Return to New Filings Page


For November 27, 2015 through December 3, 2015, the following preliminary appeal statements were filed:

ADIRONDACK HEALTH-UIHLEIN LIVING CENTER, MATTER OF v SHAH (125 AD3d 1366, 1406):
Supreme Court, Monroe County, judgment of 10/21/15, bringing up for review 4th Dept. App. Div. orders of 2/6/15; reversals; sua sponte examination whether the judgment 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; PROCEEDING AGAINST BODY OR OFFICER - MANDAMUS - CPLR ARTICLE 78 PROCEEDING AND DECLARATORY JUDGMENT ACTION SEEKING TO COMPEL RESPONDENTS TO REIMBURSE PETITIONERS FOR MEDICAID PAYMENTS OWED PURSUANT TO 10 NYCRR 86-2.40(m)(10) AND CHALLENGING THE LEGALITY AND CONSTITUTIONALITY OF THAT REGULATION; Supreme Court, Monroe County, granted a CPLR article 78 petition, issued a writ of mandamus by which respondents were ordered to effectuate all case mix adjustments to petitioners' Medicaid rates due in January 2013 and July 2013, with an award for petitioners' attorneys' fees to be determined (11/20/13 order); Supreme Court then directed respondents to make future case mix adjustment payments in January and July of each calendar year (2/3/14 order); App. Div. reversed the 11/20/13 order and dismissed those parts of the amended petition seeking to prohibit respondents-defendants from enforcing 10 NYCRR 86-2.40(m)(10); App. Div. reversed the 2/3/14 order and vacated the sixth decretal paragraph; Supreme Court, among other things, vacated its 3/30/15 order, granted petitioner's fee application and awarded petitioners $75,000 as agreed between the parties, for attorneys' fees.

BETHUNE (JAMAR), PEOPLE v (130 AD3d 937):
2nd Dept. App. Div. order of 7/22/15; affirmance; leave to appeal granted by Fahey, J., 11/13/15; CRIMES - TRIAL - RESETTLEMENT OF TRIAL TRANSCRIPTS - WHETHER TRIAL JUDGE ERRED IN FAILING TO CONDUCT A RECONSTRUCTION HEARING BEFORE SETTLING THE TRIAL TRANSCRIPT TO ALTER THE COURT'S SUPPLEMENTAL CHARGE TO THE JURY - NO AFFIDAVIT FROM STENOGRAPHER EXPLAINING DISCREPANCY IN TRANSCRIPTION VERSIONS CERTIFIED APPROXIMATELY FIVE YEARS APART - NO SPECIFIC KNOWLEDGE OF DISCREPANCY CIRCUMSTANCES BY TRIAL JUDGE; CLAIMED ERRONEOUS SUPPLEMENTAL JURY INSTRUCTIONS ON THE ISSUE OF INTENT; WHETHER JURY VERDICT FINDING DEFENDANT GUILTY OF INTENTIONAL MURDER IN THE SECOND DEGREE WAS AGAINST THE WEIGHT OF THE EVIDENCE; Supreme Court, Kings County, convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the second degree, and imposed sentence; App. Div. affirmed.

FLETCHER (CLIFFTON), PEOPLE v (130 AD3d 1063):
2nd Dept. App. Div. order of 7/29/15; affirmance with a two-Justice dissent; leave to appeal granted by Hall, J., 11/2/15; Rule 500.11 review pending; CRIMES - SUPPRESSION HEARING - DEFENDANT SEARCHED AFTER POLICE OFFICER OBSERVED A "RECTANGULAR SHAPE" UNDER DEFENDANT'S CLOTHING WHICH THE OFFICER BELIEVED COULD BE THE "OUTLINE" OF A FIREARM HANDLE - WHETHER CIRCUMSTANCES GAVE RISE TO A REASONABLE SUSPICION TO STOP AND FRISK DEFENDANT; CLAIMED INEFFECTIVE ASSISTANCE OF COUNSEL - TRIAL ATTORNEY FAILED TO CHALLENGE STRIKING OF TWO PROSPECTIVE AFRICAN-AMERICAN JURORS; CLAIMED IMPROPER STATEMENTS BY PROSECUTOR IN SUMMATION; Supreme Court, Kings County, convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree, and imposed sentence; App. Div. affirmed.

GROCHOCKI, MATTER OF:
3rd Dept. App. Div. order of 10/16/15; grant of motion; 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; APPEAL - APPELLATE DIVISION - VARIOUS MOTIONS BY PARTIES AT APPELLATE DIVISION; PRELIMINARY INJUNCTION; APPOINTMENT OF GUARDIAN AD LITEM; Surrogate's Court, Broome County, found effective petitioner's renunciations of his interest in his mother's estate; App. Div. granted motion by respondent New York State Office of Victim Services for preliminary injunction pending appeal, denied petitioner's motion to dismiss the motion for a preliminary injunction and for further relief, denied petitioner's motion for appointment of a guardian ad litem, and granted petitioner's motion to proceed as a poor person only to the extent of waiving filing fees.

KOZIOL, MATTER OF:
3rd Dept. App. Div. order of 10/5/15; confirmation of letter of caution; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; ATTORNEY AND CLIENT - DISCIPLINARY PROCEEDINGS - LETTER OF CAUTION - CLAIMED CONSTITUTIONAL VIOLATIONS; App. Div. confirmed the letter of caution issued by the Committee on Professional Standards and denied attorney's motion for, among other things, review thereof.

STEAM PIPE EXPLOSION AT 41ST STREET AND LEXINGTON AVENUE, MATTER OF (127 AD3d 554):
1st Dept. App. Div. order of 4/21/15; modification; leave to appeal granted by App. Div. 10/27/15; Rule 500.11 review pending; DISCLOSURE - DISCOVERY AND INSPECTION - MOTION TO COMPEL INSPECTION OF CONFIDENTIAL SETTLEMENT AGREEMENT - WHETHER DEFENDANT/THIRD PARTY DEFENDANT TEAM INDUSTRIAL SERVICES, INC.'S (TIS) LITIGATION FILES, INCLUDING A CONFIDENTIAL SETTLEMENT AGREEMENT PERTAINING TO AN UNRELATED TEXAS ACTION, WERE "MATERIAL AND NECESSARY" TO THE PROSECUTION BY OR DEFENSE OF DEFENDANTS/THIRD PARTY PLAINTIFFS CONSOLIDATED EDISON, INC. AND CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. (COLLECTIVELY, CON ED); Supreme Court, New York County, denied Con Ed's motion to compel TIS to produce its litigation file pertaining to an unrelated action in Texas, in which TIS was one of several defendants; thereafter, Supreme Court granted Con Ed's motion to renew, and upon renewal, adhered to the previous order (12/9/13 order); App. Div. modified the 12/9/13 order by granting Con Ed's motion to compel.

TODD, MATTER OF v NEW YORK CITY HEALTH AND HOSPITALS CORPORATION OFFICE OF LEGAL AFFAIRS, CLAIMS DIVISION (129 AD3d 433):
1st Dept. App. Div. order of 6/4/15; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; MUNICIPAL CORPORATIONS - NOTICE OF CLAIM - LATE NOTICE - ACTION AGAINST HOSPITAL CENTER - WHETHER SUPREME COURT CONSIDERED THE RELEVANT STATUTORY FACTORS AND EXERCISED ITS DISCRETION IN A PROVIDENT MANNER IN DENYING THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM; Supreme Court, New York County, denied the petition for leave to file a late notice of claim; App. Div. affirmed.

For December 4, 2015 through December 10, 2015, the following preliminary appeal statements were filed:

CANGRO v MARANGOS (132 AD3d 573):
1st Dept. App. Div. order of 10/22/15; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; DISMISSAL AND NONSUIT - DISMISSAL OF COMPLAINT - WHETHER THE COMPLAINT WAS PROPERLY DISMISSED - ACTION ARISING OUT OF DIVORCE JUDGMENT; Supreme Court, New York County, denied plaintiff's motion to compel the production of discovery and dismissed the action; App. Div. affirmed.

CITY OF NEW YORK v GOUNDEN (2015 NY Slip Op 65905[U]; 131 AD3d 560):
2nd Dept. App. Div. orders of 3/5/15 and 8/19/15; denial of motion to intervene and affirmance; sua sponte examination whether the 3/5/15 order finally determines the action within the meaning of the Constitution; whether Posr A. Posr is aggrieved by the 8/19/15 order; and whether any jurisdictional basis for an appeal as of right lies in this matter; PARTIES - INTERVENTION - MOTION, BY PERSON CLAIMING TO HAVE BEEN FALSELY ARRESTED FOR BLOCKING THE STREET AT ISSUE, TO INTERVENE IN AN ACTION PURSUANT TO SECTION 871 OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW BROUGHT BY PLAINTIFF CITY OF NEW YORK AGAINST A LANDOWNER WHO ERECTED A FENCE AND PLACED A BOULDER BLOCKING USE OF AN UNMAPPED STREET EXTENDING DOWN THE MIDDLE OF A SMALL PENINSULA OF LAND; AGGRIEVEMENT; Supreme Court, Queens County, among other things, denied that branch of plaintiff City's motion which was for summary judgment on the complaint and, upon searching the record, awarded summary judgment to defendant dismissing the complaint; App. Div. denied the motion by Posr A. Posr for, among other things, leave to intervene as a respondent on the appeal and cross appeal, and, thereafter, affirmed.

LOEHR, MATTER OF v ADMINISTRATIVE BOARD OF THE COURTS OF THE STATE OF NEW YORK (130 AD3d 89):
3rd Dept. App. Div. order of 6/18/15; reversal; JUDGES - CERTIFICATION OF JUSTICE FOR JUDICIAL SERVICE BEYOND THE MANDATORY RETIREMENT AGE OF 70 - WHETHER POLICY OF ADMINISTRATIVE BOARD OF THE COURTS OF THE STATE OF NEW YORK THAT "NO JUDGE HENCEFORTH CERTIFICATED FOR SERVICE AS A JUSTICE OF THE SUPREME COURT PURSUANT TO JUDICIARY LAW � 115 MAY RECEIVE, CONCURRENT WITH RECEIPT OF A SALARY FOR SUCH SERVICE, A RETIREMENT ALLOWANCE FOR PRIOR JUDICIAL SERVICE WITHIN THE UNIFIED COURT SYSTEM" VIOLATES NY CONSTITUTION, ARTICLE V, � 7, JUDICIARY LAW � 115(3) AND RETIREMENT AND SOCIAL SECURITY LAW � 212; Supreme Court, Albany County, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted defendant-respondent's motion to dismiss the amended petition/complaint; App. Div. reversed, denied the motion, granted the amended petition, and declared that defendant-respondent's policy that certificated justices of the Supreme Court not receive pension benefits during such employment violates NY Constitution, article V, � 7, Judiciary Law � 115(3) and Retirement and Social Security Law � 212.

SCHULZ v STATE OF NEW YORK EXECUTIVE (134 AD3d 52):
3rd Dept. App. Div. order of 10/22/15; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; CONSTITUTIONAL LAW - VALIDITY OF STATUTE - WHETHER THE NEW YORK SECURE AMMUNITION AND FIREARMS ENFORCEMENT (SAFE) ACT (L 2013, CH 1) VIOLATES ARTICLE III, � 14 OF THE NEW YORK CONSTITUTION, ARTICLE XII OF THE NEW YORK CONSTITUTION, THE SECOND AMENDMENT TO THE FEDERAL CONSTITUTION, OR CIVIL RIGHTS LAW � 4; Supreme Court, Albany County, granted defendants' motion for summary judgment and declared that the SAFE Act (L 2013, ch 1) does not violate article III, � 14 of the New York Constitution, article XII of the New York Constitution, the Second Amendment to the Federal Constitution, and Civil Rights Law � 4; App. Div. affirmed.

WHITEHEAD, JR. (NORMAN), PEOPLE v (130 AD3d 1142):
3rd Dept. App. Div. order of 7/9/15; modification; leave to appeal granted by Pigott, J., 11/24/15; CRIMES - SUFFICIENCY OF THE EVIDENCE - CONTROLLED SUBSTANCES - WHETHER THE EVIDENCE WAS SUFFICIENT TO ESTABLISH DEFENDANT'S POSSESSION AND SALE OF COCAINE WHERE NONE OF THE SUBSTANCE WAS AVAILABLE FOR TESTING AND THE EVIDENCE ESTABLISHING THE NATURE OF THE SUBSTANCE POSSESSED AND SOLD BY DEFENDANT WAS TESTIMONY BY A CO-CONSPIRATOR'S CLIENT ABOUT THE EFFECTS OF THE SUBSTANCE; CONSPIRACY - CRIMINAL SALE OF CONTROLLED SUBSTANCE - ALLEGED DUPLICITOUS COUNTS; WHETHER DEFENDANT WAS DEPRIVED OF A FAIR HEARING BY THE PEOPLE'S COMMENTS AT OPENING AND SUMMATION; JURY INSTRUCTIONS - WHETHER THE TRIAL COURT ERRED IN REFUSING TO GIVE A CIRCUMSTANTIAL EVIDENCE CHARGE TO THE JURY; Supreme Court, Albany County, convicted defendant, upon a jury verdict, of nine counts of a 278-count indictment against him and several alleged co-conspirators, including conspiracy in the second degree and two counts of criminal possession of a controlled substance in the third degree, and imposed sentence; App. Div. modified by reversing defendant's convictions of criminal sale of a controlled substance in the third degree under counts 244 and 245 of the indictment, dismissing those counts, and vacating the sentences imposed thereon.

WHITE (MORRIS H.), PEOPLE v (129 AD3d 1642):
4th Dept. App. Div. order of 6/19/15; affirmance; leave to appeal granted by Pigott, J., 12/2/15; CRIMES - TRIAL - MISTRIAL - WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AS A MATTER OF LAW BY DENYING DEFENDANT'S MOTION FOR A MISTRIAL - COMMENTS LINKING DEFENDANT'S SISTER WITH THE LOCAL DRUG SUBCULTURE MADE BY PROSPECTIVE JUROR ULTIMATELY EXCUSED FOR CAUSE - TESTIFYING POLICE OFFICER'S IDENTIFICATION OF DEFENDANT'S SISTER IN THE COURTROOM DURING THE TRIAL - STATEMENT VOLUNTEERED BY POLICE WITNESS THAT, UPON HIS ARREST, DEFENDANT ASKED TO WORK AS A POLICE INFORMANT; ALLEGED PROSECUTORIAL MISCONDUCT; REMITTAL TO APPELLATE DIVISION FOR CONSIDERATION WHETHER SENTENCE WAS HARSH AND SEVERE; County Court, Ontario County, convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree; App. Div. affirmed.

For December 11, 2015 through December 17, 2015, the following preliminary appeal statements were filed:

AVELLA, MATTER OF v CITY OF NEW YORK (131 AD3d 77):
1st Dept. App. Div. order of 7/2/15; reversal; leave to appeal granted by Court of Appeals, 11/23/15; PARKS AND PARKWAYS - PUBLIC TRUST DOCTRINE - DEVELOPMENT OF MUNICIPAL PARKLAND - LEGISLATIVE AUTHORITY REQUIRED - WHETHER THE APPELLATE DIVISION ERRED IN DETERMINING THAT ADMINISTRATIVE CODE � 18-118 DID NOT AUTHORIZE USE OF FLUSHING MEADOWS-CORONA PARK FOR CONSTRUCTION OF ANY STRUCTURE THAT DID NOT HAVE A NATURAL CONNECTION TO SHEA STADIUM AND THAT CONSTRUCTION OF A RETAIL MALL VIOLATED THE PUBLIC TRUST DOCTRINE ABSENT AUTHORIZATION BY THE STATE LEGISLATURE; Supreme Court, New York County, denied the petition for declaratory and injunctive relief in connection with the construction of Willets West, a retail entertainment center in Flushing Meadows-Corona Park, and dismissed the hybrid CPLR article 78 and declaratory judgment proceeding; App. Div. reversed, granted the petition to the extent of declaring that construction of Willets West on City parkland without the authorization of the state legislature violates the public trust doctrine, and enjoining any further steps toward its construction.

PEOPLE ex rel. BAEZ v SUPERINTENDENT (127 AD3d 110):
2nd Dept. App. Div. order of 3/4/15; reversal; leave to appeal granted by Court of Appeals, 11/19/15; CRIMES - SENTENCE - RESENTENCING UNDER DRUG LAW REFORM ACT - ELIGIBILITY - WHETHER PETITIONER IS ENTITLED TO EARLY TERMINATION OF HIS NON-DRUG-RELATED SENTENCE ON THE GROUND THAT IT MERGED, UNDER PENAL LAW � 70.30, WITH THE INDETERMINATE SENTENCE IMPOSED ON HIS DRUG-RELATED CONVICTIONS TERMINATED EARLY PURSUANT TO EXECUTIVE LAW FORMER � 259-j(3-a); Supreme Court, Queens County, upon converting the habeas corpus proceeding into a proceeding pursuant to CPLR article 78, granted the petition to compel the New York State Department of Corrections and Community Supervision (DOCCS) to terminate the sentence imposed upon the petitioner's conviction of conspiracy in the second degree, and remitted the matter to DOCCS to administratively terminate that sentence as of 7/29/09, to vacate, with prejudice, the parole violation lodged against petitioner, and to vacate, with prejudice, the sentence imposed thereon; App. Div. reversed the amended judgment, denied the petition and dismissed the proceeding.

CAI v LAU (133 AD3d 541):
1st Dept. App. Div. order of 11/24/15; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right and whether any other jurisdictional basis exists for an appeal as of right; HUSBAND AND WIFE AND OTHER DOMESTIC RELATIONSHIPS- DIVORCE - EQUITABLE DISTRIBUTION - WHETHER TRIAL COURT PROPERLY EXERCISED ITS DISCRETION IN DENYING HUSBAND AN AWARD OF A PORTION OF WIFE'S ENHANCED EARNING CAPACITY STEMMING FROM HER U.S. MEDICAL LICENSE, AND AN AWARD OF MAINTENANCE; CLAIMED DUE PROCESS VIOLATIONS; Supreme Court, New York County, after a trial, denied defendant husband any award for wife's enhanced earning capacity and maintenance; App. Div. affirmed.

MANKO v LENOX HILL HOSPITAL (2015 NY Slip Op 78404[U], 78405[U], 78406[U]): ( 2015 NY Slip Op 88044[U], 88045[U], 88046[U]):
2nd Dept. App. Div. orders of 7/7/15 and 10/19/15; denial of motions; sua sponte examination whether the orders appealed from finally determine the action within the meaning of the Constitution, whether a substantial constitutional question is directly involved to support an appeal as of right, and whether any other jurisdictional basis exists for an appeal as of right; APPEAL - CHALLENGE TO APPELLATE DIVISION ORDERS - MOTIONS TO "REVERSE" PRIOR APPELLATE DIVISION ORDERS; App. Div. denied motions and/or renewed motions to "reverse" or to "reverse and vacate" a prior App. Div. order dated 6/4/14.

McMILLAN (EVERETT B.), PEOPLE v (130 AD3d 651):
2nd Dept. App. Div. order of 7/1/15; affirmance; leave to appeal granted by Stein, J., 12/2/15; CRIMES - UNLAWFUL SEARCH AND SEIZURE - AFTER DEFENDANT WAS ARRESTED INSIDE A BUILDING ON A PAROLE WARRANT, HIS CAR WAS SEARCHED WITHOUT A WARRANT BASED ON A TIP RECEIVED EARLIER IN THE DAY ABOUT A GUN IN THE VEHICLE - WHETHER GUN SHOULD HAVE BEEN SUPPRESSED; RIGHTS OF PAROLEES; WHETHER TRIAL COURT MADE ERRONEOUS RULING ABOUT DEFENSE COUNSEL'S REASON FOR STRIKING A PROSPECTIVE JUROR; Supreme Court, Queens County, convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and unlawful possession of marijuana, and imposed sentence; App. Div. affirmed.

MORALES (CRISTIAN), PEOPLE v (2015 NY Slip Op 82166[U]):
App. Term, 2nd Dept., 9th and 10th Judicial Districts order of 8/10/15; grant of motion to dismiss appeal; leave to appeal granted by Pigott, J., 11/30/15; CRIMES - APPEAL - DISMISSAL OF APPEAL - INVOLUNTARILY DEPORTED DEFENDANT - WHETHER APPELLATE TERM ABUSED ITS DISCRETION OR VIOLATED THE RULE SET FORTH IN PEOPLE v VENTURA (17 NY3d 675 [2011]) BY DISMISSING DEFENDANT'S APPEAL FROM THE JUDGMENT OF CONVICTION ON THE GROUND, "AMONG OTHERS," THAT HE HAD BEEN DEPORTED AND WAS UNABLE TO OBEY THE MANDATE OF THE COURT; District Court, Nassau County, convicted defendant of driving while intoxicated and other crimes, and imposed sentence; App. Term granted the People's motion to dismiss the defendant's appeal.