Return to New Filings Page


For February 11, 2011 through February 17, 2011, the following preliminary appeal statements were filed:

AOKI v NOOTENBOOM (78 AD3d 569):
1st Dept. App. Div. order of 11/23/10; affirmance with dissents; leave to appeal granted by App. Div., 1/27/11; Rule 500.11 review pending; DISCLOSURE - LIMITATION ON TIME FOR, AND SCOPE OF, DISCOVERY BY OBJECTANTS IN PROBATE PROCEEDING; WILLS - PROBATE; Surrogate's Court, New York County, among other things, denied objectants' motion to extend the end date for disclosure to 10/15/10 and to delete limitations on the number and identity of the persons to be deposed; App. Div. affirmed.

AQUAVELLA v VIOLA (79 AD3d 1590):
4th Dept. App. Div. order of 12/30/10; affirmance with dissents; Rule 500.11 review pending; STATUTE OF FRAUDS - GENERAL OBLIGATIONS LAW § 5- 701(a)(1) - SUFFICIENCY OF MEMORANDUM - DISMISSAL OF AMENDED COMPLAINT ALLEGING BREACH OF THE PARTIES' 1998 ORAL AGREEMENT, WHICH PURPORTEDLY INCORPORATED IN ITS ENTIRETY A NONCOMPETE CLAUSE CONTAINED IN A 1996 WRITTEN AGREEMENT BETWEEN DEFENDANT AND A THIRD PARTY - CHALLENGE TO APPELLATE DIVISION ORDER AFFIRMING A SUPREME COURT ORDER GRANTING A CPLR 4404(a) MOTION ON THE GROUNDS THAT DEFENDANT HAD NOT ADMITTED THAT THE TERMS AND CONDITIONS OF THE 1996 WRITTEN AGREEMENT WERE INCORPORATED INTO THE 1998 ORAL AGREEMENT AND THAT THE WRITINGS PROFFERED BY PLAINTIFF AT TRIAL, EITHER ALONE OR IN COMBINATION, WERE INSUFFICIENT TO SATISFY THE STATUTE OF FRAUDS; Supreme Court, Monroe County granted defendant's motion to set aside the jury verdict and dismissed the amended complaint; App. Div. affirmed.

BRAD H. v THE CITY OF NEW YORK (77 AD3d 103):
1st Dept. App. Div. order of 8/10/10; reversal with dissents; leave to appeal granted by App. Div., 2/3/11; STIPULATIONS - STIPULATION OF SETTLEMENT - MEANING OF PROVISION IN STIPULATION OF SETTLEMENT STATING THAT THE "PROVISIONS OF THIS AGREEMENT SHALL TERMINATE AT THE END OF FIVE YEARS AFTER MONITORING BY THE COMPLIANCE MONITORS BEGINS"; WHETHER THE APPELLATE DIVISION ERRED IN CONCLUDING THAT THE PROVISIONS OF THE SETTLEMENT AGREEMENT HAD "TERMINATED" AT THE TIME PLAINTIFFS SOUGHT INJUNCTIVE RELIEF TO COMPEL DEFENDANTS' COMPLIANCE WITH THE AGREEMENT; ESTOPPEL - AVAILABILITY AGAINST GOVERNMENTAL AGENCY; Supreme Court, New York County, among other things, granted plaintiffs' motion for a preliminary injunction requiring defendants to continue to abide by the terms of parties' stipulation of settlement, which was approved in an 4/2/03 amended final order and judgment, and denied defendants' cross motion for an order declaring the action terminated pursuant to the terms of the stipulation; App. Div. reversed, granted defendants' cross motion and declared the action terminated in the absence of jurisdiction over the dispute.

RODRIGUEZ (SERGIO), PEOPLE v (79 AD3d 644):
1st Dept. App. Div. order of 12/28/10, modification; leave to appeal granted by McGuire, J., 2/8/11; CRIMES - SENTENCE - CONCURRENT AND CONSECUTIVE TERMS - ILLEGAL CONSECUTIVE SENTENCE VACATED AND MATTER REMANDED TO TRIAL COURT FOR RESENTENCING - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT THE TRIAL COURT ON REMAND MAY ARRIVE LAWFULLY AT THE AGGREGATE SENTENCE IT INTENDED TO IMPOSE BY RESTRUCTURING CONCURRENT SENTENCES TO RUN CONSECUTIVELY - WHETHER RESTRUCTURING OF SENTENCES WOULD VIOLATE CPL 430.10, PENAL LAW §§ 70.25(2) AND 70.30(1)(a), DUE PROCESS AND THE PROHIBITION AGAINST DOUBLE JEOPARDY; PROSECUTOR'S ALLEGED VIOLATION OF UNSWORN WITNESS RULE DURING SUMMATION; ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO OBJECT TO PROSECUTOR'S REMARKS IN SUMMATION; Supreme Court, New York County convicted defendant, after a jury trial, of attempted murder in the second degree, assault in the first degree, two counts of robbery in the first degree, and robbery in the second degree, and sentenced him, as a second violent felony offender, to an aggregate term of 40 years; App. Div. modified to the extent of directing that the sentences for the attempted murder and assault convictions be served concurrently, remanded the matter to the trial court for resentencing, and otherwise affirmed.

TRAVIS v BATCHI (75 AD3d 411):
1st Dept. App. Div. order of 7/1/10; affirmance; leave to appeal granted by Court of Appeals, 2/10/11; INSURANCE - NO-FAULT AUTOMOBILE INSURANCE - SERIOUS INJURY - WHETHER THE INJURED PLAINTIFF RAISED A TRIABLE ISSUE OF FACT AS TO WHETHER SHE SUSTAINED A "SERIOUS INJURY" WITHIN THE MEANING OF INSURANCE LAW § 5102(d) - SUMMARY JUDGMENT; Supreme Court, New York County granted defendants' motion for summary judgment dismissing the complaint as to plaintiff Sheila Travis for lack of a serious injury; App. Div. affirmed.

UMEZE v FIDELIS CARE NEW YORK (76 AD3d 873):
1st Dept. App. Div. order of 9/21/10; affirmance with dissents; leave to appeal granted by App. Div., 1/4/11; Rule 500.11 review pending; DISMISSAL AND NONSUIT - WANT OF PROSECUTION - CONDITIONAL DISMISSAL OF COMPLAINT PURSUANT TO CPLR 3216 FOR FAILURE TO PROSECUTE - PRO SE PLAINTIFF CONTACTED ATTORNEY IN RESPONSE TO 90-DAY DEMAND TO FILE NOTE OF ISSUE - "JUSTIFIABLE EXCUSE" FOR DELAY IN PROSECUTING; Supreme Court, Bronx County granted defendants' motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute to the extent of directing plaintiff to resume prosecution of the action within 10 days of service of the order with notice of entry; App. Div. affirmed.