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For October 7, 2011 through October 13, 2011, the following preliminary appeal statements were filed:

DEAN v TOWER INSURANCE COMPANY OF NEW YORK (84 AD3d 499):
1st Dept. App. Div. order of 5/10/11; modification; leave to appeal granted by App. Div., 9/8/11; Rule 500.11 review pending; INSURANCE - DISCLAIMER OF COVERAGE - AMBIGUITY IN POLICY - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT A "RESIDENCE PREMISES" INSURANCE POLICY WAS AMBIGUOUS BECAUSE IT FAILED TO DEFINE THE WORD "RESIDES" FOR COVERAGE PURPOSES AND THE PLAINTIFFS PURCHASED THE POLICY IN ADVANCE OF CLOSING BUT WERE UNABLE TO FULFILL THEIR INTENTION OF ESTABLISHING RESIDENCY AT THE SUBJECT PREMISES DUE TO THEIR DISCOVERY AND REMEDIATION OF TERMITE DAMAGE - WHETHER AN ISSUE OF FACT EXISTED REGARDING PLAINTIFFS' MISREPRESENTATION OF THEIR INTENTION TO RESIDE IN THE SUBJECT PREMISES; Supreme Court, New York County granted defendant's motion for summary judgment dismissing the complaint and denied plaintiffs' cross motion for summary judgment on liability; App. Div. modified by denying defendant's motion and reinstating the complaint.

FREDRICKSON, MATTER OF v NEW YORK CITY HOUSING AUTHORITY (87 AD3d 425):
1st Dept. App. Div. order of 8/4/11; affirmance with dissents; Rule 500.11 review pending; MUNICIPAL CORPORATIONS - NOTICE OF CLAIM - LATE NOTICE - PETITIONER'S BURDEN OF ESTABLISHING THAT RESPONDENT ACQUIRED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM WITHIN A REASONABLE TIME AFTER THE CLAIM AROSE - GENERAL MUNICIPAL LAW § 50-e; Supreme Court, Bronx County granted petitioner's motion for leave to serve a late notice of claim on respondent, nunc pro tunc, without the necessity of further physical service; App. Div. affirmed.

GEORGIA MALONE & COMPANY v ROSEWOOD REALTY GROUP, INC. (86 AD3d 406):
1st Dept. App. Div. order of 7/7/11; modification with dissents; leave to appeal granted by App. Div., 9/29/11; EQUITY - UNJUST ENRICHMENT - SUFFICIENCY OF PLEADING - NECESSITY TO PLEAD DIRECT CONTACT OR RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANT CAUSING PLAINTIFF'S RELIANCE OR INDUCEMENT; Supreme Court, New York County dismissed the complaint as against defendant Ralph Rieder, and the unjust enrichment claim as against all defendants; App. Div. modified by reinstating the unjust enrichment claim as against defendants Ralph and Elie Rieder.

METZ v STATE OF NEW YORK (86 AD3d 748):
3rd Dept. App. Div. order of 7/14/11; modification; leave to appeal granted by App. Div., 9/27/11; STATE - SOVEREIGN IMMUNITY - WHETHER THE STATE IS IMMUNE FROM LIABILITY FOR ALLEGEDLY NEGLIGENT SAFETY INSPECTION OF PUBLIC VESSEL - CHALLENGE TO APPELLATE DIVISION RULING THAT STATE FAILED TO ESTABLISH THAT SAFETY INSPECTORS ACTUALLY EXERCISED DISCRETION IN SETTING NUMBER OF PASSENGERS WHO COULD SAFELY TRAVEL ON PUBLIC VESSEL; Court of Claims denied claimants' motion to dismiss defendant's affirmative defense of sovereign immunity and denied defendant's cross motion for summary judgment dismissing the claims; App. Div. modified by reversing so much of the Court of Claims order as denied claimants' motion to dismiss defendant's affirmative defense of sovereign immunity, granted the motion and dismissed that affirmative defense.

For October 14, 2011 through October 20, 2011, the following preliminary appeal statements were filed:

AMERICAN BUILDING SUPPLY CORP. v PETROCELLI GROUP, INC. (81 AD3d 531):
1st Dept. App. Div. order of 2/22/11; reversal; leave to appeal granted by Court of Appeals, 10/13/11; INSURANCE - COVERAGE - CLAIM BY INSURED THAT INSURANCE BROKER NEGLIGENTLY FAILED TO PROCURE ADEQUATE INSURANCE COVERAGE FOR BODILY INJURY INCURRED BY INSURED'S EMPLOYEES IN THE COURSE OF THEIR EMPLOYMENT - WHETHER INSURED'S FAILURE TO REVIEW THE POLICY BARS A NEGLIGENCE CLAIM AGAINST THE BROKER; SUMMARY JUDGMENT; Supreme Court, New York County denied defendant Petrocelli's motion for summary judgment dismissing the complaint and all cross claims as against it; App. Div. reversed, granted defendant Petrocelli's motion for summary judgment dismissing the complaint and dismissed the complaint as against Petrocelli.

ANGAMARCA v NEW YORK CITY PARTNERSHIP HOUSING DEVELOPMENT FUND, INC. (87 AD3d 206):
1st Dept. App. Div. order of 6/21/11; modification with dissents; sua sponte examination whether the App. Div. had the power to grant leave to appeal to the Court of Appeals on a certified question from the App. Div. order granting a new trial on damages; DAMAGES - MEASURE OF DAMAGES - IMMIGRATION STATUS OF PLAINTIFF - WHETHER DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE ABOUT PLAINTIFF'S IMMIGRATION STATUS AND DESIRE TO RETURN TO EQUADOR AND ARGUE THAT PLAINTIFF'S FUTURE MEDICAL COSTS WOULD HAVE BEEN LOWER IF HE HAD RETURNED TO EQUADOR; Supreme Court, New York County awarded damages to plaintiff; App. Div. modified the judgment to vacate the award for past and future pain and suffering and remanded the matter for a new trial solely as to such damages, unless defendant Jefferson Townhouses, LLC, within 30 days of service of a copy of the App. Div. order with notice of entry, stipulates to increase the award of past pain and suffering from $100,000 to $1,500,000 and the award for future pain and suffering from $1,000,000 to $3,500,000, and otherwise affirmed.

BITON v MEER:
2nd Dept. App. Div. order of 7/29/11; dismissal of appeal; sua sponte examination whether the 7/29/11 App. Div. order appealed from finally determines the action within the meaning of the Constitution and whether a substantial constitutional question is directly involved to support an appeal as of right; APPEAL - CHALLENGE TO APPELLATE DIVISION ORDER DISMISSING APPEAL FOR FAILURE TO TIMELY PERFECT; App. Div. dismissed appeal for failure to timely perfect.

BOWDEN (LATISHA), PEOPLE v (87 AD3d 402):
1st Dept. App. Div. order of 8/4/11; reversal; leave to appeal granted by Tom, J., 9/29/11; Rule 500.11 review pending; CRIMES - SUPPRESSION HEARING - DEFENDANT'S BAG SEARCHED BY POLICE SENT UP TO BUILDING ROOFTOP AFTER OTHER OFFICERS KNOCKED AT APARTMENT DOOR AND HEARD WINDOW BEING OPENED - WHETHER CIRCUMSTANCES GAVE POLICE A REASONABLE SUSPICION THAT DEFENDANT MIGHT BE CONCEALING A WEAPON; Supreme Court, Bronx County granted defendants' motion to suppress physical evidence and statements (3/31/10 order); effectively granted the People's motion for reargument and, on reargument, adhered to its 3/31/10 decision (4/29/10 order); and dismissed the indictment (5/24/10 order); App. Div. reversed the 3/31/10 order and denied defendant's suppression motion; dismissed the appeal from the 4/29/10 order as subsumed in the appeal from the 3/31/10 order; and reversed the 5/24/10 order, reinstated the indictment and remitted the matter for further proceedings.

CHINESE STAFF AND WORKERS' ASSOCIATION, MATTER OF v BURDEN (— AD3d —, 2011 NY Slip Op 06417):
1st Dept. App. Div. order of 9/8/11; affirmance with dissents; ENVIRONMENTAL CONSERVATION - ENVIRONMENTAL QUALITY REVIEW - WHETHER THE DEPARTMENT OF CITY PLANNING CONDUCTED AN ADEQUATE ENVIRONMENTAL REVIEW OF A PROPOSED REZONING - ISSUANCE OF A NEGATIVE DECLARATION - STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) - "HARD LOOK" REQUIREMENT; Supreme Court, New York County, among other things, denied the petition to annul respondent Department of City Planning's determination that the proposed rezoning of Sunset Park would not have a significant environmental impact, and dismissed the CPLR article 78 proceeding; App. Div. affirmed.

COOPER (KEVIN O.), PEOPLE v (85 AD3d 1594):
4th Dept. App. Div. order of 6/10/11; affirmance; leave to appeal granted by Graffeo, J., 10/5/11; CRIMES - APPEAL - WHETHER AN ORAL RULING ON A PRE-TRIAL MOTION, WHICH WAS NOT REDUCED TO WRITING, IS APPEALABLE; WAIVER OF RIGHT TO APPEAL; SUPPRESSION HEARING; County Court, Monroe County convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree (oral order denying defendant's motion to suppress certain evidence was issued just before defendant pleaded guilty); App. Div. affirmed.

ELMER (CAROL), PEOPLE v (84 AD3d 1593):
3rd Dept. App. Div. order of 5/19/11; dismissal of appeal; leave to appeal granted by Graffeo, J., 10/5/11; CRIMES - APPEAL - WHETHER AN ORAL RULING ON A PRE-TRIAL MOTION, WHICH WAS NOT REDUCED TO WRITING, IS APPEALABLE; County Court, St. Lawrence County (in an oral order) granted defendant's motion to dismiss the indictment to the extent of dismissing the first 22 counts of the indictment; App. Div. dismissed the appeal and remitted the matter to County Court for further proceedings not inconsistent with the court's decision.

LASSALLE (JARVIS), PEOPLE v (85 AD3d 1655):
4th Dept. App. Div. order of 6/10/11; denial of writ of error coram nobis; leave to appeal granted by Graffeo, J., 9/30/11; Rule 500.11 pending review; CRIMES - SENTENCE - POST-RELEASE SUPERVISION (PRS) - WHETHER COUNTY COURT ERRED IN IMPOSING A PERIOD OF PRS AFTER JUDGE'S STATEMENT DURING PLEA COLLOQUY THAT THE SENTENCE WOULD BE "NO GREATER THAN 15 YEARS" - PEOPLE v CATU (4 NY3d 242); ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE OF DEFENDANT'S APPELLATE COUNSEL TO BRIEF THE CATU ISSUE; Erie County Court convicted defendant, upon his guilty plea, of robbery in the first degree; App. Div. affirmed, and subsequently denied defendant's application for a writ of error coram nobis.

MANHATTAN TELECOMMUNICATIONS CORPORATION v H & A LOCKSMITH, INC. (82 AD3d 674):
1st Dept. App. Div. order of 3/31/11; reversal; leave to appeal granted by App. Div., 9/29/11; Rule 500.11 review pending; JUDGMENTS - DEFAULT JUDGMENT - VACATUR; CONTRACT TO PERFORM TELEPHONE SERVICES - ACTION ALLEGING FAILURE TO PAY; Supreme Court, New York County denied defendant Vanunu's motion to vacate the default judgment entered against him; App. Div. reversed and granted defendant Vanunu's motion.

LYNCH, MATTER OF v CONDON (87 AD3d 644):
2nd Dept. App. Div. judgment of 8/16/11; dismissal of proceeding; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; PROCEEDING AGAINST BODY OR OFFICER - PROHIBITION - PROCEEDING AGAINST SUPREME COURT JUSTICE SEEKING TO PROHIBIT HIM FROM PROCEEDING TO TRIAL IN A CRIMINAL ACTION ENTITLED PEOPLE v LYNCH; CLAIMED DOUBLE JEOPARDY VIOLATIONS; App. Div. denied the petition and dismissed the proceeding.

SWEZEY v MERRILL LYNCH (87 AD3d 119):
1st Dept. App. Div. order of 6/16/11; reversal; leave to appeal granted by App. Div., 9/29/11; PARTIES - NECESSARY PARTIES - FOREIGN GOVERNMENT - SOVEREIGN IMMUNITY - WHETHER THE APPELLATE DIVISION ERRED IN DISMISSING A PROCEEDING TO EXECUTE A JUDGMENT AGAINST A FUND LOCATED IN NEW YORK UPON THE GROUND THAT A NONPARTY FOREIGN GOVERNMENT CLAIMED TO BE THE TRUE OWNER OF THE FUND'S ASSETS BUT COULD NOT BE JOINED AS A PARTY BECAUSE IT DECLINED TO WAIVE ITS SOVEREIGN IMMUNITY; Supreme Court, New York County, among other things, denied intervenors' motion to dismiss the petition pursuant to CPLR 3211(a)(7) and (10); App. Div. reversed, granted the intervenors' motion to dismiss based upon the impossibility of joining as parties the Republic of Philippines and the Philippine Presidential Commission on Good Government because they were necessary parties and did not waive sovereign immunity, and dismissed the proceeding.

VBH LUXURY, INCORPORATED v 940 MADISON ASSOCIATES, LLC (83 AD3d 515):
1st Dept. App. Div. order of 4/14/11; reversal; leave to appeal granted by App. Div., 9/29/11; Rule 500.11 review pending; INSURANCE - EXCLUSIONS - WHETHER A POLICY ISSUED TO INSURED TENANT EXCLUDES FROM COVERAGE TENANT'S CLAIMS AGAINST ADDITIONAL INSURED LANDLORD WHERE THE POLICY DOES NOT CONTAIN AN EXPRESS "INSURED VERSUS INSURED" EXCLUSION; Supreme Court, New York County declared that third-party plaintiff 940 Madison Associates, LLC's claims are excluded from coverage under the policy issued by third-party defendant Excelsior Insurance Company; App. Div. reversed, vacated the declaration and declared that third-party plaintiff's claims are not excluded from coverage under the policy.

VELA v TOWER INSURANCE COMPANY OF NEW YORK (83 AD3d 1050):
2nd Dept. App. Div. order of 4/26/11; reversal; leave to appeal granted by App. Div., 9/29/11; Rule 500.11 review pending; INSURANCE - HOMEOWNER'S INSURANCE - RESIDENCY REQUIREMENT - WHETHER PLAINTIFF RAISED A TRIABLE ISSUE OF FACT REGARDING OWNER OCCUPANCY OF THE INSURED PREMISES UNDER RENOVATION; SUMMARY JUDGMENT; Supreme Court, Suffolk County denied the parties' motion and cross motion for summary judgment; App. Div. reversed and granted defendant's motion for summary judgment dismissing the complaint.

WEINER v CITY OF NEW YORK (84 AD3d 140):
2nd Dept. App. Div. order of 4/26/11; reversal; leave to appeal granted by App. Div., 9/13/11; MUNICIPAL CORPORATIONS - TORT LIABILITY - WHETHER NEW YORK CITY EMERGENCY MEDICAL TECHNICIAN INJURED IN THE LINE OF DUTY ON MUNICIPAL PROPERTY MAY MAINTAIN AN ACTION AGAINST HIS MUNICIPAL EMPLOYER UNDER GENERAL MUNICIPAL LAW § 205-a DESPITE HIS ELIGIBILITY FOR WORKERS' COMPENSATION BENEFITS - WORKERS' COMPENSATION LAW § 11; Supreme Court, Kings County denied defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7); App. Div. reversed and granted defendants' motion.