Return to New Filings Page


For June 11, 2010 through June 17, 2010, the following preliminary appeal statements were filed:

CLYDE (RAYMOND), PEOPLE v (72 AD3d 1538; 72 AD3d 1543):
4th Dept. App. Div. orders of 4/30/10; reversal and affirmance; leave to appeal granted by Scudder, P.J., 6/3/10; CRIMES - ATTEMPTED RAPE IN THE FIRST DEGREE - SUFFICIENCY OF THE EVIDENCE; TRIAL - PHYSICALLY RESTRAINED DEFENDANT - LEG SHACKLES - APPLICABILITY OF HARMLESS ERROR ANALYSIS; WITNESS - WHETHER THE APPELLATE DIVISION CORRECTLY HELD THAT THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO PRECLUDE THE PROSECUTOR FROM QUESTIONING MEDICAL EXPERTS ON THE ISSUE WHETHER THE VICTIM'S INJURIES MET THE LEGAL DEFINITIONS OF PHYSICAL INJURY AND SERIOUS PHYSICAL INJURY SET FORTH IN THE PENAL LAW; Cayuga County Court order that granted in part defendant's motion for a trial order of dismissal and dismissed count one of the indictment; Cayuga County Court judgment convicting defendant of assault in the second degree (two counts), unlawful imprisonment in the first degree and promoting prison contraband in the first degree; App. Div. affirmed the order, reversed the judgment and granted a new trial on counts two through five of the indictment.

EUJOY REALTY CORP. v VAN WAGNER COMMUNICATIONS, LLC (73 AD3d 546):
1st Dept. App. Div. order of 5/18/10; reversal with dissents; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution and whether the two-justice dissent at the App. Div. is on a question of law; LANDLORD AND TENANT - RENT - WHETHER THE APPELLATE DIVISION CORRECTLY HELD THAT PLAINTIFF LANDLORD WAS ENTITLED TO SUMMARY JUDGMENT IN AN ACTION FOR RENT AND COUNSEL FEES ARISING OUT OF A TERMINATED LEASE AGREEMENT - LANDLORD'S ENTITLEMENT TO FULL YEAR'S RENT FOR 2007 WHERE LESSEE OF ADVERTISING BILLBOARD TERMINATED LEASE AS OF JANUARY 8, 2007 - DENIAL OF MOTION TO AMEND ANSWER; Supreme Court, New York County, in an action for rent in the amount of $94,133.57 and counsel fees arising out of a terminated lease agreement, denied plaintiff landlord's motion for summary judgment, granted the part of defendant tenant's cross motion that sought summary judgment dismissing the complaint and denied that part of defendant's cross motion that sought leave to amend the answer to add the affirmative defense of estoppel; App. Div. reversed, granted plaintiff's motion, denied defendant's motion and remanded for an assessment of counsel fees.

HENRY v PEGUERO (72 AD3d 600):
1st Dept. App. Div. 4/29/10; reversal with dissents; sua sponte examination whether the appeal was timely taken, whether the order appealed from finally determines the action within the meaning of the Constitution and whether the two-justice dissent at the App. Div. is on a question of law; INSURANCE - NO-FAULT AUTOMOBILE INSURANCE - SERIOUS INJURY - INSURANCE LAW § 102(d) - RENEWAL - SUMMARY JUDGMENT; Supreme Court, Bronx County granted plaintiff's motion to renew and reargue a 11/10/08 Supreme Court, Bronx County order granting summary judgment dismissing the complaint, vacated the 11/10/08 order and granted defendants' motion for summary judgment only to the extent of dismissing plaintiff's claims under the 90/180 days category; App. Div. reversed, denied plaintiff's motion to renew and reargue, reinstated the order dismissing the entire complaint and directed the Clerk to enter judgment accordingly.

STATE OF NEW YORK, MATTER OF v FARNSWORTH (— AD3d —, 2010 NY Slip Op 03561):
4th Dept. App. Div. order of 4/30/10; 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; CRIMES - SEX OFFENDERS - CIVIL COMMITMENT OR SUPERVISION - CONSTITUTIONALITY OF MENTAL HYGIENE LAW ARTICLE 10 AS APPLIED TO PERSONS CONVICTED OF CERTAIN DESIGNATED FELONIES COMMITTED BEFORE THE EFFECTIVE DATE OF ARTICLE 10 - APPLICATION OF CLEAR AND CONVINCING EVIDENCE STANDARD - CLAIMED VIOLATION OF APPELLANT'S DUE PROCESS AND EQUAL PROTECTION RIGHTS; Supreme Court, Chautauqua County denied respondent's motion to dismiss a petition for civil management under article 10 of the Mental Hygiene Law; App. Div. affirmed.

MIGUEL M., MATTER OF (66 AD3d 51):
2nd Dept. App. Div. order of 7/28/09; affirmance; leave to appeal granted by Court of Appeals, 6/3/10; MENTAL HEALTH - ASSISTED OUTPATIENT TREATMENT - PROCEEDING PURSUANT TO MENTAL HYGIENE LAW § 9.60 (KENDRA'S LAW) - WHETHER EXCEPTIONS TO PRIVACY PROVISIONS OF HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA) PERMIT A PHYSICIAN, IN A KENDRA'S LAW PROCEEDING, TO OBTAIN, AND INTRODUCE INTO EVIDENCE, AN INDIVIDUAL'S MEDICAL RECORDS WITHOUT AUTHORIZATION OR A COURT ORDER; WHETHER FEDERAL HIPAA PRIVACY RULE PREEMPTS MENTAL HYGIENE LAW § 33.13; Supreme Court, Queens County granted the petition to authorize assisted outpatient treatment; App. Div. affirmed.

REYES (CARLOS), PEOPLE v (69 AD3d 523):
1st Dept. App. Div. order of 1/28/10; reversal with dissents; leave to appeal granted by Buckley, J., 6/3/10; Rule 500.11 review pending; CRIMES - UNLAWFUL SEARCH AND SEIZURE - EXISTENCE OF REASONABLE SUSPICION JUSTIFYING POLICE TO FORCIBLY DETAIN DEFENDANT; Supreme Court, New York County convicted defendant, upon his guilty plea, of attempted robbery in the third degree and sentenced him, as a second felony offender, to a term of 1 1/2 to 3 years; App. Div. reversed the judgment of conviction, on the law and the facts, granted the motion to suppress physical evidence and statements, vacated defendant's guilty plea and remanded the matter for further proceedings.

RIDGE ROAD FIRE DEPARTMENT, MATTER OF v SCHIANO (67 AD3d 1342):
4th Dept. App. Div. order of 11/13/09; reversal and dismissal; leave to appeal granted by Court of Appeals, 6/3/10; PROCEEDING AGAINST BODY OR OFFICER - ACCIDENTAL DISABILITY RETIREMENT BENEFITS - WHETHER SUBSTANTIAL RECORD EVIDENCE SUPPORTS THE HEARING OFFICER'S DETERMINATION GRANTING FIREFIGHTER ACCIDENTAL DISABILITY BENEFITS PURSUANT TO GENERAL MUNICIPAL LAW § 207-a - INJURY TO DRIVER OF FIRE TRUCK; STANDARD OF REVIEW; Supreme Court, Monroe County granted the CPLR article 78 petition and annulled respondent Schiano's determination; App. Div. reversed, dismissed the petition and reinstated the determination of respondent Schiano granting respondent Nowak benefits pursuant to General Municipal Law § 207-a.

SEIFERHELD, MATTER OF v KELLY (70 AD3d 460):
1st Dept. App. Div. order of 2/11/10; reversal; leave to appeal granted by App. Div., 5/27/10; CIVIL SERVICE - RETIREMENT AND PENSION BENEFITS - ACCIDENTAL DISABILITY RETIREMENT - WHETHER THE APPELLATE DIVISION CORRECTLY HELD THAT POLICE PENSION FUND LACKED STATUTORY AUTHORITY TO REVOKE OR SUSPEND PETITIONER'S DISABILITY BENEFITS BECAUSE THE BOARD OF TRUSTEES DID NOT DIRECT SUCH ACTION; Supreme Court, New York County denied a CPLR 78 petition to annual respondent Police Commissioner's determination that revoked petitioner's accident disability retirement benefits and, among other things, to restore those benefits, and dismissed the proceeding; App. Div. reversed, reinstated the proceeding, granted the petition to the extent of annulling the determination, and remanding to respondent Board of Trustees for further proceedings consistent with the court's opinion.

TOWNS, MATTER OF; GRIEVANCE COMMITTEE (— AD3d —, 2010 NY Slip Op 03461):
1st Dept. App. Div. order of 2/11/10; reversal; leave to appeal granted by App. Div., 5/27/10; CIVIL SERVICE - RETIREMENT AND PENSION BENEFITS - ACCIDENTAL DISABILITY RETIREMENT - WHETHER THE APPELLATE DIVISION CORRECTLY HELD THAT POLICE PENSION FUND LACKED STATUTORY AUTHORITY TO REVOKE OR SUSPEND PETITIONER'S DISABILITY BENEFITS BECAUSE THE BOARD OF TRUSTEES DID NOT DIRECT SUCH ACTION; Supreme Court, New York County denied a CPLR 78 petition to annual respondent Police Commissioner's determination that revoked petitioner's accident disability retirement benefits and, among other things, to restore those benefits, and dismissed the proceeding; App. Div. reversed, reinstated the proceeding, granted the petition to the extent of annulling the determination, and remanding to respondent Board of Trustees for further proceedings consistent with the court's opinion.

ESTATE OF WRIGHT, MATTER OF v CITY OF ROCHESTER (2010 NY Slip Op 69837[U]):
4th Dept. App. Div. order of 4/20/10; denial of motion to vacate dismissal of appeal; sua sponte examination whether the order finally determines the proceeding within the meaning of the Constitution and whether any jurisdictional basis exists to support an appeal as of right; APPEAL - CHALLENGE TO APPELLATE DIVISION ORDER DENYING MOTION TO VACATE DISMISSAL OF APPEAL; App. Div. denied appellant's motion to vacate the dismissal of an appeal taken from a Supreme Court, Monroe County order entered on 3/17/09.

For June 18, 2010 through June 24, 2010, the following preliminary appeal statements were filed:

ABREU, MATTER OF v BEZIO (71 AD3d 1341):
3rd Dept. App. Div. judgment of 3/25/10; confirming administrative determination; sua sponte examination whether any jurisdictional basis exists to support an appeal as of right; PRISONS AND PRISONERS - DISCIPLINE OF INMATES - CHALLENGE TO APPELLATE DIVISION ORDER CONFIRMING SO MUCH OF A DETERMINATION OF THE COMMISSIONER OF CORRECTIONAL SERVICES AS FOUND PETITIONER GUILTY OF VIOLATING A PRISON DISCIPLINARY RULE PROHIBITING HARASSMENT; App. Div. confirmed a determination that, among other things, found petitioner guilty of violating a prison disciplinary rule prohibiting harassment.

ABREU, MATTER OF v HOGAN (72 AD3d 1143):
3rd Dept. App. Div. order of 4/1/10; modification; sua sponte examination whether the order appealed from finally determines the proceeding within the meaning of the Constitution and whether any jurisdictional basis exists to support an appeal as of right; PRISONS AND PRISONERS - DISCIPLINE OF INMATES - CPLR ARTICLE 78 PROCEEDING - FOUR-MONTH STATUTE OF LIMITATIONS - SUFFICIENCY OF PLEADINGS (CPLR 3013); Supreme Court, Albany County granted respondents' motion to dismiss the CPLR article 78 petition; App. Div. modified by reversing so much of the judgment as granted respondents' motion dismissing that portion of the petition challenging the unavailability of a sex offender program at petitioner's facility, denying respondents' motion to that extent, remitting to Supreme Court to permit respondents to serve an answer within 15 days of the date of the decision, and affirmed as so modified.

ABREU v HUTCHINGS (71 AD3d 1254):
3rd Dept. App. Div. order of 3/11/10; modification; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution and whether any jurisdictional basis exists to support an appeal as of right; COSTS - POOR PERSONS - DENIAL OF POOR PERSON APPLICATION WHERE PLAINTIFF FAILED TO FILE AN ATTORNEY'S CERTIFICATION OF MERIT AS SUPREME COURT DIRECTED HIM TO DO; Supreme Court, Chemung County dismissed plaintiff's complaint for failure to file an attorney's certification of merit pursuant to CPLR 1101(b); App. Div. modified by reversing so much of the order as dismissed the complaint, remitted to Supreme Court for further proceedings not inconsistent with the court's decision and affirmed as so modified.

ALBERGOTTI (ALLEN), PEOPLE v (72 AD3d 401):
1st Dept. App. Div. order of 4/1/10; modification; leave to appeal granted by Pigott, J., 6/10/10; CRIMES - SENTENCE - PLEA AGREEMENT - WHETHER SENTENCING COURT CONDUCTED A "SUFFICIENT INQUIRY" INTO WHETHER THE PLEA AGREEMENT HAD BEEN BREACHED (PEOPLE v OUTLEY, 80 NY2d 703, 713); DUE PROCESS; PRESERVATION; Supreme Court, New York County convicted defendant of forgery in the second degree and sentenced him, as a second felony offender, to a term of 2 1/2 to 5 years; App. Div. modified to the extent of reducing the mandatory surcharge and crime victim assistance fee from $300 and $25 to $250 and $20 respectively, and otherwise affirmed.

ALONSO (ROBERT and EMILIA), PEOPLE v (70 AD3d 957):
2nd Dept. App. Div. order of 2/16/10; dismissal of appeal; leave to appeal granted by Smith, J., 6/10/10; CRIMES - APPEAL - WHETHER THE APPELLATE DIVISION HAD JURISDICTION OVER THE PEOPLE'S APPEAL FROM A SUPREME COURT ORDER DISMISSING INDICTMENTS FOR THE ALLEGED VIOLATION OF BRADY v MARYLAND (373 US 83); Supreme Court, Westchester County granted defendant's oral application to dismiss indictments with prejudice on the ground that the People had violated their obligation to disclose exculpatory evidence pursuant to Brady v Maryland (373 US 83); App. Div. dismissed People's appeal on the ground that "[a]n order imposing sanctions pursuant to CPL 240.70(1) is not appealable under CPL 450.20."

AYALA (ANDRES), PEOPLE v (72 AD3d 1577):
4th Dept. App. Div. order of 4/30/10; affirmance; sua sponte examination whether there is any jurisdictional basis for an appeal as of right; CRIMES - SEX OFFENDERS - SEX OFFENDER REGISTRATION ACT (SORA) (CORRECTION LAW ART. 6-C) - CLAIMED DUE PROCESS VIOLATIONS IN ASSESSMENT OF RISK LEVEL; Erie County Court adjudicated defendant a level one risk under the Sex Offender Registration Act (Correction Law article 6-C); App. Div. affirmed.

BENSTON (MAURICE), PEOPLE v (70 AD3d 479):
1st Dept. App. Div. order of 2/16/10; affirmance; leave to appeal granted by Lippman, Ch.J., 6/9/10; CRIMES - EVIDENCE - MEDICAL RECORDS - WHETHER THE TRIAL COURT ERRED, AFTER REDACTING PORTIONS OF COMPLAINANT'S HOSPITAL RECORDS, IN ALLOWING LIMITED REFERENCES CONCERNING "DOMESTIC VIOLENCE INVOLVING A FORMER BOYFRIEND" TO REMAIN IN THOSE RECORDS AS PART OF THE "DIAGNOSIS"; MEDICAL RECORDS EXCEPTION TO HEARSAY RULE; TRIAL COURT'S LIMITATION OF IMPEACHMENT OF COMPLAINANT'S TESTIMONY; DUE PROCESS; Supreme Court, Bronx County convicted defendant of assault in the second degree, attempted assault in the second degree, criminal possession of a weapon in the fourth degree, four counts of criminal contempt in the first degree, two counts of criminal contempt in the second degree, intimidating a victim or witness in the third degree, aggravated harassment in the second degree and harassment in the second degree, and sentenced him, as a second felony offender, to an aggregate term of 5 1/2 years; App. Div. affirmed.

BRANNON (ERNEST), PEOPLE v (60 AD3d 498):
1st Dept. App. Div. order of 3/17/09; affirmance; leave to appeal granted by Read, J., 6/15/10; CRIMES - UNLAWFUL SEARCH AND SEIZURE - WHETHER POLICE LACKED REASONABLE SUSPICION TO BELIEVE THAT OBSERVED OUTLINE OF KNIFE IN DEFENDANT'S PANTS POCKET WAS A GRAVITY KNIFE; SUPPRESSION MOTION; Supreme Court, New York County convicted defendant of criminal possession of a weapon in the third degree and sentenced him, as a second felony offender, to a term of 2 to 4 years; App. Div. affirmed.

CENTRO EMPRESARIAL CEMPRESA S.A. v AMERICA MOVIL S.A.B. de C.V. (— AD3d —, 2010 NY Slip Op 04719):
1st Dept. App. Div. order of 6/3/10; reversal with dissents; RELEASE - SCOPE OF RELEASE - BINDING NATURE - RELEASE ALLEGEDLY INDUCED BY FRAUD - CHALLENGE TO APPELLATE DIVISION RULING THAT GENERAL RELEASE BARS PLAINTIFFS' VARIOUS CAUSES OF ACTION FOR FRAUD AND BREACH OF CONTRACT; Supreme Court, New York County denied defendants' motion to dismiss the complaint; App. Div. reversed, granted defendants' motion and directed the Clerk to enter judgment in defendants' favor dismissing the complaint.

GRAHAM, PEOPLE ex rel. v WALSH:
Justice Carni order of 2/5/10; denial of writ of habeas corpus; HABEAS CORPUS - AVAILABILITY OF RELIEF - CHALLENGE TO AN ORDER OF AN INDIVIDUAL APPELLATE DIVISION JUSTICE DENYING PETITION FOR A WRIT OF HABEAS CORPUS; Justice Carni denied petition for a writ of habeas corpus.

GRIMM, MATTER OF v NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL (68 AD3d 29):
1st Dept. App. Div. order of 9/24/09; affirmance with dissents; LANDLORD AND TENANT - RENT REGULATION - RENT REGULATION REFORM ACT OF 1997 (L. 1997, ch 116) - WHETHER APPELLATE DIVISION ERRED IN HOLDING THAT RESPONDENT DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL (DHCR) "ACTED ARBITRARILY, CAPRICIOUSLY AND IN DISREGARD OF ITS OBLIGATION IN FAILING TO CONSIDER WHETHER THE RENT CHARGED TO PETITIONER WAS UNLAWFUL, AND THUS WHETHER ESTABLISHING A RENTAL RATE BASED ON THE [THORNTON v BARON (5 NY3d 175)] FORMULA WAS APPROPRIATE" IN LIGHT OF THE LANDLORD'S PURPORTED FRAUD AND ATTEMPT TO CIRCUMVENT THE RENT STABILIZATION LAW, EVEN THOUGH MORE THAN FOUR YEARS PASSED BEFORE THE RENT OVERCHARGE COMPLAINT WAS FILED - APPLICABILITY OF FOUR-YEAR STATUTE OF LIMITATIONS IN RENT STABILIZATION LAW § 26-516; Supreme Court, New York County vacated respondent DHCR's 2/21/07 determination denying petitioner's rent overcharge complaint and remanding the matter to DHCR to consider whether the registration statement for petitioner's apartment on the base date was reliable; App. Div. affirmed.

MARTIN (ROY), PEOPLE v (71 AD3d 917):
2nd Dept. App. Div. order of 3/16/10; affirmance; leave to appeal granted by Graffeo, J., 6/15/10; CRIMES - RIGHT TO PUBLIC TRIAL - CLOSURE OF COURTROOM - TRIAL COURT EXCLUDED DEFENDANT'S FATHER FROM THE COURTROOM DURING THE JURY VOIR DIRE DUE TO LACK OF SPACE; TRIAL COURT'S RESPONSE TO JUROR QUESTION; Supreme Court, Kings County convicted defendant of criminal possession of a controlled substance in the third degree and imposed sentence; App. Div. affirmed.

MELENDEZ (PEDRO), PEOPLE v (71 AD3d 530):
1st Dept. App. Div. order of 3/18/10; affirmance; leave to appeal granted by Pigott, J., 6/10/10; CRIMES - JURORS - JURY INSTRUCTIONS - WHETHER TRIAL COURT ERRED IN ITS INSTRUCTION TO THE JURY CONCERNING THE BURDEN OF PROOF ON AN ALIBI DEFENSE; PROSECUTOR'S "BURDEN- SHIFTING" REMARKS IN SUMMATION; PRESERVATION; Supreme Court, Bronx County convicted defendant of burglary in the second degree and sentenced him to a term of 7 years; App. Div. affirmed.

SWEEPER (BRUCE), PEOPLE v (71 AD3d 439):
1st Dept. App. Div. order of 3/4/10; affirmance; leave to appeal granted by Pigott, J., 6/15/10; Rule 500.11 review pending; CRIMES - JURORS - SELECTION OF JURY - BATSON CHALLENGE TO PEOPLE'S USE OF PEREMPTORY CHALLENGES TO REMOVE THE ONLY TWO AFRICAN-AMERICAN WOMEN PROSPECTIVE JURORS; ALLEGED VIOLATION OF CPL 710.30; CLAIM THAT COURT'S SENTENCING OF DEFENDANT AS A PERSISTENT VIOLENT FELONY OFFENDER VIOLATED DEFENDANT'S RIGHTS TO A JURY TRIAL; Supreme Court, New York County convicted defendant of robbery in the first degree and petit larceny, and sentenced him, as a persistent violent felony offender, to an aggregate term of 20 years to life; App. Div. affirmed.

For June 25, 2010 through July 1, 2010, the following preliminary appeal statements were filed:

BRUN (RAYMOND), PEOPLE v (64 AD3d 611):
2nd Dept. App. Div. order of 7/7/09; denial of application for writ of error coram nobis; leave to appeal granted by Jones, J., 6/18/10; Rule 500.11 review pending; CRIMES - RIGHT TO COUNSEL - DEFENDANT'S RIGHT TO COUNSEL ON PEOPLE'S APPEAL TO APPELLATE DIVISION FROM ORDER SETTING ASIDE VERDICT; RULE OF APPELLATE DIVISION, SECOND DEPARTMENT (22 NYCRR 671.3[f]); App. Div. denied application for writ of error coram nobis.

FERNANDEZ (JOSE), PEOPLE (60 AD3d 549):
1st Dept. App. Div. order of 3/24/09; affirmance; leave to appeal granted by Read, J., 6/15/10; CRIMES - UNLAWFUL SEARCH AND SEIZURE - WHETHER POLICE LACKED REASONABLE SUSPICION, BASED ON OBSERVING A CLIP ATTACHED TO THE OUTSIDE OF DEFENDANT'S POCKET AND THE PROTRUDING TOP OF A KNIFE, THAT DEFENDANT POSSESSED A GRAVITY KNIFE; SUPPRESSION MOTION; WHETHER THE LACK OF MENS REA REQUIREMENT IN PENAL LAW § 265.01 VIOLATES DUE PROCESS; Supreme Court, New York County convicted defendant, upon his guilty plea, of criminal possession of a weapon in the third degree and sentenced him, as a second felony offender, to a term of 2 to 4 years; App. Div. affirmed.

GUAY (DEAN), PEOPLE v (72 AD3d 1201):
3rd Dept. App. Div. order of 4/18/10; modification; leave to appeal granted by Ciparick, J., 6/16/10; CRIMES - JURORS - SELECTION OF JURY - BATSON CHALLENGE - WHETHER THE TRIAL COURT ERRED IN GRANTING THE PEOPLE'S CHALLENGE FOR CAUSE WITH RESPECT TO PROSPECTIVE JUROR WITH A SLIGHT HEARING IMPAIRMENT - DEFENDANT'S STANDING TO INVOKE THE AMERICANS WITH DISABILITIES ACT ON PROSPECTIVE JUROR'S BEHALF; ALLEGED PROSECUTORIAL MISCONDUCT; ALLEGED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL; Supreme Court, Clinton County convicted defendant of rape in the first degree, sexual abuse in the first degree and endangering the welfare of a child; App. Div. modified by vacating the sentences imposed and remitted to Supreme Court for resentencing.

HAYES (KENNETH), PEOPLE v (72 AD3d 441):
1st Dept. App. Div. order of 4/6/10; affirmance; leave to appeal granted by Ciparick, J., 6/17/10; CRIMES - EVIDENCE - JUSTIFICATION DEFENSE - POLICE OFFICER AT CRIME SCENE OVERHEARD TWO WITNESSES SAY THAT THE WOUNDED MAN FIRST ATTACKED WITH A KNIFE, BUT DID NOT QUESTION THEM FURTHER OR RECORD NAMES OR CONTACT INFORMATION FOR FURTHER INVESTIGATION - CLAIMED BRADY VIOLATION; CROSS- EXAMINATION - WHETHER TRIAL COURT ERRED IN LIMITING CROSS- EXAMINATION OF POLICE OFFICER REGARDING THE ADEQUACY OF POLICE INVESTIGATION INTO CENTRAL DISPUTED FACTUAL ISSUE OF ORIGINAL KNIFE POSSESSION; Supreme Court, New York County, after a jury trial, convicted defendant of assault in the second degree and criminal possession of a weapon in the fourth degree, and sentenced him to an aggregate term of two years; App. Div. affirmed.

REYNOLDS v KNIBBS (73 AD3d 1456):
4th Dept. App. Div. order of 5/7/10; reversal with dissents; Rule 500.11 review pending; NEGLIGENCE - MAINTENANCE OF PREMISES - ACTUAL OR CONSTRUCTIVE NOTICE OF DEFECTIVE CONDITION - SUMMARY JUDGMENT - ACTION FOR DAMAGES TO PLAINTIFF FROM FALLING WHILE DESCENDING STAIRS IN RESIDENCE RENTED FROM DEFENDANTS WHERE STAIRS ALLEGEDLY DETACHED FROM THE WALL AND COLLAPSED; Supreme Court, Ontario County denied defendants' motion for summary judgment dismissing the complaint; App. Div. reversed, granted defendants' motion for summary judgment dismissing the complaint and dismissed the complaint.

RIVERA (PETER), PEOPLE v (71 AD3d 700):
2nd Dept. App. Div. order of 3/2/10; affirmance; leave to appeal granted by Graffeo, J., 6/23/10; CRIMES - AGGRAVATED UNLICENSED OPERATION OF MOTOR VEHICLE - WHETHER DEFENDANT, WHOSE DRIVER'S LICENSE WAS REVOKED FOR SIX MONTHS FOLLOWING A DWI CONVICTION, BUT WHO WAS ISSUED A CONDITIONAL LICENSE, CAN BE CHARGED WITH AGGRAVATED UNLICENSED OPERATION OF A MOTOR VEHICLE OR CAN ONLY BE CHARGED WITH A TRAFFIC INFRACTION UNDER VEHICLE AND TRAFFIC LAW § 1196(7)(f), THE STATUTE AUTHORIZING ISSUANCE OF CONDITIONAL LICENSES; Supreme Court, Westchester County granted that branch of defendant's motion which was to dismiss count two of the indictment, charging aggravated unlicensed operation of a motor vehicle in the first degree, on the ground that the evidence presented to the grand jury was legally insufficient; App. Div. affirmed.

RIVERA (JOSE), PEOPLE v (72 AD3d 576):
1st Dept. App. Div. order of 4/27/10; affirmance; leave to appeal granted by Acosta, J., 6/22/10; Rule 500.11 review pending; CRIMES - JURORS - JURY INSTRUCTIONS - WHETHER TRIAL COURT ERRED IN REFUSING TO SUBMIT FOURTH DEGREE POSSESSION OF A WEAPON AS A LESSER INCLUDED OFFENSE OF SECOND DEGREE POSSESSION OF A WEAPON; JUSTIFICATION DEFENSE REGARDING HOMICIDE CHARGE OF WHICH DEFENDANT WAS ACQUITTED; CLAIMED INEFFECTIVENESS OF TRIAL COUNSEL FOR FAILURE TO REQUEST JUSTIFICATION JURY CHARGE REGARDING WEAPON POSSESSION COUNT OF INDICTMENT; Supreme Court, Bronx County, after a trial, convicted defendant of criminal possession of a weapon in the second degree, and sentenced him, as a second violent felony offender, to a term of 15 years, to be followed by five years of postrelease supervision; App. Div. affirmed.

STRANGIO v SEVENSON ENVIRONMENTAL SERVICES, INC. (— AD3d —, 2010 NY Slip Op 05444):
4th Dept. App. Div. order of 6/18/10; affirmance; Rule 500.11 reviewing pending; TORTS - LABOR LAW § 240(1) - WHETHER PLAINTIFF'S INJURIES WERE DIRECTLY CAUSED BY APPLICATION OF THE FORCE OF GRAVITY TO AN OBJECT AS A MATTER OF LAW WHEN PLAINTIFF WAS STRUCK IN THE FACE BY THE HANDLE OF A HAND-OPERATED HOISTING MECHANISM WHILE RAISING A SCAFFOLD THAT DESCENDED UNEXPECTEDLY; SUMMARY JUDGMENT; Supreme Court, Niagara County granted those part of the motions of third- party plaintiffs and third-party defendant for summary judgment dismissing the Labor Law § 240(1) claim and the Labor Law § 241(6) claim insofar as it is based on the alleged violation of 12 NYCRR 23-6.1(j); App. Div. affirmed.