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For May 27, 2011 through June 2, 2011, the following preliminary appeal statements were filed:

CUSTODI v MUFFOLETTO (81 AD3d 1344):
4th Dept. App. Div. order of 2/10/11; reversal; leave to appeal granted by App. Div., 4/29/11; Rule 500.11 review pending; NEGLIGENCE - ASSUMPTION OF RISK - ACTION SEEKING DAMAGES FOR INJURIES SUSTAINED BY PLAINTIFF WHILE ROLLERBLADING WHEN SHE ALLEGEDLY TRIPPED OVER A TWO- INCH HEIGHT DIFFERENTIAL BETWEEN APRON AT END OF INDIVIDUAL DEFENDANTS' DRIVEWAY AND CULVERT THAT SEPARATED DRIVEWAY FROM PUBLIC ROADWAY - WHETHER THE APPELLATE DIVISION ERRED IN CONCLUDING THAT, UNDER THE CIRCUMSTANCES OF THIS CASE, THE DOCTRINE OF PRIMARY ASSUMPTION OF RISK IS INAPPLICABLE; Supreme Court, Erie County granted the motion by defendants Peter and Susan Muffoletto for summary judgment dismissing the complaint as against them; App. Div. reversed, denied the motion and reinstated the complaint against defendants Peter and Susan Muffoletto.

BONOMONTE v CITY OF NEW YORK (79 AD3d 515):
1st Dept. App. Div. order of 12/14/10; affirmance; leave to appeal granted by App. Div., 5/5/11; Rule 500.11 review pending; NEGLIGENCE - DUTY - PROXIMATE CAUSE - PLAINTIFF CITY EMPLOYEE, ALREADY ON SICK LEAVE DUE TO SURGERY ON HIS ARM, SLIPPED AND FELL ON HIS WAY TO MANDATED DOCTOR'S APPOINTMENT AT THE EMPLOYER'S CLINIC; SUMMARY JUDGMENT; Supreme Court, New York County granted defendant's motion for summary judgment dismissing the complaint; App. Div. affirmed.

ROSS, MATTER OF v NEW YORK STATE BOARD OF PAROLE (78 AD3d 1405):
3rd Dept. App. Div. order of 11/18/10; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; PAROLE - DENIAL; CPLR ARTICLE 78 PROCEEDING TO REVIEW DETERMINATION OF BOARD OF PAROLE DENYING PETITIONER PAROLE RELEASE - DISMISSAL OF PETITION FOR FAILURE TO SERVE RESPONDENT WITH PAPERS AS ORDERED; LACK OF PERSONAL JURISDICTION; Supreme Court, Albany County granted respondent's motion to dismiss petitioner's CPLR article 78 petition for lack of personal jurisdiction over respondent; App. Div. affirmed.

SALGY, MATTER OF v HALSTED COMMUNICATIONS (81 AD3d 1047):
3rd Dept. App. Div. order of 2/10/11; affirmance; Rule 500.11 review pending; WORKERS' COMPENSATION - WHETHER THE 2007 AMENDMENTS TO THE WORKERS' COMPENSATION LAW REQUIRE EMPLOYERS TO DEPOSIT THE PRESENT VALUE OF THE UNCAPPED PERMANENT PARTIAL DISABILITY AWARD INTO THE AGGREGATE TRUST FUND FOR CLAIMS WITH DATES OF INJURY PRIOR TO MARCH 14, 2007 - WORKERS' COMPENSATION LAW § 27(2); App. Div. affirmed the 12/28/09 decision of the Workers' Compensation Board which, among other things, directed the employer's workers' compensation carrier to make a deposit into the aggregate trust fund pursuant to Workers' Compensation Law § 27(2).

TRIAX CAPITAL ADVISORS, LLC v RUTTER (83 AD3d 490):
1st Dept. App. Div. order of 4/14/11; reversal with dissents; Rule 500.11 review pending; CONTRACTS - AMBIGUOUS CONTRACTS - AMBIGUITY OF FINANCIAL AND RESTRUCTURING ADVISORY SERVICES CONTRACT CONTAINING PROVISION ENTITLING PLAINTIFF TO FEE IF DEFENDANTS CLOSED "WITH ANY PARTY WHO [PLAINTIFF] HAS INTRODUCED AS SET FORTH ON EXHIBIT A (AS AMENDED) DURING THE TERM OF THIS AGREEMENT" - CHALLENGE TO APPELLATE DIVISION ORDER HOLDING THAT AGREEMENT WAS NOT AMBIGUOUS; Supreme Court, New York County, in an action for breach of contract, denied defendants' motion to dismiss the complaint based upon documentary evidence; App. Div. reversed, granted defendants' motion to dismiss the complaint based upon documentary evidence, and directed the Clerk to enter judgment in favor of defendants dismissing the complaint.

For June 3, 2011 through June 9, 2011, the following preliminary appeal statements were filed:

BUXENBAUM, MATTER OF v FULMER (82 AD3d 1223):
2nd Dept. App. Div. order of 3/29/11; affirmance; sua sponte examination whether the order appealed from finally determines the proceeding within the meaning of the Constitution and whether a substantial constitutional question is directly involved to support an appeal as of right; PARENT AND CHILD - CUSTODY - MODIFICATION OF CUSTODY - FAMILY COURT ORDER PROHIBITING MOTHER FROM TELLING HER CHILD CERTAIN INFORMATION ABOUT THE CHILD'S PATERNITY; INDIGENT MOTHER'S RIGHT TO COUNSEL; Family Court, Suffolk County granted the father's petition to modify a prior order of custody and visitation so as to award him sole legal custody of the subject child; the same court, in a separate order, among other things, prohibited the mother from telling the child that any man other than the father is the child's biological father.

HELD v STATE OF NEW YORK WORKERS' COMPENSATION BOARD (85 AD3d 35):
3rd Dept. App. Div. order of 4/21/11; modification; sua sponte examination of whether a substantial constitutional question is directly involved to support an appeal as of right; WORKERS' COMPENSATION - DECLARATORY JUDGMENT ACTION BY EMPLOYER GROUPS THAT HAVE ADOPTED A PLAN FOR SELF INSURANCE UNDER THE WORKERS' COMPENSATION LAW - WHETHER CERTAIN ANNUAL ASSESSMENTS AGAINST PLAINTIFFS TO COVER THE COST OF THE WORKERS' COMPENSATION BOARD'S PAYMENT OF THE COMPENSATION LIABILITIES OF DEFAULTED GROUPS VIOLATE PLAINTIFFS' DUE PROCESS RIGHTS UNDER THE U.S. OR NEW YORK CONSTITUTIONS OR CONSTITUTE UNCONSTITUTIONAL TAKINGS - WORKERS' COMPENSATION LAW § 50(5); Supreme Court, Albany County, among other things, granted plaintiffs' motion for summary judgment to the extent that the application of former Workers' Compensation Law § 50(5)(f) and new Workers' Compensation Law § 50(5)(g) to plaintiffs effects an unconstitutional taking, and denied in part defendants' cross motion for summary judgment and, thereafter, entered judgment accordingly; App. Div. modified by reversing so much of the Supreme Court order, amended order and second amended order as partially granted plaintiffs' motion for summary judgment and partially denied defendants' cross motion for summary judgment, denied plaintiffs' motion in its entirety, granted defendants' cross motion in its entirety, awarded summary judgment to defendants, dismissed the complaint, and reversed the judgment.

IDX CAPITAL, LLC v PHOENIX PARTNERS GROUP LLC (83 AD3d 569):
1st Dept. App. Div. order of 4/26/11; modification with dissents; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution; TORTS - COMPLAINT ALLEGING, AMONG OTHER THINGS, CAUSES OF ACTION FOR TORTIOUS INTERFERENCE WITH PROSPECTIVE BUSINESS RELATIONSHIP, LIBEL, INJURIOUS FALSEHOOD, AND AIDING AND ABETTING BREACH OF FIDUCIARY DUTIES - WHETHER THE APPELLATE DIVISION CORRECTLY GRANTED SUMMARY JUDGMENT DISMISSING THE COMPLAINT AS TO CERTAIN DEFENDANTS AND DISMISSING CLAIM FOR EARN-OUT DAMAGES AS SPECULATIVE; Supreme Court, New York County denied defendant Wesley Wang's motion for summary judgment dismissing the "earn-out" portion of plaintiffs' alleged damages, and denied the motion of defendants Phoenix Partners Group LLC, Phoenix Partners Group LP, Nicholas Stephan, Marcos Brodsky, and Patrick Nihan for summary judgment dismissing the second verified amended complaint as against them; App. Div. modified to dismiss the claim for earn-out damages and to dismiss the complaint as against the Phoenix Partners companies, Stephan and Brodsky, and otherwise affirmed.

WILLIAM (TONY), PEOPLE v (81 AD3d 453):
1st Dept. App. Div. order of 2/8/11; affirmance; leave to appeal granted by Graffeo, J., 5/27/11; CRIMES - SUPPRESSION HEARING - WHETHER POLICE HAD REASONABLE SUSPICION TO STOP THE CAB IN WHICH DEFENDANT WAS A PASSENGER WHEN THEY OBSERVED THAT THE PASSENGERS MATCHED GENERAL ASPECTS OF THE RADIOED DESCRIPTION OF TWO MEN WHO HAD COMMITTED A ROBBERY NEARBY; WHETHER SUBSEQUENT SHOW-UP IDENTIFICATION WAS UNDULY SUGGESTIVE; Supreme Court, New York County convicted defendant of robbery in the first degree and sentenced him, as a second violent felony offender, to a term of 10 years; App. Div. affirmed.

For June 10, 2011 through June 16, 2011, the following preliminary appeal statements were filed:

BURKHART v MODICA (81 AD3d 1356):
4th Dept. App. Div. order of 2/10/11; affirmance; sua sponte examination whether the order 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; ATTORNEY AND CLIENT - ATTORNEY'S LIEN - ACTION ASSERTING CAUSES OF ACTION BASED ON, AMONG OTHER THINGS, JUDICIARY LAW §§ 487(1) AND 475 AND SEEKING TO RECOVER DAMAGES BASED ON ALLEGATIONS THAT PLAINTIFF WAS UNLAWFULLY DEPRIVED OF ATTORNEYS' FEES CLAIMED TO HAVE BEEN EARNED BY REPRESENTING A CLIENT IN A FEDERAL ACTION; SANCTIONS; CLAIMED DUE PROCESS VIOLATIONS; Supreme Court, Wayne County granted defendants' motions to dismiss the complaint; App. Div. affirmed and remitted the matter to Supreme Court for further proceedings.

ECHOSTAR SATELLITE CORP., MATTER OF v TAX APPEALS TRIBUNAL (79 AD3d 1307):
3rd Dept. App. Div. judgment of 12/9/10; confirmation of determination; leave to appeal granted by Court of Appeals, 6/7/11; TAXATION - SALES AND USE TAXES - WHETHER SATELLITE TELEVISION PROGRAMMING PROVIDER'S PURCHASES OF EQUIPMENT IT THEN SUPPLIES TO CUSTOMERS TO ALLOW THEM ACCESS TO SATELLITE PROGRAMMING CONSTITUTE PURCHASES FOR RESALE WITHIN THE MEANING OF TAX LAW § 1101(b)(4)(i), WHICH EXEMPTS SUCH PURCHASES FOR RESALE FROM SALES AND USE TAXES; App. Div. confirmed a determination of respondent Tax Appeals Tribunal that sustained the denial of a sales and use tax refund, and dismissed the CPLR article 78 petition.

HOLMES (WILLIE, JR.), PEOPLE v (79 AD3d 1681):
4th Dept. App. Div. order of 12/30/10; affirmance; leave to appeal granted by Ciparick, J., 5/25/11; Rule 500.11 review pending; CRIMES - UNLAWFUL SEARCH AND SEIZURE - STANDING - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT THE PEOPLE MAY RAISE THE ISSUE OF STANDING FOR THE FIRST TIME ON APPEAL; Supreme Court, Monroe County convicted defendant, upon his guilty plea, of criminal possession of a weapon in the second degree; App. Div. affirmed.

PUTNAM/NORTHERN WESTCHESTER BOCES, MATTER OF v WESTCHESTER COUNTY HUMAN RIGHTS COMMISSION (81 AD3d 733):
2nd Dept. App. Div. judgment of 2/8/11; grant of petition; leave to appeal granted by Court of Appeals, 6/2/11; CIVIL RIGHTS - DISCRIMINATION BASED ON MARITAL STATUS - HEALTH PLAN PROVIDING BENEFITS ONLY TO SAME- SEX DOMESTIC PARTNERS - DISCRIMINATION AGAINST OPPOSITE-SEX DOMESTIC PARTNERS - CHALLENGE TO APPELLATE DIVISION RULING THAT (1) COMPLAINANT FAILED TO MEET HER BURDEN TO ESTABLISH A PRIMA FACIE CASE OF DISCRIMINATION BASED UPON MARITAL STATUS BECAUSE ELIGIBILITY FOR DOMESTIC PARTNER HEALTH CARE BENEFITS DID NOT TURN ON EMPLOYEES' MARITAL STATUS, AND (2) HEALTH PLAN MET ITS BURDEN TO SET FORTH A LEGITIMATE, NONDISCRIMINATORY REASON FOR EXTENDING DOMESTIC PARTNER BENEFITS ONLY TO SAME- SEX COUPLES WHERE THE REASON WAS THAT, UNLIKE OPPOSITE-SEX DOMESTIC PARTNERS, SAME-SEX DOMESTIC PARTNERS CANNOT OBTAIN BENEFITS OFFERED TO EMPLOYEES' SPOUSES BY BECOMING LAWFULLY MARRIED IN THIS STATE; App. Div. granted the CPLR article 78 petition and annulled the determination of the Westchester County Human Rights Commission dated 1/6/09, which adopted the findings and recommendations of an Administrative Law Judge, made after a hearing, finding that petitioners violated Westchester County Human Rights Law § 700.03 by unlawfully discriminating against the complainant on the basis of her sexual orientation and marital status and that the complainant is entitled to domestic partner health care benefits for her opposite-sex domestic partner to the same extent as if he were her same-sex domestic partner, enjoined the petitioners from maintaining their policy of extending health care benefits to same-sex domestic partners and not to opposite-sex domestic partners, and awarded the complainant damages in the principal sum of $24,178.

STATE OF NEW YORK v MYRON P. (— AD3d —, 2011 NY Slip Op 03683):
3rd Dept. App. Div. order of 5/5/11; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; MENTAL HEALTH - PROCEEDINGS BY STATE OF NEW YORK SEEKING AN ORDER AUTHORIZING RESPONDENT'S CIVIL MANAGEMENT PURSUANT TO MENTAL HYGIENE LAW ARTICLE 10 - CONFINEMENT OF SEX OFFENDER IN SECURE FACILITY AFTER SERVICE OF PRISON TIME - INVOLUNTARY HOSPITALIZATION - RIGHT TO JURY TRIAL; Supreme Court, Albany County found respondent to be a dangerous sex offender and confined him to a secure treatment facility; App. Div. affirmed.