Return to New Filings Page


For May 16, 2014 through May 22, 2014, the following preliminary appeal statements were filed:

ALLEN, MATTER OF (115 AD3d 225):
4th Dept. App. Div. order of 2/14/14; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right pursuant to CPLR 5601(b) and whether any other jurisdictional basis exists to support an appeal as of right; ATTORNEY AND CLIENT - DISCIPLINARY PROCEEDINGS - RECIPROCAL DISCIPLINE - WHETHER THE APPELLATE DIVISION LACKED ANY BASIS TO SUSPEND ATTORNEY FOR TWO YEARS AND TO DENY ATTORNEY LEAVE TO APPLY FOR REINSTATEMENT TO THE PRACTICE OF LAW IN NEW YORK UNTIL SUCH TIME AS HE IS REINSTATED TO THE PRACTICE OF LAW IN A JURISDICTION THAT DISBARRED THE ATTORNEY; App. Div., among other things, suspended attorney from practice of law for two years, and until further order of the court, and denied attorney leave to appeal to the court for reinstatement to the practice of law in New York until such time as he is reinstated to the practice of law in the District of Columbia.

BROWN (JARROD), PEOPLE v (115 AD3d 155):
2nd Dept. App. Div. order of 1/29/14; affirmance; leave to appeal granted by Graffeo, J., 5/9/14; CRIMES - SENTENCE - RESENTENCING UNDER DRUG LAW REFORM ACT, AS AMENDED IN 2011 - ELIGIBILITY - WHETHER A PAROLEE IS IN THE "CUSTODY" OF THE NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION WITHIN THE MEANING OF CPL 440.46(1) AND, THUS, ELIGIBLE FOR RESENTENCING UNDER THAT PROVISION; Supreme Court, Queens County, resentenced defendant, pursuant to CPL 440.46, upon the defendant's conviction of criminal sale of a controlled substance in the third degree, upon his guilty plea; App. Div. affirmed.

MALAY v CITY OF SYRACUSE (113 AD3d 1141):
4th Dept. App. Div. order of 1/3/14; affirmance; leave to appeal granted by Court of Appeals, 5/8/14; LIMITATION OF ACTIONS - COMMENCEMENT OF ACTION WITHIN SIX MONTHS AFTER TERMINATION OF PRIOR ACTION (CPLR 205[a]) - WHETHER PRIOR FEDERAL ACTION WAS TERMINATED WITHIN THE MEANING OF CPLR 205(a) WHEN FEDERAL DISTRICT COURT DISMISSED PLAINTIFF'S FEDERAL AND STATE CLAIMS, WHERE PLAINTIFF TOOK AN APPEAL TO THE FEDERAL CIRCUIT COURT AND FILED THE SECOND ACTION IN STATE COURT WHILE THE APPEAL WAS PENDING, ALTHOUGH THE APPEAL WAS LATER DISMISSED FOR FAILURE TO PROSECUTE; Supreme Court, Onondaga County, order that granted defendant's motion to dismiss the complaint; App. Div. affirmed.

McGOVERN, MATTER OF v MOUNT PLEASANT CENTRAL SCHOOL DISTRICT (114 AD3d 795):
2nd Dept. App. Div. order of 2/13/14; reversal; leave to appeal granted by Court of Appeals, 5/13/14; SCHOOLS - TEACHERS - NOTICE OF CLAIM (EDUCATION LAW § 3813[1]) - CPLR ARTICLE 78 PROCEEDING TO REVIEW BOARD OF EDUCATION DETERMINATION DENYING PETITIONER TENURE AND TERMINATING HER EMPLOYMENT AS A PROBATIONARY TEACHER - WHETHER PETITIONER WAS EXEMPT FROM THE EDUCATION LAW NOTICE OF CLAIM REQUIREMENT; Supreme Court, Westchester County, directed that petitioner be reinstated with back pay pending a hearing to determine whether she was denied tenure and terminated from her position as a probationary teacher in bad faith; App. Div. reversed and remitted the matter to Supreme Court for entry of a judgment in favor of the school district, denying the petition and dismissing the proceeding.

TOUTPUISSANT, MATTER OF v FISCHER (116 AD3d 1276):
3rd Dept. App. Div. order of 4/17/14; modification; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; PRISONS AND PRISONERS - DISCIPLINE OF INMATES - WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE DETERMINATION OF GUILT WITH RESPECT TO THE ONE REMAINING CHARGE OF POSSESSION OF CONTRABAND; CLAIMED BIAS OF HEARING OFFICER; App. Div. modified by annulling so much of respondent's determination as found petitioner guilty of engaging in an unauthorized exchange, making a false statement, smuggling, violating facility correspondence procedures and solicitation and imposed a penalty; granted the petition to that extent; directed respondent to expunge all references thereto from petitioner's institutional record; and remitted the matter to respondent for an administrative redetermination of the penalty on the remaining violation; and as so modified, confirmed the determination.

TREZZA v METROPOLITAN TRANSPORTATION AUTHORITY (113 AD3d 402):
1st Dept. App. Div. order of 1/7/14; modification; leave to appeal granted by App. Div., 4/29/14; INSURANCE - NO-FAULT AUTOMOBILE INSURANCE - SERIOUS INJURY (INSURANCE LAW § 5102[d]) - WHETHER JURY'S AWARD FOR FUTURE PAIN AND SUFFERING WAS SUPPORTED BY THE EVIDENCE PRESENTED AT TRIAL; Supreme Court, Bronx County, upon a jury verdict, awarded plaintiff damages in the amount of $500,000 for past pain and suffering, $1,500,000 for future pain and suffering, and $500,000 for future medical expenses; App. Div. modified to vacate the award and remand the matter for a new trial on the issue of damages, unless plaintiff stipulates to reduce the award for past pain and suffering to $300,000 and vacate the awards for future pain and suffering and future medical expenses, and to entry of an amended judgment in accordance therewith.

WALTON v STRONG MEMORIAL HOSPITAL (114 AD3d 1289):
4th Dept. App. Div. order of 2/14/14; affirmance; leave to appeal granted by Court of Appeals, 5/8/14; LIMITATION OF ACTIONS - MEDICAL MALPRACTICE - "FOREIGN OBJECT" EXCEPTION (CPLR 214-a) - FAILURE TO REMOVE POLYVINYL CATHETER FROM HEART AFTER SURGERY - WHETHER THE APPELLATE DIVISION ERRED IN CONCLUDING THAT PORTION OF POLYVINYL CATHETER THAT BROKE OFF AND REMAINED IN PATIENT AFTER ALL OTHER CATHETERS WERE REMOVED WAS A FIXATION DEVICE AND NOT A FOREIGN OBJECT BECAUSE THE CATHETERS WERE INTENTIONALLY PLACED INSIDE PLAINTIFF'S BODY TO MONITOR ATRIAL PRESSURE FOR A FEW DAYS AFTER HEART SURGERY; Supreme Court, Erie County, dismissed all claims against the named defendants; App. Div. affirmed.

For May 23, 2014 through May 29, 2014, the following preliminary appeal statements were filed:

DURANT (EVERETT M.), PEOPLE v (112 AD3d 1366):
4th Dept. App. Div. order of 12/27/13; affirmance; leave to appeal granted by Pigott, J., 5/12/14; CRIMES - ROBBERY - JURY INSTRUCTIONS - WHETHER COUNTY COURT PROPERLY DENIED DEFENDANT'S REQUEST FOR AN ADVERSE INFERENCE CHARGE REQUESTED BECAUSE THE POLICE, ALTHOUGH CAPABLE OF DOING SO, FAILED TO VIDEOTAPE DEFENDANT'S CONFESSION; County Court, Monroe County, convicted defendant, upon a jury verdict, of robbery in the second degree; App. Div. affirmed.

EL-DEHDAN v EL-DEHDAN (114 AD3d 4):
2nd Dept. App. Div. order of 12/18/13; affirmance; leave to appeal granted by App. Div., 5/14/14; CONTEMPT - CIVIL CONTEMPT - IN A MATRIMONIAL ACTION, WHETHER PLAINTIFF MET HER BURDEN OF PROOF REGARDING DEFENDANT'S VIOLATION OF AN ORDER DIRECTING HIM TO DEPOSIT WITH PLAINTIFF'S ATTORNEY THE PROCEEDS OF A CERTAIN REAL ESTATE TRANSACTION - WHETHER SUPREME COURT IMPROPERLY DREW AN ADVERSE INFERENCE AGAINST DEFENDANT FOR INVOKING HIS CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION - WHETHER WILLFULNESS IS AN ELEMENT OF CIVIL CONTEMPT; Supreme Court, Kings County, granted plaintiff's motion to reject a referee's report dated 5/24/11, made after a hearing, and, in effect, granted that branch of plaintiff's separate motion which was to hold defendant in civil contempt of court for failing to comply with the terms of a 1/29/10 Supreme Court order; App. Div. affirmed.

ELG UTICA ALLOYS, INC., MATTER OF v DEPARTMENT OF ENVIRONMENTAL CONSERVATION (116 AD3d 1200):
3rd Dept. App. Div. judgment of 4/10/14; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; ENVIRONMENTAL CONSERVATION - HAZARDOUS WASTE - APPLICATION TO HAVE CERTAIN PROPERTY ON THE REGISTRY OF INACTIVE HAZARDOUS WASTE DISPOSAL SITES RECLASSIFIED FROM A CLASS 2 SITE TO A CLASS 3 SITE - CHALLENGE TO DETERMINATION DENYING PETITIONER'S APPLICATION UPON THE GROUND THAT PETITIONER FAILED TO ESTABLISH BY A PREPONDERANCE OF THE EVIDENCE THAT THE SITE DID NOT PRESENT A SIGNIFICANT THREAT TO THE ENVIRONMENT; App. Div. confirmed a determination of respondent Commissioner of Environmental Conservation denying petitioner's application to reclassify certain of its property on the registry of inactive hazardous waste disposal sites, and dismissed the CPLR article 78 petition.

HENDERSON (WILLIAM), PEOPLE v (110 AD3d 1353):
3rd Dept. App. Div. order of 10/31/13; affirmance; leave to appeal granted by Smith, J., 5/12/14; CRIMES - MURDER - FELONY MURDER - SUFFICIENCY OF THE EVIDENCE WHERE PREDICATE FELONY OF BURGLARY IS BASED UPON INTENT TO COMMIT ASSAULT OR MURDER AT TIME OF ENTRY; INSTRUCTIONS - DENIAL OF REQUEST TO CHARGE LESSER INCLUDED OFFENSE OF MANSLAUGHTER IN SECOND DEGREE - WHETHER THE APPELLATE DIVISION ERRED IN CONCLUDING THAT THE ONLY REASONABLE VIEW OF THE EVIDENCE WAS THAT DEFENDANT'S STABBING OF VICTIM WAS INTENTIONAL AND NOT RECKLESS; County Court, Warren County, judgment, upon a verdict convicting defendant of murder in the second degree, manslaughter in the first degree, burglary in the first degree, assault in the second degree, and two counts of burglary in the second degree; App. Div. affirmed.

MONTANE, MATTER OF v EVANS (116 AD3d 197):
3rd Dept. App. Div. order of 3/13/14; reversal; leave to appeal granted by Court of Appeals, 5/13/14; PROCEEDING AGAINST BODY OR OFFICER - CERTIORARI - CPLR ARTICLE 78 PROCEEDING TO ANNUL A BOARD OF PAROLE DETERMINATION DENYING PAROLE RELEASE - WHETHER THE PAROLE BOARD WAS REQUIRED TO PROMULGATE REGULATIONS PURSUANT TO EXECUTIVE LAW § 259-c(4) - WHETHER THE INTERNAL MEMORANDUM CIRCULATED BY THE BOARD SATISFIED THE REQUIREMENTS OF EXECUTIVE LAW § 259-c(4); Supreme Court, Albany County, granted petitioner's CPLR article 78 application to annul a determination of the Board of Parole denying petitioner's request for parole release, and remanded the matter to the Parole Board for a new parole hearing; App. Div. reversed and dismissed the petition.

SCHULZ v NEW YORK STATE EXECUTIVE:
Supreme Court, Albany County, judgment of 4/21/14; sua sponte examination whether the only question involved on the appeal is the validity of a statutory provision under the State or Federal Constitution; CONSTITUTIONAL LAW - VALIDITY OF STATUTE - WHETHER THE NEW YORK SECURE AMMUNITION AND FIREARMS ENFORCEMENT ACT (L. 2013, ch. 1) VIOLATES ARTICLE III, § 14 OF THE NEW YORK CONSTITUTION, ARTICLE XII OF THE NEW YORK CONSTITUTION, THE SECOND AMENDMENT TO THE FEDERAL CONSTITUTION, OR CIVIL RIGHTS LAW § 4; Supreme Court, Albany County, judgment declaring that the New York Secure Ammunition and Firearms Enforcement Act (NY SAFE Act) (L. 2013, ch. 1) does not violate article III, § 14 of the New York Constitution, article XII of the New York Constitution, the Second Amendment to the Federal Constitution, and Civil Rights Law § 4.

SCHULZ v STATE OF NEW YORK EXECUTIVE:
Supreme Court, Albany County, judgment of 5/7/14; sua sponte examination whether the only question involved on the appeal is the validity of a statutory provision under the State or Federal Constitution; CONSTITUTIONAL LAW - VALIDITY OF STATUTE - WHETHER THE START-UP NEW YORK PROGRAM (L. 2013, ch. 68) VIOLATES NEW YORK CONSTITUTION ARTICLE III, §§ 14 AND 17, ARTICLE VII, § 8(1), ARTICLE VIII, § 1, AND ARTICLE IX, § 2; WHETHER THE UPSTATE NEW YORK GAMING ECONOMIC DEVELOPMENT ACT (L. 2013, ch 174) VIOLATES NEW YORK CONSTITUTION ARTICLE III, § 14; Supreme Court, Albany County, amended judgment that, among other things, declared that the START-UP NY program (L. 2013, ch. 68) does not violate New York Constitution article III, §§ 14 and 17, article VII, § 8(1), article VIII, § 1, and article IX, § 2, and that the Upstate New York Gaming Economic Development Act (L. 2013, ch. 174) does not violate New York Constitution article III, § 14; and ordered that, with respect to plaintiff's challenges regarding the constitutionality of separate agreements between the State of New York and the Oneida Indian Nation, the Seneca Nation of Indians, and the St. Regis Mohawk Tribe, plaintiff serve the County of Madison, the County of Oneida, the Oneida Indian Nation, the Seneca Nation of Indians and the St. Regis Mohawk Tribe with all the pleadings and supporting papers and a copy of the judgment within 30 days after the date of the judgment.

SCHULZ v SILVER:
Supreme Court, Albany County, order of 5/13/14; sua sponte examination whether the only question involved on the appeal is the validity of a statutory provision under the State or Federal Constitution; STATE - STANDING - WHETHER SUPREME COURT ERRED IN HOLDING THAT PLAINTIFF DID NOT HAVE STANDING AS A CITIZEN-TAXPAYER TO BRING CERTAIN CLAIMS REGARDING NONFISCAL ACTIVITIES ARISING FROM DEFENDANT'S HANDLING OF SEXUAL HARASSMENT AND DISCRIMINATION CLAIMS BY TWO STAFF MEMBERS OF A FORMER ASSEMBLY MEMBER; GOVERNMENTAL IMMUNITY - WHETHER SUPREME COURT ERRED IN HOLDING THAT DEFENDANT'S APPROVAL OF THE EXPENDITURE OF STATE FUNDS FOR THE SETTLEMENT OF SEXUAL HARASSMENT AND DISCRIMINATION CLAIMS WAS DISCRETIONARY IN NATURE; Supreme Court, Albany County, granted defendant's motion to dismiss the complaint, and dismissed the complaint.