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For September 6, 2013 through September 12, 2013, the following preliminary appeal statements were filed:

CALAFF (IVAN), PEOPLE v (103 AD3d 500):
1st Dept. App. Div. order of 2/19/13; dismissal; leave to appeal granted by Graffeo, J., 9/6/13; APPEAL - APPELLATE DIVISION - DISMISSAL OF APPEAL FOR FAILURE TO TIMELY PROSECUTE; Supreme Court, New York County, convicted defendant, upon his guilty plea, of attempted burglary in the second degree, and sentenced him, as a second violent felony offender, to a term of 3 to 6 years; App. Div. dismissed the appeal for failure to timely prosecute.

COLIN REALTY CO., LLC, MATTER OF v TOWN OF NORTH HEMPSTEAD (107 AD3d 708):
2nd Dept. App. Div. order of 6/5/13; affirmance; leave to appeal granted by Court of Appeals, 9/3/13; MUNICIPAL CORPORATIONS - ZONING - VARIANCE - HYBRID PROCEEDING BY ADJACENT LANDOWNER CHALLENGING VARIANCES GRANTED TO PROPOSED RESTAURANT - WHETHER APPELLATE DIVISION ERRED IN DETERMINING THAT THE TOWN OF NORTH HEMPSTEAD BOARD OF ZONING AND APPEALS PROPERLY TREATED THE RESTAURANT'S APPLICATION FOR VARIANCES FOR OFF-STREET PARKING AND LOADING-ZONE REQUIREMENTS AS APPLICATIONS FOR AREA VARIANCES RATHER THAN APPLICATIONS FOR USE VARIANCES; Supreme Court, Nassau County, denied the petition and dismissed the proceeding; App. Div. affirmed.

COSTELLO, MATTER OF v NEW YORK STATE BOARD OF PAROLE (101 AD3d 1512):
3rd Dept. App. Div. order of 12/27/12; confirmation; leave to appeal granted by Court of Appeals, 8/27/13; PAROLE - REVOCATION - CPLR ARTICLE 78 PROCEEDING TO REVIEW BOARD OF PAROLE'S DETERMINATION TO RESCIND PETITIONER'S PAROLE - WHETHER THE APPELLATE DIVISION PROPERLY DETERMINED THAT VICTIM IMPACT STATEMENTS, SUBMITTED AFTER THE BOARD'S DECISION TO GRANT PAROLE, CONSTITUTED NEW INFORMATION SUFFICIENT TO JUSTIFY THE BOARD'S DECISION TO ORDER A RESCISSION HEARING AND THEREAFTER RESCIND ITS PAROLE DETERMINATION AND DENY PAROLE; App. Div. confirmed the determination and dismissed the petition.

FLOYD, MATTER OF v CITY OF NEW YORK (106 AD3d 623):
1st Dept. App. Div. order of 5/28/13; affirmance; leave to appeal granted by Court of Appeals, 8/29/13; CIVIL SERVICE - CLASSIFICATION - MAYORAL ORDERS THAT DIRECTED RECLASSIFICATION OF CIVIL SERVICE EMPLOYEES IN UNGRADED SKILLED TRADE TITLES - WHETHER THE COURTS BELOW ERRED IN HOLDING THAT THE CITY WAS REQUIRED TO COMPLY WITH THE PROVISIONS OF CIVIL SERVICE LAW § 20(2) PRIOR TO MODIFYING THE PERSONNEL RULES AND REGULATIONS OF THE CITY OF NEW YORK; LABOR UNIONS; LABOR LAW § 220; Supreme Court, New York County, in three judgments, annulled Mayoral Personnel Orders No. 2012/1 and 2012/2, dated 4/11/12; App. Div. affirmed.

TOWN OF NORTH HEMPSTEAD, MATTER OF v COUNTY OF NASSAU (102 AD3d 800):
2nd Dept. App. Div. order of 1/16/13; modification; leave to appeal granted by Court of Appeals, 9/3/13; COLLEGES AND UNIVERSITIES - COMMUNITY COLLEGE - COST OF EDUCATING TOWN RESIDENTS AT COMMUNITY COLLEGE OUTSIDE COUNTY - WHETHER THE EDUCATION LAW PERMITS A COUNTY TO CHARGE BACK A TOWN WITHIN THE COUNTY FOR PAYMENTS THE COUNTY EXPENDS FOR TOWN RESIDENTS TO ATTEND THE FASHION INSTITUTE OF TECHNOLOGY (FIT) AND, IF SO, WHETHER SUCH CHARGE- BACKS ARE RESTRICTED TO TWO-YEAR EDUCATION AND ASSOCIATE DEGREE PROGRAMS - WHETHER THE COUNTY MUST FORMALLY ADOPT A RESOLUTION AUTHORIZING THE COUNTY TREASURER TO COLLECT THE CHARGE-BACKS IN CONNECTION WITH FIT PRIOR TO IMPOSING SUCH COSTS UPON THE TOWN; SETOFF AND COUNTERCLAIM - RIGHT TO SETOFF - WHETHER THE COUNTY MAY OFFSET THE CHARGE-BACKS AGAINST THE TOWN'S SHARE OF SALES TAX REVENUE THE COUNTY IS OBLIGATED TO PAY TO THE TOWN; Supreme Court, Nassau County, as relevant to this hybrid CPLR article 78 proceeding and declaratory judgment action, denied the branch of a CPLR article 78 petition which was to review so much of a Nassau County determination as concluded that the County could offset charge-backs for the cost of educating residents of the Town of North Hempstead in 2010 at the community colleges outside the County of Nassau from the Town of North Hempstead's share of sales tax revenue collected for the fourth quarter of fiscal year 2010; in effect, denied that branch of the Town's motion which was for summary judgment declaring that the County may not charge back the Town for any costs of educating residents at the FIT; and, in effect, granted that branch of the Town's motion which was for summary judgment declaring that the County can only charge back for the costs associated with the Town residents enrolled at the FIT in two- year education programs and those seeking two-year associate degrees; App. Div. modified (1) by deleting from the second decretal paragraph the words "enrolled in two- year education program and those seeking two-year Associate degrees," (2) by deleting from the third decretal paragraph the words "That the undisputed amount of $672,680.12, representing," and (3) by deleting the fourth, fifth, and sixth decretal paragraphs, and substituting therefor a provision declaring that the County of Nassau may not offset any charge-backs from the Town of North Hempstead's share of the sales tax revenue collected for the fourth quarter of fiscal year 2010.

POWERS v 31 E 31 LLC (105 AD3d 657):
1st Dept. App. Div. order of 4/25/13; reversal; leave to appeal granted by Court of Appeals, 8/27/13; NEGLIGENCE - DUTY - FALL FROM SETBACK ROOF - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT, GIVEN THE NATURE AND LOCATION OF THE SETBACK ROOF, IT WAS UNFORESEEABLE AS A MATTER OF LAW THAT INDIVIDUALS WOULD CHOOSE TO ACCESS IT AND, THUS, THAT DEFENDANTS HAD NO DUTY TO GUARD AGAINST SUCH AN OCCURRENCE - VIOLATIONS OF STATUTORY DUTY - APPLICABILITY OF 1968 BUILDING CODE - 1979 CERTIFICATE OF OCCUPANCY AS PROOF THAT MULTIPLE DWELLING LAW WAS NOT VIOLATED; Supreme Court, New York County, denied defendants' motion for summary judgment dismissing the complaint; App. Div. reversed, granted defendants' motion for summary judgment dismissing the complaint and directed the Clerk to enter judgment accordingly.

SAFRAN, PEOPLE ex rel. v O'MEARA (2013 NY Slip Op 82283[U]):
3rd Dept. App. Div. order of 8/15/13; denial of application; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; HABEAS CORPUS - CHALLENGE TO APPELLATE DIVISION ORDER DENYING PETITIONER'S APPLICATION FOR A WRIT OF HABEAS CORPUS; App. Div. denied an application for a writ of habeas corpus.

SHABAZZ, PEOPLE ex rel. v RICHARDS (2010 NY Slip Op 82495[U]):
3rd Dept. App. Div. order of 9/13/10; denial of application; sua sponte examination whether the appeal from the App. Div. order entered 9/13/10 was timely taken given the Court's 6/14/11 order denying a motion for leave to appeal from the same App. Div. order, whether a substantial constitutional question is directly involved to support an appeal as of right, and whether CPLR 7011 provides an independent jurisdictional basis for an appeal as of right; HABEAS CORPUS - CHALLENGE TO APPELLATE DIVISION ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS; App. Div. denied petitioner's application for a writ of habeas corpus.

STATE OF NEW YORK, MATTER OF v KENNETH T. (106 AD3d 829):
2nd Dept. App. Div. order of 5/8/13; affirmance; leave to appeal granted by Court of Appeals, 8/29/13; CRIMES - SEX OFFENDERS - CIVIL COMMITMENT OR SUPERVISION - SUFFICIENCY OF THE EVIDENCE TO SUPPORT A FINDING OF MENTAL ABNORMALITY AS DEFINED IN MENTAL HYGIENE LAW § 10.03(i) - DIAGNOSIS OF "PARAPHILIA NOT OTHERWISE SPECIFIED, NON-CONSENT" BASED SOLELY UPON KENNETH T.'S PAST SEX CRIMES - WHETHER DIAGNOSIS OF "ANTISOCIAL PERSONALITY DISORDER" CAN SERVE AS THE BASIS FOR SEX OFFENDER CIVIL MANAGEMENT; Supreme Court, Queens County, upon a finding, made after a nonjury trial, that Kenneth T. suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i), and a determination, made after a dispositional hearing, that he currently is a dangerous sex offender requiring confinement, in effect, granted the petition and directed that Kenneth T. be confined to a secure treatment facility for care and treatment; App. Div. affirmed.

ANTWAINE T., MATTER OF (105 AD3d 859):
2nd Dept. App. Div. order of 4/10/13; reversal; leave to appeal granted by Court of Appeals, 8/27/13; INFANTS - JUVENILE DELINQUENTS - WHETHER THE APPELLATE DIVISION PROPERLY DETERMINED THAT THE JUVENILE DELINQUENCY PETITION WAS FACIALLY INSUFFICIENT TO SUPPORT THE CHARGE THAT RESPONDENT POSSESSED A "DANGEROUS KNIFE" WITHIN THE MEANING OF PENAL LAW § 265.05, WHERE THE PETITION DESCRIBED THE KNIFE AS A MACHETE WITH A 14-INCH BLADE; Family Court, Kings County, determined that respondent Antwaine T. was a juvenile delinquent and placed him on probation after finding that he was under the age of 16 and possessed a dangerous knife; App. Div. reversed, dismissed the petition and remitted the matter to Family Court for further proceedings.

For September 13, 2013 through September 19, 2013, the following preliminary appeal statements were filed:

COOPERSTOWN HOLSTEIN CORPORATION v TOWN OF MIDDLEFIELD (106 AD3d 1170):
3rd Dept. App. Div. order of 5/2/13; affirmance; leave to appeal granted by Court of Appeals, 8/29/13; GAS AND OIL - LOCAL REGULATION - HYDROFRACKING - ZONING LAW CATEGORIZING ALL OIL, GAS AND SOLUTION MINING AND DRILLING AS PROHIBITED LAND USES WITHIN THE TOWN - WHETHER THE TOWN'S ZONING LAW IS PREEMPTED BY THE OIL, GAS AND SOLUTION MINING LAW; Supreme Court, Otsego County, among other things, granted defendant's cross motion for summary judgement dismissing the complaint and declared that defendant's zoning law was not preempted by the Oil, Gas and Solution Mining Law; App. Div. affirmed.

ELLINGTON v EMI MUSIC, INC. (106 AD3d 401):
1st Dept. App. Div. order of 5/2/13; affirmance; leave to appeal granted by Court of Appeals, 9/10/13; CONTRACTS - AMBIGUOUS CONTRACTS - SONGWRITER ROYALTY AGREEMENT UNDER WHICH "SECOND PARTY" WAS REQUIRED TO PAY TO "FIRST PARTIES" AN AMOUNT "EQUAL TO FIFTY (50%) PERCENT OF THE NET REVENUE ACTUALLY RECEIVED BY THE SECOND PARTY FROM . . . FOREIGN PUBLICATION" OF DUKE ELLINGTON'S COMPOSITIONS - DEFINITION OF "SECOND PARTY" TO INCLUDE A DOMESTIC PUBLISHER "AND ANY OTHER AFFILIATES" OF THAT DOMESTIC PUBLISHER - WHETHER "SECOND PARTY," IN CALCULATING THE NET REVENUE FROM WHICH IT MUST PAY ROYALTIES, MAY DEDUCT FEES THE DOMESTIC PUBLISHER PAYS TO FOREIGN SUBPUBLISHERS, WHERE THE FOREIGN SUBPUBLISHERS WERE INDEPENDENT ENTITIES WHEN THE CONTRACT WAS EXECUTED BUT ARE NOW OWNED BY THE DOMESTIC PUBLISHER - WHETHER THE APPELLATE DIVISION CORRECTLY CONCLUDED THAT CONTRACT WAS UNAMBIGUOUS AND REFERRED ONLY TO THE AFFILIATES OF THE DOMESTIC PUBLISHER THAT WERE IN EXISTENCE AT THE TIME THE CONTRACT WAS EXECUTED; Supreme Court, New York County, granted defendant EMI Mills Music, Inc.'s motion to dismiss the amended complaint pursuant to CPLR 3211 (a)(1) and (7), and dismissed the amended complaint; App. Div. affirmed.

FAYOLLE v EAST WEST MANHATTAN PORTFOLIO, L.P. (108 AD3d 476):
1st Dept. App. Div. order of 7/23/13; affirmance; sua sponte examination whether an appeal as of right lies pursuant to CPLR 5601(a) and whether a substantial constitutional question is directly involved to support an appeal as of right; NEGLIGENCE - SIDEWALKS - DUTY - WHETHER OWNER OF FIRST FLOOR COMMERCIAL UNIT WAS NOT AN "OWNER" WITHIN THE MEANING OF ADMINISTRATIVE CODE OF THE CITY OF NEW YORK § 7-210 AND OWED NO OTHER DUTY TO MAINTAIN SIDEWALK - TRIVIAL DEFECT - WHETHER THE COURTS BELOW CORRECTLY DETERMINED THAT AN ALLEGED DEFECT IN SIDEWALK WAS "TRIVIAL" AND THEREFORE NONACTIONABLE AS A MATTER OF LAW; Supreme Court, New York County, denied plaintiff's motion for summary judgment and granted defendants' motion for summary judgment dismissing the complaint; App. Div. affirmed.

HAYES (EARL), PEOPLE v (2013 NY Slip Op 82249[U]):
3rd Dept. App. Div. order of 8/7/13; denial of writ of error coram nobis; sua sponte examination whether an appeal as of right lies in a criminal matter and whether a substantial constitutional question is directly involved to support an appeal as of right; CRIMES - RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION; APPEAL - APPEAL BY PERMISSION IN CRIMINAL MATTER; App. Div. denied appellant's motion for a writ of error coram nobis seeking to vacate the App. Div.'s prior order.

KICKERTZ, MATTER OF v NEW YORK UNIVERSITY (99 AD3d 502):
1st Dept. App. Div. order of 10/11/12; reversal with dissents; Rule 500.11 review pending; PROCEEDING AGAINST BODY OR OFFICER - CERTIORARI - CPLR ARTICLE 78 PROCEEDING SEEKING TO ANNUL RESPONDENT UNIVERSITY'S DETERMINATION EXPELLING PETITIONER FROM ITS DENTAL COLLEGE; WHETHER RESPONDENT COMPLIED WITH ITS OWN POLICIES AND WHETHER ITS DETERMINATION WAS ARBITRARY AND CAPRICIOUS; CHALLENGE TO RESULT FOLLOWING PRE-ANSWER DISMISSAL OF PROCEEDING; Supreme Court, New York County, denied the petition to annul the determination of respondent University expelling petitioner from its dental college, and dismissed the CPLR article 78 proceeding; App. Div. reversed, vacated the judgment and granted the petition; Supreme Court then granted the CPLR article 78 petition and annulled respondent's decision to expel petitioner from the New York University College of Dentistry.

LAWRENCE, MATTER OF (106 AD3d 607):
1st Dept. App. Div. order of 5/23/13; modification; leave to appeal granted by App. Div., 9/10/13; ATTORNEY AND CLIENT - COMPENSATION - AMENDED RETAINER AGREEMENT FOR REPRESENTATION OF FAMILY IN LITIGATION CONCERNING THE ADMINISTRATION OF AN ESTATE - WHETHER CONTINGENCY FEE AGREEMENT WAS UNCONSCIONABLE - GIFTS TO ATTORNEYS; Surrogate's Court, New York County, among other things, (in an order) confirmed that portion of the Referee's report dated 10/30/08 recommending as a discovery sanction the waiver of objections under the Dead Man's Statute (CPLR 4519) in lieu of the more severe sanction of striking the widow's pleadings in both the contract enforcement proceeding and the rescission action; Surrogate's Court thereafter (in an amended decree) granted the intervenor children's applications to intervene in the proceeding, awarded defendant law firm a fee of $15,837,374.02, and directed the individual defendants to return to plaintiff executors cash gifts in the amount of $5.05 million; App. Div. affirmed the order and modified the amended decree to reduce the law firm's fee award to the hourly fees due under the original retainer agreement, remand for further proceedings to determine that amount, and award interest on the law firm's fees from 7/29/05, the date of the breach of the revised retainer agreement.

WEBB (JAMES F.), PEOPLE v (108 AD3d 1064):
4th Dept. App. Div. order of 7/5/13; modification; leave to appeal granted by Scudder, J., 8/28/13; Rule 500.11 review pending; CONTEMPT - CRIMINAL CONTEMPT - VIOLATION OF ORDER OF PROTECTION DIRECTING DEFENDANT TO REFRAIN FROM COMMUNICATING BY TELEPHONE WITH HIS FORMER GIRLFRIEND, THE MOTHER OF DEFENDANT'S CHILD - LEGAL SUFFICIENCY OF THE EVIDENCE TO SUPPORT CONVICTION OF CRIMINAL CONTEMPT IN THE FIRST DEGREE (PENAL LAW § 215.51[b][iv]) - DEFENDANT'S TELEPHONE CALLS CONCERNING CHILD SUPPORT AND VISITATION - WHETHER THE APPELLATE DIVISION CORRECTLY CONCLUDED THAT THE EVIDENCE WAS LEGALLY INSUFFICIENT TO ESTABLISH THAT DEFENDANT MADE TELEPHONE CALLS WITH INTENT TO HARASS, ANNOY, THREATEN OR ALARM HIS FORMER GIRLFRIEND, WITH NO PURPOSE OF LEGITIMATE COMMUNICATION; County Court, Genesee County, convicted defendant, upon a jury verdict, of criminal contempt in the first degree and four counts of criminal contempt in the second degree; App. Div. modified by reversing that part convicting defendant of criminal contempt in the first degree and dismissing the first count of the indictment, and remitted the matter to County Court for proceedings pursuant to CPLR 460.50(5).