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For May 3, 2013 through May 9, 2013, the following preliminary appeal statements were filed:

COUNTRY-WIDE INSURANCE COMPANY v PREFERRED TRUCKING SERVICES CORP (99 AD3d 582):
1st Dept. App. Div. order of 10/18/12; affirmance; leave to appeal granted by Court of Appeals, 5/2/13; INSURANCE - DISCLAIMER OF COVERAGE - TIMELINESS - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING UNTIMELY AS A MATTER OF LAW INSURER'S DISCLAIMER OF COVERAGE BECAUSE OF THE INSURED'S LACK OF COOPERATION IN THE DEFENSE OF THE UNDERLYING ACTION; Supreme Court, New York County granted the motion of defendants Filippo and Sherri Gallina for summary judgment to the extent of declaring that plaintiff's disclaimer of coverage for its insured defendant Preferred Trucking Services Corp. was untimely, and that plaintiff was obligated to indemnify Preferred up to the policy limit of $500,000, and denied plaintiff's cross motion for summary judgment declaring that it was not obligated to defend and indemnify Preferred in the underlying personal injury action; App. Div. affirmed.

KIMS (STANLEY R., II), PEOPLE v (96 AD3d 1595):
4th Dept. App. Div. order of 6/15/12; modification; leave to appeal granted by Smith, J., 4/24/13; CRIMES - INSTRUCTIONS - CONTROLLED SUBSTANCE IN OPEN VIEW - DEFENDANT NOT IN CLOSE PROXIMITY TO CONTROLLED SUBSTANCE WHEN IT WAS FOUND - WHETHER STATUTORY "ROOM PRESUMPTION" (PENAL LAW § 220.25[2]) APPLIES TO A DEFENDANT WHO LEAVES THE ROOM SHORTLY BEFORE POLICE FIND CONTROLLED SUBSTANCES - HARMLESS ERROR; UNLAWFUL SEARCH AND SEIZURE - WHETHER EVIDENCE FROM RESIDENCE SHOULD HAVE BEEN SUPPRESSED AS RESULTING FROM A WARRANTLESS "PROTECTIVE SWEEP" BY POLICE; PROOF OF OTHER CRIMES - PRIOR DRUG SALES - ALLEGED MOLINEUX ERROR; ALLEGED PROSECUTORIAL MISCONDUCT; Jefferson County Court convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree, criminal possession of marihuana in the second degree and two counts of criminally using drug paraphernalia in the second degree; App. Div. modified by reversing those parts of the judgment convicting defendant of criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree, affirmed the judgment as modified, and granted a new trial on counts one and two of the indictment.

SCIARA v SURGICAL ASSOCIATES OF WESTERN NEW YORK, P.C. (104 AD3d 1256):
4th Dept. App. Div. order of 3/15/13; modification with dissents; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution; WITNESSES - RIGHTS OF COUNSEL FOR NONPARTY WITNESS AT DEPOSITION - CPLR 3113(c) - 22 NYCRR 221.2 AND 221.3; Supreme Court, Erie County, among other things, granted that part of plaintiffs' motion seeking to compel nonparty witness Chopra to appear for the completion of her deposition, and denied nonparty Chopra's cross motion to limit or regulate the deposition except that Chopra's counsel is entitled to employ 22 NYCRR 221.2 and 221.3; App. Div. modified by denying the cross motion of nonparty Chopra in its entirety.

For May 10, 2013 through May 16, 2013, the following preliminary appeal statements were filed:

ALBUNIO v THE CITY OF NEW YORK (101 AD3d 656):
1st Dept. App. Div. order of 12/27/12; affirmance; leave to appeal granted by Court of Appeals, 4/30/13; ATTORNEY AND CLIENT - COMPENSATION - CONTINGENCY FEE AGREEMENT - SCOPE OF AGREEMENT PROVIDING FOR A FEE OF 33 1/3 PERCENT OF "THE SUM RECOVERED, WHETHER RECOVERED BY SUIT, SETTLEMENT OR OTHERWISE" - WHETHER "SUM RECOVERED" INCLUDES STATUTORY COUNSEL FEES AWARDED FOR TRIAL WORK IN A CIVIL RIGHTS ACTION; Supreme Court, New York County granted nonparty respondent's motion to determine her fees to the extent of including her statutory attorneys' fee award for trial level work in the total recovery for purposes of calculating her contingency fee; App. Div. affirmed.

COVINGTON, MATTER OF v FISCHER:
Supreme Court, Seneca County judgment of 6/6/12; dismissal of CPLR article 78 proceeding; sua sponte examination whether an appeal as of right lies pursuant to CPLR 5601(b)(2); PRISONS AND PRISONERS - DISCIPLINE OF INMATES - FOUR- MONTH STATUTE OF LIMITATIONS - CHALLENGE TO SUPREME COURT JUDGMENT DISMISSING AS UNTIMELY PETITIONER'S CPLR ARTICLE 78 PROCEEDING CHALLENGING A PRISON DISCIPLINARY DETERMINATION FOLLOWING A TIER III HEARING; Supreme Court dismissed as untimely the CPLR article 78 proceeding challenging respondent's determination after a Tier III disciplinary hearing.

GARDNER, MATTER OF v COXSACKIE-ATHENS CENTRAL SCHOOL DISTRICT (92 AD3d 1093):
3rd Dept. App. Div. judgment of 2/16/12 annulling respondent school district's determination and Supreme Court judgment of 4/2/13 awarding back pay and ordering respondent to make petitioner whole for unreimbursed health benefits; sua sponte examination whether the Supreme Court order finally determines the proceeding within the meaning of the Constitution; if not, whether the parties' letters dated 3/29/13 and 4/8/13 constitute a stipulation that finally determines the proceeding within the meaning of the Constitution; whether the App. Div. order satisfies the requirements of CPLR 5601(b)(1), except that of finality so as to allow an appeal as of right pursuant to CPLR 5601(d); and whether a basis exists for an appeal as of right pursuant to CPLR 5601(b)(2); LIMITATION OF ACTIONS - FOUR-MONTH STATUTE OF LIMITATIONS - EXTENSION UPON FILING NOTICE OF CLAIM - APPLICABILITY OF EXTENSION; CIVIL SERVICE - TERMINATION OF EMPLOYMENT - FAILURE TO PROPERLY DESIGNATE HEARING OFFICER - WAIVER OF OR FAILURE TO PRESERVE CHALLENGE TO IMPROPER DESIGNATION - RATIFICATION OF DESIGNATION BY BOARD OF EDUCATION; App Div. annulled respondent's determination terminating petitioner's employment and granted the CPLR article 78 petition to the extent of restoring petitioner to his former position with back pay and benefits; thereafter, Supreme Court, Greene County awarded petitioner back pay and ordered respondent to make petitioner whole for unreimbursed health benefits.

MATTER OF GUPTA (2013 NY Slip Op 66888[U]):
2nd Dept. App. Div. order of 3/8/13 vacating prior order, suspending appellant from the practice of law, and authorizing Grievance Committee to institute disciplinary proceeding against appellant; leave to appeal granted by Court of Appeals, 5/7/13; ATTORNEY AND CLIENT - DISCIPLINARY PROCEEDINGS - WHETHER THE APPELLATE DIVISION ERRED IN SUSPENDING ATTORNEY FROM PRACTICE OF LAW ON ITS OWN MOTION WITHOUT PROVIDING HIM WITH NOTICE THAT IT WAS CONSIDERING SUSPENSION, THE EVIDENTIARY BASIS FOR SUCH SUSPENSION, AND AN OPPORTUNITY TO RESPOND; App. Div., on appellant's motion to vacate a prior order of the court striking his name from the roll of attorneys to reflect his automatic disbarment based on a now-reversed federal felony conviction, and to reinstate him to the practice of law, (1) granted the motion to the extent of vacating the court's prior order, (2) otherwise denied the motion, and (3) on the court's own motion, immediately suspended appellant from the practice of law, and authorized the Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts to institute and prosecute a disciplinary proceeding against appellant based on the acts of professional misconduct underlying his alleged criminal conduct.

HOOVER v NEW HOLLAND NORTH AMERICA, INC. (100 AD3d 1495):
4th Dept. App. Div. order of 11/16/12; affirmance; leave to appeal granted by Court of Appeals, 4/30/13; PRODUCTS LIABILITY - DEFECTIVELY DESIGNED PRODUCT - TRACTOR-DRIVEN POST HOLE DIGGER - ENTANGLEMENT HAZARD - WHETHER REMOVAL OF DAMAGED SAFETY SHIELD BY OWNER OF POST HOLE DIGGER WAS A SUBSTANTIAL ALTERATION OR MODIFICATION ABSOLVING SELLER AND DISTRIBUTOR OF POST HOLE DIGGER OF LIABILITY - PROXIMATE CAUSE - SUFFICIENCY OF THE EVIDENCE; EVIDENCE - WHETHER VERDICT WAS BASED ON IMPROPERLY ADMITTED EVIDENCE; ALLEGEDLY ERRONEOUS JURY INSTRUCTIONS AND VERDICT SHEET; Supreme Court, Niagara County awarded plaintiff Jessica Bowers money damages upon a jury verdict; App. Div. affirmed.

JONES (HAROLD), PEOPLE v (103 AD3d 411):
1st Dept. App. Div. order of 2/5/13; reversal; leave to appeal granted by Graffeo, J., 5/6/13; CRIMES - POSSESSION OF WEAPON - POSSESSION OF LOADED FIREARM IN HOME BY DEFENDANT PREVIOUSLY CONVICTED OF A CRIME (PENAL LAW § 265.03[3]) - APPLICABILITY OF "HOME OR PLACE OF BUSINESS" EXCEPTION (PENAL LAW § 265.02[1]); Supreme Court, New York County, among other things, reduced a count charging criminal possession of a weapon in the second degree to criminal possession of a weapon in the third degree (3/2/11 order); denied reargument (3/10/11 order); and, thereafter, effectively granted reargument and, upon reargument, adhered to the 3/2/11 order (6/15/11 order); App. Div. reversed the 3/2/11 Supreme Court order and reinstated the charge of criminal possession of a weapon in the second degree, dismissed as academic an appeal from the 6/15/11 order, and dismissed as nonappealable the appeal from the 3/10/11 order.

KASLOW, MATTER OF v CITY OF NEW YORK (102 AD3d 785):
2nd Dept. App. Div. order of 1/16/13; affirmance; leave to appeal granted by Court of Appeals, 5/2/13; CIVIL SERVICE - RETIREMENT AND PENSION BENEFITS - SERVICE CREDIT FOR CIVILIAN SERVICE - WHETHER THE COURTS BELOW ERRED IN INTERPRETING RETIREMENT AND SOCIAL SECURITY LAW § 504-a TO ADD TO PETITIONER'S TIER 3 RETIREMENT BENEFIT FOR CORRECTIONAL SERVICES A BENEFIT CALCULATION FOR NON- CORRECTIONAL SERVICES; Supreme Court, Kings County granted the petition in a proceeding pursuant to CPLR article 78 to annul a determination of the New York City Employees' Retirement System, which denied petitioner's request for service credit for his prior employment with the New York City Department of Environmental Protection for purposes of determining his retirement benefits from the New York City Department of Correction; App. Div. affirmed.

LANDAUER LIMITED v JOE MONANI FISH CO., INC. (101 AD3d 653):
1st Dept. App. Div. order of 12/27/12; affirmance; leave to appeal granted by Court of Appeals, 5/2/13; PROCESS - SERVICE OF PROCESS - SERVICE ON CORPORATION - DISMISSAL OF ACTION TO ENFORCE AN ENGLISH MONEY JUDGMENT ENTERED ON DEFAULT BECAUSE OF PLAINTIFF'S FAILURE TO ESTABLISH THAT IT OBTAINED PERSONAL JURISDICTION OVER DEFENDANT IN THE FOREIGN ACTION PURSUANT TO CPLR 311(a)(1) - PROCESS SERVER'S FAILURE TO ASCERTAIN WHETHER INDIVIDUALS SERVED WERE AUTHORIZED TO ACCEPT SERVICE ON CORPORATION'S BEHALF - EFFECT OF DEFENDANT'S ACTUAL NOTICE OF THE FOREIGN ACTION - JOHN GALLIANO, S.A. v STALLION, INC. (15 NY3d 75 [2010]); Supreme Court, Bronx County, in an action to enforce a foreign money judgment entered against defendant on default, after a traverse hearing, denied plaintiff's motion for summary judgment in lieu of complaint and dismissed the action, without prejudice, for lack of personal jurisdiction; App. Div. affirmed.

NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT, MATTER OF v RUBENSTEIN (103 AD3d 409):
1st Dept. App. Div. order of 2/5/13; grant of motion to dismiss appeal; leave to appeal granted by Court of Appeals, 5/7/13; DISCLOSURE - APPLICATION FOR RELEASE OF RECORDS IN CRIMINAL ACTION FOR USE IN DISCIPLINARY PROCEEDING AGAINST A JUDGE - EX PARTE ORDER OF SUPREME COURT - DISMISSAL OF APPEAL AS MOOT; Supreme Court, New York County denied respondent Rubenstein's motion to, among other things, vacate a prior ex parte order releasing certain records and papers to petitioner Commission; App. Div. granted petitioner Commission's motion to dismiss the appeal as moot.

PEOPLE ex rel. RYAN, o/b/o SHAVER v CHEVERKO (102 AD3d 990):
2nd Dept. App. Div. order of 1/30/13; reversal; leave to appeal granted by Court of Appeals, 5/7/13; PRISONS AND PRISONERS - CALCULATION OF SENTENCE - GOOD TIME CREDIT - WHERE PENAL LAW § 70.30(2)(b) IMPOSES A TWO- YEAR LIMIT ON THE AGGREGATE TERM OF CONSECUTIVE DEFINITE SENTENCES, WHETHER A PRISONER'S RELEASE DATE SHOULD BE CALCULATED BASED UPON THE PRISONER'S ORIGINAL RELEASE DATE OR THE STATUTORY TWO-YEAR AGGREGATE TERM; Supreme Court, Westchester County dismissed a proceeding, in effect, pursuant to CPLR article 70 for a writ of habeas corpus; App. Div. reversed, sustained the writ and directed the Warden of the facility at which petitioner was incarcerated, or his or her agent, to immediately release petitioner upon receipt of a certified copy of the Appellate Division's decision and order.

STARKER v TRUMP VILLAGE SECTION 4, INC. (104 AD3d 937):
2nd Dept. App. Div. order of 3/27/13; affirmance; sua sponte examination whether the order 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; COURTS - JURISDICTION - COMPLAINT AGAINST STATE AND NON-STATE DEFENDANTS FILED IN SUPREME COURT - DISMISSAL OF COMPLAINT AS AGAINST STATE AGENCIES WITHOUT PREJUDICE TO THE PLAINTIFF COMMENCING A CLAIM IN THE COURT OF CLAIMS; Supreme Court, Kings County granted the motion of the defendants New York State Division of Housing and Community Renewal and Commissioner of New York State Division of Housing and Community Renewal to dismiss the complaint insofar as asserted against them, without prejudice to the plaintiff commencing a claim in the Court of Claims; App. Div. affirmed.