Appellate Division: Second Judicial Department
M23774
A/sl
THOMAS A. ADAMS, J.P.
SONDRA MILLER
STEPHEN G. CRANE
WILLIAM F. MASTRO, JJ.
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2004-04746 Robert Beyer, appellant, v Bright Bay Lincoln Mercury-GMC Truck Inc., et al., respondents. (Index No. 23188/00)
| DECISION & ORDER ON MOTION |
Motion by the appellant to recall and vacate so much of a decision and order on motion of this court dated December 27, 2004, entitled "In the Matter of the Dismissal of Causes for Failure to Perfect - December 2004 Calendar" as dismissed an appeal from an order of the Supreme Court, Suffolk County, dated March 30, 2004, for failure to timely perfect, to reinstate the appeal, and to enlarge the time to perfect the appeal.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is denied.
ADAMS, J.P., S. MILLER, CRANE and MASTRO, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23776
Y/sl
ANITA R. FLORIO, J.P.
FRED T. SANTUCCI
WILLIAM F. MASTRO
ROBERT A. SPOLZINO, JJ.
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2005-02336 Jonathan D. Bloom, et al., respondents, v St. Paul Travelers Companies, Inc., et al., appellants. (Index No. 3260/04)
| DECISION & ORDER ON MOTION |
Motion by the appellants, inter alia, to stay all proceedings in the above-entitled action pending hearing and determination of an appeal from an order of the Supreme Court, Rockland County, entered February 10, 2005.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is granted and all proceedings in the above-entitled action are stayed pending hearing and determination of the appeal on condition that the appeal is perfected on or before May 9, 2005; and it is further,
ORDERED that in the event the appeal is not perfected on or before May 9, 2005, the court, on its own motion, may vacate the stay, or the respondents may move to vacate the stay, on three days notice; and it is further,
ORDERED that the motion is otherwise denied.
FLORIO, J.P., SANTUCCI, MASTRO and SPOLZINO, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23710
O/sl
HOWARD MILLER, J.P.
DAVID S. RITTER
GLORIA GOLDSTEIN
STEPHEN G. CRANE, JJ.
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2003-04724, 2004-02061 Robert Bollino, respondent, v Gary Hitzig, et al., appellants. (Index Nos. 00731/99, 22913/99)
| DECISION & ORDER ON MOTION |
Motion by the appellants to withdraw appeals from two orders of the Supreme Court, Nassau County, entered May 5, 2003, and dated February 13, 2004, respectively, without prejudice to reinstatement.
Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is
ORDERED that the motion is granted to the extent that the appeals are deemed withdrawn, without costs or disbursements, and the motion is otherwise denied.
H. MILLER, J.P., RITTER, GOLDSTEIN and CRANE, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23714
O/sl
HOWARD MILLER, J.P.
DAVID S. RITTER
DANIEL F. LUCIANO
STEPHEN G. CRANE, JJ.
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2004-04782, 2004-06485, 2004-08000, 2004-08002 Pamela Brandes, etc., appellant, v North Shore University Hospital, et al., respondents, et al., defendants. (Index No. 5965/97)
| DECISION & ORDER ON MOTION |
Motion by the appellant to enlarge the time to perfect appeals from two orders of the Supreme Court, Queens County, both dated July 22, 2004 (Appellate Division Docket Nos. 2004-08000 and 2004-08002), and to enlarge the time to serve and file reply briefs on appeals from two order of the same court dated April 28, 2004, and June 23, 2004, respectively (Appellate Division Docket Nos. 2004-04782 and 2004-06485).
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is granted; and it is further,
ORDERED that the appellant's time to perfect the appeals from the orders dated July 22, 2004, is enlarged until May 23, 2005, and the record or appendix on the appeals and the appellant's brief must be served and filed on or before that date; and it is further,
ORDERED that the appellant's time to serve and file reply briefs on the appeal from the orders dated April 28, 2004, and June 23, 2004, is enlarged until April 14, 2005, and the appellant's reply briefs must be served and filed on or before that date.
H. MILLER, J.P., RITTER, LUCIANO and CRANE, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23668
C/sl
HOWARD MILLER, J.P.
GABRIEL M. KRAUSMAN
STEPHEN G. CRANE
STEVEN W. FISHER, JJ.
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2004-05519 Akin Brown, etc., plaintiff, v Wyckoff Heights Medical Center, defendant third-party plaintiff-respondent, et al., defendants; Chang S. Lee, etc., third-party defendant-appellant. (Index No. 12165/97)
| DECISION & ORDER ON MOTION |
Motion by the appellant to enlarge the time to perfect an appeal from an order of the Supreme Court, Kings County, dated May 14, 2004.
Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it is
ORDERED that the motion is granted to the extent that the appellant's time to perfect the appeal is enlarged until May 26, 2005, and the record or appendix on the appeal and the appellant's brief must be served and filed on or before that date, and the motion is otherwise denied; and it is further,
ORDERED that no further enlargements of time shall be granted.
H. MILLER, J.P., KRAUSMAN, CRANE and FISHER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23783
S/sl
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2004-06171
Arlene Burger, appellant, v Frank Singh, etc., et al., respondents. (Index No. 5414/00)
| ORDER ON APPLICATION |
Application by the respondent S&C Investors, LLC, pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a brief on an appeal from an order and judgment (one paper) of the Supreme Court, Kings County, dated March 11, 2004.
ORDERED that the application is granted and the movant's time to serve and file its brief is enlarged until May 16, 2005, and the movant's brief must be served and filed on or before that date.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23720
O/sl
ANITA R. FLORIO, J.P.
THOMAS A. ADAMS
DANIEL F. LUCIANO
PETER B. SKELOS, JJ.
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2004-06989 Rosa Fellin, et al., appellants, v Vivek S. Sahgal, et al., respondents. (Index No. 4129/93)
| DECISION & ORDER ON MOTION |
Motion by the respondent Long Island College Hospital on an appeal from an order of the Supreme Court, Kings County, dated July 13, 2004, to strike the appellants' brief on the ground that it is oversized, to strike the appellants' appendix on the ground that it contains matter dehors the record, for leave to file an oversized brief, and to enlarge the time to serve and file a brief.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the branch of the motion which is to strike the appellants' brief is denied on the ground that the appellants' were granted leave to file an oversized brief (see 22 NYCRR 670.10.3[e]); and it is further,
ORDERED that the branch of the motion which is to strike the appendix is denied; and it is further,
ORDERED that the branch of the motion which is for leave to file an oversized brief is denied without prejudice to seeking that relief pursuant to 22 NYCRR 670.10.3[e]; and it is further,
ORDERED that the branch of the motion which is to enlarge the time to serve and file a brief is granted; and it is further,
ORDERED that the respondents' time to serve and file a brief is enlarged until June 8, 2005, and the respondents' brief must be served and filed on or before that date.
FLORIO, J.P., ADAMS, LUCIANO and SKELOS, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23790
E/sl
ANITA R. FLORIO, J.P.
FRED T. SANTUCCI
WILLIAM F. MASTRO
ROBERT A. SPOLZINO, JJ.
|
2005-02954 Catherine Gangi, respondent, v Rosario Gangi, appellant.
(Index No. 23701/04)
| DECISION & ORDER ON MOTION |
Motion by the appellant on an appeal from an order of the Supreme Court, Queens County, dated March 4, 2005, to stay all proceedings in the above-entitled action pending hearing and determination of the appeal.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is denied.
FLORIO, J.P., SANTUCCI, MASTRO and SPOLZINO, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23773
S/sl
ANITA R. FLORIO, J.P.
FRED T. SANTUCCI
WILLIAM F. MASTRO
ROBERT A. SPOLZINO, JJ.
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2005-03015
Frank Grillo, appellant, v Winnifred Grillo, respondent; Gary Gramer, nonparty. (Index No. 23105/04)
| ORDER TO SHOW CAUSE |
Appeal by Frank Grillo from an order of the Supreme Court, Suffolk County, dated March 21, 2005.
Now, on the court's own motion, it is
ORDERED that the parties or their attorneys show cause why an order should or should not be made and entered dismissing the appeal on the ground that the plaintiff, Frank Grillo, is not aggrieved by the order dated March 21, 2005 (see CPLR 5511), by each filing an affirmation or affidavit on that issue with the Clerk of this court on or before April 29, 2005; and it is further,
ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of the order to show cause upon the parties or their attorneys by regular mail.
FLORIO, J.P., SANTUCCI, MASTRO and SPOLZINO, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23769
A/sl
HOWARD MILLER, J.P.
GLORIA GOLDSTEIN
STEPHEN G. CRANE
PETER B. SKELOS, JJ.
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2003-06994 Debra Guzov, etc., respondent, v Manor Lodge Holding Corp., appellant, et al., defendants. (Index No. 20800/02)
| DECISION & ORDER ON MOTION |
Motion by the respondent for leave to reargue an appeal from an order of the Supreme Court, Suffolk County, dated June 26, 2003, which was determined by decision and order of this court dated December 20, 2004.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is denied, with $100 costs.
H. MILLER, J.P., GOLDSTEIN, CRANE and SKELOS, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23706
CF/
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2004-10756 Donna Hall, appellant, v Village of South Nyack, et al., respondents. (Index No. 7306/02)
| ORDER ON APPLICATION Application to Withdraw Appeal |
Application by the appellant to withdraw an appeal from an order of the Supreme Court, Rockland County, dated October 26, 2004.
Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it is
ORDERED that the application is granted and the appeal is marked withdrawn.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23786
S/sl
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2004-08803
Darrell A. Johnson, appellant, v Jayne Worley, respondent. (Index No. 8338/04)
| ORDER ON APPLICATION |
Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect an appeal from an order of the Supreme Court, Kings County, dated September 7, 2004.
ORDERED that the application is granted and the appellant's time to perfect the appeal is enlarged until June 6, 2005, and the record or appendix on the appeal and the appellant's brief must be served and filed on or before that date.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23724
J/sl
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2004-08840, 2005-02173
Neil Kerman, respondent, v Martin Friedman C.P.A., P.C., et al., appellants. (Index No. 5258/02)
| ORDER ON APPLICATION |
Application by the respondent pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a brief on appeals from two orders of the Supreme Court, Kings County, dated September 7, 2004, and January 31, 2005, respectively.
ORDERED that the application is granted and the respondent's time to serve and file a brief is enlarged until May 16, 2005, and the respondent's brief must be served and filed on or before that date.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23785
S/sl
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2004-09853
Jennifer Keshecki, respondent, v St. Vincent's Medical Center, defendant, Women's Health Care Specialists, P.C., etc., et al., appellants. (Index No. 11887/01)
| ORDER ON APPLICATION |
Application by the appellants pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect an appeal from an order of the Supreme Court, Richmond County, dated September 24, 2004.
ORDERED that the application is granted and the appellants' time to perfect the appeal is enlarged until June 13, 2005, and the record or appendix on the appeal and the appellant's brief must be served and filed on or before that date.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23596
PL/sl
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2004-07888
Barbara R. Lane, appellant, v Michael Hinds, Blum & Bellino, Inc, et al., respondents. (Index No. 19625/03)
| ORDER ON APPLICATION |
Application by the respondent Francis X. Young pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a brief on an appeal from an order of the Supreme Court, Westchester County, dated August 31, 2004.
ORDERED that the application is granted and the movant's time to serve and file a brief is enlarged until May 9, 2005, and the movant's brief must be served and filed on or before that date.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23795
O/sl
ANITA R. FLORIO, J.P.
FRED T. SANTUCCI
WILLIAM F. MASTRO
ROBERT A. SPOLZINO, JJ.
|
2005-02909 Joseph Larizza, respondent, v Carmela Larizza, appellant. (Index No. 19750/04)
| DECISION & ORDER ON MOTION |
Motion by the appellant to stay enforcement of an order of the Supreme Court, Westchester County, entered March 3, 2005, pending hearing and determination of an appeal therefrom.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is granted to the extent that Anthony J. Pirrotti may represent the appellant on the appeal and the motion is otherwise denied.
FLORIO, J.P., SANTUCCI, MASTRO and SPOLZINO, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23707
CF/
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2004-09995 Samuel Lorin, plaintiff-respondent, v 32 AA Associates, LLC, defendant third-party plaintiff-appellant; ADCO Electrical Corporation, third-party defendant-respondent. (Index No. 30772/01)
| ORDER ON APPLICATION Application to Withdraw Appeal |
Application by the appellant to withdraw an appeal from an order of the Supreme Court, Kings County, dated October 13, 2004.
Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it is
ORDERED that the application is granted and the appeal is marked withdrawn.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23791
E/sl
ANITA R. FLORIO, J.P.
FRED T. SANTUCCI
WILLIAM F. MASTRO
ROBERT A. SPOLZINO, JJ.
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2002-10854 John Mazzullo, et al., respondents, v New York Mortgage Serving Corporation, et al., appellants, et al., defendants. (Appeal No. 1) 2003-07160 John Mazzullo, et al., appellants, v New York Mortgage Serving Corporation, et al., respondents. (Appeal No. 2) (Index No. 16692/96)
| DECISION & ORDER ON MOTION |
Motion by John Mazzullo and Italia Mazzullo, the appellants in Appeal No. 2 and the respondents in Appeal No. 1, on appeals from two orders of the Supreme Court, Suffolk County, dated October 28, 2002 (Appellate Division Docket No. 2002-10854), and July 16, 2003 (Appellate Division Docket No. 2003-07160), respectively, to enlarge the time to perfect their appeal, and application by New York Mortgage Serving Corporation and Delta Funding Corp., the appellants in Appeal No. 1 and the respondents in Appeal No. 2, to enlarge the time to perfect their appeal.
Upon the papers filed in support of the motion and the papers filed in relation thereto, it is ORDERED that the motion and application are denied as academic as Appeal No. 1 was dismissed by decision and order on motion of this court dated April 27, 2004, and Appeal No. 2 was dismissed by decision and order on motion of this court dated December 27, 2004.
FLORIO, J.P., SANTUCCI, MASTRO and SPOLZINO, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23741
J/sl
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2004-08522 Eugenia Nicolakis, appellant, v Phillip Rotella, et al., respondents. (Index No. 7195/97)
| ORDER ON APPLICATION |
Application by the respondents pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a brief on an appeal from an order of the Supreme Court, Rockland County, dated September 20, 2004.
ORDERED that the application is granted and the respondents' time to serve and file a brief is enlarged until June 10, 2005, and the respondents' brief must be served and filed on or before that date.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23677
C/sl
THOMAS A. ADAMS, J.P.
DAVID S. RITTER
GLORIA GOLDSTEIN
ROBERT A. LIFSON, JJ.
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2004-11086, 2004-11089 Pocantico Home & Land Company, LLC, et al., respondents, v Union Free School District of Tarrytowns, et al., appellants.
(Index No. 4870/04)
| DECISION & ORDER ON MOTION |
Motion by the respondent Pocantico Home & Land Company, LLC, for a preference in the calendaring of appeals from two orders of the Supreme Court, Westchester County, both dated December 13, 2004.
Upon the papers filed in support of the motion and no papers having been filed in opposition or relation thereto, it is
ORDERED that the motion is granted, and the case will be calendared when the appeals are fully perfected.
ADAMS, J.P., RITTER, GOLDSTEIN and LIFSON, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23737
J/sl
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2004-09086 Lomes Pruden, respondent, v City of New York, appellant. (Index No. 20507/89)
| ORDER ON APPLICATION |
Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect an appeal from a judgment of the Supreme Court, Kings County, dated September 2, 2004.
ORDERED that the application is granted and the appellant's time to perfect the appeal is enlarged until June 6, 2005, and the record or appendix on the appeal and the appellant's brief must be served and filed on or before that date.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23765
S/sl
HOWARD MILLER, J.P.
GABRIEL M. KRAUSMAN
STEPHEN G. CRANE
STEVEN W. FISHER, JJ.
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2004-06916 Tatyana Shpakovskaya, appellant, v Wilfred Etienne, et al., respondents.
(Index No. 46284/02)
| DECISION & ORDER ON MOTION |
Motion by the appellant on an appeal from an order of the Supreme Court, Kings County, dated July 7, 2004, for leave to correct the notice of appeal to reflect that the plaintiff and not her attorney is the appellant, and to enlarge the time to perfect the appeal.
Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it is
ORDERED that the motion is granted; and it is further,
ORDERED that the notice of appeal is deemed corrected to reflect that the plaintiff is the appellant (see CPLR 2001; Matter of Tagliaferri v Weiler, 1 NY3d 605); and it is further,
ORDERED that the appellant's time to perfect the appeal is enlarged until May 6, 2005, and the record or appendix on the appeal and the appellant's brief must be served and filed on or before that date.
H. MILLER, J.P., KRAUSMAN, CRANE and FISHER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23779
Y/sl
ANITA R. FLORIO, J.P.
FRED T. SANTUCCI
WILLIAM F. MASTRO
ROBERT A. SPOLZINO, JJ.
|
2004-00058 Andrea Spano, etc., et al., appellants, v Baldo Bertocci, defendant, Easter Baldinger, respondent. (Index No. 24352/97)
| DECISION & ORDER ON MOTION |
Motion by the appellants to enlarge the time to serve and file a reply brief on an appeal from a judgment of the Supreme Court, Kings County, dated September 24, 2003.
Upon the papers filed in support of the motion and no papers having been filed in opposition or relation thereto, it is
ORDERED that the motion is granted; and it is further,
ORDERED that the appellants' time to serve and file a reply brief is enlarged until April 29, 2005, and the reply brief must be served and filed on or before that date.
FLORIO, J.P., SANTUCCI, MASTRO and SPOLZINO, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23762
A/sl
THOMAS A. ADAMS, J.P.
DAVID S. RITTER
WILLIAM F. MASTRO
REINALDO E. RIVERA, JJ.
|
2004-06517 Paul Sperry, etc., appellant, v Crompton Corporation, et al., respondents. (Index No. 17872/02)
| DECISION & ORDER ON MOTION |
Motion by counsel for the respondent Bayer Corporation to admit pro hac vice William V. O'Reilly, an attorney in good standing in the Commonwealth of Virginia, to represent the respondent Bayer Corporation on an appeal from an order of the Supreme Court, Nassau County, dated November 20, 2003.
Upon the papers filed in support of the motion and no papers having been filed in opposition or relation thereto, it is
ORDERED that the motion is granted, and William V. O'Reilly is admitted pro hac vice to represent the respondent Bayer Corporation.
ADAMS, J.P., RITTER, MASTRO and RIVERA, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23782
A/sl
A. GAIL PRUDENTI, P.J.
DAVID S. RITTER
GLORIA GOLDSTEIN
ROBERT A. LIFSON, JJ.
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2003-04830, 2003-07846 Kelly Ann Stach, et al., appellants, v Town of New Windsor, respondent. (Index No. 3544/99)
| DECISION & ORDER ON MOTION |
Motion by the appellants for leave to reargue appeals from two orders of the Supreme Court, Orange County, dated April 14, 2003, and July 17, 2003, respectively, which were determined by decision and order of this court dated November 1, 2004, or, in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this court.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is denied, with $100 costs.
PRUDENTI, P.J., RITTER, GOLDSTEIN and LIFSON, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23743
J/sl
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2004-06793
Maryanne Tashjian, appellant, v David L. Tashjian, defendant; Kasowitz, Benson, Torres & Friedman, nonparty-respondent (and a related action). (Index No. 19106/02)
| ORDER ON APPLICATION |
Application by the respondent pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a brief on an appeal from an order of the Supreme Court, Westchester County, dated July 23, 2004.
ORDERED that the application is granted and the respondent's time to serve and file a brief is enlarged until April 22, 2005, and the respondent's brief must be served and filed on or before that date.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23705
CF/
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2005-01246 Frances Trapani, et al., respondents, v Pathmark Stores, Inc., appellant. (Index No. 748/02)
| ORDER ON APPLICATION Application to Withdraw Appeal |
Application by the appellant to withdraw an appeal from an order of the Supreme Court, Suffolk County, dated December 15, 2004.
Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it is
ORDERED that the application is granted and the appeal is marked withdrawn.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23669
C/sl
HOWARD MILLER, J.P.
GABRIEL M. KRAUSMAN
STEPHEN G. CRANE
STEVEN W. FISHER, JJ.
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2004-07281 Esther Twersky, respondent, v Estate of Morris Kimmel, appellant. (Index No. 17964/02)
| DECISION & ORDER ON MOTION |
Motion by the appellant to enlarge the time to perfect an appeal from an order of the Supreme Court, Kings County, dated June 18, 2004, and, in effect, to correct the notice of appeal, to reflect that the defendant and not the plaintiff is the appellant.
Upon the papers filed in support of the motion and no papers having been filed in opposition or relation thereto, it is
ORDERED that the branch of the motion which is to enlarge the time to perfect the appeal is granted to the extent that the appellant's time to perfect the appeal is enlarged until May 23, 2005, and the record or appendix on the appeal and the appellant's brief must be served and filed on or before that date, and that branch of the motion is otherwise denied; and it is further,
ORDERED that the branch of the motion, in effect, to correct the notice of appeal is granted; on or before April 22, 2005, the appellant shall serve and file a corrected notice of appeal.
H. MILLER, J.P., KRAUSMAN, CRANE and FISHER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23781
S/sl
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2004-05090
Charles Dun-Zheng Yan, appellant, v Nancy Klein, et al., respondents. (Index No. 8004/03)
| ORDER ON APPLICATION |
Application by the respondents pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a brief on an appeal from a judgment of the Supreme Court, Queens County, dated May 5, 2004.
ORDERED that the application is granted and the respondents' time to serve and file a brief is enlarged until May 25, 2005, and the respondents' brief must be served and filed on or before that date.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23775
S/sl
ANITA R. FLORIO, J.P.
FRED T. SANTUCCI
WILLIAM F. MASTRO
ROBERT A. SPOLZINO, JJ.
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2005-02955 In the Matter of Takylia B. (Anonymous). Little Flower Children's Services, respondent; Doreather B. (Anonymous), appellant. (Docket No. B-9162-02)
| DECISION & ORDER ON MOTION |
Appeal by Doreather B. from an order of the Family Court, Kings County, dated February 17, 2005.
Now, on the court's own motion, it is
ORDERED that the appeal is dismissed, without costs or disbursements, as the order dated February 17, 2005, is not appealable as of right (see Family Ct Act § 1112), and we decline to grant leave to appeal.
FLORIO, J.P., SANTUCCI, MASTRO and SPOLZINO, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23793
M/nal
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2004-06625 In the Matter of Eric C. (Anonymous), appellant. (Docket No. D-1177/04)
| SCHEDULING ORDER |
Appeal by Eric C. from an order of the Family Court, Orange County, dated July 14, 2004. The appellant's brief was filed in the office of the Clerk of this court on February 14, 2005. Pursuant to § 670.4(a)(2) of the rules of this court (see 22 NYCRR 670.4[a][2]), it is
ORDERED that the respondent's time to serve and file a brief on the appeal is enlarged until May 6, 2005.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23806
C/sl
ANITA R. FLORIO, J.P.
FRED T. SANTUCCI
WILLIAM F. MASTRO
ROBERT A. SPOLZINO, JJ.
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2005-02657 In the Matter of Estate of James E. Davis, Kenyan G. Penceal, respondent; Thelma Davis, appellant. (File No. 3134/03)
| DECISION & ORDER ON MOTION |
Motion by the appellant to stay enforcement of so much of an order of the Surrogate's Court, Kings County, dated March 18, 2005, as directed genetic testing of certain biological material of the decedent pending hearing and determination of an appeal therefrom.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is granted and enforcement of so much of the order dated March 18, 2005, as directed genetic testing of certain biological material of the decedent is stayed pending hearing and determination of the appeal on condition that the appeal is perfected on or before May 11, 2005; and it is further,
ORDERED that in the event the appeal is not perfected on or before May 11, 2005, the court, on its own motion, may vacate the stay, or the respondent may move to vacate the stay, on three days notice.
FLORIO, J.P., SANTUCCI, MASTRO and SPOLZINO, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23792
Y/sl
ANITA R. FLORIO, J.P.
FRED T. SANTUCCI
WILLIAM F. MASTRO
ROBERT A. SPOLZINO, JJ.
|
2004-10395, 2004-10396, 2004-10397
In the Matter of Leta Greenstein, respondent, v Jerry Greenstein, appellant. (Docket No. F-1931-03)
| DECISION & ORDER ON MOTION Motion by Counsel to be Relieved of Assignment - Family Court |
Motion by the appellant for leave to reargue a prior motion for the assignment of new counsel to prosecute appeals from three orders of the Family Court, Rockland County, dated May 3, 2004, July 24, 2004, and October 21, 2004, respectively, and to grant the appellant leave to prosecute the appeals as a poor person, which was determined by decision and order on motion of this court dated December 30, 2004.
Upon the papers filed in support of the motion and the papers filed in opposition to or in relation thereto, it is
ORDERED that the motion is denied with leave to the appellant to renew, on or before May 9, 2005, upon the submission of proper papers establishing the value of his property in Israel and setting forth all income, resources, and living expenses.
FLORIO, J.P., SANTUCCI, MASTRO and SPOLZINO, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23771
S/sl
ANITA R. FLORIO, J.P.
FRED T. SANTUCCI
WILLIAM F. MASTRO
ROBERT A. SPOLZINO, JJ.
|
2005-02913
In the Matter of Mark Bradley Hellman, respondent, v Nicole Novel Davis, appellant. (Docket No. V-15078-04)
| ORDER TO SHOW CAUSE |
Appeal by Nicole Novel Davis from an order of the Supreme Court, Nassau County, dated February 7, 2005.
Now, on the court's own motion, it is
ORDERED that the parties or their attorneys are directed to show cause why an order should or should not be made and entered dismissing the appeal on the grounds that the order is not appealable as of right and leave to appeal has not been granted (see Family Ct Act § 1112) and because the order was entered upon the appellant's consent and the appellant is not aggrieved (see CPLR 5511), by each filing an affirmation or affidavit on that issue with the Clerk of this court on or before April 29, 2005; and it is further,
ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this order to show cause on the parties or their attorneys by regular mail.
FLORIO, J.P., SANTUCCI, MASTRO and SPOLZINO, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23646
K/nal
A. GAIL PRUDENTI, P.J.
ANITA R. FLORIO
HOWARD MILLER
ROBERT W. SCHMIDT
DAVID S. RITTER, JJ.
|
2004-06838
In the Matter of Mary K. Henning, a suspended attorney. Grievance Committee for the Ninth Judicial District, petitioner; Mary K. Henning, respondent. (Attorney Registration No. 2158608)
| DECISION & ORDER ON MOTION |
By decision and order on motion of this court dated March 15, 2005, the respondent was immediately suspended from the practice of law as a result of her conviction of a serious crime, and continuing until further order of the court, pursuant to Judiciary Law § 90(4)(f); the Grievance Committee for the Ninth Judicial District was authorized to institute and prosecute a disciplinary proceeding against the respondent; and the issues raised were referred to the Honorable William D. Friedmann, as Special Referee to hear and report. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on January 13, 1988.
Upon the court's own motion, it is
ORDERED that the Honorable William D. Friedmann is relieved as Special Referee; and it is further,
ORDERED that the issues raised by the petition and any answer thereto are reassigned to Norman B. Lichtenstein, Esq., 4 Roland Drive, White Plains, N.Y. 10605, as Special Referee to hear and report together with his findings on the issues.
PRUDENTI, P.J., FLORIO, H. MILLER, SCHMIDT and RITTER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23648
K/nal
A. GAIL PRUDENTI, P.J.
ANITA R. FLORIO
ROBERT W. SCHMIDT
THOMAS A. ADAMS
BARRY A. COZIER, JJ.
|
2005-00785
In the Matter of Andrea Herbst, admitted as Andrea Birnbaum Herbst, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Andrea Herbst, respondent. (Attorney Registration No. 2864932)
| DECISION & ORDER ON MOTION |
Motion by the Grievance Committee for the Ninth Judicial District for an order: 1) suspending the respondent from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i),(ii), and(iii), upon a finding that she is guilty of professional misconduct immediately threatening the public interest based upon her failure to cooperate with its investigation, her substantial admission under oath that she has committed an act or acts of professional misconduct, or other uncontroverted evidence; 2) authorizing it to institute and prosecute a disciplinary proceeding against the respondent; 3) directing her to submit an answer to the 36-charge petition, dated January 24, 2005, which is annexed to its Order to Show Cause; and 4) appointing a Special Referee to hear and report. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on February 25, 1998, under the name Andrea Birnbaum Herbst.
Upon the papers submitted to the court and there being no papers submitted in opposition thereto, it is
ORDERED that the motion is granted; and it is further,
ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(i),(ii), and (iii), the respondent Andrea Herbst, admitted as Andrea Birnbaum Herbst, is immediately suspended from the practice of law in the State of New York, pending further order of the court; and it is further,
ORDERED that the respondent shall promptly comply with this court's rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,
ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until further order of this court, the respondent is commanded to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law of its application or any advice in relation thereto, and (4) holding herself out in any way as an attorney and counselor-at-law; and it is further,
ORDERED that the Grievance Committee for the Ninth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this court against Andrea Herbst, admitted as Andrea Birnbaum Herbst, based on the petition dated January 24, 2005; and it is further,
ORDERED that Gary L. Casella, Chief Counsel to the Grievance Committee for the Ninth Judicial District, 399 Knollwood Road, Suite 200, White Plains, N.Y. 10603, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,
ORDERED that within 20 days after service upon her of a copy of this decision and order on motion, the respondent shall serve an answer upon the petitioner and the Special Referee, and shall file the original answer in the office of the Clerk of this court; and it is further,
ORDERED that the issues raised by the petition and any answer thereto are referred to the Honorable Vincent Pizzuto, a retired Associate Justice of the Appellate Division, Second Judicial Department, 786 Lamont Avenue, Staten Island, N.Y. 10312, as Special Referee to hear and report; and it is further,
ORDERED that if the respondent, Andrea Herbst, admitted as Andrea Birnbaum Herbst, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in her affidavit of compliance pursuant to 22 NYCRR 691.10(f).
We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon her failure to cooperate with the Grievance Committee, her substantial admissions under oath, and other uncontroverted evidence of professional misconduct.
The respondent is presently the subject of nine pending complaints. The respondent failed to answer the first five complaints, which were forwarded to her on multiple occasions by the Grievance Committee, until after she was examined under oath by Grievance Counsel with respect to them. During her examination under oath, the respondent allegedly made numerous admissions that she engaged in professional misconduct. The Grievance Committee asked the respondent to provide substantial additional information after her appearance. While the respondent delivered brief answers, she has thus far failed to provide the additional information requested.
Subsequent to the respondent's appearance under oath, the Grievance Committee received four additional complaints which were forwarded to the respondent via certified and/or overnight mailings. Despite repeated requests, the respondent has failed to answer those four complaints.
The Filippone, Abraham and Sua Sponte complaints
A complaint by former client Dominic Filippone, dated May 18, 2004, alleged that although he retained the respondent to represent him in obtaining a divorce in or about May 2003, the respondent never provided a written retainer agreement. The respondent engaged in a conflict of interest inasmuch as she was, at the time, involved in her own divorce proceeding in which the attorney representing the complainant's estranged wife also represented the respondent's estranged husband. The respondent frequently failed to reply to the respondent's inquiries for weeks at a time, failed to pursue requested forms of relief, and failed to submit timely bills as requested. In March 2004, the complainant threatened to file a grievance if the respondent did not provide a summary of fees and expenses. Despite the respondent's promise to send a printout of costs, she failed to do so. On April 8, 2004, the complainant demanded a refund of $1,700 based on the respondent's failure to document her services and eventually terminated her services after paying her approximately $3,400 in attorney's fees and an additional $5,000 to a new attorney.
A complaint by Ziona Abraham, dated June 2, 2004, alleged that she retained the respondent on September 9, 2002, to file an appeal of her July 16, 2002, divorce for a $200 fee. Complainant thereafter made periodic additional payments of $500, $500, $2,000, and $200 for services ostensibly rendered. She made repeated unsuccessful attempts to contact the respondent. In April 2004, the complainant learned that the time to perfect her appeal had expired on February 18, 2003, without any appeal having been filed by the respondent.
Based upon problems discovered with the respondent's office address, a sua sponte complaint was initiated against the respondent alleging that she failed to re-register with the Office of Court Administration (hereinafter OCA).
Copies of the Filippone and Abraham complaints, which the Grievance Committee forwarded to the respondent's last known OCA address on May 25, 2004, and June 7, 2004, were returned by the Postal Service with the notation "Attempted Not Known." After receiving the returned letters, Grievance Counsel left several telephone messages on the respondent's registered office telephone number. When no response was received, the Grievance Committee's investigator attempted to deliver a June 14, 2004, letter to the respondent at her last known OCA registered office. The letter urged the respondent to read each of the three enclosed complaints carefully and extended the date for submission of responses to June 25, 2004.
The Grievance Committee's investigator was unable to find any evidence that the respondent's office was currently situated at the designated location. The investigator then went to the respondent's registered home address and observed a garage which had been converted to an office. A United State Postal worker confirmed that the respondent both resided and received mail at that address. When no one answered the door, the Grievance Committee's investigator left a manila envelope securely taped to the door of the respondent's home, in plain view. Later that day, the respondent telephoned the Grievance Committee's offices to advise that she was scheduled to meet with an attorney from the Rockland County Bar Association to formulate a plan to organize her practice into a more manageable and productive format.
Grievance Counsel advised the respondent of her obligation to answer the complaints, the need to correct her registration status with OCA, her right to be represented by counsel, the consequences of an attorney's failure to cooperate, and the availability of the Lawyer's Assistance Program of the New York State Bar Association (hereinafter the LAP). The respondent promised to provide written answers to the three complaints, along with documentation of her efforts to correct her registration status, and indicated her plan to contact the LAP.
The Dolny and Downs complaints
Complainant Mindy Dolny, a former friend of the respondent, alleged that the respondent committed professional misconduct during the course of representing her in both a Family Court matter and Supreme Court matrimonial action. The Family Court matter allegedly was dismissed due to the respondent's failure to comply with court ordered discovery. The matrimonial action was stalled because the respondent refused to finish the Order to Show Cause to institute it. The respondent failed to return the complainant's calls or personally-delivered letters. As the weeks passed and the complainant was deprived of support for her three children, she reluctantly filed a grievance.
Complainant Christine Downs hired the respondent in December 2003 to draft and file separation papers. Although the papers were to be filed on June 21, 2004, the respondent failed to file any papers with the court. In her personal interactions with the respondent, the respondent used foul language, broke appointments without notice, failed to submit timely bills, repeatedly brought her own personal life problems into the complainant's situation, and failed to return her estranged husband's pay stubs and personal papers.
Despite an adjournment of time in which to submit answers to the first three complaints to June 28, 2004, the Grievance Committee received no further communication from the respondent as of July 2, 2004. This development prompted another visit by the Grievance Committee's investigator to the respondent's home/office. The respondent was again advised of the consequences of her failure to respond. The Grievance Committee also forwarded to the court subpoenas to compel the respondent to appear at its offices with her files on July 22, 2004, and a request that they be so ordered by the court. After "an extremely contentious and difficult conversation" with Grievance Counsel, the respondent finally agreed to testify at the Grievance Committee's offices regarding these matters on July 15, 2004.
The respondent arrived more than 90 minutes late for the scheduled examination and behaved in a contentious fashion. During preliminary questioning, she denied ever being cited for contempt but acknowledged that she was sanctioned $10,000 by Justice Spolzino in Duffy v Duffy on April 9, 2003, for failing to appear in court on behalf of her client and failing to comply with court-ordered discovery. The respondent offered various explanations for her conduct and testified that her attempt to appeal was withdrawn after a CAMP conference before Justice Howard Miller.
The Mitchell complaint
On July 28, 2004, after the respondent's examination under oath, the Grievance Committee received a complaint from client Michael Mitchell alleging that the respondent failed to complete the preparation and filing of a Qualified Domestic Relations Order for which she had been paid $1,000 on December 19, 2003, that she failed to return any of complainant's numerous telephone calls until March 24, 2004, and that she thereafter took no further steps to complete the work or to respond to any of complainant's additional efforts to contact her. Although the Grievance Committee forwarded the Mitchell complaint to the respondent's home office address on July 28, 2004, the respondent failed to reply.
On August 12, 2004, the respondent telephoned Grievance Counsel to advise that her responses to both the remaining issues from her July 15 examination under oath and to the Mitchell complaint would be delivered by August 13, 2004. When no response was received by August 24, 2004, Grievance Counsel sent a letter advising the respondent that her deadline to respond to these pending inquiries would not be further extended and that her ongoing failure to cooperate was at her own peril. To date, the Grievance Committee has received no further response.
The Rubenstein complaint
The complainant retained the respondent on June 14, 2004 to handle an uncontested divorce, paying $700 of a $1,000 fee on the promise that his divorce would be completed in August 2004. The respondent thereafter ceased doing any further work on the case and failed to return calls until August 2004. In August 2004, the respondent advised the complainant that she was sending him copies of the uncontested divorce papers for his signature, having already obtained his estranged wife's signature on them. The respondent failed to forward the papers or to respond to the complainant's communications. The respondent has been delaying the complainant's plans to re-marry as soon as the divorce is finalized.
The Curley complaint
The complainant retained the respondent on or about April 24, 2004, to represent him in his matrimonial action and thereafter retained her to represent him in a constructive trust action. Complainant alleged that the respondent violated both retainer agreements and caused irreparable harm to his cases. It is alleged that the respondent failed to return more than 87 telephone messages; failed to conduct discovery over a six-month period of time; failed to coordinate the scheduling of an EBT; feigning illness, cancelled 16 appointments and failed to make court appearances; called the complainant at home "crying and drunk"; caused the complainant to be precluded from discovery and depositions; and repeatedly failed to provide billing statements. Opposing counsel filed a motion for preclusion due to the respondent's ignorance of a May 10, 2004, demand.
The Rainaldi complaint
The complainant alleged that she retained the respondent on August 19, 2004 and paid her total fees of $3,200; that the respondent was grossly unprofessional in their interactions; that the respondent was constantly unprepared and disorganized at court appearances and conferences; and that the respondent repeatedly broke appointments and failed to meet deadlines.
On October 14, 2004, the respondent requested $210 to file a matrimonial complaint that day. When the respondent failed to do so, the complainant terminated her services and scheduled an appointment on October 21, 2004, to recover her personal papers. The respondent insisted that she needed additional time to organize and copy her file, proffered excuses about her personal life, and demanded to know which lawyers the complainant had consulted as her new counsel. When the respondent failed to deliver the file as promised, the complainant filed suit in Small Claims Court. This prompted a telephone call from the respondent, screaming that the complainant had consulted an attorney who was "out to get her."
On November 24, 2004, the respondent telephoned Grievance Counsel to advise that she was winding down her practice and to explain the latest series of problems besetting her.
Grievance Counsel again advised the respondent that she was in default with respect to the Grievance Committee's communications and urged her to pick up the certified letters currently awaiting her at the Post Office and to submit all outstanding information as soon as possible. Grievance Counsel confirmed the substance of the telephone call in a letter dated November 24, 2004, advised the respondent that no further adjournments or delays would be permitted, that any further failure to cooperate was at her own peril, and that she should consider availing herself of the option of retaining counsel.
The respondent signed for each of the Grievance Committee's certified letters which forwarded the Rubenstein, Curley, and Rainaldi matters on November 24, 2004. The Grievance Committee's follow-up letter of November 24, 2004, enclosed additional copies of those three complaints. The Mitchell complaint was personally signed for by the respondent on December 1, 2004. As of the date of this motion, the Grievance Committee has received no further reply from the respondent.
In view of the Grievance Committee's documented attempts to personally serve the respondent with the Order to Show Cause seeking her interim suspension and the petition of charges, the court authorized substituted service by order dated February 2, 2005. Although the respondent's time to reply was extended to February 22, 2005, she has failed to comply.
The uncontroverted evidence, coupled with the respondent's admissions and her established pattern of failing to cooperate, notwithstanding the efforts of the Grievance Committee to secure her cooperation, and the adjournment afforded her, establish that the respondent constitutes an immediate threat to the public interest. Accordingly, the Grievance Committee's motion is granted, the respondent is suspended from the practice of law pursuant to 22 NYCRR 691.4(l)(1)(i), (ii), and (iii), the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent based on the petition annexed to its Order to Show Cause; the respondent is directed to submit an answer to the petition within 20 days after service upon her of a copy of this decision and order on motion; and the issues raised are referred to a Special Referee to hear and report.
PRUDENTI, P.J., FLORIO, SCHMIDT, ADAMS and COZIER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23787
Y/sl
HOWARD MILLER, J.P.
GABRIEL M. KRAUSMAN
STEPHEN G. CRANE
STEVEN W. FISHER, JJ.
|
2005-00609 In the Matter of Lori Hyman, respondent, v Paul Castagnini, appellant. (Docket Nos. V-17287-02, V-20398-02)
| DECISION & ORDER ON MOTION |
Motion by the appellant for leave to prosecute an appeal from an order of the Family Court, Kings County, dated December 16, 2004, as a poor person, for the assignment of counsel, for a preference in the calendaring of the appeal, and for an enlargement of time to perfect the appeal.
Upon the papers filed in support of the motion and no papers having been filed in opposition or relation thereto, it is
ORDERED that the branch of the motion which is for leave to proceed as a poor person and for the assignment of counsel is granted, the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the briefs of the appellant, the respondent, and the Law Guardian, if any. The parties are directed to file nine copies of their respective briefs and to serve one copy on each other (22 NYCRR 670.9[d][1][ii]; Family Ct Act § 1116); and it is further,
ORDERED that the stenographer(s) and/or the transcription service(s) is/are required promptly to make and certify two transcripts of the proceedings, if any, except for those minutes previously transcribed and certified (22 NYCRR 671.9); in the case of stenographers, both transcripts shall be filed with the clerk of the Family Court, and the clerk of the Family Court shall furnish one of such certified transcripts to the appellant's counsel, without charge; in the case of transcription services, one transcript shall be filed with the clerk of the Family Court and one transcript shall be delivered to the assigned counsel. Assigned counsel is directed to provide copies of said transcripts to all of the other parties to the appeal, including the Law Guardian, if any, when counsel serves the appellant's brief upon those parties; and it is further,
ORDERED that pursuant to Family Court Act § 1120 the following named attorney is assigned as counsel to prosecute the appeal:
Pauline E. Brown, Esq.
43 Edgewood Road
P.O. Box 9
Valley Stream, New York 11582-0009
(516) 872-4080
and it is further,
ORDERED that the branch of the motion which is for a preference is denied as unnecessary (see CPLR 5521); and it is further,
ORDERED that the branch of the motion which is for an enlargement of time to perfect the appeal is referred to the Clerk of the Court for the issuance of a scheduling order pursuant to 22 NYCRR 670.4(a); and it is further,
ORDERED that assigned counsel is directed to serve a copy of this order upon the clerk of the court from which the appeal is taken.
H. MILLER, J.P., KRAUSMAN, CRANE and FISHER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23801
M/nal
|
2004-11003, 2004-11004
In the Matter of Mary Jocelyn M. (Anonymous). Administration for Children's Services, petitioner-respondent; Geto M. (Anonymous), appellant, et al., respondent. (Docket No. N-07531-01)
| ORDER TO SHOW CAUSE |
Appeals by Geto M. from two orders of the Family Court, Kings County, dated July 23, 2004, and December 3, 2004, respectively. By decision and order on motion of this court dated February 17, 2005 the appellant was granted leave to renew a motion for leave to prosecute the appeals as a poor person on or before March 23, 2005. The appellant has failed to do so. Pursuant to § 670.4(a)(5) of the rules of this court (22 NYCRR 670.4[a][5]), it is
ORDERED that the parties or their attorneys are directed to show cause before this court why an order should or should not be made and entered dismissing the appeals in the above-entitled proceeding by each filing an affirmation or affidavit on that issue in the office of the Clerk of this court and serving one copy of the same on each other on or before April 21, 2005; and it is further,
ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this decision and order upon the parties or their attorneys.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23811
M/nal
HOWARD MILLER, J.P.
GABRIEL M. KRAUSMAN
STEPHEN G. CRANE
STEVEN W. FISHER, JJ.
|
2005-01118
In the Matter of Sanjeeda M. (Anonymous). Administration for Children's Services, respondent; Karibul M. (Anonymous), appellant. (Docket No. N- 31158/03)
| DECISION & ORDER ON MOTION |
Appeal by Karibul M. from an order of the Family Court, Kings County, dated January 6, 2005. By order to show cause dated March 16, 2005, the parties or their attorneys were directed to show cause before this court why an order should or should not be made and entered dismissing the appeal in the above-entitled proceeding for failure to comply with a scheduling order dated February 10, 2005, issued pursuant to 22 NYCRR 670.4(a)(2).
Now, on the court's own motion, and the papers filed in response to the order to show cause, it is
ORDERED that the motion is denied. The affirmation in response to the scheduling order was received here March 30, 2005.
H. MILLER, J.P., KRAUSMAN, CRANE and FISHER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23074
K/nal
A. GAIL PRUDENTI, P.J.
ANITA R. FLORIO
HOWARD MILLER
ROBERT W. SCHMIDT
THOMAS A. ADAMS, JJ.
|
2003-10293
In the Matter of Desmond Q. Martin, admitted as Desmond Quinby Martin, an attorney and counselor-at-law. Grievance Committee for the Second and Eleventh Judicial Districts, petitioner; Desmond Q. Martin, respondent. (Attorney Registration No. 2939635)
| DECISION & ORDER ON MOTION |
Motion by the Grievance Committee for the Second and Eleventh Judicial Districts for an order: 1) suspending the respondent from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(ii)and (iii), upon a finding that he is guilty of professional misconduct immediately threatening the public interest in that there exists substantial admissions under oath and other uncontradicted evidence that he has committed an act or acts of professional misconduct; 2) authorizing it to institute and prosecute a disciplinary proceeding against the respondent based upon the petition dated October 12, 2004, annexed to the Grievance Committee's Order to Show Cause; 3) referring the issues raised to a Special Referee to hear and report; and 4) directing the respondent to submit a written answer to the petition.
Upon the papers submitted in support of the motion and in opposition thereto, it is
ORDERED that the motion is granted; and it is further,
ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(ii)and (iii), the respondent, Desmond Q. Martin, admitted as Desmond Quinby Martin, is immediately suspended from the practice of law in the State of New York, pending further order of the court; and it is further,
ORDERED that the respondent, Desmond Q. Martin, admitted as Desmond Quinby Martin, shall promptly comply with this court's rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,
ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until further order of this court, the respondent, Desmond Q. Martin, admitted as Desmond Quinby Martin, is commanded to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law of its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,
ORDERED that the Grievance Committee for the Second and Eleventh Judicial Districts is hereby authorized to institute and prosecute a disciplinary proceeding in this court against the respondent, based on the petition dated December 2, 2004; and it is further,
ORDERED that Diana Maxfield Kearse, Chief Counsel to the Grievance Committee for the Second and Eleventh Judicial Districts, Renaissance Plaza, 335 Adams Street, Suite 2400, Brooklyn, N.Y. 11201-3745, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,
ORDERED that within 20 days after service upon him of a copy of this decision and order on motion, the respondent shall serve an answer upon the petitioner and the Special Referee, and shall file the original answer in the office of the Clerk of this court; and it is further,
ORDERED that the issues raised by the petition and any answer thereto are referred to the Honorable Jerome M. Becker, a former Judge of the Criminal and Family Courts, 641 Lexington Avenue, 4th Fl., New York, N.Y. 10022, as Special Referee to hear and report; and it is further,
ORDERED that if the respondent, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).
We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon his substantial admissions under oath, and other uncontroverted evidence of professional misconduct.
This matter emanates from a sua sponte investigation commenced by the Grievance Committee on or about April 17, 2002, following its receipt of a dishonored check report from the Lawyers' Fund for Client Protection. The respondent submitted answers to the Grievance Committee's inquiries on May 9, September 11, and November 26, 2002.
The petition contains 14 charges of professional misconduct against the respondent including conversion, commingling, failure to properly safeguard funds, providing false and misleading information to the petitioner and the Office of Court Administration, and improperly advancing financial assistance to clients. The petitioner submits 34 exhibits with its motion papers including bank records, invoices, letters from respondent answering various inquiries by the Committee, canceled checks and samples of retainer agreements.
The respondent appeared with counsel and testified under oath on January 29 and April 19, 2004. He is a Police Sergeant for the Town of Greenburgh in the County of Westchester, and maintains a personal injury law practice in Astoria, New York, which he took over from another attorney, William E. Mariano, in June 2001 after working there part time. He also maintains a second law office at his residence.
Mohammed Hossain, the office manager whom the respondent met through Mr. Mariano, was also the principal of N & Z Management (herein after N & Z) which, pursuant to a June 1, 1997, agreement with Mr. Mariano, was responsible for leasing the office space and for all facets of maintaining and staffing the office. The respondent maintained the existing arrangement and receives monthly invoices from N & Z, and now its successor company JOTI Management, ("JOTI"), for its services.
Modern Medical is a chiropractic firm near his office which refers clients to him and processes no-fault claims for his clients. In this tight-knit community, the respondent's clients all go to the same mosque and if they have an accident they go to Modern Medical for treatment.
According to the respondent, his office is opened almost 24 hours per day, except for Sunday. He works there all of his days off and at night, normally after 5:00 P.M., just before he goes to his police shift that is from 11:30 P.M. to 7:30 A.M. Other per diem attorneys, hired by the respondent, handle such matters as preliminary and compliance conferences. Mr. Hossain is at the office from 9:00 A.M. to 10:00 P.M. but he leaves several times per day to pray.
An accountant, Mr. Rahman, who had worked for Mr. Mariano, was supplied by N&Z to the respondent and he was responsible for reconciling the checks of the business and the IOLA accounts, logging in the statements, depositing insurance checks and advising the respondent when checks cleared. The respondent now pays for the accountant through JOTI. Neither Mr. Rahman nor anyone other than the respondent had signatory power on the IOLA account.
The respondent began keeping a contemporaneous ledger for his escrow account in or about April 2002, shortly after the petitioner's inquiry and he began making inquiries to obtain a new accountant. He explained that although Mr. Rahman was hired to be the bookkeeper/accountant, he actually was a medical doctor from Bangladesh. Mr. Rahman was paid to provide these services from August 2001 to about June 2002 and then the respondent, with Mr. Hossain's agreement, terminated Mr. Rahman. The respondent also had issues with Mr. Hossain and had him leave the office briefly in 2002.
The respondent admitted that he believed that Mr. Hossain manipulated Mr. Rahman to do certain things that should not have been done. The respondent then trained Mr. Hossain on certain procedures regarding the IOLA accounts and the clients and let him return. The respondent conceded that he felt that Mr. Hossain bowed to the pressures of clients who, for example, would insist on getting their money immediately and would not sign a release.
Per the respondent, Mr. Hossain would improperly advise him that a check had cleared and the respondent would then sign a check that should not have been written. There was only one incident where a check was returned for insufficient funds and there were about two incidents where respondent signed checks that were issued in reliance upon Mr. Hossain's information, and resulted in a money advance to the client. The respondent personally endorsed all insurance checks which came in but in the past did not check deposit slips to confirm Mr. Hossain's information. The respondent acknowledged that lump checks had been sent to Modern Medical with no differentiation as to each client.
The respondent conceded that Mr. Rahman prepared the document entitled "check register." Another document entitled "general ledger" was prepared by his Queens accountant. Mr. Rahman prepared a ledger submitted by respondent to the Grievance Committee indicating the client's name, a narrative report of fees and amount paid to the client, and attorney fees. The respondent stated that when the work was being done by the accountant, he gave him the forms or the checks and the accountant presented the respondent with the documents. The respondent acknowledged that he reviewed the documents before submitting them to the Grievance Committee but he did not reconcile them.
The respondent admitted that he had written check number 1039 to himself in the sum of $40,000 on December 13, 2001. The process he followed for writing a check to himself in a particular case was that when a check came in, the client signed it, he signed it, and it was deposited. Apparently, settlement checks came in for a group of clients on or prior to December 13, 2001. Mr. Rahman wrote a lump sum check rather than writing a separate check for the respondent 's fees for each individual case. The respondent stated that before he signed the lump sum check he would check the files to make sure their fees were correct.
The respondent admitted that there was no contemporaneous record made of the client and the settlements with respect to the lump sum payments. He did however kept track of payments made for his fees on the back of each file. His practice was to wait a few days after settlement checks were deposited before taking out his fees.
The respondent admitted that a document labeled "client check ledger" was not prepared simultaneously with disbursements but was prepared for the Grievance Committee's benefit in response to its request. He acknowledged that primarily the clientele of his practice was from the local mosque and Mr. Hossain was his connection to the mosque. Mr. Hossain and Mr. Rahman and his administrative people were the ones handling the bookkeeping and accounting and respondent did not have any hands on involvement in making deposits, watching and reviewing what was done. When the respondent did come into the office, it was after hours when Mr. Rahman was not there, or early in the morning. After the respondent received the insufficient funds notice he began to challenge Mr. Rahman in how things were being handled and got rid of him. He also terminated Mr. Hossain but brought him back within about one month because the community was complaining about Mr. Hossain's absence and the respondent's cases were drying up.
The Queens law practice grossed about one million dollars in income with checks from the insurance companies. The respondent stated that he is not an employee of JOTI. He pays JOTI for his office manager's services. The payment varies from month to month. JOTI pays all of the bills and in turn, the respondent pays JOTI. The lease for the office is in the respondent's name but JOTI writes the monthly check to the landlord for $2,800. The respondent paid himself a salary of about $100,000.
The respondent produced invoices that provide references to specific clients. He admitted that Mr. Hossain, with maybe two other workers, prepared the invoices in response to the Committee's request, sometime after February 24, 2004. They were not contemporaneously kept with the client files.
The respondent ultimately acknowledged that JOTI received between 80% to just under 100% of all the attorney's fees. He also admitted that on December 28, 2001, three business account checks totaling $61,000 were issued to JOTI with no reference to client transactions. Additionally, he conceded that 31 checks drawn on his IOLA account referencing a settlement or client's share are endorsed and deposited to JOTI's account.
The respondent admitted that advances were given to clients prior to settlement funds being available, and that funds in the IOLA account repeatedly dropped below the amount that he was required to maintain for the particular clients concerned. He conceded that he now knew that this constituted conversion of his client's funds, but he was not aware of his fiduciary obligation at the time.
The respondent acknowledged that 11 settlement checks for clients were improperly deposited in his business account instead of in the IOLA account as required. Also in connection with these 11 settlement checks, two clients received advances and bank statements showed that during that time an $82,055 payment was made to JOTI from his business account, and that he had a negative balance in his IOLA account.
The respondent continues to rely upon his non-attorney office manager, while conceding that the office manager was responsible for the improper issuance of a large amount of checks from the IOLA account, advances being made to clients and lump sums being paid out with no relationship to a particular client.
In view of the foregoing, the Grievance Committee's motion is granted, the respondent is immediately suspended from the practice of law, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him, and the respondent is directed to serve and file a written answer to the petition.
PRUDENTI, P.J., FLORIO, H. MILLER, SCHMIDT and ADAMS, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23798
R/sl
ANITA R. FLORIO, J.P.
FRED T. SANTUCCI
WILLIAM F. MASTRO
ROBERT A. SPOLZINO, JJ.
|
2005-02803 In the Matter of Gia Melikishvili, petitioner, v Ketevan Grigolava, respondent.
(Docket Nos. V-04251/01, V-14040/99)
| DECISION & ORDER ON MOTION |
Motion by the petitioner for leave to appeal to this court from two orders of the Family Court, Queens County, dated March 4, 2005, and March 14, 2005, respectively, and to stay enforcement of the orders pending hearing and determination of the appeal therefrom.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the branch of the motion which is for leave to appeal to this court is denied; and it is further,
ORDERED that the motion is otherwise denied as academic.
FLORIO, J.P., SANTUCCI, MASTRO and SPOLZINO, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23655
K/nal
A. GAIL PRUDENTI, P.J.
ANITA R. FLORIO
HOWARD MILLER
ROBERT W. SCHMIDT
FRED T. SANTUCCI, JJ.
|
1990-10092
In the Matter of Paul S. Mirman, admitted as Paul Mirman, a disbarred attorney. (Attorney Registration No. 1388008)
| DECISION & ORDER ON MOTION FOR REINSTATEMENT |
Motion by the respondent for reinstatement as an attorney and counselor-at-law. The respondent was admitted to the Bar at a term of the Appellate Division in the Second Judicial Department on March 19, 1969, under the name Paul Mirman. By opinion and order of this court dated May 20, 1991, he was disbarred based on eight charges of neglecting personal injury matters entrusted to him. By decisions and orders on motions of this court dated February 26, 1992, and November 30, 1994, respectively, his motions for reargument and/or renewal of the opinion and order were denied. His first application for reinstatement was denied by decision and order on application of this court dated March 15, 1999. By decision and order on application of this court dated April 3, 2003, the respondent's second application for reinstatement was denied.
Upon the papers submitted in support of the motion and the papers submitted in response thereto, it is
ORDERED that the motion is held in abeyance and the matter is referred to the Committee on Character and Fitness to investigate and report on the respondent's current fitness to be an attorney, including obtaining proof of the respondent's satisfaction of the claims which gave rise to the charges against him; and it is further,
ORDERED that the Committee on Character and Fitness is directed to arrange for the expeditious examination of the respondent by a qualified medical expert to determine whether he is incapacitated from continuing to practice law.
PRUDENTI, P.J., FLORIO, H. MILLER, SCHMIDT and SANTUCCI, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23809
M/nal
HOWARD MILLER, J.P.
GABRIEL M. KRAUSMAN
STEPHEN G. CRANE
STEVEN W. FISHER, JJ.
|
2004-01828, 2004-06412, 2004-06413 In the Matter of Shahzada Q. Mohammad, respondent, v Abdul Q. Mohammad, appellant. (Docket Nos. V-26688/99, V-27057/99)
| SCHEDULING ORDER |
Appeals by Abdul Q. Mohammad from three orders of the Family Court, Kings County, dated February 26, 2004, July 2, 2004, and June 28, 2004, respectively. The appellant's brief was filed in the office of the Clerk of this court on January 28, 2005. Pursuant to § 670.4(a)(2) of the Rules of this court (see 22 NYCRR 670.4[a][2]), it is
ORDERED that the respondent's time to serve and file a brief is enlarged until May 2, 2005; and it is further,
ORDERED that no further enlargement of time shall be granted.
H. MILLER, J.P., KRAUSMAN, CRANE and FISHER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23778
S/sl
HOWARD MILLER, J.P.
GABRIEL M. KRAUSMAN
STEPHEN G. CRANE
STEVEN W. FISHER, JJ.
|
2005-02940 In the Matter of Gayle Rodi, respondent, v Bart Rodi, appellant. (Docket No. F-4214-02)
| DECISION & ORDER ON MOTION |
Appeal by Bart Rodi from an order of the Family Court, Rockland County, dated February 14, 2005.
Now, on the court's own motion, it is
ORDERED that the appeal is dismissed, without costs or disbursements, as the order is not appealable by right or by permission (see Family Ct Act § 1112; CPLR 5701), and we decline to treat the notice of appeal as an application pursuant to CPLR 5704.
H. MILLER, J.P., KRAUSMAN, CRANE and FISHER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23777
A/sl
GABRIEL M. KRAUSMAN, J.P.
GLORIA GOLDSTEIN
DANIEL F. LUCIANO
STEVEN W. FISHER, JJ.
|
2003-11114 In the Matter of Dennis Saccone, petitioner, v Garden City Park Water/Fire District, respondent. (Index No. 594/03)
| DECISION & ORDER ON MOTION |
Motion by the petitioner for leave to appeal to the Court of Appeals from a decision and judgment of this court, dated December 13, 2004, which, inter alia, denied a petition pursuant to CPLR article 78 to review a determination of the respondent, Garden City Park Water/Fire District, dated December 18, 2002, and confirmed the determination.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is denied.
KRAUSMAN, J.P., GOLDSTEIN, LUCIANO and FISHER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23810
M/nal
HOWARD MILLER, J.P.
GABRIEL M. KRAUSMAN
STEPHEN G. CRANE
STEVEN W. FISHER, JJ.
|
2004-09762, 2004-09763 In the Matter of Cornelius Sullivan, appellant, v Marilyn Sullivan, respondent. (Docket No. V-1893-03)
| SCHEDULING ORDER |
Appeals by Cornelius Sullivan from two orders of the Family Court, Suffolk County, both dated September 28, 2004. Pursuant to § 670.4(a)(2) of the rules of this court (see 22 NYCRR 670.4[a][2]), it is
ORDERED that the appellant's time to perfect the appeals by causing the original papers constituting the record on the appeals to be filed in the office of the Clerk of this court (see 22 NYCRR 670.4[a][2]) and by serving and filing the appellant's brief on the appeals is enlarged until April 29, 2005; and it is further,
ORDERED that no further enlargement of time shall be granted.
H. MILLER, J.P., KRAUSMAN, CRANE and FISHER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23789
E/sl
ANITA R. FLORIO, J.P.
FRED T. SANTUCCI
WILLIAM F. MASTRO
ROBERT A. SPOLZINO, JJ.
|
2004-09874 In the Matter of Paula Venezia, deceased. Joanne Zaccaria, appellant; Edward H. Pennington, III, respondent. (File No. 2100/03)
| DECISION & ORDER ON MOTION |
Motion by the respondent pro se on an appeal from a decree of the Surrogate's Court, Kings County, dated July 1, 2004, to strike the brief and appendix filed by his former counsel, to enlarge the time to serve and file a brief, and to enlarge the record on appeal to include certain documents.
Upon the papers filed in support of the motion and the papers filed in relation thereto, it is
ORDERED that the branches of the motion which are to strike the brief and appendix filed by former counsel and to enlarge the time to serve and file a new brief and appendix are granted; and it is further,
ORDERED that the respondent's time to serve and file a new brief and appendix is enlarged until May 17, 2005, and the respondent's brief must be served and filed on or before that date; and it is further,
ORDERED that no further enlargements of time shall be granted; and it is further,
ORDERED that the motion is otherwise denied.
FLORIO, J.P., SANTUCCI, MASTRO and SPOLZINO, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23768
S/sl
SONDRA MILLER, J.P.
GABRIEL M. KRAUSMAN
WILLIAM F. MASTRO
STEVEN W. FISHER, JJ.
|
2004-03227 In the Matter of Amaury Villalobos, appellant, v Edwin Felician, etc., et al., respondents. (Index No. 2751/03)
| DECISION & ORDER ON MOTION |
Appeal by Amaury Villalobos from a judgment of the Supreme Court, Dutchess County, dated November 5, 2003.
Now, on the court's own motion, it is
ORDERED that the appeal is dismissed, without costs or disbursements, for failure to perfect the same in accordance with the rules (see 22 NYCRR 670.8[e]), and prior orders of this court.
S. MILLER, J.P., KRAUSMAN, MASTRO and FISHER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23770
S/sl
ANITA R. FLORIO, J.P.
FRED T. SANTUCCI
WILLIAM F. MASTRO
ROBERT A. SPOLZINO, JJ.
|
2005-03050 In the Matter of Patricia Viox, et al., appellants, v James Rich, respondent. (Docket Nos. V-13777-04, V-13778-04)
| DECISION & ORDER ON MOTION |
Appeal by Patricia Viox and Jerome Viox from a transcript of the Family Court, Suffolk County, dated February 8, 2005.
Now on the court's own motion, it is
ORDERED that the appeal is dismissed, without costs or disbursements, as no appeal lies from a transcript (see Ojeda v Metropolitan Playhouse, 120 AD2d 717).
FLORIO, J.P., SANTUCCI, MASTRO and SPOLZINO, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23766
A/sl
HOWARD MILLER, J.P.
BARRY A. COZIER
GABRIEL M. KRAUSMAN
ROBERT A. SPOLZINO, JJ.
|
2004-07109 The People, etc., respondent, v David Coore, appellant. (Ind. No. 02-01231)
| DECISION & ORDER ON MOTION |
Motion by the appellant pro se for leave to prosecute an appeal from a judgment of the County Court, Westchester County, rendered June 18, 2004, as a poor person, and for the assignment of counsel. Cross motion by the respondent to dismiss the appeal on the ground that the notice of appeal was not timely served. By order to show cause dated October 8, 2004, the defendant was directed to show cause before this court why an order should or should not be made and entered dismissing the appeal in the above-entitled action on the ground that the notice of appeal was not timely filed and the appellant did not move for leave to extend his time to take an appeal (see CPL 460.10, 460.30), and the motion was held in abeyance in the interim.
On the court's own motion and no papers having been filed in response thereto, it is
ORDERED that the motion to dismiss the appeal is granted, and the appeal is dismissed; and it is further,
ORDERED that the appellant's motion for poor person relief is denied as academic.
H. MILLER, J.P., COZIER, KRAUSMAN and SPOLZINO, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division : Second Judicial Department
M23519
F/
ROBERT A. SPOLZINO, J.
|
2005-00991 The People, etc., plaintiff, v Augustine R. Cruz, defendant. (Ind. No. 62/99)
| DECISION & ORDER ON APPLICATION |
Application by the defendant, pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this court from an order of the Supreme Court, Dutchess County, dated December 9, 2004, which has been referred to me for determination.
Upon the papers filed in support of the application and the papers filed in opposition thereto, it is
ORDERED that the application is denied.
ROBERT A. SPOLZINO
Associate Justice
Appellate Division : Second Judicial Department
M23520
F/
ROBERT A. SPOLZINO, J.
|
2005-00232 The People, etc., plaintiff, v James Freeman, defendant. (Ind. No. 5472/87)
| DECISION & ORDER ON APPLICATION |
Application by the defendant, pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this court from an order of the Supreme Court, Kings County, dated October 28, 2004, which has been referred to me for determination.
Upon the papers filed in support of the application and the papers filed in opposition thereto, it is
ORDERED that the application is denied.
ROBERT A. SPOLZINO
Associate Justice
Appellate Division: Second Judicial Department
M23731
J/sl
|
2004-04891
The People, etc., respondent, v Gerald L. Fryar, appellant. (Ind. No. 123/03)
| ORDER ON APPLICATION |
Application by the respondent pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a brief on an appeal from a judgment of the County Court, Dutchess County, rendered May 19, 2004.
ORDERED that the application is granted and the respondent's time to serve and file a brief is enlarged until May 16, 2005, and the respondent's brief must be served and filed on or before that date.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division : Second Judicial Department
M23521
F/
HOWARD MILLER, J.
|
2005-01714 The People, etc., plaintiff, v Michael James, defendant. (Ind. No. 1333/98)
| DECISION & ORDER ON APPLICATION |
Application by the defendant, pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this court from an order of the Supreme Court, Queens County, dated September 5, 2000, which has been referred to me for determination.
Upon the papers filed in support of the application and the papers filed in opposition thereto, it is
ORDERED that the application is denied.
HOWARD MILLER
Associate Justice
Appellate Division: Second Judicial Department
M23670
C/sl
HOWARD MILLER, J.P.
GABRIEL M. KRAUSMAN
STEPHEN G. CRANE
STEVEN W. FISHER, JJ.
|
2004-05040 The People, etc., respondent, v Robert Mims, appellant. (Ind. No. 3571/02)
| DECISION & ORDER ON MOTION |
Motion by the appellant pro se to relieve counsel assigned to prosecute an appeal from a judgment of the Supreme Court, Kings County, rendered June 2, 2004, and for the assignment of new counsel.
Upon the papers filed in support of the motion and the papers filed in relation thereto, it is
ORDERED that the motion is denied without prejudice to seeking leave to serve and file a supplemental brief after the appeal is perfected.
H. MILLER, J.P., KRAUSMAN, CRANE and FISHER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23749
A/sl
HOWARD MILLER, J.P.
GABRIEL M. KRAUSMAN
STEPHEN G. CRANE
STEVEN W. FISHER, JJ.
|
2003-02206 The People, etc., respondent, v George Philips, appellant. (Ind. No. 3717/97)
| DECISION & ORDER ON MOTION |
Motion by the respondent to enlarge the time to serve and file a brief on an appeal from an order of the County Court, Nassau County, dated January 30, 2003.
Upon the papers filed in support of the motion and the papers filed in opposition or relation thereto, it is
ORDERED that the motion is granted; and it is further,
ORDERED that the respondent's time to serve and file a brief is enlarged until May 2, 2005, and the respondent's brief must be served and filed on or before that date.
H. MILLER, J.P., KRAUSMAN, CRANE and FISHER, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23694
C/sl
THOMAS A. ADAMS, J.P.
DAVID S. RITTER
GLORIA GOLDSTEIN
ROBERT A. LIFSON, JJ.
|
2005-02355 The People, etc., ex rel. William Lipford, petitioner, v Peter Curcio, respondent.
| DECISION & ORDER ON MOTION |
Application by the petitioner for a writ of habeas corpus and for poor person relief.
Upon the papers filed in support of the application and the papers filed in opposition thereto, it is
ORDERED that the branch of the application which is for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and that branch of the application is otherwise denied as academic; and it is further,
ORDERED that the branch of the application which is for a writ of habeas corpus is denied and the petition is dismissed, without costs or disbursements.
ADAMS, J.P., RITTER, GOLDSTEIN and LIFSON, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
Appellate Division: Second Judicial Department
M23757
A/sl
HOWARD MILLER, J.P.
BARRY A. COZIER
REINALDO E. RIVERA
PETER B. SKELOS, JJ.
|
2005-01715 The People, etc., ex rel. Damien T. Williams, petitioner, v William E. Phillips, etc., respondent.
| DECISION & ORDER ON MOTION |
Motion by the petitioner, a State inmate under sentence for conviction of a crime, pursuant to CPLR 1101 for permission to prosecute the above-entitled proceeding as a poor person.
Upon the papers filed in support of the application and no papers having been filed in opposition or relation thereto, it is
ORDERED that the motion is denied; and it is further,
ORDERED that in the event that the filing fee has not been paid within 120 days from the date of this order the proceeding shall be dismissed (see CPLR 1101[d]).
The allegations of merit contained in the petitioner's affidavit in support of the motion fail to establish that the proceeding is not frivolous (see CPLR 1101[a]).
H. MILLER, J.P., COZIER, RIVERA and SKELOS, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court