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For July 27, 2012 through August 2, 2012, the following preliminary appeal statements were filed:

LASTRA v BARNES AND NOBLE (2012 NY Slip Op 74817[U]):
1st Dept. App. Div. order of 5/31/12; dismissal of appeal; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; APPEAL - CHALLENGE TO APPELLATE DIVISION ORDER DISMISSING PLAINTIFF'S APPEAL SUA SPONTE ON THE GROUND THAT NO APPEAL LIES FROM THE ORDER APPEALED FROM, AND OTHERWISE DENYING PLAINTIFF'S MOTION FOR AN ENLARGEMENT OF TIME IN WHICH TO PERFECT THE APPEAL FROM THAT SUPREME COURT ORDER; App. Div. dismissed plaintiff's appeal sua sponte on the ground that no appeal lies from a 5/27/11 Supreme Court, Bronx County order dismissing the complaint, and otherwise denied as academic plaintiff's motion for an enlargement of time in which to perfect the appeal from that order.

McPHERSON (FRANKLIN), PEOPLE v (89 AD3d 752):
2nd Dept. App. Div. order of 11/1/11; affirmance; leave to appeal granted by Belen, J., 6/20/12; CRIMES - MURDER - DEPRAVED INDIFFERENCE MURDER - INTOXICATED DEFENDANT TRAVELING WRONG WAY ON PARKWAY - RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - WHETHER DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL; Nassau County Court convicted defendant, upon a jury verdict, of murder in the second degree, vehicular manslaughter in the first degree, aggravated driving while intoxicated, operating a motor vehicle while under the influence of alcohol, criminal possession of a weapon in the second degree, and criminal possession of a controlled substance in the seventh degree, and imposed sentence.

OYAGUE v INCORPORATED VILLAGE OF MALVERNE:
Supreme Court, Nassau County order of 6/13/12; denial of motion; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution, whether appellant is an aggrieved party within the meaning of CPLR 5511, and whether any basis otherwise exists for a direct appeal pursuant to CPLR 5601(b)(2); MOTIONS AND ORDERS - CHALLENGE TO SUPREME COURT ORDER DENYING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S ACTION DUE TO HIS FAILURE TO PROCEED TO TRIAL; Supreme Court denied defendants' motion to dismiss plaintiff's action due to his failure to proceed to trial.

VELEZ (JULIO), PEOPLE v (78 AD3d 867):
2nd Dept. App. Div. order of 11/9/10; affirmance; leave to appeal granted by Jones, J., 6/21/12; CRIMES - RIGHT TO SPEEDY TRIAL - PRE-INDICTMENT DELAY - WHETHER THE APPELLATE DIVISION CORRECTLY DETERMINED THAT THE PROSECUTION ESTABLISHED GOOD CAUSE FOR THE DELAY BETWEEN THE CRIME AND DEFENDANT'S INDICTMENT; SUFFICIENCY OF THE EVIDENCE; Westchester County Court convicted defendant, upon a jury verdict, of burglary in the second degree, criminal mischief in the third degree, and petit larceny, and imposed sentence; App. Div. affirmed.

For August 3, 2012 through August 9, 2012, the following preliminary appeal statements were filed:

MATTER OF BOBAK (AIG CLAIMS SERVICES, INC.) (97 AD3d 1103):
4th Dept. App. Div. order of 7/6/12, reversal; to bring up for review a 4/30/10 App. Div. order, with two Justices dissenting; sua sponte examination whether the 4/30/10 App. Div. order necessarily affects the 7/6/12 App. Div. order, and whether the stay granted by Supreme Court on remittal renders this appeal moot; INSURANCE - AUTOMOBILE INSURANCE - UNDERINSURED MOTORIST ENDORSEMENT - IN AN APPEAL FROM JUDGMENT CONFIRMING AN ARBITRATION AWARD, WHETHER THE APPELLATE DIVISION ERRED IN REMITTING TO SUPREME COURT FOR A HEARING ON THE ISSUE OF INSURANCE COVERAGE; Supreme Court, Erie County judgment confirming an arbitration award; App. Div. with two justices dissenting, retained jurisdiction over the appeal from the judgment, reserved decision and remitted to Supreme Court for further proceedings regarding insurance coverage; after Supreme Court held a hearing and granted a temporary stay on remittal, App. Div. reversed the judgment, dismissed the petition to confirm the arbitration award and vacated the arbitration award.

THE BRIGHTONIAN NURSING HOME v DAINES (93 AD3d 1355):
Stipulation regarding award of attorney's fees under 42 USC § 1988, to bring up for review a 4th Dept. App. Div. order; affirmance; sua sponte examination whether the stipulation regarding an award of attorneys' fees finally determines the proceeding/action within the meaning of the Constitution; CONSTITUTIONAL LAW - VALIDITY OF STATUTE - DUE PROCESS - STATUTE PROHIBITING PRIVATE NURSING HOMES FROM WITHDRAWING EQUITY OR TRANSFERRING ASSETS THAT IN THE AGGREGATE EXCEEDED 3% OF THEIR TOTAL ANNUAL REVENUE FOR PATIENT CARE SERVICES WITHOUT PRIOR APPROVAL OF COMMISSIONER OF HEALTH (PUBLIC HEALTH LAW § 2808[5][c]) - CHALLENGE TO RULING THAT STATUTE IS UNCONSTITUTIONALLY VAGUE, IMPROPERLY DELEGATES LEGISLATIVE AUTHORITY TO THE COMMISSIONER AND VIOLATES PLAINTIFFS'/PETITIONERS' SUBSTANTIVE DUE PROCESS RIGHTS - SEVERANCE OF STATUTE'S CATCHALL PHRASE; Supreme Court, Monroe County, in a combined CPLR article 78 proceeding and declaratory judgment action, denied the cross motion of defendants-respondents to, among other things, dismiss the amended complaint/petition and declared unconstitutional Public Health Law § 2808(5)(c); App. Div. affirmed; thereafter, the parties entered into a stipulation regarding an award of attorneys' fees under 42 USC § 1988.

CALLISTRO v BEBBINGTON (94 AD3d 408):
1st Dept. App. Div. order of 4/3/12; affirmance and dismissal; leave to appeal granted by App. Div., 7/17/12; Rule 500.11 review pending; PHYSICIANS AND SURGEONS - MALPRACTICE - ALLEGED HYPOXIC INJURY RESULTING FROM NONPERFORMANCE OF CESAREAN SECTION - SUMMARY JUDGMENT - WHETHER PLAINTIFF'S EXPERT AFFIDAVITS RAISED MATERIAL ISSUES OF FACT; Supreme Court, Bronx County dismissed the complaint; App. Div. affirmed the judgment dismissing the complaint and dismissed, as subsumed in the appeal from the judgment, the appeal from the underlying Supreme Court order that granted defendants' motion for summary judgment.

CANGRO v MARANGOS (2012 NY Slip Op 75227[U]):
1st Dept. App. Div. order of 6/5/12; denial of motion for reargument; 1st Dept. App. Div. order of 12/8/11; affirmance; sua sponte examination whether the 6/5/12 App. Div. order appealed from finally determines the action within the meaning of the Constitution, and whether the 12/8/11 App. Div. order appealed from has already been the subject of an appeal decided by this Court; APPEAL - APPELLATE DIVISION - DENIAL OF MOTION FOR REARGUMENT; Supreme Court, New York County denied plaintiff's motion for summary judgment and granted defendant's cross motion to dismiss the complaint; App. Div. affirmed and thereafter denied appellant's motion for reargument of the order of affirmance.

CUOMO, PEOPLE v GREENBERG (95 AD3d 474):
1st Dept. App. Div. order of 5/8/12; modification; leave to appeal granted by App. Div., 7/17/12; STATUTES - FEDERAL PREEMPTION - SALE OF SECURITIES - SCOPE OF FEDERAL PREEMPTION OF STATE BLUE SKY LAWS - WHETHER ATTORNEY GENERAL'S MARTIN ACT AND EXECUTIVE LAW CLAIMS TO ENJOIN FRAUDULENT PRACTICES ARE PREEMPTED; WHETHER THE ATTORNEY GENERAL HAS THE AUTHORITY TO BRING THESE MARTIN ACT AND EXECUTIVE LAW CLAIMS; SUMMARY JUDGMENT; Supreme Court, New York County, as relevant here, denied defendants' motions for summary judgment dismissing the Martin Act and Executive Law § 63(12) claims as against them, and granted the Attorney General's motion for summary judgment on the issue of liability with respect to one of the two challenged transactions; App. Div. modified to deny the Attorney General's motion and otherwise affirmed.

HUGHES (FRANKLIN), PEOPLE v (83 AD3d 960):
2nd Dept. App. Div. order of 4/19/12; affirmance; leave to appeal granted by Lippman, Ch. J., 6/22/12; CRIMES - POSSESSION OF WEAPON - POSSESSION OF FIREARM IN HOME BY DEFENDANT PREVIOUSLY CONVICTED OF A CRIME - WHETHER DEFENDANT'S CONVICTION IS CONSTITUTIONAL WHERE HE POSSESSED A HANDGUN WITHIN HIS HOME FOR THE PURPOSE OF SELF- DEFENSE - PENAL LAW §§ 265.02(1) and 265.03(3); Nassau County Court convicted defendant, after a nonjury trial, of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, and imposed sentence; App. Div. affirmed.

JAMES v LORAN REALTY V CORPORATION (85 AD3d 619):
1st Dept. App. Div. order of 6/23/11; affirmance; leave to appeal granted by App. Div., 5/24/12; Rule 500.11 review pending; NEGLIGENCE - INJURY RESULTING FROM EXPOSURE OF INFANT TO LEAD-BASED PAINT - WHETHER CAUSE OF ACTION SEEKING TO PIERCE THE CORPORATE VEIL OF THE BUILDING OWNER WAS PROPERLY DISMISSED; Supreme Court, Bronx County, after a nonjury trial, dismissed plaintiffs' second cause of action seeking to pierce the corporate veil of Loran Realty V Corp. and hold the individual defendants personally liable for plaintiffs' injuries; App. Div. affirmed.

ROZZ, MATTER OF v NASSAU COUNTY DEPARTMENT OF ASSESSMENT (96 AD3d 952):
2nd Dept. App. Div. order of 6/20/12; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; TAXATION - ASSESSMENT - REAL PROPERTY TAX LAW - CPLR ARTICLE 78 PROCEEDING AND ACTION FOR DECLARATORY RELIEF - ALLEGED FAILURE BY RESPONDENT TO COMPLY WITH PROCEDURES IN REAL PROPERTY TAX LAW § 556 REGARDING FILING AND INVESTIGATION OF PETITIONER'S APPLICATION FOR A TAX REFUND; PROCEEDING AGAINST BODY OR OFFICER - MANDAMUS; FREEDOM OF INFORMATION LAW; Supreme Court, Nassau County, among other things, denied the CPLR article 78 petition and dismissed the proceeding; App. Div. affirmed.

WEEKS WOODLANDS ASSOCIATION, INC., MATTER OF v DORMITORY AUTHORITY OF THE STATE OF NEW YORK (95 AD3d 747):
1st Dept. App. Div. order of 5/31/12, with two Justices dissenting; dismissal; Rule 500.11 review pending; MUNICIPAL CORPORATIONS - ZONING - NEIGHBORS OF CONSTRUCTION PROJECT TO MODERNIZE A HOSPITAL FOR DISABLED CHILDREN SEEK TO ENJOIN CONSTRUCTION BASED ON ALLEGED NONCOMPLIANCE WITH ZONING, NOTICE AND SEQRA REQUIREMENTS; DISMISSAL OF APPEALS FOR MOOTNESS DUE TO ADVANCED STATUS OF CONSTRUCTION COMPLETION; INJUNCTIONS; Supreme Court, New York County, among other things, denied petitioners' motion for a preliminary injunction and granted the cross motion of respondent New York Department of Health to dismiss the petition as against it; thereafter, Supreme Court granted respondent Dormitory Authority's motion for summary judgment declaring that it had the authority to provide financing for the subject construction project, granted the cross motion of respondent New York City Department of Buildings for summary judgment dismissing the proceeding as against it, and denied petitioners' motion for summary judgment with respect to the applicability of section 24-111(a) of the Zoning Resolution of the City of New York; App. Div. dismissed appeals as moot.

For August 10, 2012 through August 16, 2012, the following preliminary appeal statements were filed:

DIAZ (RICHARD), PEOPLE v (92 AD3d 413):
1st Dept. App. Div. order of 2/2/12; affirmance; leave to appeal granted by Lippman, Ch. J., 7/20/12; CRIMES - PLEA OF GUILTY - WHETHER THE TRIAL COURT FAILED TO SUFFICIENTLY INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA AND, IF SO, WHETHER DEFENDANT DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTER INTO THE PLEA; Supreme Court, New York County convicted defendant, upon his guilty plea, of criminal possession of a controlled substance in the third degree, and sentenced him to a term of 2½ years; App. Div. affirmed.

COMMISSIONER OF SOCIAL SERVICES, MATTER OF, o/b/o ELIZABETH S. v JULIO J. (94 AD3d 606):
1st Dept. App. Div. order of 4/24/12; reversal with dissents; leave to appeal granted by App. Div., 7/31/12; Rule 500.11 review pending; CHILDREN BORN OUT OF WEDLOCK - PATERNITY PROCEEDING - EQUITABLE ESTOPPEL - ABSENCE OF PARENT-CHILD RELATIONSHIP - WHETHER THE APPELLATE DIVISION ERRED IN CONCLUDING THAT PETITIONER FAILED TO ESTABLISH BY EVIDENCE THAT WAS CLEAR, CONVINCING AND ENTIRELY SATISFACTORY, THAT RESPONDENT ACTED AS THE CHILD'S FATHER TO SUCH AN EXTENT AS TO GIVE RISE TO EQUITABLE ESTOPPEL BARRING HIM FROM DENYING PATERNITY AND RENDERING A BIOLOGICAL PATERNITY TEST INAPPROPRIATE; Family Court, New York County declared respondent to be the father of the subject child; App. Div. reversed and remanded the matter for further proceedings to include the performance of a biological paternity test.

EMPIRE STATE CHAPTER OF ASSOCIATED BUILDERS AND CONTRACTORS, INC. v SMITH (2012 NY Slip Op 05456):
4th Dept. App. Div. order of 7/6/12; modification with dissents; MUNICIPAL CORPORATIONS - HOME RULE POWERS - CONSTITUTIONAL CHALLENGE TO 2008 AMENDMENTS TO WICKS LAW - AMENDMENTS TO MONETARY THRESHOLD AMOUNTS FOR PUBLIC WORKS PROJECTS - WHETHER THE THREE-TIERED MONETARY THRESHOLD ESTABLISHED BY THE 2008 AMENDMENTS WAS ENACTED IN VIOLATION OF THE HOME RULE PROVISIONS OF THE NEW YORK STATE CONSTITUTION - WHETHER THE APPRENTICESHIP REQUIREMENTS IN LABOR LAW § 222 VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE AND "DORMANT" COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION, AND THE EQUAL PROTECTION CLAUSES OF THE FEDERAL AND STATE CONSTITUTIONS; Supreme Court, Erie County granted defendants' motion to dismiss the complaint; App. Div. modified by denying defendants' motion to the extent that it sought dismissal of the complaint, reinstating the complaint insofar as declaratory relief was sought, and granting judgment in favor of defendants as follows: "It is ADJUDGED AND DECLARED that the 2008 amendments to the Wicks Law are valid and constitutional," and affirmed the judgment as so modified.

THOMAS (MICHAEL), PEOPLE v (89 AD3d 964):
2nd Dept. App. Div. order of 11/15/11; affirmance; leave to appeal granted by Smith, J., 8/7/12; CRIMES - PLEA OF GUILTY - WHETHER DEFENDANT DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTER INTO HIS GUILTY PLEA WHERE THE TRIAL COURT FAILED TO INFORM HIM OF THE POSSIBLE IMMIGRATION CONSEQUENCES OF THE PLEA; RIGHT TO COUNSEL - ALLEGED INEFFECTIVE REPRESENTATION OF COUNSEL BASED UPON COUNSEL'S FAILURE TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA; Supreme Court, Queens County convicted defendant of criminal sale of a controlled substance in the third degree, upon his guilty plea, and imposed sentence; App. Div. affirmed.

TORRES (VINCENT), PEOPLE v (97 AD3d 1125) (Appeal Nos. 1 & 2):
4th Dept. App. Div. orders of 7/6/12; dismissal and reversal with dissents; vacatur of resentence; leave to appeal granted by Scudder, J., 8/3/12; Rule 500.11 review pending; CRIMES - RIGHT TO PUBLIC TRIAL - CLOSURE OF COURTROOM - TRIAL COURT CLOSED THE COURTROOM TO DEFENDANT'S WIFE AT THE START OF JURY SELECTION ON THE GROUND THAT THERE "WASN'T ANY ROOM" IN THE COURTROOM FOR HER - PRESERVATION - DURATION OF CLOSURE - WHETHER A TRIVIALITY EXCEPTION TO THE PER SE RULE OF REVERSAL EXISTS AND APPLIES IN THIS CASE; Onondaga County Court convicted defendant, upon a jury verdict, of burglary in the second degree, attempted sodomy in the first degree, two counts of sodomy in the first degree, and sexual abuse in the first degree; the same court resentenced defendant upon his conviction of burglary in the second degree; App. Div. dismissed the appeal from the judgment insofar as it imposed sentence on the conviction of burglary in the second degree, reversed the judgment and granted a new trial on counts two through five and seven of the superseding indictment, and, in a separate order, vacated the resentence.

VERIZON NEW ENGLAND, INC. v TRANSCOM ENHANCED SERVICES, INC. (2012 NY Slip Op 05269):
1st Dept. App. Div. order of 6/28/12; affirmance with dissents; JUDGMENTS - ENFORCEMENT - RESTRAINING NOTICE - PAYMENTS TO JUDGMENT DEBTOR PURSUANT TO PRE-EXISTING CONTRACT AFTER RECEIPT OF RESTRAINING NOTICE - WHETHER PAYMENTS CONSTITUTED A "DEBT" OWING TO THE JUDGMENT DEBTOR OR WHETHER JUDGMENT DEBTOR HAD RIGHTS UNDER THE CONTRACT THAT CONSTITUTED "PROPERTY" WITHIN THE MEANING OF CPLR 5222(b); Supreme Court, New York County, among other things, dismissed a petition in a CPLR article 52 turnover proceeding; App. Div. affirmed.