4th Dept. App. Div. judgment of 11/10/11; annulled determination; leave to appeal granted by Court of Appeals, 2/21/12; PROCEEDING AGAINST BODY OR OFFICER - CERTIORARI - CPLR ARTICLE 78 PROCEEDING TO ANNUL DETERMINATION OF RESPONDENT SCHOOL DISTRICT TERMINATING PETITIONER'S EMPLOYMENT BASED ON FAILURE TO COMPLY WITH THE DISTRICT'S RESIDENCY POLICY; STANDARD OF REVIEW; Supreme Court, Erie County transferred the proceeding to App. Div.; App. Div. annulled the determination terminating petitioner's employment as a production control manager with respondent School District of Niagara Falls, and granted the petition.

FORECLOSURE OF TAX LIENS BY CITY OF ROCHESTER, MATTER OF (DUVALL; CITY OF ROCHESTER) (92 AD3d 1297):
4th Dept. App. Div. order of 2/17/12; affirmance with dissents; sua sponte examination whether the order appealed from finally determines the proceeding within the meaning of the Constitution; TAXATION - TAX LIENS - FORECLOSURE OF TAX LIENS - ADEQUACY OF NOTICE TO FORMER PROPERTY OWNER OF FORECLOSURE ACTION; Supreme Court, Monroe County denied petitioner's application to vacate a judgment of foreclosure and the tax foreclosure deed; App. Div. affirmed.

MALDONADO, MATTER OF v KELLY (86 AD3d 516):
1st Dept. App. Div. order of 7/28/11; affirmance; leave to appeal granted by Court of Appeals, 2/21/12; CIVIL SERVICE - RETIREMENT AND PENSION BENEFITS - ACCIDENTAL DISABILITY RETIREMENT (ADR) - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT CREDIBLE EVIDENCE EXISTED TO SUPPORT THE MEDICAL BOARD'S DETERMINATION AND REBUT THE STATUTORY PRESUMPTION THAT PETITIONER'S DISABILITY WAS RELATED TO HIS SERVICE AS A POLICE OFFICER AT THE WORLD TRADE CENTER SITE FOLLOWING SEPTEMBER 11, 2001; Supreme Court, New York County denied a CPLR article 78 petition seeking, among other things, to annul respondent's determination denying petitioner's application for accidental disability retirement (ADR) benefits, and dismissed the proceeding; App. Div. affirmed.

MONTAS v JJC CONSTRUCTION CORPORATION (92 AD3d 559):
1st Dept. App. Div. order of 2/23/12; affirmance with dissents; NEGLIGENCE - PROXIMATE CAUSE - WHETHER TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR A DIRECTED VERDICT - SUFFICIENCY OF EVIDENCE FROM WHICH JURY COULD HAVE FOUND DEFENDANTS NEGLIGENT IN PERMITTING CONSTRUCTION DEBRIS TO ACCUMULATE ON A PEDESTRIAN WALKWAY; MUNICIPAL CORPORATIONS - TORT LIABILITY; Supreme Court, Bronx County granted defendants' motions to dismiss the complaint at the close of evidence at trial; App. Div. affirmed.

NORRIS (ELBERT), PEOPLE v (90 AD3d 955):
2nd Dept. App. Div. order of 12/20/11; affirmance; leave to appeal granted by Graffeo, J., 2/29/12; CRIMES - SENTENCE - CONCURRENT AND CONSECUTIVE TERMS - WHETHER, UPON VACATING DEFENDANT'S ORIGINAL SENTENCE, SUPREME COURT HAD THE AUTHORITY TO RUN HIS NEW DETERMINATE PRISON TERMS CONCURRENTLY, DESPITE THEIR PREVIOUS CONSECUTIVE DESIGNATION - MULTIPLE DRUG OFFENSES BEFORE THE RESENTENCING COURT FOR POSSIBLE MODIFICATION PURSUANT TO THE 2004 DRUG LAW REFORM ACT; Supreme Court, Kings County, after a hearing, among other things, granted defendant's motion for resentencing and specified that, upon resentencing, the court would impose upon him, as a second felony drug offender previously convicted of a violent felony, on his class B felony drug sale convictions, a determinate prison term of six years on each of the sale counts, followed by three years of post-release supervision, the terms to run consecutively to each other for an aggregate sentence of 24 years imprisonment, to run concurrently with defendant's indeterminate sentence on his conspiracy conviction; App. Div. affirmed and remitted the matter to Supreme Court for further proceedings.

ROULAN v COUNTY OF ONONDAGA (90 AD3d 1617):
4th Dept. App. Div. order of 12/30/11; modification with dissents; ATTORNEY AND CLIENT - ASSIGNMENT OF COUNSEL - ACTION SEEKING DECLARATION THAT VARIOUS SECTIONS OF THE ASSIGNED COUNSEL PLAN IN ONONDAGA COUNTY ARE INVALID - PLAN ESTABLISHED PURSUANT TO COUNTY LAW ARTICLE 18-B THROUGH A CONTRACT WITH THE ONONDAGA COUNTY BAR ASSOCIATION; DECLARATORY JUDGMENT; CRIMINAL DEFENDANT'S RIGHT TO COUNSEL; Supreme Court, Onondaga County, in essence, granted plaintiff's motion to renew and, upon renewal, adhered to its prior order denying plaintiff's motion for partial summary judgment on his declaratory judgment cause of action, denied plaintiff's motion for summary judgment on his breach of contract claim, and granted defendants' motion for summary judgment dismissing plaintiff's complaint in its entirety; App. Div. modified, by denying defendants' cross- motion for partial summary judgment dismissing the declaratory judgment cause of action, reinstating that cause of action and granting judgment in favor of defendants declaring "that the assigned counsel plan established by defendant Onondaga County Bar Association Assigned Counsel Program, Inc., is valid with the exception of section D(2) under the 'Assignment by Court and Client Eligibility' heading"; and by granting plaintiff's motion for partial summary judgment on the declaratory judgment cause of action in part and granting judgment in favor of plaintiff declaring "that section D(2) under the 'Assignment by Court and Client Eligibility' heading of the assigned counsel plan is invalid."

For March 9, 2012 through March 15, 2012, the following preliminary appeal statements were filed:

BELLIARD (RAFAEL), PEOPLE v (89 AD3d 1443):
4th Dept. App. Div. order of 11/10/11; affirmance; leave to appeal granted by Read, J., 3/5/12; CRIMES - PLEA OF GUILTY - WHETHER MANDATORY CONSECUTIVE SENTENCE (PENAL LAW § 70.25[2-a]) IS A DIRECT CONSEQUENCE OF THE GUILTY PLEA SO THAT THE TRIAL COURT'S FAILURE TO INFORM DEFENDANT THAT HIS SENTENCE WOULD RUN CONSECUTIVELY TO AN UNDISCHARGED, PREVIOUSLY-IMPOSED SENTENCE RENDERS DEFENDANT'S GUILTY PLEA NOT KNOWING, INTELLIGENT AND VOLUNTARY; Supreme Court, Monroe County convicted defendant, upon his guilty plea, of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree, and criminal possession of a weapon in the second degree; App. Div. affirmed.

BOYLAND (TOBIAS), PEOPLE v (79 AD3d 1658):
4th Dept. App. Div. order of 12/30/10; affirmance; leave to appeal granted by Green, J., 10/21/11; Rule 500.11 review pending; CRIMES - SUPPRESSION HEARING - FIREARMS SEIZED FROM SECOND FLOOR OF BUILDING WHEN SEARCH WARRANT COVERED "LOWER APARTMENT" AND BUILDING HAD BEEN CONVERTED FROM TWO-FAMILY DWELLING TO SINGLE FAMILY RESIDENCE; JURY INSTRUCTION REGARDING CONSTRUCTIVE POSSESSION; AMENDMENT TO INDICTMENT; Supreme Court, Erie County convicted defendant, upon a jury verdict, of three counts of criminal possession of a weapon in the second degree and criminal possession of a weapon in the fourth degree; App. Div. affirmed.

HAMPTON (GRADY), PEOPLE v (85 AD3d 1055):
2nd Dept. App. Div. order of 6/21/11; affirmance; leave to appeal granted by Smith, J., 2/28/12; JUDGES - RECUSAL - CASE ASSIGNED TO ANOTHER JUDGE AFTER TRIAL JUDGE WHO HEARD DEFENDANT'S MOTIONS FOR A TRIAL ORDER OF DISMISSAL RECUSED HIMSELF - WHETHER JUDICIARY LAW § 21 PROHIBITED THE SECOND JUDGE FROM DECIDING THE MOTIONS AND REQUIRED A MISTRIAL; SUFFICIENCY OF EVIDENCE TO SUPPORT MURDER CONVICTION; CRIMES - MURDER; Supreme Court, Nassau County convicted defendant, upon a jury verdict, of murder in the second degree and two counts of criminal possession of a weapon in the second degree, and imposed sentence; App. Div. affirmed.

HANDY (DAYSHAWN P.), PEOPLE v (83 AD3d 1454):
4th Dept. App. Div. order of 4/1/11; affirmance; leave to appeal granted by Lippman, Ch. J., 2/29/12; CRIMES - JURORS - JURY INSTRUCTIONS - WHETHER TRIAL COURT ERRED IN REFUSING TO GIVE AN ADVERSE INFERENCE INSTRUCTION TO THE JURY, BASED ON THE PROSECUTION'S FAILURE TO PRESERVE A VIDEOTAPE RECORDING THAT CAPTURED PART OF THE INCIDENT AT ISSUE; SUFFICIENCY OF THE EVIDENCE OF INTENT TO CAUSE INJURY; Monroe County Court convicted defendant, upon a jury verdict, of assault in the second degree; App. Div. affirmed.

HEIDGEN (MARTIN), PEOPLE v (87 AD3d 1035):
2nd Dept. App. Div. order of 9/13/11; affirmance; leave to appeal granted by Graffeo, J., 12/12/11; CRIMES - PLEA OF GUILTY - CHALLENGE TO ALFORD PLEA; Nassau County Court convicted defendant, upon his guilty plea, of tampering with physical evidence, and imposed sentence; App. Div. affirmed.

K2 INVESTMENT GROUP, LLC v AMERICAN GUARANTEE & LIABILITY INSURANCE COMPANY (91 AD3d 401):
1st Dept. App. Div. order of 1/3/12; affirmance with dissents; INSURANCE - MALPRACTICE INSURANCE - ACTION AGAINST MALPRACTICE INSURER TO RECOVER AMOUNT OF DEFAULT JUDGMENT AGAINST ATTORNEY AFTER INSURER DISCLAIMED COVERAGE - PLAINTIFF LENDERS MADE LOANS TO COMPANY IN WHICH INSURED ATTORNEY WAS A PRINCIPAL, AND THE ATTORNEY FAILED TO RECORD MORTGAGES INTENDED TO SECURE THE LOANS - WHETHER INSURER PROPERLY EXCLUDED CLAIMS UNDER THE MALPRACTICE INSURANCE POLICY; Supreme Court, New York County found in plaintiffs' favor against defendant on the causes of action to enforce a default judgment, and dismissed the causes of action alleging bad faith; App. Div. affirmed.

NORRIS (TYRELL), PEOPLE v (90 AD3d 788):
2nd Dept. App. Div. order of 12/13/11; affirmance; leave to appeal granted by Graffeo, J., 2/29/12; CRIMES - SENTENCE - CONCURRENT AND CONSECUTIVE TERMS - WHETHER, UPON VACATING DEFENDANT'S ORIGINAL SENTENCE, SUPREME COURT HAD THE AUTHORITY TO RUN HIS NEW DETERMINATE PRISON TERMS CONCURRENTLY, DESPITE THEIR PREVIOUS CONSECUTIVE DESIGNATION - MULTIPLE DRUG OFFENSES BEFORE THE RESENTENCING COURT FOR POSSIBLE MODIFICATION PURSUANT TO THE 2004 DRUG LAW REFORM ACT; Supreme Court, Kings County, after a hearing, among other things, granted defendant's motion for resentencing and specified that, upon re-sentencing, the court would impose upon him, as a second felony drug offender, on his class B felony drug sale convictions, a determinate prison term of seven years on each of the sale counts, followed by three years of post-release supervision, the terms to run consecutively to each other for an aggregate sentence of 21 years imprisonment, to run concurrently with defendant's indeterminate sentence on his conspiracy conviction; App. Div. affirmed.

For March 16, 2012 through March 22, 2012, the following preliminary appeal statements were filed:

ASSOCIATION FOR COMMUNITY LIVING, INC., MATTER OF v NEW YORK STATE OFFICE OF MENTAL HEALTH (92 AD3d 1066):
3rd Dept. App. Div. order of 2/9/12; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; HEALTH - MEDICAID - CHALLENGE TO AGENCY'S MEDICAID EXEMPT INCOME RECOUPMENT POLICY - ALLEGED VIOLATION OF RULE-MAKING REQUIREMENTS CONTAINED IN ARTICLE IV, SECTION 8 OF THE STATE CONSTITUTION - NECESSITY FOR A RECOUPMENT HEARING - CONSTITUTIONAL CHALLENGE TO L 2010, CH 111, PART D; Supreme Court, Albany County dismissed a CPLR article 78 petition seeking, among other things, review of respondents' implementation of Medicaid exempt income requirements; App. Div. affirmed.

ECHEVARRIA (ALEX), PEOPLE v (89 AD3d 545):
1st Dept. App. Div. order of 11/15/11; affirmance; leave to appeal granted by Ciparick, J., 3/8/12; CRIMES - RIGHT TO PUBLIC TRIAL - CLOSURE OF COURTROOM - CONSIDERATION OF REASONABLE ALTERNATIVES TO CLOSURE - CLOSURE LIMITED TO DURATION OF TRIAL TESTIMONY BY UNDERCOVER POLICE OFFICERS WITH CONSIDERATION TO BE GIVEN TO ANY REQUESTS BY DEFENDANT'S FAMILY MEMBERS FOR ACCESS TO THE COURTROOM DURING THAT TIME; JURY CHARGE - CHALLENGE TO COURT'S CHARGE ON THE AGENCY DEFENSE; Supreme Court, New York County convicted defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentenced him, as a second felony drug offender whose prior felony conviction was a violent felony, to concurrent terms of 10 years; App. Div. affirmed.

FRACCOLA v FRACCOLA (92 AD3d 1209):
4th Dept. App. Div. order of 2/10/12; affirmance; sua sponte examination whether the appeal insofar as taken by Playtime Boutique, Inc. should be dismissed because Albert Fraccola is not its authorized legal representative pursuant to CPLR 321(a) and whether a substantial constitutional question is directly involved to support an appeal as of right; PLEADING - COMPLAINT - DISMISSAL OF COMPLAINT; Supreme Court, Oneida County, among other things, granted defendants' motion to dismiss the complaint and dismissed the complaint; App. Div. affirmed.

GRIFFIN (ANTHONY), PEOPLE v (92 AD3d 1):
1st Dept. App. Div. order of 12/15/11; reversal; leave to appeal granted by Sweeny, J., 2/28/12; CRIMES - RIGHT TO COUNSEL - WHETHER THE APPELLATE DIVISION ERRED IN RULING THAT THE TRIAL COURT'S DISCHARGE OF DEFENDANT'S COUNSEL WITHOUT CONSULTING DEFENDANT WAS AN ABUSE OF DISCRETION AND INTERFERED WITH DEFENDANT'S RIGHT TO COUNSEL; Supreme Court, New York County convicted defendant of robbery in the first degree and attempted robbery in the first degree, and sentenced him to concurrent terms of 20 years to life; App. Div. reversed and remanded for further proceedings.

J-P GROUP, LLC, MATTER OF v NEW YORK STATE DEPARTMENT OF ECONOMIC DEVELOPMENT (91 AD3d 1363):
4th Dept. App. Div. order of 1/31/12; modification; CONSTITUTIONAL LAW - DUE PROCESS OF LAW - RETROACTIVE APPLICATION OF EMPIRE ZONE ACT AMENDMENTS - REVOCATION OF TAX CREDITS; Supreme Court, Erie County, among other things, granted a CPLR article 78 petition to annul the determination of respondent New York State Department of Economic Development revoking petitioner's certification as a qualified Empire zone enterprise; App. Div. modified by vacating the first and third through seventh decretal paragraphs and affirmed the judgment as modified.

MOSS (ANDREW), PEOPLE v (89 AD3d 600):
1st Dept. App. Div. order of 11/22/11; affirmance; leave to appeal granted by Ciparick, J., 3/13/12; CRIMES - RIGHT TO PUBLIC TRIAL - CLOSURE OF COURTROOM - WHETHER UNDERCOVER OFFICER'S TESTIMONY AT HINTON HEARING ESTABLISHED AN OVERRIDING INTEREST THAT WARRANTED CLOSURE OF THE COURTROOM - CONSIDERATION OF REASONABLE ALTERNATIVES TO CLOSURE - COURT REJECTED ALTERNATIVE TO CLOSURE PROPOSED BY DEFENDANT BUT PERMITTED DEFENDANT'S FAMILY MEMBERS TO ATTEND PROCEEDINGS; Supreme Court, New York County convicted defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentenced him, as a second felony drug offender whose prior conviction was a violent felony, to a term of 10 years; App. Div. affirmed.

TERMINELLO v THE VILLAGE OF PIERMONT (92 AD3d 673):
2nd Dept. App. Div. order of 2/7/12; reversal and affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; TAXATION - REAL PROPERTY TAX - CLASSIFICATION OF CONDOMINIUMS AS HOMESTEADS OR NON-HOMESTEADS AND IMPOSITION OF DIFFERENT TAX RATES ON EACH - EQUAL PROTECTION CHALLENGE TO RPTL 1903, AS APPLIED BY LOCAL LAW NO. 7 (2005) OF THE VILLAGE OF PIERMONT; Supreme Court, Rockland County denied Village defendant's motion for summary judgment dismissing the complaint insofar as asserted against it and declared that Real Property Tax Law article 19, as applied by Local Law No. 7 (2005) of the Village of Piermont, is not unconstitutional; and denied plaintiffs' cross motion for summary judgment on the issue of liability; App. Div. reversed the Supreme Court order insofar as appealed from by the Village defendant, granted the Village defendant's motion, and remitted to Supreme Court for entry of a judgment declaring that Real Property Tax Law article 9, as applied by Local Law No. 7 (2005) of the Village of Piermont, is not unconstitutional; and affirmed the Supreme Court order insofar as cross- appealed from by plaintiffs.

UNITED STATES FIDELITY & GUARANTY COMPANY v AMERICAN RE-INSURANCE COMPANY (93 AD3d 14):
1st Dept. App. Div. order of 1/24/12; affirmance; leave to appeal granted by App. Div., 3/8/12; INSURANCE - REINSURANCE - "FOLLOW THE FORTUNES" CLAUSE - REINSURED'S DECISION TO ALLOCATE ALL SETTLEMENT CLAIMS AND, THUS, ALL REINSURANCE CLAIMS TO A 1959 INSURANCE CONTRACT, WHICH HAD A $200,000 PER PERSON LIMIT AND, IF NOT SUBJECT TO AN UPWARD AMENDMENT OF THE RETENTION AMOUNT, WAS SUBJECT ONLY TO A $100,000 RETENTION FOR EACH COVERED LOSS - APPLICATION OF FOLLOW THE FORTUNES CLAUSE WHERE REINSURERS CHALLENGE REINSURED'S ALLEGED BAD FAITH OR ABSENCE OF "UTMOST GOOD FAITH" IN ALLOCATING ITS SETTLEMENT WITH ITS INSURED AND IN TREATING ALL CLAIMS AS ARISING UNDER A SINGLE POLICY YEAR - WHETHER TRIABLE ISSUES OF FACT EXIST AS TO WHETHER THE PARTIES AGREED TO RETROACTIVELY INCREASE THE RETENTION AMOUNT FROM $100,000 TO $3 MILLION; Supreme Court, New York County granted plaintiffs' motion for summary judgment, denied defendants' motions for summary judgment and awarded damages to plaintiffs as against certain defendants; App. Div. affirmed.

For March 23, 2012 through March 29, 2012, the following preliminary appeal statements were filed:

DE PONCEAU, MATTER OF v FISCHER (93 AD3d 1040):
3rd Dept. App. Div. order of 3/22/12; affirmance; 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; PROCEEDING AGAINST BODY OR OFFICER - CHALLENGE TO APPELLATE DIVISION ORDER AFFIRMING SUPREME COURT JUDGMENT DECLINING TO SIGN AN ORDER TO SHOW CAUSE AND DISMISSING A CPLR ARTICLE 78 PETITION WITHOUT PREJUDICE; Supreme Court, Franklin County dismissed the CPLR article 78 petition without prejudice; App. Div. affirmed.

DE PROSPERO (STEPHEN), PEOPLE v (91 AD3d 39):
4th Dept. App. Div. order of 11/18/11; affirmance; leave to appeal granted by Ciparick, J., 3/13/12; CRIMES - SEARCH WARRANT - DELAYED FORENSIC EXAMINATION OF ELECTRONIC MEDIA - WHETHER PORNOGRAPHIC IMAGES AND VIDEOS OF CHILDREN UNCOVERED AS A RESULT OF A JANUARY 2010 SEARCH OF DEFENDANT'S COMPUTER AND DIGITAL CAMERA HAD TO BE SUPPRESSED, WHERE THEY WERE SEIZED PURSUANT TO A MAY 2009 SEARCH WARRANT AND PREVIOUSLY SUBJECTED TO A LIMITED PREVIEW RESULTING IN ANOTHER CHARGE, AND THE 2010 EXAMINATION OF DEFENDANT'S PROPERTY OCCURRED AFTER SENTENCING ON THE OTHER CHARGE AND FOLLOWING DEFENDANT'S REQUEST FOR THE RETURN OF HIS PROPERTY; Oneida County Court convicted defendant, upon his guilty plea, of predatory sexual assault against a child; App. Div. affirmed.

THE NEW YORK COUNTY LAWYERS' ASSOCIATION, MATTER OF v BLOOMBERG (— AD3d —, 2012 NY Slip Op 01876):
1st Dept. App. Div. order of 3/15/12; affirmance with dissents; PROCEEDING AGAINST BODY OR OFFICER - CPLR ARTICLE 78 CHALLENGE TO THE CITY OF NEW YORK'S INDIGENT DEFENSE PLAN - PLAN FOR ASSIGNMENT OF COUNSEL IN WHICH THE INITIAL PROVIDER AT ARRAIGNMENT IS UNABLE TO REPRESENT THE INDIGENT CRIMINAL DEFENDANT DUE TO A CONFLICT OF INTEREST; "COMBINATION" PLAN UNDER COUNTY LAW § 722(4) - PARTICIPATION OF COUNTY BAR ASSOCIATIONS; Supreme Court, New York County denied the petition and granted respondents' cross motion for summary judgment dismissing the CPLR article 78 proceeding insofar as it challenged the City of New York's Indigent Defense Plan; App. Div. affirmed.