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For September 10, 2010 through September 16, 2010, the following preliminary appeal statements were filed:

BROWN (NADIRAH), PEOPLE v (72 AD3d 1558):
4th Dept. App. Div. order of 4/30/10; affirmance; leave to appeal granted by Pigott, J., 9/10/10; CRIMES - ASSAULT - SUFFICIENCY OF EVIDENCE TO ESTABLISH THAT DEFENDANT ACTED RECKLESSLY - HOT WATER THROWN ON DEFENDANT'S NEPHEW; ALLEGED PROSECUTORIAL MISCONDUCT; Erie County Court convicted defendant of assault in the second degree and endangering the welfare of a child, and imposed sentence; App. Div. affirmed.

CONGREGATION RABBINICAL COLLEGE OF TARTIKOV v TOWN OF RAMAPO (72 AD3d 869):
2nd Dept. App. Div. order of 4/20/10; reversal; leave to appeal granted by Court of Appeals, 8/31/10; TAXATION - EXEMPTIONS - WHETHER THE APPELLATE DIVISION ERRED IN DECLARING THAT PLAINTIFF RELIGIOUS CORPORATION'S REAL PROPERTY IS EXEMPT FROM REAL PROPERTY TAXATION PURSUANT TO RPTL 420-a(1) FOR CERTAIN TAX YEARS - OPERATION ON THE SUBJECT PROPERTY OF A FOR-PROFIT SUMMER CAMP FOR ORTHODOX JEWISH BOYS; Supreme Court, Rockland County judgment declared that defendants properly revoked the tax exemption of the plaintiff's real property pursuant to Real Property Tax Law § 420-a(1) for tax years 2006, 2007 and 2008; App. Div. reversed and declared that the plaintiff's real property is exempt from real property taxation pursuant to Real Property Tax Law § 420-a(1) for tax years 2006, 2007 and 2008.

DOOMES v BEST TRANSIT CORP. (68 AD3d 504):
1st Dept. App. Div. order of 12/10/09; reversal; leave to appeal granted by Court of Appeals, 9/2/10; STATUTES - FEDERAL PREEMPTION - WHETHER THE NATIONAL TRAFFIC AND MOTOR VEHICLE SAFETY ACT OF 1966 AND FEDERAL MOTOR VEHICLE SAFETY STANDARD 208 PREEMPT STATE LAW TORT CLAIMS AGAINST BUS MANUFACTURER FOR FAILURE TO EQUIP BUS WITH PASSENGER SEATBELTS - WHETHER SUFFICIENT EVIDENCE IN THE RECORD SUPPORTED JURY'S FINDING THAT BUS MANUFACTURER WAS LIABLE FOR ACCIDENT BASED UPON ITS LENGTHENING OF BUS CHASSIS, THEREBY CREATING AN IMPROPER DISTRIBUTION OF WEIGHT; Supreme Court, Bronx County awarded plaintiffs damages for pain and suffering as against defendant Warrick Industries, Inc. (doing business as Goshen Coach); App. Div. reversed, dismissed the complaint as against defendant Warrick Industries, Inc. and directed the Clerk to enter judgment accordingly.

GUNTLOW v BARBERA (76 AD3d 760):
3rd Dept. App. Div. order of 8/19/10; modification with dissents; sua sponte examination whether the order finally determines the action within the meaning of the Constitution; FALSE ARREST - MALICIOUS PROSECUTION - CLAIMS UNDER 42 USC § 1983 - CAUSE OF ACTION FOR ASSAULT AND BATTERY - PROBABLE CAUSE - SUMMARY JUDGMENT - EXISTENCE OF TRIABLE ISSUES OF FACT; Supreme Court, Albany County granted motions by defendants Barbera, City of Albany, Albany Police Department, Anthony Ryan and Anthony Battuello for summary judgment dismissing the complaint against them; App. Div. modified by reversing so much of the order as granted the motions for summary judgment dismissing (1) that part of the first cause of action alleging a violation of 42 USC § 1983 against defendants Barbera, Ryan and Battuello, and (2) the third, fourth and fifth causes of action; denied the motions to that extent; and affirmed the order as so modified.

RICHARDSON, MATTER OF v BOUCAUD (75 AD3d 878):
3rd Dept. App. Div. order of 7/15/10; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; HABEAS CORPUS - WHEN REMEDY AVAILABLE - CHALLENGE TO SPECIAL CONDITION OF PAROLE PROHIBITING PETITIONER FROM CONTACTING HIS WIFE - APPELLATE DIVISION ORDER HOLDING THAT HABEAS CORPUS RELIEF WAS UNAVAILABLE BECAUSE PETITIONER WAS NOT ENTITLED TO IMMEDIATE RELEASE INASMUCH AS HE WAS INCARCERATED, AT LEAST IN PART, DUE TO HIS VIOLATION OF A PAROLE CONDITION REQUIRING HIM TO PROCEED DIRECTLY TO THE AREA TO WHICH HE WAS RELEASED; Supreme Court, Clinton County dismissed petitioner's application for a writ of habeas corpus; App. Div. affirmed.

RIVERS (SHERMAN), PEOPLE v (74 AD3d 995):
2nd Dept. App. Div. order of 6/8/10; modification; leave to appeal granted by Ciparick, J., 9/1/10; CRIMES - HARMLESS AND PREJUDICIAL ERROR - MOLINEUX ERROR - FIRE MARSHAL'S TESTIMONY REGARDING THE ORIGIN OF A FIRE; Supreme Court, Kings County convicted defendant of three counts of arson in the first degree and imposed sentence; App. Div. modified by vacating the sentences imposed on the convictions of arson in the first degree under counts five and six of the indictment, affirmed the judgment as so modified and remitted to Supreme Court for resentencing on those convictions.

For September 17, 2010 through September 23, 2010, the following preliminary appeal statements were filed:

DePONCEAU, MATTER OF v STATE OF NEW YORK (2010 NY Slip Op 77789[U]):
3rd Dept. App. Div. order of 7/16/10; dismissal of appeal; sua sponte examination whether a substantial constitutional question is directly involved or any jurisdictional basis otherwise exists for an appeal as of right; APPEAL - APPELLATE DIVISION - DISMISSAL OF APPEAL; Court of Claims granted the State's motion to dismiss the claim and dismissed the claim; App. Div. denied claimant's motion for extension of time to perfect the appeal and dismissed the appeal.

FREEMAN (JOHN), PEOPLE v (74 AD3d 836):
2nd Dept. App. Div. order of 6/1/10; modification; leave to appeal granted by Ciparick, J., 9/2/10; CRIMES - ROBBERY - WHETHER STUN GUN USED REPEATEDLY ON ROBBERY VICTIM WAS A "DANGEROUS INSTRUMENT" (PENAL LAW § 160.15[3]); PROOF OF INJURY BASED ONLY ON VICTIM'S TESTIMONY; Supreme Court, Queens County convicted defendant, upon a jury verdict, of robbery in the first degree, two counts of robbery in the second degree and criminal possession of a weapon in the fourth degree, and imposed sentence; App. Div. modified by vacating the conviction of robbery in the first degree, in violation of Penal Law § 160.15(3), as charged in count one of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment.

GREENBERG, TRAGER & HERBST, LLP v HSBC BANK USA (73 AD3d 571):
1st Dept. App. Div. order of 5/20/10; affirmance; leave to appeal granted by Court of Appeals, 9/16/10; BANKS AND BANKING - COUNTERFEITED BANK CHECK DEPOSITED BY PLAINTIFF LAW FIRM - COLLECTING BANK INVOKED RIGHT TO CHARGE BACK SUM TO PAYOR BANK AFTER ALLEGEDLY ADVISING LAW FIRM THAT CHECK HAD "CLEARED"; UNIFORM COMMERCIAL CODE; DISMISSAL OF LAW FIRM'S ACTION AGAINST BANKS; Supreme Court, New York County (4/28/09 order) granted defendant HSBC's motion for summary judgment and dismissed the complaint as to HSBC, and (4/24/09 order) granted defendant Citibank's motion for summary judgment and dismissed the complaint as to Citibank; App. Div. affirmed both Supreme Court orders.

HALL (MICHAEL), PEOPLE v (74 AD3d 837):
2nd Dept. App. Div. order of 6/1/10; modification; leave to appeal granted by Ciparick, J., 9/2/10; CRIMES - ROBBERY - WHETHER STUN GUN USED REPEATEDLY ON ROBBERY VICTIM WAS A "DANGEROUS INSTRUMENT" (PENAL LAW § 160.15[3]); PROOF OF INJURY BASED ONLY ON VICTIM'S TESTIMONY; Supreme Court, Queens County convicted defendant of robbery in the first degree, two counts of robbery in the second degree, and criminal possession of a weapon in the fourth degree, and imposed sentence; App. Div. modified by vacating the conviction of robbery in the first degree, in violation of Penal Law § 160.15(3), as charged in count one of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment.

McINTOSH (FAYOLA), PEOPLE v (73 AD3d 653):
1st Dept. App. Div. order of 5/27/10; reversal; leave to appeal granted by Pigott, J., 8/23/10; GRAND JURY - RESUBMISSION OF CHARGES - WHETHER THE PEOPLE ARE REQUIRED TO OBTAIN COURT AUTHORIZATION UNDER CPL 190.75 TO PRESENT THE CASE TO A DIFFERENT GRAND JURY WHERE THE PEOPLE WITHDREW THE CASE PRESENTED TO A FIRST GRAND JURY DUE TO WITNESS UNAVAILABILITY; Supreme Court, New York County convicted defendant, after a jury trial, of assault in the second degree and sentenced her, as a second felony offender, to a term of 5 years; App. Div. reversed and dismissed the indictment with leave to the People to apply for an order permitting resubmission of the charges to another grand jury.

RATAJCZAK v YOONESSI:
Supreme Court, Erie County order of 8/11/10; dismissal of motion; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution and whether there is a jurisdictional predicate for a direct appeal pursuant to CPLR 5601(b)(2) or any other jurisdictional predicate for an appeal as of right; ACTIONS - MOTION MADE IN SUPREME COURT SEEKING RELIEF REGARDING APPEAL IN WHICH APPELLANT'S MOTION TO VACATE ORDER DISMISSING APPEAL DENIED AND APPELLATE DIVISION PROHIBITED APPELLANT FROM FILING ANY FURTHER MOTIONS IN THE APPEAL; Supreme Court dismissed as moot defendants' motion to settle the record on appeal and for an order compelling disclosure regarding the appeal.

SANTIAGO (EDWIN), PEOPLE v (75 AD3d 163):
1st Dept. App. Div. order of 5/6/10; affirmance; leave to appeal granted by Moskowitz, J., 9/7/10; CRIMES - IDENTIFICATION OF DEFENDANT - EXPERT TESTIMONY ON RELIABILITY OF EYEWITNESS IDENTIFICATIONS - WHETHER MULTIPLE EYEWITNESS IDENTIFICATIONS CAN CORROBORATE EACH OTHER; REQUESTED SUPPRESSION OF LINE-UP IDENTIFICATION DUE TO DISPARITY IN LOOKS OF THE STAND-INS; Supreme Court, New York County, after a jury trial, convicted defendant of assault in the first degree; App. Div. affirmed.

TOWN OF WATERFORD, MATTER OF v NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (— AD3d —, 2010 NY Slip Op 06388):
3rd Dept. App. Div. order of 8/12/10; modification with dissents; sua sponte examination whether the order appealed from finally determines the proceeding within the meaning of the Constitution; RECORDS - FREEDOM OF INFORMATION LAW (FOIL) - EXEMPTIONS - WHETHER FOIL'S DEFINITION OF "AGENCY" LIMITS THE APPLICATION OF THE INTER-AGENCY/INTRA-AGENCY EXEMPTION TO COMMUNICATIONS WITHIN AND BETWEEN STATE AND MUNICIPAL GOVERNMENTAL AGENCIES AND PRECLUDES ITS APPLICATION TO COMMUNICATIONS BETWEEN STATE AND FEDERAL GOVERNMENTAL AGENCIES; Supreme Court, Albany County partially granted petitioner's application, in a CPLR article 78 proceeding, to annul a determination of respondent partially denying petitioner's FOIL requests, and otherwise dismissed the petition; App. Div. modified by reversing so much of the judgment as (1) granted that part of petitioner's application for disclosure of certain records as not falling within the inter-agency/intra-agency exemption, and (2) dismissed that part of petitioner's application for disclosure of portions of Records 228 and 239 and the entirety of Records 242 and 243; granted the petition to the extent of disclosing said records; and remitted the matter to Supreme Court for further proceedings not inconsistent with the Court's decision.

WILLIAMS, MATTER OF v CONNELL (71 AD3d 1476):
4th Dept. App. Div. order of 3/19/10; confirmed determination; sua sponte examination whether there is any jurisdictional basis for an appeal as of right; PRISONS AND PRISONERS - DISCIPLINE OF INMATES - WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE COMMISSIONER'S DETERMINATION THAT PETITIONER HAD VIOLATED VARIOUS INMATE RULES; CLAIMED DUE PROCESS VIOLATIONS; App. Div. confirmed determination of respondent Connell, after a Tier II hearing, that petitioner had violated various inmate rules, and dismissed the petition.

WORLD TRADE CENTER BOMBING LITIGATION, MATTER OF (STEERING COMMITTEE v PORT AUTHORITY OF NEW YORK AND NEW JERSEY) (51 AD3d 337):
Supreme Court judgment of 1/20/10, bringing up for review App. Div. order of 4/29/08; affirmance; leave to appeal granted by Court of Appeals, 9/16/10; NEGLIGENCE - WHETHER PORT AUTHORITY IS ENTITLED TO GOVERNMENTAL IMMUNITY FROM NEGLIGENCE CLAIMS ARISING OUT OF THE TERRORIST TRUCK BOMBING OF THE WORLD TRADE CENTER; MAINTENANCE OF PREMISES - WHETHER THE APPELLATE DIVISION ERRED IN DETERMINING THAT THE JURY COULD HAVE FAIRLY CONCLUDED THAT THE PORT AUTHORITY WAS NEGLIGENT IN FAILING TO MAINTAIN ITS PARKING GARAGE IN A REASONABLY SAFE CONDITION AND THAT THIS NEGLIGENCE WAS A SUBSTANTIAL CAUSE OF THE BOMBING; APPORTIONMENT OF LIABILITY AMONG JOINT TORTFEASORS - JURY DETERMINATION THAT PORT AUTHORITY WAS 68% LIABLE AND TERRORISTS WERE 32% LIABLE FOR PERSONAL AND ECONOMIC INJURIES RESULTING FROM THE BOMBING; Supreme Court, New York County denied defendant's motion to set aside a jury verdict finding, among other things, defendant negligent in meeting its proprietary obligation to maintain the World Trade Center's underground parking garage in reasonably safe condition; App. Div. affirmed; Supreme Court awarded damages to plaintiff Antonia Ruiz.

For September 24, 2010 through September 30, 2010, the following preliminary appeal statements were filed:

AVILA v PLAZA CONSTRUCTION CORPORATION (73 AD3d 670):
2nd Dept. App. Div. order of 5/4/10; reversal; leave to appeal granted by Court of Appeals, 9/14/10; LABOR - SAFE PLACE TO WORK - LABOR LAW § 240(1) - PLAINTIFF STANDING ON A SUSPENDED REBAR GRID FRACTURED LEG THAT FELL THROUGH AN OPENING IN THE GRID MEASURING APPROXIMATELY ONE SQUARE FOOT - DEFENDANTS' ENTITLEMENT TO SUMMARY JUDGMENT - WHETHER THE OPENINGS IN THE GRID CREATED AN ELEVATION-RELATED HAZARD SUBJECT TO THE PROTECTIONS OF LABOR LAW § 240(1); Supreme Court, Kings County, among other things, denied that branch of defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1); App. Div. reversed, granted that branch of defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1).

BORDELEAU v STATE OF NEW YORK (74 AD3d 1688):
3rd Dept. App. Div. order of 6/24/10; modification; leave to appeal granted by App. Div., 9/13/10; STATE - APPROPRIATIONS - DECLARATORY JUDGMENT ACTION BY TAXPAYERS SEEKING TO ENJOIN DEFENDANTS FROM DISTRIBUTING OR RECEIVING STATE FUNDS APPROPRIATED IN PURPORTED VIOLATION OF THE NEW YORK STATE CONSTITUTIONAL PROHIBITION AGAINST GIFTS OR LOANS OF STATE MONEY TO PRIVATE ENTITIES (ARTICLE VII, § 8[1]) AND REQUIREMENT THAT APPROPRIATIONS DISTINCTLY SPECIFY THE OBJECT OR PURPOSE OF THE FUNDS APPROPRIATED (ARTICLE VII, § 7) - APPROPRIATIONS OF STATE FUNDS TO PUBLIC BENEFIT CORPORATIONS THAT PROVIDE GRANTS TO PRIVATE ENTITIES FOR ECONOMIC DEVELOPMENT - WHETHER DEFENDANTS WERE ENTITLED TO DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3211(a)(1) AND (7); Supreme Court, Albany County granted defendants' motions to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7); App. Div. modified by reversing so much of the order as granted defendants' motions to dismiss the first cause of action; denied the motions to that extent and remitted to Supreme Court to permit defendants to serve answers within 30 days after the date of the Court's decision; and affirmed as so modified.

GRONSKI v COUNTY OF MONROE (73 AD3d 1439):
4th Dept. App. Div. order of 5/7/10; affirmance; leave to appeal granted by Court of Appeals, 9/21/10; NEGLIGENCE - EMPLOYEE OF COMPANY OPERATING RECYCLING FACILITY OWNED BY DEFENDANT COUNTY INJURED AT THE FACILITY - WHETHER COUNTY RETAINED SUFFICIENT CONTROL OVER RECYCLING FACILITY TO INCUR LIABILITY; SUMMARY JUDGMENT - WHETHER PLAINTIFFS RAISED TRIABLE ISSUE OF FACT CONCERNING COUNTY'S CONTROL OVER FACILITY; EFFECT OF DEC PERMIT; Supreme Court, Monroe County granted defendant's motion for summary judgment and dismissed the complaint; App. Div. affirmed.

LIFSON v CITY OF SYRACUSE (72 AD3d 1523):
4th Dept. App. Div. order of 4/30/10; affirmance; leave to appeal granted by Court of Appeals, 9/16/10; NEGLIGENCE - ACTION ALLEGING THAT DECEDENT WAS KILLED WHEN VEHICLE STRUCK HER WHILE SHE WAS CROSSING THE STREET - EMERGENCY DOCTRINE - WHETHER THE TRIAL COURT ERRED IN GIVING THE JURY AN EMERGENCY DOCTRINE INSTRUCTION WHERE DRIVER ASSERTED THAT HE FAILED TO OBSERVE DECEDENT BECAUSE HE WAS SUDDENLY BLINDED BY SUN GLARE; DISMISSAL OF COMPLAINT AGAINST DRIVER; DECEDENT'S NEGLIGENCE; Supreme Court, Onondaga County, among other things, apportioned liability between decedent and defendant City of Syracuse, and dismissed the complaint against defendant Derek J. Klink, upon a jury verdict; App. Div. affirmed.

NEW YORK COALITION FOR QUALITY ASSISTED LIVING, INC. v MFY LEGAL SERVICES, INC. (70 AD3d 568):
1st Dept. App. Div. order of 2/23/10; reversal; leave to appeal granted by Court of Appeals, 9/21/10; HEALTH - ADULT CARE FACILITIES - ACTION BY ASSOCIATION OF MEMBERS WHO OPERATE ASSISTED LIVING FACILITIES AND ADULT HOMES FOR A DECLARATION THAT ITS PROPOSED GUIDELINES FOR VISITOR ACCESS ARE ENFORCEABLE IN ADULT CARE FACILITIES; Supreme Court, New York County denied defendants' motion to dismiss the complaint and declare plaintiff's proposed Guidelines for Visitor Access unenforceable, and granted plaintiff's cross motion for summary judgment declaring its Guidelines enforceable and consistent with the controlling statutes and regulations; App. Div. reversed, denied plaintiff's cross motion, granted defendants' motion, and declared the proposed Guidelines unenforceable.

PAULIN (DAVID LANCE), PEOPLE v (74 AD3d 685):
1st Dept. App. Div. order of 6/29/10; affirmance; leave to appeal granted by Pigott, J., 9/22/10; CRIMES - SENTENCE - WHETHER DEFENDANT REINCARCERATED FOR A PAROLE VIOLATION IS ELIGIBLE FOR RESENTENCING UNDER CPL 440.46; Supreme Court, Bronx County denied defendant's CPL 440.46 motion for resentencing; App. Div. affirmed.

PORCO (CHRISTOPHER), PEOPLE v (71 AD3d 791):
2nd Dept. App. Div. order of 3/9/10; affirmance; leave to appeal granted by Smith, J., 9/21/10; CRIMES - EVIDENCE - WHETHER TRIAL COURT ERRED IN ADMITTING TESTIMONY CONCERNING VICTIM'S HEAD NOD IN RESPONSE TO POLICE INQUIRY AT CRIME SCENE AND TESTIMONY CONCERNING AN ALLEGED PRIOR "STAGED BURGLARY" BY DEFENDANT - WHETHER TRIAL COURT ERRED IN FAILING TO CONDUCT A HEARING REGARDING EVIDENCE CHALLENGED AS DERIVED FROM DEFENDANT'S SUPPRESSED STATEMENT TO THE POLICE; CLAIMED PROSECUTORIAL MISCONDUCT; Supreme Court, Albany County convicted defendant, upon a jury verdict, of murder in the second degree and attempted murder in the second degree, and imposed sentence; App. Div. affirmed.

WEEMS, MATTER OF v FISCHER (75 AD3d 681):
3rd Dept. App. Div. order of 7/1/10; dismissal of CPLR article 78 petition; sua sponte examination whether a substantial constitutional question is directly involved or whether any jurisdictional basis otherwise exists to support an appeal as of right; PRISONS AND PRISONERS - DISCIPLINE OF INMATES - CHALLENGE TO APPELLATE DIVISION JUDGMENT DISMISSING AS MOOT THE PORTION OF A CPLR ARTICLE 78 PETITION CHALLENGING A TIER II DETERMINATION, AND CONFIRMING TWO TIER III DETERMINATIONS AND DISMISSING THE PETITION TO THAT EXTENT; App. Div. dismissed as moot that portion of the CPLR article 78 petition challenging a tier II determination, and confirmed two tier III determinations and dismissed the petition to that extent.