Return to New Filings Page


For July 6, 2012 through July 12, 2012, the following preliminary appeal statements were filed:

CANTAVE (JEAN), PEOPLE v (93 AD3d 677):
2nd Dept. App. Div. order of 3/6/12; affirmance; leave to appeal granted by Pigott, J., 6/27/12; CRIMES - RIGHT TO REMAIN SILENT - WHETHER DEFENDANT WHO CHOOSES TO TESTIFY MAY BE CROSS EXAMINED ABOUT THE UNDERLYING FACTS OF A RECENT CONVICTION THAT IS STILL ON APPEAL - SANDOVAL HEARING; WHETHER TRIAL COURT ERRED IN REFUSING TO ADMIT DEFENDANT'S 911 CALL AS AN EXCITED UTTERANCE OR PRESENT SENSE IMPRESSION; Supreme Court, Queens County convicted defendant, upon a jury verdict, of assault in the third degree, and imposed sentence; App. Div. affirmed.

JENNINGS (ROOSEVELT), PEOPLE v (34 Misc 3d 137(A)):
App. Term, 2nd, 11th and 13th Districts; affirmance; leave to appeal granted by Smith, J., 6/27/12; CRIMES - ACCUSATORY INSTRUMENT - SUFFICIENCY - IDENTIFICATION OF CONTROLLED SUBSTANCE - ALLEGATION IN ACCUSATORY INSTRUMENT AND SUPPORTING DEPOSITION THAT ARRESTING OFFICER IDENTIFIED SUBSTANCE AS CRACK COCAINE RESIDUE BASED UPON HER PROFESSIONAL TRAINING AND PRIOR EXPERIENCE; Criminal Court of the City of New York, Kings County convicted defendant, after a nonjury trial, of attempted criminal possession of a controlled substance in the seventh degree; App. Term affirmed.

J.P. MORGAN SECURITIES, INC. v VIGILANT INSURANCE COMPANY (91 AD3d 226):
1st Dept. App. Div. order of 12/13/11; reversal; leave to appeal granted by Court of Appeals, 6/26/12; INSURANCE - BUSINESS INSURANCE - WHETHER PUBLIC POLICY PROHIBITS INSURANCE COVERAGE FOR $160 MILLION DISGORGEMENT PAYMENT TO SECURITIES AND EXCHANGE COMMISSION (SEC) MADE BY PLAINTIFFS' PREDECESSORS IN SETTLEMENT OF CHARGES THAT THEY FACILITATED CERTAIN UNLAWFUL TRADING PRACTICES, ABSENT PROOF THAT THE DISGORGED FUNDS WERE DERIVED FROM THE UNLAWFUL TRADING PRACTICES - WHETHER THE APPELLATE DIVISION ERRED IN RELYING ON NON-ADJUDICATED FINDINGS BY THE SEC RECITED IN A SETTLEMENT ORDER THAT EXPRESSLY PROVIDES THAT SUCH FINDINGS WERE NOT ADMITTED OR DENIED BY PLAINTIFFS' PREDECESSORS; Supreme Court, New York County denied defendants' motions to dismiss the complaint; App. Div. reversed, granted defendants' motions to dismiss the complaint, and directed the Clerk to enter judgment dismissing the complaint.

KLEINSER v ASTARITA (92 AD3d 518):
1st Dept. App. Div. order of 2/14/12; affirmance; motion to dismiss appeal pending; ATTORNEY AND CLIENT - MALPRACTICE; SUMMARY JUDGMENT - WHETHER PLAINTIFF RAISED AN ISSUE OF FACT AS TO CLAIMS OF LEGAL MALPRACTICE AND BREACH OF CONTRACT; Supreme Court, New York County granted defendants' motion for summary judgment dismissing the complaint; App. Div. affirmed.

KOEGLER, MATTER OF v WOODARD (96 AD3d 454):
1st Dept. App. Div. order of 6/7/12; affirmance with dissents; sua sponte examination whether the two-Justice dissent at the App. Div. is on a question of law; PARENT AND CHILD - CUSTODY - RELOCATION OF MOTHER TO ANOTHER STATE - FAMILY COURT DENIED MOTHER'S PETITION FOR CUSTODY AND REQUEST TO RELOCATE TO TEXAS WITH THE CHILD; Family Court, New York County denied respondent mother's petition for custody of the parties' child and permission to relocate to Texas with the child, and awarded the parties joint custody; App. Div. affirmed.

LEE (THOMAS), PEOPLE v (89 AD3d 633):
1st Dept. App. Div. order of 11/29/11; affirmance; leave to appeal granted by Lippman, Ch. J., 7/2/12; CRIMES - TRIAL - INTERPRETERS - WHETHER DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHERE ONE OF THE VICTIMS TESTIFIED THROUGH A CANTONESE COURT INTERPRETER WHO WAS ACQUAINTED WITH THE VICTIMS AND THE TRIAL JUDGE DID NOT INQUIRE INTO THE AVAILABILITY OF ANOTHER INTERPRETER; PROOF OF PRIOR CONVICTIONS - CHALLENGE TO TRIAL COURT'S SANDOVAL RULING; Supreme Court, New York County convicted defendant, after a jury trial, of burglary in the second degree and grand larceny in the third degree, and sentenced him to an aggregate term of 10 years; App. Div. affirmed.

MORRIS (CHADON), PEOPLE v (89 AD3d 1112):
2nd Dept. App. Div. order of 11/29/11; affirmance; leave to appeal granted by Smith, J., 6/28/12; CRIMES - EVIDENCE - TAPE RECORDINGS - WHETHER 911 CALL REPORTING THAT A PERSON MATCHING DEFENDANT'S DESCRIPTION COMMITTED AN UNCHARGED GUNPOINT ROBBERY WAS PROPERLY ADMITTED INTO EVIDENCE TO PROVIDE BACKGROUND INFORMATION AS TO WHY THE POLICE STOPPED DEFENDANT; Supreme Court, Queens County convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree, and imposed sentence; App. Div. affirmed.

M&T REAL ESTATE TRUST v DOYLE (Appeal No. 2.) (93 AD3d 1331):
3rd Dept. App. Div. order of 3/23/12; reversal; leave to appeal granted by Court of Appeals, 6/28/12; MORTGAGES - FORECLOSURE - DEFICIENCY JUDGMENT - WHETHER PLAINTIFF'S MOTION FOR A DEFICIENCY JUDGMENT WAS TIMELY MADE; Supreme Court, Erie County, among other things, granted plaintiff a deficiency judgment against defendants; App. Div. reversed the order and judgment insofar as appealed from and denied that part of plaintiff's motion which was for leave to enter a deficiency judgment against defendants.

ROTH, MATTER OF v CITY OF SYRACUSE (78 AD3d 1590):
Supreme Court, Onondaga County order of 3/20/12, bringing up for review 4th Dept. App. Div. order of 11/12/10; affirmance; leave to appeal granted by Court of Appeals, 6/26/12; TAXATION - ASSESSMENT - REAL PROPERTY TAX LAW ARTICLE 7 PROCEEDING TO REVIEW AN ASSESSMENT ON REAL PROPERTY MADE BY THE CITY RESPONDENTS - WHETHER PRESENCE OF LEAD PAINT IN THE FIVE SUBJECT PROPERTIES CONSTITUTES ENVIRONMENTAL CONTAMINATION FOR TAX ASSESSMENT PURPOSES; Supreme Court, Onondaga County denied the petition in a proceeding pursuant to RPTL article 7; App. Div. affirmed; thereafter, Supreme Court ordered that petitioner's claims for the remaining properties are voluntarily discontinued with prejudice.

RUDOLPH (REECE), PEOPLE v (85 AD3d 1492):
3rd Dept. App. Div. order of 6/30/11; affirmance; leave to appeal granted by Lippman, Ch. J., 7/3/12; CRIMES - SENTENCE - YOUTHFUL OFFENDER - CPL 720.20(1) - WHETHER A DEFENDANT CAN WAIVE CONSIDERATION FOR YOUTHFUL OFFENDER STATUS - WHETHER DEFENSE COUNSEL'S FAILURE TO PURSUE YOUTHFUL OFFENDER TREATMENT AT SENTENCING RENDERED HIS ASSISTANCE INEFFECTIVE; County Court, Warren County convicted defendant, upon his guilty plea, of criminal possession of a controlled substance in the third degree; defendant was ultimately sentenced to five years in prison and two years of postrelease supervision, with a recommendation for the comprehensive alcohol and substance abuse treatment program; App. Div. affirmed.

SMITH (MIKAL), PEOPLE v (87 AD3d 920):
1st Dept. App. Div. order of 9/22/11; modification; leave to appeal granted by Ciparick, J., 6/25/12; CRIMES - ROBBERY - WHETHER EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT A CONVICTION FOR ROBBERY IN THE SECOND DEGREE (PENAL LAW § 160.10[1]) - DEFENDANT IMPERSONATED A POLICE OFFICER AND REMOVED CASH FROM THE VICTIM'S POCKET DURING A FRISK - WHETHER ELEMENT OF FORCE WAS ESTABLISHED OR MERELY "LARCENY BY TRICK"; BASIS FOR CHARGE OF CRIMINAL IMPERSONATION IF NO UNDERLYING FELONY COMMITTED; Supreme Court, New York County convicted defendant of burglary in the third degree, robbery in the second degree, criminal impersonation in the first degree and petit larceny, and sentenced him, as a second violent felony offender, to an aggregate term of 9 years; App. Div. modified to the extent of vacating the burglary conviction and dismissing that count of the indictment.

THOMPSON (EDDIE, JR.), PEOPLE v (92 AD3d 1139):
3rd Dept. App. Div. order of 2/23/12; affirmance; leave to appeal granted by Lippman, Ch. J., 7/2/12; CRIMES - RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - ISSUES WITH VARIOUS JURORS, INCLUDING JURORS WHO WERE FRIENDS OR ACQUAINTANCES OF THE DISTRICT ATTORNEY - DEFENSE COUNSEL'S FAILURE TO USE PEREMPTORY CHALLENGE WHEN CHALLENGE FOR CAUSE DENIED; WHETHER GRAND JURY TESTIMONY OF PEOPLE'S BALLISTICS EXPERT CONSTITUTED WRITTEN REPORT PURSUANT TO CPL 240.20(1)(c); DUE PROCESS; Supreme Court, Ulster County convicted defendant of manslaughter in the second degree; App. Div. affirmed.

For July 13, 2012 through July 19, 2012, the following preliminary appeal statements were filed:

BLOOMER v SHAUGER (94 AD3d 1273):
3rd Dept. App. Div. order of 4/12/12; affirmance; leave to appeal granted by App. Div., 7/3/12; Rule 500.11 review pending; ANIMALS - LIABILITY FOR INJURY RESULTING FROM CONTACT WITH DOMESTIC ANIMAL - NEGLIGENCE - VICIOUS PROPENSITY; SUMMARY JUDGMENT; Supreme Court, Ulster County, among other things, granted defendant's motion for summary judgment dismissing the complaint; App. Div. affirmed.

HAGUE CORPORATION, MATTER OF v NEW YORK STATE EMPIRE ZONE DESIGNATION BOARD (96 AD3d 1144):
3rd Dept. App. Div. order of 6/7/12; modification; sua sponte examination whether a substantial constitutional question is directly involved to support the cross appeal as of right; PROCEEDING AGAINST BODY OR OFFICER - ELIGIBILITY TO PARTICIPATE IN EMPIRE ZONE PROGRAM - WHETHER DEPARTMENT OF ECONOMIC DEVELOPMENT VIOLATED THE STATE ADMINISTRATIVE PROCEDURE ACT IN ADOPTING REGULATIONS ON AN EMERGENCY BASIS - WHETHER THE CHALLENGED DETERMINATION TO UPHOLD THE REVOCATION OF PETITIONER'S CERTIFICATION AS AN EMPIRE ZONE BUSINESS ENTERPRISE WAS IRRATIONAL, ARBITRARY AND CAPRICIOUS - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT "THE MANNER IN WHICH THE [EMPIRE ZONE DESIGNATION] BOARD CONSIDERED PETITIONER'S APPEAL AFFORDED PETITIONER DUE PROCESS"; Supreme Court, Albany County dismissed petitioner's application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to review a determination of respondent Empire Zone Designation Board revoking petitioner's certification as an empire zone business enterprise; App. Div. modified by reversing so much of the judgment as dismissed that part of the petition/complaint seeking a declaration that the April 2009 amendments to General Municipal Law § 959 may not be applied retroactively to January 1, 2008; granted the petition/complaint to that extent and declared that said amendments shall be applied prospectively only; and affirmed the judgment as so modified.

HUNTER v NEW YORK CITY DEPARTMENT OF EDUCATION (95 AD3d 719):
1st Dept. App. Div. order of 5/29/12; reversal with dissents; Rule 500.11 review pending; SCHOOLS - STUDENTS - INJURY TO STUDENT - SUMMARY JUDGMENT - INFANT PLAINTIFF WHO WAS SITTING ON RUG IN HER SECOND GRADE CLASSROOM WAS INJURED WHEN HER CLASSMATE WHO WAS WRITING ON A NEARBY CHALKBOARD STEPPED BACK AND FELL ON TOP OF HER - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT SCHOOL WAS NOT SUBJECT TO LIABILITY FOR THE CLASSMATE'S ACT BECAUSE IT WAS "A THOUGHTLESS OR CARELESS ACT THAT COULD NOT HAVE BEEN PREVENTED BY REASONABLE SUPERVISION"; Supreme Court, Bronx County denied defendant's motion for summary judgment dismissing the complaint; App. Div. reversed and granted defendant's motion for summary judgment dismissing the complaint.

LAM (RAY), PEOPLE v (34 Misc 3d 130(A)):
App. Term, 1st Dept. order of 12/23/11; affirmance; leave to appeal granted by Jones, J., 6/21/12; CRIMES - UNLICENSED GENERAL VENDING - ADMINISTRATIVE CODE OF CITY OF NEW YORK § 20-253 - SUFFICIENCY OF EVIDENCE - VENDING OF T-SHIRTS WITHOUT A LICENSE - WHETHER SELLING OF T-SHIRTS CONSTITUTED CONSTITUTIONALLY-PROTECTED SPEECH; Criminal Court of the City of New York, New York County convicted defendant of unlicensed general vending, and imposed sentence; App. Term affirmed.

TYSON v NAZARIAN (96 AD3d 1349):
4th Dept. App. Div. order of 6/8/12; affirmance with dissents; Rule 500.11 review pending; NEGLIGENCE - AUTOMOBILE ACCIDENT - WHETHER PLAINTIFF RAISED AN ISSUE OF FACT REGARDING SUSTAINING A "SERIOUS INJURY" UNDER INSURANCE LAW § 5102(d) - WHETHER TREATING PHYSICIAN'S AFFIDAVIT SUFFICIENTLY DIFFERENTIATED PLAINTIFF'S INJURIES FROM THE 2008 ACCIDENT FROM INJURIES PREVIOUSLY SUSTAINED BY HER IN A 2002 MOTORCYCLE ACCIDENT; SUMMARY JUDGMENT; Supreme Court, Monroe County granted defendant's motion for summary judgment, dismissed the complaint and denied plaintiff's motion and cross motion for summary judgment; App. Div. affirmed.

WL, LLC, MATTER OF v NEW YORK STATE DEPARTMENT OF ECONOMIC DEVELOPMENT (97 AD3d 24):
3rd Dept. App. Div. order of 5/3/12; modification; sua sponte examination whether a substantial constitutional question is directly involved to support the cross appeal as of right; PROCEEDING AGAINST BODY OR OFFICER - ELIGIBILITY TO PARTICIPATE IN EMPIRE ZONE PROGRAM - WHETHER EMPIRE ZONE DESIGNATION BOARD GAVE PETITIONER (1) ADEQUATE NOTICE OF ITS INTENT TO REVOKE PETITIONER'S CERTIFICATION AS AN EMPIRE ZONE BUSINESS ENTERPRISE AND (2) A MEANINGFUL OPPORTUNITY TO BE HEARD BEFORE MAKING THE CHALLENGED DETERMINATION - WHETHER PETITIONER WAS ENTITLED TO A HEARING BEFORE THE BOARD AND WHETHER THE MANNER IN WHICH THE BOARD CONSIDERED PETITIONER'S APPEAL AFFORDED PETITIONER DUE PROCESS; STANDARD OF REVIEW USED BY THE APPELLATE DIVISION; DISMISSAL OF CAUSES OF ACTION SEEKING A DECLARATORY JUDGMENT; EXCLUSION OF PETITIONER'S 2000 INVESTMENTS; WHETHER THE CHALLENGED DETERMINATION WAS ARBITRARY AND CAPRICIOUS; Supreme Court, Albany County dismissed petitioner's application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to review a determination of respondent Empire Zone Designation Board revoking petitioner's certification as an empire zone business enterprise; App. Div. modified by reversing so much of the judgment as dismissed that part of the petition/complaint seeking a declaration that the April 2009 amendments to General Municipal Law § 959 may not be applied retroactively to January 1, 2008; granted the petition/complaint to that extent and declared that said amendments shall be applied prospectively; and affirmed the judgment as so modified.

For July 20, 2012 through July 26, 2012, the following preliminary appeal statements were filed:

BYER (MARVIN), PEOPLE v (89 AD3d 456):
1st Dept. App. Div. order of 11/3/11; affirmance; leave to appeal granted by Lippman, Ch.J., 7/16/12; CRIMES - CONFESSION - WHETHER THE TRIAL COURT'S ERRONEOUS ADMISSION OF EVIDENCE, INCLUDING DEFENDANT'S STATEMENT THAT HE HAD KILLED NINE PEOPLE BEFORE THIS INCIDENT, CONSTITUTED HARMLESS ERROR; Supreme Court, Bronx County convicted defendant, after a jury trial, of murder in the second degree, and sentenced him to a term of 25 years to life; App. Div. affirmed.

CORTEZ (PAUL), PEOPLE v (85 AD3d 409):
1st Dept. App. Div. order of 6/2/11; affirmance; leave to appeal granted by Lippman, Ch.J., 7/17/12; CRIMES - RIGHT TO COUNSEL - CONFLICT OF INTEREST - OPERATION OF CONFLICT ON DEFENSE - EFFECTIVE REPRESENTATION - WAIVER OF CONFLICT; EVIDENCE - JOURNAL ENTRIES WRITTEN YEARS BEFORE THE CHARGED OFFENSE AND RELATING TO DEFENDANT'S HOSTILITY TO TWO WOMEN OTHER THAN THE VICTIM - APPLICATION OF MOLINEUX; FAIR TRIAL - ARGUMENT AND CONDUCT OF COUNSEL; Supreme Court, New York County convicted defendant, after a jury trial, of murder in the second degree, and sentenced him to a term of 25 years to life; App. Div. affirmed.

GUILFORD, (JAMES E.), PEOPLE v (96 AD3d 1375):
4th Dept. App. Div. order of 6/8/12; affirmance with dissents; leave to appeal granted by Lindley, J., 7/18/12; CRIMES - SUPPRESSION HEARING - STATEMENTS MADE BY DEFENDANT TO POLICE IN GEORGIA AND NEW YORK, ONE INTERROGATION SESSION LASTING ALMOST 50 HOURS; ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL; ALLEGED PROSECUTORIAL MISCONDUCT DURING TRIAL; MURDER; Onondaga County Court convicted defendant, upon a jury verdict, of murder in the second degree; App. Div. affirmed.

JAQUAN M., MATTER OF (97 AD3d 403):
1st Dept. App. Div. order of 7/3/12; reversal with dissents; sua sponte examination whether the dissent at the App. Div. is on a question of law; CRIMES - SUPPRESSION HEARING - WHETHER POLICE HAD REASONABLE SUSPICION NECESSARY TO STOP 14-YEAR OLD AND FRISK HIS BACKPACK; PROBABLE CAUSE; CONSENT TO SEARCH; JUVENILE DELINQUENT; Family Court, New York County adjudicated Jaquan M. a juvenile delinquent upon his admission that he committed an act that, if committed by an adult, would constitute the crime of criminal possession of a weapon in the second degree, and placed him on probation for a period of 15 months; App. Div. reversed, granted the motion to suppress, vacated the order of disposition and dismissed the petition.

LEACH, (TAWOND), PEOPLE v (90 AD3d 1073):
2nd Dept. App. Div. order of 12/27/11; affirmance; leave to appeal granted by Lippman, Ch.J., 7/17/12; CRIMES - SUPPRESSION HEARING - RECOVERY BY POLICE OF A GUN IN THE SPARE BEDROOM OF DEFENDANT'S GRANDMOTHER'S APARTMENT WHERE DEFENDANT HAD HIS OWN BEDROOM - REASONABLE EXPECTATION OF PRIVACY IN ROOM TO WHICH DEFENDANT HAD ACCESS; STANDING TO CHALLENGE SEARCH; Supreme Court, Kings County convicted defendant, upon a jury verdict, of attempted assault in the first degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, and imposed sentence; App. Div. affirmed.

POULOSE, MATTER OF v SHAH (96 AD3d 1205):
3rd Dept. App. Div. judgment of 6/14/12; confirmation of determination; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; PHYSICIANS AND SURGEONS - DISCIPLINARY PROCEEDINGS - REVOCATION OF MEDICAL LICENSE HELD BY DOCTOR WHO PLEADED GUILTY TO ATTEMPTED DISSEMINATION OF INDECENT MATERIAL TO MINORS IN THE FIRST DEGREE, A FELONY - CHALLENGE TO DETERMINATION THAT PETITIONER IS MORALLY UNFIT TO PRACTICE MEDICINE - ALLEGED VIOLATION OF PETITIONER'S DUE PROCESS RIGHTS; App. Div. confirmed the determination of the Administrative Review Board for Professional Medical Conduct that, among other things, revoked petitioner's license to practice medicine in New York, and dismissed the CPLR article 78 petition.

VAN STEENBURG, (EDWARD), PEOPLE v (2012 NY Slip Op 73526[U]):
3rd Dept. App. Div. order of 5/11/12; sua sponte examination whether a civil appeal lies from an order entered in a criminal proceeding; CRIMES - APPELLATE DIVISION ORDER DENYING MOTION FOR LEAVE TO RENEW A MOTION FOR A WRIT OF ERROR CORAM NOBIS; App. Div. denied defendant's motion for leave to renew a motion for a writ of error coram nobis to vacate an order of that court in People v Van Steenburg (221 AD2d 799 [1995], lv denied 87 NY2d 978 [1996]).