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For August 16, 2013 through August 22, 2013, the following preliminary appeal statements were filed:

GILES (DWIGHT), PEOPLE v (95 AD3d 670):
1st Dept. App. Div. order of 5/22/12; modification; leave to appeal granted by Lippman, Ch.J., 8/6/13; CRIMES - RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - WHETHER A CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL MAY BE RAISED IN A CPL 330.30 MOTION INSTEAD OF A CPL 440.10 MOTION; SENTENCE - DUE PROCESS CHALLENGE TO SENTENCE PURSUANT TO PERSISTENT FELONY OFFENDER STATUTE (CPL 400.20) - WHETHER DEFENDANT'S SENTENCE WAS IMPERMISSIBLY ENHANCED BEYOND THE OTHERWISE APPLICABLE MAXIMUM TERM BASED ON FACTS FOUND BY THE JUDGE RATHER THAN THE JURY BEYOND A REASONABLE DOUBT; Supreme Court, New York County convicted defendant, after a jury trial, of attempted burglary in the second degree and criminal possession of burglar's tools, and sentenced him, as a persistent felony offender, to an aggregate term of 20 years to life (9/10/09 judgment), then resentenced defendant, as a persistent felony offender, to a concurrent aggregate term of 20 years to life upon his conviction, after a jury trial, of two counts of criminal possession of stolen property in the fourth degree (1/27/09 judgment); App. Div. modified the judgment of conviction and sentence rendered 9/10/09, as a matter of discretion in the interest of justice, to the extent of reducing the sentence for the attempted burglary conviction to a term of 15 years to life, and otherwise affirmed and modified the judgment of resentence rendered 1/27/09, as a matter of discretion in the interest of justice, to the extent of reducing the sentences to concurrent terms of 15 years to life, and otherwise affirmed.

HOERGER, MATTER OF v SPOTA (109 AD3d 564):
2nd Dept. App. Div. order of 8/16/13; affirmance with dissents; ELECTIONS - DESIGNATING PETITIONS - WHETHER THE APPELLATE DIVISION CORRECTLY HELD THAT THE STATE HAS PREEMPTED THE ISSUE OF TERM LIMITS FOR DISTRICT ATTORNEYS AND, THUS, THAT THE COUNTY OF SUFFOLK LACKED THE POWER TO PLACE A TERM LIMIT ON THE OFFICE OF THE DISTRICT ATTORNEY FOR THE COUNTY OF SUFFOLK; Supreme Court, Suffolk County, after a hearing, denied a petition pursuant to Election Law § 16-102 to invalidate petitions designating Thomas J. Spota III as a candidate in a primary election to be held on September 10, 2013, for the nominations of the Democratic, Republican, Conservative and Independence Parties as their candidate for the public office of District Attorney for the County of Suffolk; App. Div. affirmed.

SOLLA, MATTER OF v BERLIN (106 AD3d 80):
1st Dept. App. Div. order of 3/5/13; reversal; leave to appeal granted by App. Div., 8/6/13; STATE - EQUAL ACCESS TO JUSTICE ACT (EAJA)(CPLR ARTICLE 86) - ATTORNEY'S FEES - WHETHER THE EAJA PERMITS THE AWARD OF ATTORNEY'S FEES BASED ON THE "CATALYST THEORY" THAT THE LITIGATION RESULTED IN THE STATE'S VOLUNTARY GRANTING OF THE RELIEF SOUGHT; Supreme Court, New York County, in a hybrid CPLR article 78 and declaratory judgment proceeding, dismissed as moot the petition for an order declaring arbitrary and capricious respondents' failure to comply with a decision after a fair hearing, and denied petitioner's application for counsel fees pursuant to CPLR article 86; App. Div. reversed, granted the application for counsel fees, and remanded for a hearing on the amount of counsel fees to be awarded to petitioner.

SOTO, JR. (ANSELMO), PEOPLE ex rel. v GONYEA:
6/7/13 order by Justice Eugene M. Fahey; denial of habeas corpus; sua sponte examination whether an appeal lies from an order of an individual App. Div. Justice and whether a substantial constitutional question is directly involved to support the appeal taken as of right; HABEAS CORPUS - CHALLENGE TO ORDER OF INDIVIDUAL APPELLATE DIVISION JUSTICE DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS; Justice Eugene M. Fahey denied petitioner's application for a writ of habeas corpus.

TURNER (GENNA A.), PEOPLE v (107 AD3d 1543):
4th Dept. App. Div. order of 6/14/13; affirmance; leave to appeal granted by Martoche, J., 8/6/13; CRIMES - SENTENCE - FAILURE TO ADVISE DEFENDANT OF POST-RELEASE SUPERVISION (PRS) BEFORE ENTRY OF GUILTY PLEA - WHETHER THE APPELLATE DIVISION ERRED IN RULING THAT DEFENDANT HAD BEEN INFORMED ABOUT PRS SUFFICIENTLY BEFORE SENTENCE WAS IMPOSED SO THAT SHE WAS REQUIRED TO PRESERVE THE CATU ERROR FOR APPELLATE REVIEW AND THAT, IN ANY EVENT, DEFENDANT WAIVED THE RIGHT TO ASSERT THE CATU ERROR; County Court, Monroe County, convicted defendant, upon her guilty plea, of attempted murder in the second degree, burglary in the first degree and criminal contempt in the first degree; App. Div. affirmed.

WORD (DIANE), PEOPLE v:
1st Dept. App. Div. order of 9/27/07; denial of motion; sua sponte examination whether a civil appeal as of right pursuant to CPLR 5601(b)(1) lies from an order entered in a criminal case; APPEAL - CHALLENGE TO APPELLATE DIVISION ORDER DENYING DEFENDANT'S MOTION SEEKING LEAVE TO REMAND SUPPRESSION HEARING AND FOR RELATED RELIEF; App. Div. denied defendant's motion seeking leave to remand suppression hearing and for related relief.

For August 23, 2013 through August 29, 2013, the following preliminary appeal statements were filed:

BURNS, MATTER OF v CARBALLADA (101 AD3d 1610):
4th Dept. App. Div. order of 12/21/12; reversal; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; PROCEEDING AGAINST BODY OR OFFICER - DISMISSAL OF PETITION - CPLR ARTICLE 78 PROCEEDING TO ANNUL TWO DETERMINATIONS OF THE MUNICIPAL CODE VIOLATIONS BUREAU OF RESPONDENT CITY OF ROCHESTER WHICH FOUND PETITIONERS GUILTY OF CITY CODE VIOLATION SET FORTH IN APPEARANCE TICKETS - OWNING PROPERTY OCCUPIED WITHOUT VALID CERTIFICATE OF OCCUPANCY; Supreme Court, Monroe County, granted the petition in a CPLR article 78 proceeding; App. Div. reversed and dismissed the petition.

GARRETT (MARK), PEOPLE v (106 AD3d 929):
2nd Dept. App. Div. order of 5/15/13; reversal; leave to appeal granted by Graffeo, J., 8/19/13; CRIMES - VACATUR OF JUDGMENT OF CONVICTION - CPL 440.10 MOTION TO VACATE JUDGMENT BASED ON NEWLY DISCOVERED EVIDENCE - CLAIM THAT PEOPLE VIOLATED THEIR BRADY OBLIGATION BY FAILING TO DISCLOSE THAT THE INTERROGATING POLICE OFFICER HAD BEEN THE DEFENDANT IN AN UNRELATED FEDERAL CIVIL RIGHTS ACTION BY AN ARRESTEE CLAIMING THAT THE OFFICER HAD EXTRACTED A FALSE CONFESSION FROM HIM THROUGH THE USE OF FORCE; WITNESS - IMPEACHMENT; County Court, Suffolk County, denied, without a hearing, defendant's CPL 440.10 motion to vacate a 6/13/00 judgment convicting him, upon a jury verdict, of two counts of murder in the second degree, and imposing sentence; App. Div. reversed and remitted matter to County Court for a hearing and a new determination of defendant's motion.

LUDWIG (DANIEL A.), PEOPLE v (104 AD3d 1162):
4th Dept. App. Div. order of 3/15/13; affirmance; leave to appeal granted by Smith, J., 8/16/13; CRIMES - EVIDENCE - PRIOR CONSISTENT STATEMENTS - WHETHER THE TRIAL COURT ERRED IN ALLOWING ADMISSION OF TESTIMONY FROM SEVERAL WITNESSES ABOUT WHEN AND HOW THE VICTIM DISCLOSED THE ABUSE; WHETHER THE TRIAL COURT ERRED IN PRECLUDING TESTIMONY FROM COMPLAINANT'S GRANDMOTHER THAT THE DEFENSE CONTENDED SHOWED THE VICTIM'S MOTIVE TO LIE; County Court, Monroe County, convicted defendant, upon a jury verdict, of predatory sexual assault against a child; App. Div. affirmed.

M. (MARQUAN W.), PEOPLE v:
County Court, Albany County order of 5/20/13; affirmance; leave to appeal granted by Graffeo, J., 8/19/13; CRIMES - CYBER-BULLYING - ALBANY LOCAL LAW NO. 11 OF 2010 - CONSTITUTIONAL CHALLENGE TO LOCAL LAW THAT CRIMINALIZES "ANY ACT OF COMMUNICATING OR CAUSING A COMMUNICATION TO BE SENT BY MECHANICAL OR ELECTRONIC MEANS, INCLUDING POSTING STATEMENTS ON THE INTERNET OR THROUGH A COMPUTER OR EMAIL NETWORK, DISSEMINATING EMBARRASSING OR SEXUALLY EXPLICIT PHOTOGRAPHS; DISSEMINATING PRIVATE, PERSONAL, FALSE OR SEXUAL INFORMATION, OR SENDING HATE MAIL, WITH NO LEGITIMATE PRIVATE, PERSONAL, OR PUBLIC PURPOSE, WITH THE INTENT TO HARASS, ANNOY, THREATEN, ABUSE, TAUNT, INTIMIDATE, TORMENT, HUMILIATE, OR OTHERWISE INFLICT SIGNIFICANT EMOTIONAL HARM ON ANOTHER PERSON" - ALLEGED VIOLATION OF DEFENDANT'S FIRST AMENDMENT RIGHTS - WHETHER THE LOCAL LAW IS UNCONSTITUTIONALLY OVERBROAD OR VAGUE ON ITS FACE OR AS APPLIED TO DEFENDANT; Cohoes City Court convicted defendant, upon his guilty plea, of violating Albany County Local Law No. 11 of 2010, which makes it a misdemeanor to engage in "cyber-bullying" in Albany County; County Court affirmed.

MORPHEUS CAPITAL ADVISORS, LLC v UBS AG (105 AD3d 145):
1st Dept. App. Div. order of 3/12/13; modification; leave to appeal granted by App. Div., 8/13/13; CONTRACTS - BREACH OF CONTRACT - CLAIMS ARISING OUT OF AGREEMENT GIVING PLAINTIFF THE RIGHT TO BROKER THE SALE OF CERTAIN STUDENT LOAN ASSETS - FRUSTRATION OF PURPOSE DEFENSE; DISMISSAL AND NONSUIT - DISMISSAL OF COMPLAINT WITH PREJUDICE; Supreme Court, New York County, dismissed the complaint with prejudice; App. Div. modified to the extent of vacating that part of the judgment dismissing the complaint as against defendant UBS Real Estate Securities, Inc., and directing that dismissal of the complaint as against defendant UBS AG be without prejudice.

SOWELL, MATTER OF v FISCHER (108 AD3d 962):
3rd Dept. App. Div. order of 7/18/13; dismissal; sua sponte examination whether the appeal is moot and whether a substantial constitutional question is directly involved to support an appeal as of right; PRISONS AND PRISONERS - DISCIPLINE OF INMATES - WHETHER THE APPELLATE DIVISION ERRED IN DISMISSING APPEAL ON THE GROUND THAT, BASED UPON FURTHER PROCEEDINGS FOLLOWING ENTRY OF THE INITIAL JUDGMENT, PETITIONER RECEIVED ALL THE RELIEF TO WHICH HE WAS ENTITLED; Supreme Court, Albany County, partially granted petitioner's application, in a CPLR article 78 proceeding, to annul a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules; App. Div. dismissed the appeal as moot.

For August 30, 2013 through September 5, 2013, the following preliminary appeal statements were filed:

ASHMORE v ASHMORE (2013 NY Slip Op 80483[U]):
2nd Dept. App. Div. order of 7/23/13; denial of motion; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution, whether a substantial constitutional question is directly involved to support an appeal as of right and whether the appeal is moot; PARENT, CHILD AND FAMILY - CUSTODY - MOTION TO APPELLATE DIVISION TO DIRECT CUSTODY OF CHILDREN FOR SUMMER 2013; APPEALS - PERMISSION TO APPEAL - APPEALABLE PAPER - WRITTEN DECLINATION BY SUPREME COURT JUSTICE TO SIGN ORDER TO SHOW CAUSE; MOOTNESS; Supreme Court, Kings County, declined to sign order to show cause proposed by defendant; App. Div. denied that branch of defendant's motion which is for leave to appeal, and otherwise denied defendant's motion as academic.

BUSTOS v LENOX HILL HOSPITAL (105 AD3d 541):
1st Dept. App. Div. order of 4/16/13; reversal; leave to appeal granted by App. Div., 8/13/13; Rule 500.11 review pending; WITNESS - EXPERT WITNESS - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT THE TESTIMONY OF PLAINTIFF'S EXPERT IN THIS MEDICAL MALPRACTICE ACTION WAS SPECULATIVE, CONCLUSORY AND WITHOUT PROBATIVE FORCE BECAUSE HE DID NOT EXPLAIN OR OTHERWISE SUPPORT HIS OPINION THAT THE BIRTHING MANEUVERS PERFORMED BY DEFENDANTS WERE EXCESSIVE, DEVIATED FROM THE APPROPRIATE STANDARD OF CARE AND CAUSED PLAINTIFF'S INJURIES - CPLR 4515; Supreme Court, New York County, among other things, denied defendant Lenox Hill Hospital's motion to set aside the verdict; App. Div. reversed, granted the motion to set aside the verdict, as a matter of law, and directed the Clerk to enter judgment in defendants' favor dismissing the complaint.

DELEE (DWIGHT R.), PEOPLE v (108 AD3d 1145):
4th Dept. App. Div. order of 7/19/13; modification; leave to appeal granted by Peradotto, J., 8/14/13; Rule 500.11 review pending; CRIMES - VERDICT - WHETHER JURY VERDICT FINDING DEFENDANT GUILTY OF MANSLAUGHTER IN THE FIRST DEGREE AS A HATE CRIME WAS INCONSISTENT WITH THE JURY'S FINDING OF NOT GUILTY ON THE CHARGE OF MANSLAUGHTER IN THE FIRST DEGREE - LESSER INCLUDED OFFENSE; POST-VERDICT STATEMENT OF JURY FOREPERSON; County Court, Onondaga County, convicted defendant, upon a jury verdict, of manslaughter in the first degree as a hate crime and criminal possession of a weapon in the third degree; App. Div. modified by reversing that part convicting defendant of manslaughter in the first degree as a hate crime and dismissing count one of the indictment.

HOLMES, MATTER OF v WINTER (— AD3d —, 2013 NY Slip Op 05666):
1st Dept. App. Div. order of 8/20/13; affirmance with dissents; NEWSPAPERS - SHIELD LAW - IDENTIFICATION OF JOURNALIST'S SOURCES - ENFORCEMENT OF SUBPOENA UNDER UNIFORM ACT TO SECURE THE ATTENDANCE OF WITNESSES FROM WITHOUT THE STATE IN A CRIMINAL CASE (CPL 640.10) - REPORTER'S ASSERTION OF PRIVILEGE UNDER CIVIL RIGHTS LAW § 79-h(b); Supreme Court, New York County, compelled respondent to testify before the District Court of Arapahoe County, Colorado, in a criminal proceeding against petitioner; App. Div. affirmed.

LUCIA, MATTER OF v BOARD OF EDUCATION OF EAST MEADOW UNION FREE SCHOOL DISTRICT (109 AD3d 545):
2nd Dept. App. Div. order of 8/14/13; reversal; SCHOOLS - TEACHERS - DISCIPLINARY MEASURES - EXERCISE OF FIRST AMENDMENT RIGHTS - MEMBER OF TEACHERS' UNION WHO LEGALLY PARKED HER CAR IN FRONT OF SCHOOL WHILE PICKETING BECAUSE OF STALLED NEGOTIATIONS ON A NEW COLLECTIVE BARGAINING AGREEMENT DISCIPLINED FOR CREATING A HEALTH AND SAFETY RISK INSOFAR AS HER CAR WAS PARKED IN A LOCATION WHERE PARENTS WOULD DROP OFF THEIR CHILDREN FOR SCHOOL, RESULTING IN SOME STUDENTS BEING DROPPED OFF IN THE STREET AND HAVING TO CROSS TRAFFIC LANES TO ENTER THE SCHOOL; Supreme Court, Nassau County, denied the petition in a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated 1/7/11 sustaining a charge of misconduct against petitioner and imposing a fine against petitioner in the sum of $1,000; App. Div. reversed and granted the petition.

LYNCH v CITY OF NEW YORK (108 AD3d 94):
1st Dept. App. Div. order of 5/16/13; modification; leave to appeal granted by App. Div., 8/27/13; EMPLOYMENT RELATIONSHIPS - RETIREMENT AND PENSION BENEFITS - CHALLENGE TO CITY'S ACTION IN DECLINING TO MAKE AN INCREASED-TAKE-HOME-PAY CONTRIBUTION TO POLICE OFFICERS AND FIREFIGHTERS HIRED AFTER JULY 1, 2009 (TIER 3 MEMBERS); Supreme Court, New York County, granted plaintiffs' motion for summary judgment to the extent of granting plaintiffs summary judgment on their first cause of action and declaring that the City violated Retirement and Social Security Law § 480(b), and granted the City's motion to dismiss the complaints to the extent of dismissing the second, third, fourth and fifth causes of action; App. Div. modified to deny defendants' motion as to the fifth cause of action (conversion) as against the City and grant plaintiffs' motion for summary judgment on the issue of the City's liability for conversion.

MEHULIC, MATTER OF v STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT (107 AD3d 1066):
3rd Dept. App. Div. judgment of 6/6/13; confirmed determination; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right and whether the appeal is timely taken; PHYSICIANS AND SURGEONS - DISCIPLINARY PROCEEDINGS - LICENSE TO PRACTICE MEDICINE - CPLR ARTICLE 78 PROCEEDING PURSUANT TO PUBLIC HEALTH LAW § 230-c(5) CHALLENGING DETERMINATION THAT PETITIONER PRACTICED MEDICINE WITH INCOMPETENCE; CLAIMED DENIAL OF DUE PROCESS; CLAIMED EXCESSIVE PENALTY; App. Div. confirmed the determination and dismissed the petition.

MYERS, MATTER OF v FISCHER (107 AD3d 1189):
3rd Dept. App. Div. judgment of 6/13/13; confirmed determination and dismissed CPLR article 78 petition; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; PRISONS AND PRISONERS - DISCIPLINE OF INMATES - CHALLENGE TO DETERMINATION BY COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION FINDING PETITIONER GUILTY OF POSSESSING UNAUTHORIZED MEDICATION, POSSESSING AN ARTICLE IN AN UNAUTHORIZED AREA, AND SMUGGLING; App. Div. confirmed a determination finding petitioner guilty of violating certain prison disciplinary rules, and dismissed the CPLR article 78 petition.

NORSE ENERGY CORP. USA, MATTER OF V TOWN OF DRYDEN (108 AD3d 25):
3rd Dept. App. Div. order of 5/2/13; affirmance; leave to appeal granted by Court of Appeals, 8/29/13; MUNICIPAL CORPORATIONS - ZONING - WHETHER THE OIL, GAS AND SOLUTION MINING LAW, CONTAINED IN ARTICLE 23 OF THE ENVIRONMENTAL CONSERVATION LAW, PREEMPTS RESPONDENT TOWN FROM PASSING ZONING ORDINANCES WHICH BAN ACTIVITIES RELATED TO THE EXPLORATION FOR, AND THE PRODUCTION OR STORAGE OF, NATURAL GAS AND PETROLEUM - HYDRAULIC FRACTURING (HYDROFRACKING); Supreme Court, Tompkins County, among other things, partially granted respondents' motion for summary judgment declaring that certain amendments to the Town of Dryden zoning ordinance are not preempted by the Oil, Gas, and Solution Mining Law; App. Div. affirmed.

PERALES (RICHARD), PEOPLE v (100 AD3d 1025):
2nd Dept. App. Div. order of 11/28/12; denied application; leave to appeal granted by Smith, J., 7/10/13; Rule 500.11 review; CRIMES - RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - COUNSEL'S FAILURE TO FILE NOTICE OF APPEAL OR REQUEST LEAVE TO FILE A LATE NOTICE OF APPEAL - WHETHER THE APPELLATE DIVISION ERRED IN DENYING DEFENDANT'S APPLICATION FOR A WRIT OF ERROR CORAM NOBIS SEEKING LEAVE TO FILE A LATE NOTICE OF APPEAL - PEOPLE v SYVILLE (15 NY3d 391 [2010]); App. Div. denied defendant's application for a writ of error coram nobis seeking leave to file a late notice of appeal from a Supreme Court, Queens County, judgment rendered 6/15/07.

PINE (JAMES R.), PEOPLE v (2013 NY Slip Op 80123[U]):
3rd Dept. App. Div. order of 7/15/13; denied motion; sua sponte examination whether an appeal as of right lies from an order entered in a criminal proceeding; APPEAL - EFFECTIVENESS OF COUNSEL - APPLICATION FOR WRIT OF ERROR CORAM NOBIS - CLAIMED FAILURE OF APPELLATE COUNSEL TO RAISE INEFFECTIVENESS OF TRIAL COUNSEL WHO DID NOT ASSERT A JUSTIFICATION DEFENSE OR DEMONSTRATE BIAS OF WITNESS WHO ENTERED INTO PLEA DEAL WITH DISTRICT ATTORNEY IN EXCHANGE FOR TESTIMONY; App. Div. denied motion for writ of error coram nobis to vacate App. Div. decision.

STRAUSS PAINTING, INC. v MT. HAWLEY INSURANCE CO. (105 AD3d 512):
1st Dept. App. Div. order of 4/11/13; modification; leave to appeal granted by App. Div., 8/20/13; INSURANCE - DUTY TO DEFEND AND INDEMNIFY - INSURED'S FAILURE TO PROVIDE TIMELY NOTICE OF OCCURRENCE - WHETHER PLAINTIFF-INSURED'S RELIANCE UPON ITS BROKER'S ERRONEOUS ADVICE CONSTITUTES A REASONABLE EXCUSE FOR INSURED'S FAILURE TO PROVIDE ITS INSURER WITH TIMELY NOTICE OF THE ACCIDENT - WHETHER THE COURTS BELOW CORRECTLY DETERMINED THAT INSURER IS OBLIGATED TO DEFEND AND INDEMNIFY A PARTY UNDER AN ADDITIONAL INSURED ENDORSEMENT CONTAINED IN THE COMMERCIAL GENERAL LIABILITY POLICY IT ISSUED TO PLAINTIFF, THAT INSURER DID NOT TIMELY DISCLAIM COVERAGE TO THE ADDITIONAL INSURED ON THE BASIS OF LATE NOTICE OF THE ACCIDENT, AND THAT THE "ACTS AND OMISSIONS" LANGUAGE IN THE ADDITIONAL INSURED ENDORSEMENT PROVIDED COVERAGE EVEN ABSENT A FINDING OF NEGLIGENCE BY PLAINTIFF-INSURED IN THE UNDERLYING PERSONAL INJURY ACTION; Supreme Court, New York County, (10/16/12 orders), upon reargument, declared that Mt. Hawley Insurance Company's (Mt. Hawley) duty to defend and indemnify is conditioned upon a finding of negligence by plaintiff or those acting on plaintiff's behalf and reinstated the Metropolitan Opera Association's (the Met) second and third cross claims on the basis that they were not abandoned; and (11/4/11 judgment) granted defendant Mt. Hawley's motion for summary judgment declaring that it has no obligation to defend or indemnify plaintiff Strauss Painting in an underlying personal injury action, granted defendant Met's motion for summary judgment declaring that Mt. Hawley is obligated to defend and indemnify the Met in an underlying personal injury action, denied Mt. Hawley's cross motion for summary judgment declaring that it is not obligated to defend and indemnify the Met in the underlying action, and dismissed the Met's second and third cross claims against Mt. Hawley on the basis that they were abandoned; App. Div. modified (1) the 11/4/11 judgment to deny Mt. Hawley's motion for the dismissal of the complaint as against it upon the declaration that Mt. Hawley has no duty to defend and indemnify plaintiff; (2) the 10/16/12 order to dismiss the Met's third cross claim against Mt. Hawley for expenses incurred in this action; and (3) the other 10/16/12 order to delete that portion of the order that conditioned Mt. Hawley's duty to defend and indemnify upon a finding of negligence by plaintiff in the underlying action and to declare that Mt. Hawley's duty to defend the Met shall arise and be conditioned upon a finding of an act or omission by plaintiff or one acting on plaintiff's behalf.