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For March 10, 2017 through March 16, 2017, the following preliminary appeal
statements were filed:
COLLATERAL LOANBROKERS ASSOCIATION OF NEW YORK, INC. v THE CITY OF
NEW YORK (148 AD3d
133):
1st Dept. App. Div. order of 2/7/17; reversal; sua sponte examination whether the
order appealed from 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; Injunctions--Preliminary Injunction--Action seeking declaratory judgment that
various statutes and local laws and rules authorizing warrantless searches of plaintiffs'
records memorializing customer transactions are unconstitutional facially and as
applied--privacy rights of collateral pawnbrokers and dealers in second-hand
articles--whether the Appellate Division erred in denying plaintiffs' motion for a
preliminary injunction; Supreme Court, Bronx County, among other things, granted
plaintiffs' motion for a preliminary injunction enjoining defendants from enforcing
General Business Law § 45, New York City Charter §§ 435 and 436, Local Law No. 149
of 2013 and its amendments to Administrative Code §§ 20-267, 20-273, and 20-277,
Rules of City of New York Department of Consumer Affairs (6 RCNY) § 1-16 and Police
Department (38 RCNY) §§ 21-03(a) and (b), 21-04(a) and (c), 21-07(a)-(f), and 21-08,
and the procedures outlined in a 1998 memorandum by then NYPD Deputy
Commissioner of Legal Matters George A. Grasso, and in NYPD Patrol Guide Procedure
No. 214-38; App. Div. reversed, and denied plaintiffs' motion for a preliminary
injunction.
DIAZ, MATTER OF v GOLDBERG (146 AD3d 576):
1st Dept. App. Div. order of 1/17/17; dismissal of petition; sua sponte examination
whether a substantial constitutional question is directly involved and whether any
jurisdictional basis exists to support an appeal as of right; Proceeding Against Body or
Officer--Prohibition--Dismissal of petition; claimed double jeopardy violation by judge
and district attorney; App. Div. denied the CPLR article 78 application and dismissed the
petition.
GUIDANCE ENHANCED GREEN TERRAIN, LLC, v BANK OF AMERICA MERRILL
LYNCH (146 AD3d
431):
1st Dept. App. Div. order of 1/5/17; reversal; leave to appeal granted by App. Div.,
2/28/17; Contracts--Breach or Performance of Contract--Assignments--Scope of
Assignment--Whether plaintiff assignor had a contractual right to compel defendant
assignee to reassign bankruptcy claims to a third party as a condition of
settlement--Covenants--covenant of good faith and fair dealing--whether plaintiff stated a
claim that defendant assignee breached the covenant of good faith and fair dealing in
withholding its consent to the proposed settlement; Supreme Court, New York County,
granted defendants' motion to dismiss the first cause of action for breach and repudiation
of contract; App. Div. reversed and denied the motion.
PAPA v ASSOCIATED INDEMNITY CORPORATION (147 AD3d 1558):
4th Dept. App. Div. order of 2/10/17; modification with dissents; Rule 500.11
review pending; Insurance--Construction of Policy--Exclusion in an all-risk insurance
policy--whether the language of the policy exclusion unambiguously applies to the water
damage plaintiffs experienced in the basement of their commercial property; Supreme
Court, Erie County, denied the motions of defendants D&D Power, Inc. and Associated
Indemnity Corporation for summary judgment dismissing the complaints against them,
and granted plaintiffs' cross motion for partial summary judgment against defendant
Associated Indemnity Corporation; App. Div. modified by granting the motion of
defendant Associated Indemnity Corporation and dismissing the complaint against it, and
denying plaintiffs' cross motion, and as so modified, affirmed.
SKANSKA USA BUILDING, INC. v ATLANTIC YARDS B2 OWNER, LLC (146 AD3d 1):
1st Dept. App. Div. order of 10/20/16; modification with dissents; leave to appeal
granted by App. Div., 3/2/17; Contracts--Breach or Performance of Contract--
Construction maintenance contract for construction of high-rise residential tower in the
Atlantic Yards project in Brooklyn--whether the Appellate Division erred in its
interpretation of Lien Law § 5 as it applied to the security provided for contractor
payment in this project--nature of bond or undertaking required to be posted for labor and
materials furnished for work on public improvement; corporations--piercing of corporate
veil--whether the Appellate Division erred in finding that plaintiff failed to plead a
veil-piercing claim; attorney and client--disqualification--whether the Appellate Division
erred in declining to disqualify one of defendants' law firms based on a conflict of
interest; Supreme Court, New York County, among other things, granted the motion of
defendants Atlantic Yards and Forest City Ratner Companies to dismiss subparts (f) and
(h) of the first cause of action and denied the motion as to subparts (a), (b) and (c) of that
cause of action and as to the third cause of action, and denied plaintiff's motion to
disqualify the law firm of Troutman Sanders LLP as defendants' attorneys; App. Div.
modified to dismiss the motion of defendants Atlantic Yards and Forest City Ratner
Companies to dismiss subpart (h) of the first cause of action and to grant their motion to
dismiss the third cause of action, and otherwise affirmed.
VALENTE v LEND LEASE (US) CONSTRUCTION LMB, INC. (143 AD3d 625):
1st Dept. App. Div. order of 10/25/16; affirmance; leave to appeal granted by App.
Div., 2/21/17; Rule 500.11 review pending; Negligence--Proximate Cause--Slip and fall
on grease on planks used as makeshift ramp to descend from top of building to a
scaffold--prima facie showing that fall was covered by Labor Law § 240 (1)--whether
defendants raised an issue of fact as to whether plaintiff was the sole proximate cause of
the accident because he chose to use the planks instead of using or constructing a proper
ramp; summary judgment; Supreme Court, New York County, among other things,
granted plaintiffs' motion for partial summary judgment on the Labor Law § 240(1) claim;
App. Div. affirmed.
For March 17, 2017 through March 23, 2017, the following preliminary appeal
statements were filed:
CRESPO (RAYMOND), PEOPLE v (144 AD3d 461):
1st Dept. App. Div. order of 11/10/16; reversal; leave to appeal granted by Stein,
J., 3/6/17; Crimes--Right to Representation Pro Se--Whether defendant's requests to
proceed pro se, made during jury selection, were timely asserted; Supreme Court, New
York County, convicted defendant of assault in the first degree and criminal possession of
a weapon in the third degree, and imposed sentence; App. Div. reversed and remanded
the matter for a new trial.
GURNETT, MATTER OF v BARGNESI (147 AD3d 1319):
4th Dept. App. Div. judgment of 2/3/17; confirmation of determination; sua sponte
examination whether a substantial constitutional question is directly involved to support
an appeal as of right; Licenses--Firearms--Whether the revocation of petitioner's pistol
permit without a hearing denied petitioner due process; whether the revocation of the
pistol permit was arbitrary and capricious, or an abuse of discretion; claimed Second
Amendment violations; App. Div. confirmed the determination of respondent Acting
County Court Judge revoking petitioner's pistol permit, and dismissed the CPLR article
78 petition to annul the determination.
MANKO v GABAY (2017
NY Slip Op 60419[U]):
2nd Dept. App. Div. order of 1/6/17; denial of motion; sua sponte examination
whether the order appealed from 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; Appeal--Appellate Division--Denial of motion to reinstate
appeals; App. Div., among other things, denied appellant's motion to reinstate appeals
from a 2/23/15 order and 7/29/15 judgment of Supreme Court, Kings County, which
appeals were dismissed by 10/11/16 Appellate Division order.
WALKER, MATTER OF v LIPPMAN (145 AD3d 1330):
3rd Dept. App. Div. order of 12/22/16; 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; Appeal--Timeliness--Whether Supreme Court properly
denied appellant's motion for an extension of time to appeal--claimed due process and
equal protection violations--alleged unconstitutionality of CPL 450.90 and certain Court
of Appeals Rules of Practice; Supreme Court, Albany County, denied petitioner's motion
to reargue and/or renew; App. Div. affirmed.
WELLS FARGO BANK, N.A. v EITANI (148 AD3d 193):
2nd Dept. App. Div. order of 2/8/17; affirmance with dissents; sua sponte
examination whether the order appealed from finally determines the action within the
meaning of the Constitution; Limitation of Actions--Commencement of Action after
Termination of Prior Action--Whether CPLR 205(a) applies when the party seeking to
recommence a prior action is not the original plaintiff, but is plaintiff's
successor-in-interest who was not a party to the prior action; mortgages--foreclosure;
Supreme Court, Kings County, denied defendant Cohan's motion pursuant to CPLR
3211(a)(5) to dismiss the complaint as asserted against him as time-barred; App. Div.
affirmed.
WORD, PEOPLE ex rel. v STATE OF NEW YORK (2017 NY Slip Op
65808[U]):
4th Dept. App. Div. order of 3/1/17; denial of motion; sua sponte examination
whether the order appealed from 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; Appeal--Appellate Division--Denial of motion for renewal;
App. Div. denied petitioner's motion to renew a 4/20/15 order of Hon. Nancy E. Smith on
the ground that petitioner seeks a panel of Justices on the order of the Appellate Division
as opposed to a single Justice order.