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

ATTEA (ANTHONY), PEOPLE v (84 AD3d 1700):
4th Dept. App. Div. order of 5/6/11; affirmance; leave to appeal granted by Centra, J., 6/29/11; Rule 500.11 review pending; CRIMES - JURISDICTION OF OFFENSES - WHETHER COUNTY COURT LACKED JURISDICTION TO ACCEPT DEFENDANT'S GUILTY PLEA TO HIGHER CHARGE THAN THAT FOR WHICH HE WAS ORIGINALLY ARRESTED; Erie County Court convicted defendant, on his guilty plea, of criminal possession of stolen property in the third degree; App. Div. affirmed.

BERAKA v BITON (27 Misc 3d 136(A)):
App. Term, 1st Dept. order of 5/17/10; affirmance; sua sponte examination whether there is any basis for an appeal as of right from an order of the Appellate Term and whether the order appealed from finally determines the action within the meaning of the Constitution; DISCLOSURE - PENALTY FOR FAILURE TO DISCLOSE - DEFENDANT'S ANSWER STRICKEN; Civil Court, New York City, (1) granted plaintiff's motion to strike the answer of defendant Crystal Biton for noncompliance with a disclosure order, and denied defendant Biton's motion to vacate the disclosure default (1/5/04 order); (2) denied defendants' motion to vacate the 1/5/04 order; and (3) denied defendants' motion for various relief; App. Term affirmed.

DAIS (QUINTON), PEOPLE v (81 AD3d 432):
1st Dept. App. Div. order of 2/3/11; affirmance; leave to appeal granted by Read, J., 7/12/11; CRIMES - SENTENCE - WHETHER COURT RESENTENCING DEFENDANT UNDER THE DRUG LAW REFORM ACT HAS AUTHORITY TO ADJUDICATE DEFENDANT A SECOND FELONY DRUG OFFENDER PREVIOUSLY CONVICTED OF A VIOLENT FELONY WHERE DEFENDANT WAS ONLY ADJUDICATED AS A SECOND FELONY OFFENDER AT HIS ORIGINAL SENTENCING PROCEEDING; Supreme Court, New York County resentenced defendant, as a second felony drug offender whose prior conviction was for a violent felony, to a term of 6 years, with 3 years postrelease supervision; App. Div. affirmed.

GLACIAL AGGREGATES LLC v TOWN OF YORKSHIRE ( DAIS (QUINTON), PEOPLE v (85 AD3d 1591; 72 AD3d 1644):
4th Dept. App. Div. order of 6/10/11; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; MUNICIPAL CORPORATIONS - ZONING - NONCONFORMING USE - CHALLENGE TO APPELLATE DIVISION ORDER HOLDING THAT SUPREME COURT PROPERLY DENIED DEFENDANT'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT DISMISSING THE AMENDED COMPLAINT - CAUSE OF ACTION PURSUANT TO 42 USC § 1983; Supreme Court, Cattaraugus County declared that the mining of sand and gravel aggregate was a lawful nonconforming use of plaintiff's property and awarded damages to plaintiff; following remittitur by the Court of Appeals, App. Div. affirmed; thereafter, Supreme Court awarded plaintiff attorneys' fees and disbursements; App. Div. affirmed.

HERRING (CARLOS), PEOPLE v (80 AD3d 711):
2nd Dept. App. Div. order of 1/18/11; affirmance; leave to appeal granted by Lippman, Ch.J., 7/7/11; CRIMES - JURORS - DISCHARGE OF JUROR - DENIAL OF DEFENDANT'S MOTION FOR MISTRIAL DUE TO JUROR WHO ALLEGEDLY SLEPT DURING TRIAL AND DELIBERATIONS; DISCLOSURE - FAILURE TO PRODUCE ROSARIO MATERIAL - WHETHER A SANCTION HAD TO BE IMPOSED FOR THE LOSS OF NOTES OF A FLORIDA LAW ENFORCEMENT OFFICER AS TO, AMONG OTHER THINGS, THAT OFFICER'S EFFORTS TO LOCATE DEFENDANT; SENTENCE - CONCURRENT AND CONSECUTIVE TERMS - WHETHER SENTENCE ON CONVICTION OF CRIMINAL POSSESSION OF A WEAPON IN THE THIRD DEGREE WAS PROPERLY IMPOSED TO RUN CONSECUTIVELY TO SENTENCE ON CONVICTION OF MURDER IN THE SECOND DEGREE; County Court, Rockland County convicted defendant of murder in the second degree, assault in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposed sentence; App. Div. affirmed.

IMPERATO v THE MOUNT SINAI MEDICAL CENTER (82 AD3d 414):
1st Dept. App. Div. order of 3/1/11; affirmance; leave to appeal granted by App. Div., 6/28/11; sua sponte examination whether the condition set forth in the Supreme Court order has been satisfied or if that part of the Supreme Court order has been stayed; DISCLOSURE - PRECLUSION ORDER - WHETHER A PARTY PRECLUDED FROM OFFERING EXPERT TESTIMONY AT TRIAL IS REQUIRED TO FILE AN EXPERT AFFIDAVIT OF MERIT TO SUPPORT THE GRANT OF A MOTION TO VACATE THE PRECLUSION ORDER; Supreme Court, New York County granted plaintiffs' motion to vacate an order precluding their expert witness from testifying at trial, conditioned "upon plaintiff's payment of $100 in costs to defendants" within 30 days of the date of the order, and denied defendants' cross motion to dismiss the action; App. Div. affirmed.

KARLSERG, MATTER OF v TAX APPEALS TRIBUNAL OF THE STATE OF NEW YORK (85 AD3d 1347):
3rd Dept. App. Div. judgment of 6/9/11; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; TAXATION - PERSONAL INCOME TAX - CHALLENGE TO APPELLATE DIVISION JUDGMENT THAT, AMONG OTHER THINGS, DECLARED THAT TAX LAW § 615(f) WAS NOT SHOWN TO BE UNCONSTITUTIONAL AS APPLIED TO PETITIONER AND CONFIRMED THE TAX APPEALS TRIBUNAL'S DETERMINATION THAT NEW YORK'S ITEMIZED DEDUCTION FOR GAMBLING LOSSES IS REDUCED PURSUANT TO TAX LAW § 615(f) FOR TAXPAYERS WITH HIGHER INCOME LEVELS - WHETHER THE DOCTRINE OF FEDERAL CONFORMITY APPLIES TO NEW YORK'S TREATMENT OF THE ITEMIZED DEDUCTION FOR GAMBLING LOSSES - ALLEGED EQUAL PROTECTION VIOLATION; App. Div. partially converted the CPLR article 78 proceeding to an action for declaratory judgment, declared that Tax Law § 615(f) has not been shown to be unconstitutional as applied to petitioner, confirmed respondent's determination denying petitioner's request for a refund of personal income tax imposed under Tax Law article 22, and dismissed the remainder of the petition.

NERONI (FREDERICK J.), MATTER OF, A DISBARRED ATTORNEY (86 AD3d 710):
3rd Dept. App. Div. orders of 7/7/11; sua sponte examination whether the App. Div. orders denying respondent's motions to vacate prior App. Div. orders finally determine the proceeding within the meaning of the Constitution and whether a substantial constitutional question is directly involved in the orders appealed from to support an appeal as of right; ATTORNEY AND CLIENT - DISCIPLINARY PROCEEDINGS - CHALLENGE TO APPELLATE DIVISION ORDERS THAT DENIED RESPONDENT ATTORNEY'S MOTIONS TO VACATE PRIOR APPELLATE DIVISION ORDERS AND DISBARRED HIM; App. Div., among other things, disbarred respondent attorney, denied respondent's motion for an order seeking to vacate a 3/31/11 confidential order of that court, and denied respondent's motion for an order seeking to vacate two prior disciplinary orders of that court dated August 27, 1992 and October 6, 1992.

NORTH SYRACUSE CENTRAL SCHOOL DISTRICT, MATTER OF v NEW YORK STATE DIVISION OF HUMAN RIGHTS (83 AD3d 1472):
4th Dept. App. Div. order of 4/1/11; reversal and dismissal; leave to appeal granted by Court of Appeals, 6/30/11; CIVIL RIGHTS - DISCRIMINATION BASED ON RACE AND DISABILITY - CPLR ARTICLE 78 PROCEEDING TO PROHIBIT THE NEW YORK STATE DIVISION OF HUMAN RIGHTS (NYSDHR) FROM HOLDING A HEARING ON A DISCRIMINATION COMPLAINT FILED ON BEHALF OF A STUDENT AGAINST THE SCHOOL DISTRICT - WHETHER THE SCHOOL DISTRICT MUST EXHAUST ALL ADMINISTRATIVE REMEDIES PRIOR TO SEEKING JUDICIAL RELIEF - EXECUTIVE LAW § 296(4); Supreme Court, Onondaga County prohibited respondent from taking further action on the complaint in NYSDHR case number 10125491; App. Div. reversed and dismissed the petition.

OMOWALE (AKINLOWO), PEOPLE v (83 AD3d 614):
1st Dept. App. Div. order of 4/28/11; reversal; leave to appeal granted by Ciparick, J., 7/8/11; Rule 500.11 review pending; CRIMES - UNLAWFUL SEARCH AND SEIZURE - WHETHER THE POLICE HAD PROBABLE CAUSE TO ARREST DEFENDANT FOR FALSE IMPERSONATION; Supreme Court, New York County convicted defendant of criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the second degree and sentenced him, as a second felony drug offender whose prior felony drug conviction was a violent felony, to concurrent terms of 15 years and 7 years, respectively, with 5 years postrelease supervision; App. Div. reversed, granted defendant's motion to suppress physical evidence recovered in 2007 and dismissed the indictment.

OMOWALE (AKINLOWO), PEOPLE v (83 AD3d 614):
1st Dept. App. Div. order of 4/28/11; affirmance; leave to appeal granted by Freedman, J., 6/16/11; CRIMES - UNLAWFUL SEARCH AND SEIZURE - SEARCH OF VEHICLE'S CENTER CONSOLE; Supreme Court, New York County convicted defendant, upon his guilty plea, of criminal possession of a weapon in the second degree and sentenced him, as a second violent felony offender, to a term of 7 years with 5 years postrelease supervision; App. Div. affirmed.

ROBERTS v PATERSON (84 AD3d 655):
1st Dept. App. Div. order of 5/26/11; affirmance; leave to appeal granted by App. Div., 7/14/11; Rule 500.11 review pending; INJUNCTIONS - PRELIMINARY INJUNCTION - LIKELIHOOD OF SUCCESS ON THE MERITS - WHETHER SUPREME COURT PROPERLY DENIED PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION REQUIRING DEFENDANTS TO FUND HEALTH INSURANCE BENEFITS FOR RETIREES OF THE NEW YORK CITY OFF-TRACK BETTING CORPORATION (NYC OTB); EMPLOYMENT RELATIONSHIPS - RETIREMENT AND PENSION BENEFITS; Supreme Court, New York County denied plaintiffs' motion for a preliminary injunction requiring defendants to fund health insurance benefits for retirees of the NYC OTB pending determination of plaintiffs' plenary action for the same relief; App. Div. affirmed.

WELCH, PEOPLE ex rel. v HESSEL (85 AD3d 1612):
4th Dept. App. Div. order of 6/10/11; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; HABEAS CORPUS - AVAILABILITY OF RELIEF; Supreme Court, Erie County denied petitioner's application for a writ of habeas corpus; App. Div. affirmed.

YAN v WANG (85 AD3d 448):
1st Dept. App. Div. order of 6/7/11; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right and whether the order appealed from finally determines the action within the meaning of the Constitution; HUSBAND AND WIFE - DIVORCE - GROUND OF CRUEL AND INHUMAN TREATMENT (DOMESTIC RELATIONS LAW § 170[1]); CLAIMED VIOLATIONS OF DUE PROCESS BY TRIAL JUDGE AND APPELLATE DIVISION; Supreme Court, New York County granted plaintiff's application for a divorce on the ground of cruel and inhuman treatment; App. Div. affirmed.

YUSUF (MALIK), PEOPLE v (82 AD3d 424):
1st Dept. App. Div. order of 3/3/11; affirmance; leave to appeal granted by Read, J., 7/14/11; CRIMES - SENTENCE - SECOND FELONY OFFENDER - WHETHER PENAL LAW § 70.70(1)(c)(4), WHICH PROVIDES FOR ENHANCED PUNISHMENT FOR "SECOND FELONY DRUG OFFENDERS PREVIOUSLY CONVICTED OF A VIOLENT FELONY" PERMITS SUCH ENHANCEMENT WHEN DEFENDANT'S PRIOR VIOLENT FELONY CONVICTION OCCURRED IN ANOTHER STATE - CPL 400.21; Supreme Court, New York County convicted defendant, after a jury trial, of criminal possession of a controlled substance in the third and fourth degrees and criminally using drug paraphernalia in the second degree, and sentenced him, as a second felony drug offender whose prior felony conviction was a violent felony, to an aggregate term of 6 years; App. Div. affirmed.

For July 22, 2011 through July 28, 2011, the following preliminary appeal statements were filed:

ADMIRAL INSURANCE COMPANY v JOY CONTRACTORS, INC. (81 AD3d 521):
1st Dept. App. Div. order of 2/17/11; modification; leave to appeal granted by App. Div., 7/14/11; INSURANCE - DUTY TO DEFEND AND INDEMNIFY - ADDITIONAL INSURED ENDORSEMENT - WHETHER LESSOR OF CRANE IS ENTITLED TO COVERAGE "WITH RESPECT TO LIABILITY ... CAUSED BY (CRANE OPERATOR LESSEE'S) ACTS OR OMISSIONS ... IN THE PERFORMANCE OF (ITS) ONGOING OPERATIONS FOR ADDITIONAL INSURED(S)"; WHETHER PRIMARY AND EXCESS INSURANCE POLICIES WERE "ISSUED FOR DELIVERY IN NEW YORK" WITHIN THE MEANING OF INSURANCE LAW § 3420(d); APPLICABILITY OF PROFESSIONAL SERVICES EXCLUSION; WHETHER THE APPELLATE DIVISION ERRED IN DETERMINING THAT A RESIDENTIAL CONSTRUCTION ACTIVITIES EXCLUSION DID NOT APPLY TO CRANE COLLAPSE BECAUSE BUILDING WAS INTENDED TO BE A MIXED-USE STRUCTURE; WHETHER LIABILITY COMPANIES SEEKING COVERAGE AS ADDITIONAL INSUREDS ARE SUBJECT TO AN EXCLUSION FOR LIMITED LIABILITY COMPANIES IN A POLICY PROVISION ADDRESSING "WHO IS AN INSURED"; REPRESENTATIONS BY INSURED - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT ALLEGED MATERIAL MISREPRESENTATIONS BY THE NAMED INSURED DID NOT PRECLUDE ADDITIONAL INSUREDS FROM RECOVERING UNDER THE POLICY; Supreme Court, New York County, among other things, granted plaintiff Admiral Insurance Company's and defendant Lincoln General Insurance Company's motions for summary judgment to the extent of declaring that they have no obligation to defend or indemnify defendant New York Crane & Equipment Company under the subject insurance policies; denied motions to dismiss the first, fourth, twelfth and thirteenth causes of action; and granted motions to dismiss the fifth cause of action and the sixth, seventh, ninth and tenth causes of action as against defendants other than Joy Contractors, Inc.; App. Div. modified to declare that the residential construction activities exclusion in the Admiral policy is not applicable and otherwise affirmed.

BUKOWSKI v CLARKSON UNIVERSITY (86 AD3d 736):
3rd Dept. App. Div. order of 7/14/11; affirmance with dissents; NEGLIGENCE - ASSUMPTION OF RISK - ACTION BY COLLEGE PITCHER TO RECOVER DAMAGES FOR INJURIES SUSTAINED WHILE PARTICIPATING IN BASEBALL PRACTICE IN AN INDOOR TRAINING FACILITY - WHETHER THERE WAS EVIDENCE FROM WHICH A JURY COULD CONCLUDE THAT THE RISK OF INJURY WAS UNREASONABLY ENHANCED BY THE CONDITIONS EXISTING IN THE TRAINING FACILITY - INHERENT COMPULSION TO PRACTICE WITHOUT L-SCREEN SAFETY DEVICE; DISMISSAL AND NONSUIT; Supreme Court, Albany County dismissed the complaint after defendants' motion to dismiss was granted at the close of proof at trial; App. Div. affirmed.

GRAVIUS v COUNTY OF ERIE (85 AD3d 1545):
4th Dept. App. Div. order of 6/10/11; affirmance with dissents; Rule 500.11 review pending; DISCLOSURE - EXAMINATION BEFORE TRIAL - GENERAL MUNICIPAL LAW § 50-h - PLAINTIFF INCARCERATED IN FLORIDA - WHETHER PLAINTIFF'S FAILURE TO COMPLY WITH GENERAL MUNICIPAL LAW § 50-h WAS EXCUSED BY "EXCEPTIONAL CIRCUMSTANCES"; MUNICIPAL CORPORATIONS - NOTICE OF CLAIM; Supreme Court, Erie County granted defendant's motion to dismiss the complaint and dismissed the complaint; App. Div. affirmed.

GRUCCI v GRUCCI (81 AD3d 776):
2nd Dept. App. Div. order of 2/15/11; affirmance; leave to appeal granted by Court of Appeals, 6/28/11; TORTS - MALICIOUS PROSECUTION - ELEMENTS REQUISITE TO CAUSE OF ACTION - WHETHER THE APPELLATE DIVISION PROPERLY DETERMINED THAT PLAINTIFF WAS NOT PREJUDICED BY ANY ERROR SUPREME COURT MAY HAVE COMMITTED IN EXCLUDING CERTAIN EVIDENCE - AUDIOTAPE NOT ADMITTED ON THE GROUND THAT IT COULD NOT PROPERLY BE AUTHENTICATED; Supreme Court, Suffolk County, upon a jury verdict in favor of defendant and against plaintiff, dismissed the complaint; App. Div. affirmed.

KANE v GALTIERI (2011 NY Slip Op 68864[U]):
2nd Dept. App. Div. order of 4/1/11; sua sponte examination whether the App. Div. 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; APPEAL - CHALLENGE TO ORDER DENYING MOTION TO THE EXTENT IT SOUGHT WAIVER OF PAYMENT OF THE FILING FEE AND FOR FREE TRANSCRIPTS; App. Div. denied those branches of the pro se defendant's renewed motion that were to waive payment of the filing fee and for free transcripts.

KELLEY (RICHARD), PEOPLE v (82 AD3d 463):
1st Dept. App. Div. order of 3/8/11; affirmance; leave to appeal granted by Lippman, Ch.J., 7/18/11; CRIMES - EVIDENCE - DNA IDENTIFICATION TESTS - WHETHER TRIAL COURT ERRED IN (1) ALLOWING DNA EVIDENCE, NOT OBTAINED UNTIL AFTER THE PEOPLE HAD COMPLETED THEIR DIRECT CASE, TO BE INTRODUCED AGAINST DEFENDANT, AND (2) DENYING DEFENDANT'S REQUEST FOR A MISTRIAL - CPL 240.20; EFFECTIVENESS OF DEFENSE COUNSEL; Supreme Court, New York County convicted defendant of course of sexual conduct against a child in the first degree, endangering the welfare of a child, and 20 counts of criminal contempt in the second degree, and sentenced him to an aggregate term of 25 years; App. Div. affirmed.

SCARANO, MATTER OF v CITY OF NEW YORK (86 AD3d 444):
1st Dept. App. Div. judgment of 7/14/11; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; MUNICIPAL CORPORATIONS - LICENSES - ARTICLE 78 PROCEEDING BROUGHT BY LICENSED ARCHITECT TO CHALLENGE DETERMINATION PROHIBITING HIM FROM FILING ANY PAPERS ON PUBLIC PROJECTS; CLAIMED DENIAL OF DUE PROCESS AND EQUAL PROTECTION - CHALLENGE TO CONSTITUTIONALITY OF ADMINISTRATIVE CODE OF THE CITY OF NEW YORK § 28-211.1.2; App. Div. confirmed determination of respondent Commissioner of the New York City Department of Buildings (DOB) which adopted the recommendation of the Administrative Law Judge that petitioner, among other things, be prohibited from filing any papers with DOB pursuant to Administrative Code of the City of New York § 28-211.1.2, denied the petition and dismissed the proceeding.

SMITH v REILLY (83 AD3d 1492):
4th Dept. App. Div. order of 4/29/11; affirmance with dissents; leave to appeal granted by App. Div., 7/1/11; Rule 500.11 review pending; ANIMALS - KNOWLEDGE OF VICIOUS PROPENSITY - PERSONAL INJURY ACTION SEEKING DAMAGES SUSTAINED BY INJURED PLAINTIFF WHO WAS PROPELLED OVER THE HANDLEBARS OF HIS BICYCLE WHEN DEFENDANT'S DOG RAN INTO THE ROAD AND COLLIDED WITH THE BICYCLE - WHETHER DEFENDANT'S DEPOSITION TESTIMONY OR A WITNESS AFFIDAVIT SUBMITTED BY PLAINTIFFS RAISES A TRIABLE ISSUE OF FACT AS TO DOG'S PROPENSITY TO INTERFERE WITH TRAFFIC; Supreme Court, Onondaga County denied defendant's motion for summary judgment dismissing the complaint; App. Div. affirmed.

WILLIAMS v STATE OF NEW YORK (84 AD3d 412):
1st Dept. App. Div. order of 5/3/11; reversal; leave to appeal granted by App. Div., 7/14/11; NEGLIGENCE - PROXIMATE CAUSE - WHETHER DEFENDANT STATE CAN BE HELD LIABLE FOR AN ASSAULT PERPETRATED TWO YEARS AFTER A VOLUNTARY MENTAL PATIENT WAS PERMITTED TO "ELOPE" FROM STATE PSYCHIATRIC FACILITY; Court of Claims dismissed the claim; App. Div. reversed, reinstated the claim, found liability on the part of the State, and remanded the matter for a trial on the issue of damages.

For July 29, 2011 through August 4, 2011, the following preliminary appeal statements were filed:

SUPERIOR OFFICERS COUNCIL HEALTH & WELFARE FUND v EMPIRE HEALTHCHOICE ASSURANCE, INC. (85 AD3d 680):
1st Dept. App. Div. order of 6/30/11; affirmance with dissents; Rule 500.11 review pending; CONTRACTS - DISMISSAL OF COMPLAINT PURSUANT TO CPLR 3211(a)(1) AND (7) - BREACH OF CONTRACT - "AGREEMENT FOR ADMINISTRATIVE PHARMACEUTICAL SERVICES ONLY" BETWEEN EMPLOYEE BENEFITS FUND AND PROVIDER OF PRESCRIPTION BENEFITS MANAGEMENT SERVICES - WHETHER COMPLAINT STATES A CAUSE OF ACTION FOR RECOVERY OF REBATES FOR PRESCRIPTION DRUGS OR FOR BREACH OF A PROVISION REQUIRING PROVIDER TO "ADVISE AND ASSIST THE [FUND] IN A CONSULTING CAPACITY REGARDING BENEFITS DESIGN AND OTHER MATTERS PERTAINING TO ADMINISTRATION OF THE PROGRAM"; BREACH OF FIDUCIARY DUTY - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT PLAINTIFFS' "BREACH OF FIDUCIARY DUTY CLAIM WAS PROPERLY DISMISSED BECAUSE IT IS NOT BASED UPON THE BREACH OF ANY FIDUCIARY DUTY INDEPENDENT OF THE PARTIES' AGREEMENT ITSELF." Supreme Court, New York County granted defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7); App. Div. affirmed.