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For April 1, 2011 through April 7, 2011, the following preliminary appeal statements were filed:

DIBBLE v NEW YORK CITY TRANSIT AUTHORITY (76 AD3d 272):
1st Dept. App. Div. order of 6/22/10; reversal; leave to appeal granted by Court of Appeals, 3/24/11; WITNESSES - EXPERT WITNESS - PERSONAL INJURY ACTION - PLAINTIFF STRUCK BY SUBWAY TRAIN - WHETHER JURY'S VERDICT WAS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE - WHETHER PLAINTIFF'S EXPERT'S TESTIMONY AS TO STOPPING DISTANCES ESTABLISHED DEFENDANT'S NEGLIGENCE; Supreme Court, New York County, after a jury trial in which defendant was found to be 65% liable, awarded judgment to plaintiff in the total sum of $2,412,250.20; App. Div. reversed and dismissed the complaint.

DICKINSON (ROBERT GUY), PEOPLE v (78 AD3d 1237):
3rd Dept. App. Div. order of 11/4/10, affirmance; leave to appeal granted by Lippman, Ch.J., 3/30/11; CRIMES - RIGHT TO SPEEDY TRIAL - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT A CERTAIN TIME PERIOD WAS "NOT CHARGEABLE TO THE PROSECUTION [FOR SPEEDY TRIAL PURPOSES] BECAUSE THE PARTIES WERE INVOLVED IN ONGOING PLEA DISCUSSIONS AND DEFENDANT [DID] NOT DENY THAT HE AND HIS COUNSEL ACTIVELY PURSUED AND PARTICIPATED IN THESE NEGOTIATIONS"; Washington County Court convicted defendant of driving while ability impaired, aggravated unauthorized operation of a motor vehicle in the first degree, resisting arrest and failure to comply with a lawful order of a police officer; App. Div. affirmed.

EASTSIDE EXHIBITION CORP. v 210 EAST 86TH STREET CORP. (79 AD3d 417):
1st Dept. App. Div. order of 12/2/10; affirmance; leave to appeal granted by Court of Appeals, 3/31/11; LANDLORD AND TENANT - EVICTION - UNAUTHORIZED TAKING OF DEMISED PREMISES - RENT ABATEMENT - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT A COMMERCIAL TENANT WHO IS SUBJECTED TO A PARTIAL, ACTUAL EVICTION IS NOT ENTITLED TO A TOTAL RENT ABATEMENT BUT RATHER TO A PARTIAL RENT ABATEMENT IN THE AMOUNT OF ITS ACTUAL DAMAGES; Supreme Court, New York County dismissed defendant's claims for ejectment and for attorneys' fees and awarded plaintiff declaratory and injunctive relief preventing defendant from terminating plaintiff's lease and holding plaintiff was not in default thereof, and dismissed plaintiff's claims for a permanent injunction and abatement of rent; App. Div. modified to the extent of holding that plaintiff is entitled to be compensated for an actual partial eviction, otherwise affirmed the judgment, and remanded for a hearing to determine the amount of damages; following a hearing on remand, Supreme Court determined that plaintiff was not entitled to any abatement of rent; App. Div. affirmed.

FEDERAL INSURANCE COMPANY v INTERNATIONAL BUSINESS MACHINES CORP. (78 AD3d 763):
2nd Dept. App. Div. order of 11/9/10; dismissal and reversal; leave to appeal granted by Court of Appeals, 3/24/11; INSURANCE - DUTY TO DEFEND AND INDEMNIFY - EXCESS COVERAGE - WHETHER A BREACH OF FIDUCIARY DUTY IS REQUIRED FOR THE COMMISSION OF A "WRONGFUL ACT" COVERED BY AN EXCESS INSURANCE POLICY WHERE "WRONGFUL ACT" IS DEFINED IN PERTINENT PART AS "ANY BREACH OF THE RESPONSIBILITIES, OBLIGATIONS OR DUTIES BY AN INSURED WHICH ARE IMPOSED UPON A FIDUCIARY OF A BENEFIT PROGRAM BY THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974 [ERISA], OR BY THE COMMON OR STATUTORY LAW OF THE UNITED STATES" - ENTITLEMENT TO COVERAGE BY INSURED WHO IS FIDUCIARY OF A BENEFIT PROGRAM BUT WHO WAS NOT ACTING AS FIDUCIARY WITH RESPECT TO ITS ALLEGED BREACH OF ERISA - AMBIGUOUS CONTRACTS; Supreme Court, Westchester County denied plaintiff's motion for summary judgment declaring that it has no obligation to indemnify the defendants for any amounts, including defense costs or settlement payments, that defendants may have incurred in connection with an action entitled Cooper v IBM Personal Pension Plan, and granted that branch of defendants' cross motion for summary judgment on their counterclaim alleging breach of contract (June 30, 2009 Supreme Court order); thereafter, Supreme Court entered judgment in favor of defendants and against plaintiff in the principal sum of $25,000,000, and, upon an August 24, 2009 Supreme Court order that, in effect, denied defendants' application for an award of an attorney's fees, failed to award defendants an attorney's fee; App. Div. dismissed plaintiff's appeal from the June 30, 2009 Supreme Court order; reversed the judgment, granted plaintiff's motion for summary judgment, denied that branch of defendants' cross motion which was for summary judgment on their counterclaim alleging breach of contract, and declared that plaintiff has no obligation to indemnify defendants for any amounts, including defense costs or settlement payments that defendants may have incurred in connection with the action entitled Cooper v IBM Personal Pension Plan, and modified the June 30, 2009 order accordingly; and dismissed defendants' cross appeal from the judgment as academic.

PHILLIPS (JAMES F.), PEOPLE v (82 AD3d 1011):
2nd Dept. App. Div. order of 3/15/11; reversal; leave to appeal granted by Graffeo, J., 3/31/11; Rule 500.11 review pending; CRIMES - SENTENCE - WHETHER A DEFENDANT REINCARCERATED FOR A PAROLE VIOLATION IS ELIGIBLE TO APPLY FOR RESENTENCING UNDER CPL 440.46 - DRUG LAW REFORM ACT OF 2009; MOOTNESS; County Court, Orange County denied defendant's motion to be resentenced pursuant to CPL 440.46 on his conviction of criminal sale of a controlled substance in the third degree, which was originally imposed, upon his guilty plea, on December 14, 2001; App. Div. reversed and remitted to County Court for further proceedings and a new determination of defendant's motion.

REGIONAL ECONOMIC COMMUNITY ACTION PROGRAM, INC. v ENLARGED CITY SCHOOL DISTRICT OF MIDDLETOWN (79 AD3d 723):
2nd Dept. App. Div. order of 12/7/10; affirmance; leave to appeal granted by Court of Appeals, 3/31/11; TAXATION - ASSESSMENT - ACTION TO RECOVER TAXES PAID TO SCHOOL DISTRICT PURSUANT TO ILLEGAL ASSESSMENT - TAXES PAID UNDER LETTER THAT PROTESTED ONLY CITY TAX PAYMENTS, NOT SCHOOL DISTRICT TAX PAYMENTS - EDUCATION LAW § 3813; Supreme Court, Orange County, judgment in favor of defendant and against plaintiff, dismissing the complaint; App. Div. affirmed.

For April 8, 2011 through April 14, 2011, the following preliminary appeal statements were filed:

BABA-ALI v STATE OF NEW YORK (76 AD3d 940):
2nd Dept. App. Div. order of 9/14/10; reversal; leave to appeal granted by Court of Appeals, 3/29/11; STATE - CLAIM AGAINST STATE - ACTION TO RECOVER DAMAGES FOR UNLAWFUL IMPRISONMENT - NONPECUNIARY DAMAGES - PAST AND FUTURE LOST EARNINGS; WHETHER PROSECUTOR'S FAILURE TO TURN OVER A POTENTIALLY EXCULPATORY DOCUMENT TO DEFENSE COUNSEL UNTIL DAY BEFORE TRIAL CAN CONSTITUTE "FRAUD OR MISREPRESENTATION" FOR PURPOSES OF COURT OF CLAIMS ACT SECTION 8-b; Court of Claims denied defendant's motion to dismiss the claim for failure to state a cause of action and denied claimant's cross motion for summary judgment on the issue of liability; App. Div. affirmed in part, reversed in part and granted claimant's cross motion for summary judgment on the issue of liability; thereafter, Court of Claims, after a nonjury trial on the issue of damages, awarded claimant nonpecuniary damages in the sum of $1,750,000, and damages for past lost earnings in the principal sum of $343,428, and did not award claimant future lost earnings; App. Div. reversed, reduced the award of nonpecuniary damages from the principal sum of $1,750,000 to the principal sum of $1,000,000, and remitted the matter to the Court of Claims for entry of an appropriate amended judgment.

FISHER (AARON RICHARD), PEOPLE v (78 AD3d 1605):
4th Dept. App. Div. order of 11/12/10; affirmance; leave to appeal granted by Pigott, J., 4/4/11; CRIMES - FAIR TRIAL - COURSE OF SEXUAL CONDUCT AGAINST A CHILD - ALLEGED PROSECUTORIAL MISCONDUCT - PRESERVATION; RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - ALLEGED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL; Supreme Court, Monroe County convicted defendant of course of sexual conduct against a child in the first and second degrees, and endangering the welfare of a child; App. Div. affirmed.

KAHN v NEW YORK CITY DEPARTMENT OF EDUCATION (79 AD3d 521):
1st Dept. App. Div. order of 12/14/10; reversal; leave to appeal granted by Court of Appeals, 4/5/11; SCHOOLS - TEACHERS - TERMINATION OF PROBATIONARY EMPLOYMENT - TIMELINESS OF CHALLENGE - WHETHER A CPLR ARTICLE 78 PETITION CHALLENGING THE TERMINATION OF PROBATIONARY EMPLOYMENT ON SUBSTANTIVE GROUNDS IS TIME-BARRED WHERE IT IS NOT COMMENCED WITHIN FOUR MONTHS AFTER THE EFFECTIVE DATE OF TERMINATION BUT IS COMMENCED WITHIN FOUR MONTHS AFTER THE PETITIONER EXHAUSTS AVAILABLE ADMINISTRATIVE REMEDIES; Supreme Court, New York County denied respondents' motion to dismiss a CPLR article 78 petition challenging the termination of petitioner's probationary employment as a social worker; App. Div. reversed and granted respondents' motion to dismiss the petition.

MOUNT VERNON CITY SCHOOL DISTRICT v NOVA CASUALTY COMPANY (78 AD3d 1028):
2nd Dept. App. Div. order of 11/23/10; affirmance; leave to appeal granted by Court of Appeals, 3/29/11; CONTRACTS - PUBLIC WORKS CONTRACTS - BONDS - PERFORMANCE BOND - ACTION ALLEGING THAT DEFENDANT CASUALTY COMPANY BREACHED PERFORMANCE BOND PROCURED FROM IT BY CONTRACTOR THAT PERFORMED CERTAIN WORK FOR PLAINTIFF SCHOOL DISTRICT BUT FAILED TO COMPLETE ALL CONTRACT WORK - WHETHER CASUALTY COMPANY WAS ENTITLED TO SUMMARY JUDGMENT ON ITS DEFENSE THAT PLAINTIFF'S PAYMENT TO THE DEPARTMENT OF LABOR (DOL) OF $214,000 EARNED BY CONTRACTOR, MADE TO DOL TO SATISFY UNPAID WAGE CLAIMS ON AN UNRELATED PROJECT INVOLVING ANOTHER SCHOOL DISTRICT, CONSTITUTED A FORBIDDEN DIVERSION OF TRUST FUND ASSETS UNDER LIEN LAW ARTICLE 3-a THAT DISCHARGED CASUALTY COMPANY OF ITS OBLIGATIONS UNDER THE PERFORMANCE BOND; WHETHER PLAINTIFF'S $214,000 PAYMENT TO DOL CONSTITUTED A REDUCTION OF THE BALANCE OF THE CONTRACT PRICE IN VIOLATION OF THE TERMS OF THE PERFORMANCE BOND; "PYRAMIDING" BY CONTRACTOR; DAMAGES - COUNSEL FEES - WHETHER CONSTRUCTION CONTRACT AND/OR PERFORMANCE BOND ENTITLED PLAINTIFF SCHOOL DISTRICT TO AWARD OF ATTORNEYS' FEES INCURRED IN THIS LITIGATION; Supreme Court, Westchester County judgment that awarded to plaintiff Mount Vernon City School District damages and attorneys' fees incurred in completing the contract work but failed to award plaintiff attorneys' fees incurred in litigation to enforce the contract and performance bond; App. Div. affirmed.

NEW YORK CITY HEALTH & HOSPITALS CORPORATION, MATTER OF v NEW YORK STATE COMMISSION ON CORRECTION (76 AD3d 453):
1st Dept. App. Div. order of 8/17/10; affirmance and dismissal; leave to appeal granted by Court of Appeals, 3/31/11; PRISONS AND PRISONERS - COMMISSION OF CORRECTION - SUBPOENA SEEKING MEDICAL RECORDS OF DECEASED INMATE - WHETHER THE PHYSICIAN-PATIENT PRIVILEGE IN CPLR 4504 PROTECTS THE MEDICAL RECORDS OF A DECEASED INMATE FROM DISCLOSURE TO A STATE AGENCY THAT SUBPOENAED SUCH RECORDS PURSUANT TO ITS STATUTORILY-MANDATED INVESTIGATIVE FUNCTIONS INTO THE CAUSE OF AND CIRCUMSTANCES SURROUNDING AN INMATE'S DEATH - CORRECTION LAW § 47; Supreme Court, New York County judgment quashing the subpoena duces tecum issued by New York State Commission on Correction and served upon Elmhurst Hospital seeking the medical records of a deceased inmate; App. Div. affirmed and dismissed the appeals from certain Supreme Court orders as subsumed in the appeal from the judgment.

OBOT v MEDAILLE COLLEGE (82 AD3d 1629):
4th Dept. App. Div. order of 3/25/11; dismissal; sua sponte examination whether the 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 - APPELLATE DIVISION - DISMISSAL OF APPEAL - WHETHER APPEAL TO APPELLATE DIVISION LIES FROM SUA SPONTE SUPREME COURT ORDER STRIKING AND VACATING A NOTE OF ISSUE AND CERTIFICATE OF READINESS; Supreme Court, Erie County struck and vacated the note of issue and certificate of readiness; App. Div. dismissed the appeal.

RAMIREZ v SHOATS (78 AD3d 515):
1st Dept. App. Div. order of 11/18/10; affirmance with dissents; leave to appeal granted by App. Div., 3/22/11; Rule 500.11 review pending; NEGLIGENCE - PLAINTIFF INJURED WHEN PIECE OF CORRUGATED METAL COVERING THE UNFINISHED LANDING OF A NEWLY CONSTRUCTED STAIRWAY SLIPPED UNDER HIS FEET, CAUSING HIM TO FALL TO THE BASEMENT LEVEL OF A BUILDING UNDER CONSTRUCTION - WHETHER STAIRWAY WAS PLAINTIFF'S SOLE MEANS OF ACCESS TO AND FROM HIS WORK AREA AND THUS WAS A SAFETY DEVICE WITHIN THE MEANING OF LABOR LAW § 240(1); RECALCITRANT WORKER; SUMMARY JUDGMENT; Supreme Court, Bronx County denied defendant building owner's motion for summary judgment dismissing the Labor Law § 240(1) and § 241-a causes of action as against her; App Div. affirmed.

SOSA (GILBERTO), PEOPLE v (81 AD3d 464):
1st Dept. App. Div. order of 2/8/11; affirmance; leave to appeal granted by Smith, J., 4/1/11; CRIMES - SENTENCE - RESENTENCING UNDER DRUG LAW REFORM ACT OF 2009 - MEANING OF "EXCLUSION OFFENSE" UNDER CPL 440.46(5)(a) - WHETHER A VIOLENT FELONY OFFENSE "FOR WHICH THE PERSON WAS PREVIOUSLY CONVICTED WITHIN THE PRECEDING TEN YEARS" MEANS CONVICTIONS WITHIN TEN YEARS PRECEDING THE DRUG OFFENSE FOR WHICH RESENTENCING IS SOUGHT OR, AS THE APPELLATE DIVISION CONCLUDED, CONVICTIONS WITHIN TEN YEARS PRECEDING THE RESENTENCING APPLICATION; Supreme Court, New York County resentenced defendant pursuant to CPL 440.46 to an aggregate term of 7 years; App. Div. affirmed.

For April 15, 2011 through April 21, 2011, the following preliminary appeal statements were filed:

ABREU, MATTER OF v BEZIO (78 AD3d 1341; 2011 NY Slip Op 64407[U]):
3rd Dept. App. Div. orders of 11/10/10 and 2/14/11; confirmation of determination (11/10/10 order) and denial of motion for leave to appeal to the Court of Appeals (2/14/11 order); sua sponte examination whether the 2/14/11 order appealed from finally determines the proceeding within the meaning of the Constitution and whether, with regard to the 11/10/10 order appealed from, a substantial constitutional question is directly involved to support an appeal as of right; PRISONS AND PRISONERS - DISCIPLINE OF INMATES - WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE DETERMINATION OF GUILT WITH RESPECT TO LEWD EXPOSURE AND REFUSING A DIRECT ORDER; CLAIMED VIOLATION OF PRISONER'S DUE PROCESS RIGHTS; App. Div. confirmed determination of Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules, and dismissed the petition; thereafter, the same Court denied petitioner's motion for leave to appeal to the Court of Appeals.

DIEDERICH, JR., MATTER OF v ST. LAWERENCE (78 AD3d 1290; 2011 NY Slip Op 66599[U]):
3rd Dept. App. Div. orders of 11/4/10 and 3/4/11; affirmance (11/4/10 order) and denial of reargument or leave to appeal to the Court of Appeals (3/4/11 order); sua sponte examination whether the 3/4/11 order finally determines the proceeding within the meaning of the Constitution and, with respect to the 11/4/10 order, whether a substantial constitutional question is directly involved to support an appeal as of right; PARTIES - STANDING - COMMON-LAW TAXPAYER STANDING - STANDING UNDER FINANCE LAW § 123-b - ALLEGED DENIAL OF PLAINTIFF-PETITIONER'S RIGHT TO PETITION THE GOVERNMENT UNDER THE FEDERAL AND STATE CONSTITUTIONS; Supreme Court, Albany County judgment which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, among other things, granted the motion by respondents Holland & Knight and the Rockland County Solid Waste Management Authority for summary judgment dismissing the petition/complaint; App. Div. affirmed and, thereafter, denied reargument or leave to appeal to the Court of Appeals.

EXTALE (JAMES), PEOPLE v (78 AD3d 1519):
4th Dept. App. Div. order of 11/12/10; affirmance; leave to appeal granted by Graffeo, J., 3/11/11; CRIMES - ASSAULT - WHETHER COUNTY COURT ERRED IN ALLOWING THE PROSECUTION TO WITHDRAW THE INDICTMENT COUNT CHARGING DEFENDANT WITH VEHICULAR ASSAULT IN THE FIRST DEGREE; Monroe County Court, upon a jury verdict, convicted defendant of assault in the second degree; App. Div. affirmed.

GRANDY v McKAY (82 AD3d 1470):
3rd Dept. App. Div. order of 3/24/11; affirmance with dissents; sua sponte examination whether the order appealed from finally determines the actions within the meaning of the Constitution; STIPULATIONS - ENFORCEMENT - INTERPRETATION OF STIPULATION OF SETTLEMENT ENTERED IN OPEN COURT REGARDING RIGHTS OF WAY OVER DEFENDANTS' PROPERTY; Supreme Court, Columbia County, among other things, partially granted plaintiffs' motion to enforce a stipulation of settlement; App. Div. affirmed.

KHAN (SALEEM), PEOPLE v (82 AD3d 44):
1st Dept. App. Div. order of 1/20/11; affirmance; leave to appeal granted by Ciparick, J., 4/8/11; CRIMES - LARCENY - HEALTH CARE FRAUD - INTERPRETATION OF TERMS "MATERIAL" AND "PERSON" IN HEALTH CARE FRAUD STATUTE (PENAL LAW § 177.00 et seq.) - PRESCRIPTIONS FILLED BY PHARMACY FOR SPOUSE OF PERSON SUBMITTING PRESCRIPTION - SUFFICIENCY OF EVIDENCE FOR CONVICTION UNDER HEALTH CARE FRAUD STATUTE; RIGHT TO SPEEDY TRIAL; Supreme Court, New York County convicted defendant of grand larceny in the third degree and health care fraud in the fourth degree, and sentenced him, as a second felony offender, to an aggregate term of 2/ 1/4 to 4 1/2 years; App. Div. affirmed.

1091 RIVER AVENUE LLC v PLATINUM CAPITAL PARTNERS, INC. (82 AD3d 404):
1st Dept. App. Div. order 3/1/11; affirmance; sua sponte examination whether so much of the App. Div. order as affirmed that portion of Supreme Court's order that denied a preliminary injunction and vacated a temporary stay finally determines the proceeding within the meaning of the Constitution and, with respect to the rest of the App. Div. order, whether a substantial constitutional question is directly involved to support an appeal as of right; JUDGMENTS - CONFESSION OF JUDGMENT - CHALLENGE TO APPELLATE DIVISION ORDER HOLDING THAT SUPREME COURT WAS REQUIRED TO MAKE A SUMMARY DETERMINATION IN A CPLR ARTICLE 4 SPECIAL PROCEEDING TO VACATE TWO CONFESSIONS OF JUDGMENT BECAUSE PETITIONERS FAILED TO RAISE AN ISSUE OF FACT AS TO "WHETHER THE JUDGMENTS WERE IMPROPERLY ENTERED OR WHETHER THE UNDERLYING LOAN AGREEMENTS WERE ILLEGALLY PROCURED OR WHETHER THEY WERE OTHERWISE DEFECTIVE" - CPLR 409(b) - ALLEGED VIOLATION OF PETITIONER'S DUE PROCESS RIGHTS; Supreme Court, New York County, among other things, dismissed the petition to vacate two confessions of judgment and vacated a temporary stay of enforcement of the judgments; App. Div. affirmed.