Return to New Filings Page


For January 27, 2017 through February 2, 2017, the following preliminary appeal statements were filed:

DEUTSCHE BANK NATIONAL TRUST COMPANY v FLAGSTAR CAPITAL MARKETS CORPORATION (143 AD3d 15):
1st Dept. App. Div. order of 8/11/16; affirmance; leave to appeal granted by App. Div., 12/15/16; Rule 500.11 review pending; CONTRACTS - BREACH OR PERFORMANCE OF CONTRACT - WHETHER STATUTE OF LIMITATIONS BARS A BREACH OF CONTRACT ACTION BROUGHT MORE THAN SIX YEARS AFTER SELLER MADE ALLEGEDLY FALSE REPRESENTATIONS AND WARRANTIES REGARDING LOAN UNDERLYING RESIDENTIAL MORTGAGE- BACKED SECURITIES - CONTRACT PROVISION SPECIFYING SET OF CONDITIONS THAT WOULD DELAY CAUSE OF ACTION'S ACCRUAL - ENFORCEABILITY OF ACCRUAL CLAUSE; Supreme Court, New York County, among other things, granted defendant Quicken Loans Inc.'s motion to dismiss the breach of contract claim as time-barred; App. Div. affirmed.

THE HEYWOOD CONDOMINIUM v WOZENCRAFT (148 AD3d 38):
1st Dept. App. Div. order of 1/12/17; affirmance (11/17/14 and 9/9/15 orders) and modification (1/28/15 order); sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution and whether a substantial constitutional question is directly involved to support an appeal as of right; CONDOMINIUMS AND COOPERATIVES - EVICTION - WHETHER A CONDOMINIUM OWNER MAY BE EVICTED FROM THE CONDOMINIUM BY A TEMPORARY RECEIVER FOR FAILURE TO PAY CONDOMINIUM COMMON CHARGES AND RENT HE WAS DIRECTED TO PAY BY COURT ORDER; CLAIMED DUE PROCESS VIOLATIONS; Supreme Court, New York County, granted plaintiff's motion to confirm the 1/14/14 report of the Judicial Hearing Officer, determining, after a traverse hearing, that process had been properly served, and recommending the appointment of a temporary receiver, and denied defendant's cross motion to reject the report (11/17/14 order); and thereafter, among other things, granted plaintiff's motion for the appointment of a receiver and directed defendant to pay monthly rent of $6,500 to the receiver for his use and occupancy of the condominium unit, and denied defendant's cross motion to dismiss the complaint (1/28/15 order); Supreme Court then granted the court appointed receiver's motion for a writ of assistance ejecting defendant from his condominium unit (9/9/15 order); App. Div. affirmed the 11/17/14 order; modified the 1/28/15 order to dismiss the second cause of action for money damages; and affirmed the 9/9/15 order.

LEE (GREGORY), PEOPLE v (143 AD3d 626):
1st Dept. App. Div. order of 10/27/16; affirmance; leave to appeal granted by Gesmer, J., 1/12/17; Rule 500.11 review pending; CRIMES - ARREST - WHETHER THE POLICE HAD PROBABLE CAUSE TO ARREST DEFENDANT FOR UNLAWFUL POSSESSION OF MARIJUANA - UNLAWFUL SEARCH AND SEIZURE - WHETHER THE INVENTORY SEARCH OF DEFENDANT'S CAR, CONDUCTED AT THE POLICE HEADQUARTERS AND NOT AT THE ARREST LOCATION, WAS A LEGITIMATE INVENTORY SEARCH; POSSESSION OF STOLEN PROPERTY - WHETHER POSSESSION OF PROPERTY THAT WAS PURCHASED WITH A STOLEN CREDIT CARD CONSTITUTES POSSESSION OF STOLEN PROPERTY; Supreme Court, New York County, convicted defendant, upon a guilty plea, of six counts of forgery in the second degree, six counts of identity theft in the first degree, two counts of criminal possession of a forged instrument in the second degree, eight counts of criminal possession of stolen property in the fourth degree and seven counts of identity theft in the third degree, and imposed sentence; App. Div. affirmed.

SMART (ANDREW), PEOPLE v (142 AD3d 513):
2nd Dept. App. Div. order 8/3/16; affirmance; leave to appeal granted by Chambers, J., 1/6/17; Rule 500.11 review pending; CRIMES - IDENTIFICATION OF DEFENDANT - LINEUP - WHETHER LINEUP IS UNDULY SUGGESTIVE WHERE DEFENDANT CONTENDS HE WAS SINGLED OUT BY A TATTOO ON HIS NECK AND THE COLOR OF HIS SHIRT, AND BY THE APPARENT AGE DIFFERENCE BETWEEN HIMSELF AND THE LINEUP FILLERS; DENIAL OF DEFENDANT'S MOTION FOR SUBSTITUTION OF COUNSEL; Supreme Court, Kings County, after a jury trial, convicted defendant of two counts of murder in the first degree, attempted murder in the second degree, and two counts of criminal possession of a weapon in the second degree, and imposed sentence; App. Div. affirmed.

For February 3, 2017 through February 9, 2017, the following preliminary appeal statements were filed:

NEW YORK CITY ASBESTOS LITIGATION, MATTER OF (HACKSHAW v ABB, INC.) (143 AD3d 485):
1st Dept. App. Div. order of 10/6/16; modification; sua sponte examination whether an appeal as of right lies under CPLR 5601(c) pursuant to the plaintiff's stipulation for judgment absolute; Damages--Conscious Pain and Suffering--Injury caused by asbestos exposure--mesothelioma; judgment pursuant to stipulation--whether Appellate Division abused its discretion in ordering a new trial unless plaintiff stipulated to further reduced award for past pain and suffering; claimed constitutional violations; appeal to Court of Appeals pursuant to CPLR 5601(c); Supreme Court, New York County, after a jury trial, awarded plaintiff damages against Crane Co., upon plaintiff's stipulation to reduce the award for past pain and suffering from $10 million to $6 million; App. Div. modified to vacate the award for past pain and suffering, and ordered a new trial as to such damages unless plaintiff stipulated to a reduced award for past pain and suffering of $3 million and to entry of an amended judgment in accordance therewith, and otherwise affirmed; plaintiff stipulated to judgment absolute in the event of Court of Appeals affirmance.

MANKO v LENOX HILL HOSPITAL (2016 NY Slip Op 83727[U]): ( 2016 NY Slip Op 92784[U]):
2nd Dept. App. Div. orders of 8/26/16 and 11/29/16; dismissal of appeal and denial of motion; sua sponte examination whether the orders appealed from finally determine the action within the meaning of the Constitution and whether a substantial constitutional question is directly involved to support an appeal as of right; Appeal-- Appellate Division--Dismissal of appeal and denial of motion for leave to appeal to Court of Appeals; App. Div. denied that branch of appellant's motion which was to enlarge the time to perfect the appeal from the 5/7/15 Supreme Court, Kings County order; and dismissed the appeal for failure to timely perfect it; and thereafter, among other things, denied appellant's motion for leave to appeal to the Court of Appeals from 8/26/16 order.

For February 10, 2017 through February 16, 2017, the following preliminary appeal statements were filed:

MANKO v GABAY (2016 NY Slip Op 94037[U]):
2nd Dept. App. Div. order of 12/12/16; denial of motion; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution and whether a substantial constitutional question is directly involved to support an appeal as of right; Appeal--Appellate Division--Denial of motion for leave to appeal; Supreme Court, Kings County, among other things, denied plaintiff's motion to vacate prior Supreme Court orders; App. Div. denied as unnecessary the branch of appellant's motion which was to waive the motion filing fee, and otherwise denied appellant's motion for leave to appeal to the Court of Appeals from so much of a 9/9/16 Appellate Division order as denied that branch of appellant's motion which was for leave to serve and file a supplemental appellant's appendix and replacement appellant's brief, for poor person relief, and to waive the motion filing fee.

REYES (CASIMIRO), PEOPLE v (137 AD3d 1060):
2nd Dept. App. Div. order of 3/16/16; modification; leave to appeal granted by Garcia, J., 1/25/17; Crimes--Conspiracy--Evidence--sufficiency of evidence--whether the evidence was sufficient to support the conviction of defendant for conspiracy to commit an arson committed by a street gang where defendant gang member was present at meetings where the gang members planned and discussed the arson--Penal Law � 105--element of agreement with others to engage in or cause the performance of criminal conduct; Supreme Court, Kings County, convicted defendant, upon a jury verdict, of conspiracy in the second degree, theft of services, and criminal possession of a weapon in the fourth degree, and imposed sentence; App. Div. modified by vacating the conviction of conspiracy in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; and, as so modified, affirmed.

For February 17, 2017 through February 23, 2017, the following preliminary appeal statements were filed:

BLUE ISLAND DEVELOPMENT, LLC, MATTER OF v TOWN OF HEMPSTEAD (143 AD3d 656):
2nd Dept. App. Div. order of 10/5/16; modification; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution and whether a substantial constitutional question is directly involved to support an appeal as of right; Municipal Corporations--Zoning--Whether the Appellate Division properly granted summary judgment to plaintiffs on their second cause of action seeking a judgment declaring paragraph seven of a declaration of restrictive covenants invalid and unenforceable pursuant to RPAPL 1951; whether restriction is of "no actual and substantial benefit" to the town; claimed violation of doctrines of separation of powers and home rule under article IX of the New York State Constitution; Supreme Court, Nassau County, granted that branch of plaintiffs' motion which was for summary judgment on the first cause of action, denied that branch of plaintiffs' motion which was for summary judgment on the second cause of action, denied defendants' cross motion for summary judgment dismissing the complaint, and remitted the matter to the Town Board of the Town of Hempstead for further proceedings; App. Div. modified by 1) deleting the provision denying that branch of plaintiffs' motion which was for summary judgment on the second cause of action and substituting therefor a provision granting that branch of the motion, 2) deleting the provision granting that branch of plaintiffs' motion which was for summary judgment on the first cause of action and substituting therefor a provision denying that branch of the motion as academic, and 3) deleting the provision remitting the matter to the Town Board of the Town of Hempstead for further proceedings; and, as so modified, affirmed, and remitted the matter to Supreme Court for entry of a judgment declaring that paragraph 7 of the subject Declaration of Restrictive Covenants is invalid and unenforceable; Supreme Court ordered that the plaintiff Blue Island Development have judgment on the second cause of action asserted in its complaint, and decreed that the restrictive covenant recorded against the subject real property, contained in the 2/21/08 Declaration of Restrictive Covenants, as modified by the 7/13/10 Modification of Declaration of Restrictive Covenants, and paragraph 7 of such, is invalid and unenforceable.

DIAZ, MATTER OF v GOLDBERG (146 AD3d 576):
1st Dept. App. Div. order of 1/17/17; dismissal of petition; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right and whether any jurisdictional basis exists to support an appeal as of right; Proceeding Against Body or Officer--Prohibition--Dismissal of petition; claimed double jeopardy violation by judge and district attorney; App. Div. denied the CPLR article 78 application, and dismissed the petition.

FMC CORPORATION, MATTER OF v NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (143 AD3d 1128):
3rd Dept. App. Div. order of 10/20/16; reversal; leave to appeal granted by App. Div., 2/2/17; Limitation of Actions--Four-Month Statute of Limitations--Whether four-month statute of limitations began to run when respondent advised petitioner that administrative order on consent was closed or when respondent issued final statement of basis selecting a remedy to address environmental contamination; environmental conservation--hazardous waste--whether respondent's selection of a remedial plan to address environmental contamination and decision to use the hazardous waste remedial fund to pay for the remediation was arbitrary and capricious; Supreme Court, Albany County, granted respondent's motion to dismiss the CPLR article 78 petition; App. Div. reversed, denied the motion, granted the petition, and remitted the matter to Supreme Court, Albany County, for proceedings not inconsistent with the decision.

GARCIA v NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE (2015 NY Slip Op 32601[U]):
1st Dept. App. Div. order of 12/16/15; affirmance; leave to appeal granted by Court of Appeals, 2/9/17; Health--CPLR article 78 proceeding and declaratory judgment action seeking to permanently enjoin defendants-respondents from implementing and enforcing amendments to the New York City Health Code mandating that children attending certain child care, pre-kindergarten, and kindergarten programs receive an annual influenza (flu) vaccine--whether the New York City Board of Health's regulations exceeded the limit of its authority, thereby violating the separation of powers doctrine; Supreme Court, New York County, granted plaintiffs-petitioners' motion to permanently enjoin defendants-respondents from implementing and enforcing certain amendments to the New York City Health Code, and denied defendants-respondents' cross motion to dismiss the petition.

For February 24, 2017 through March 2, 2017, the following preliminary appeal statements were filed:

GRAVANO v TAKE-TWO INTERACTIVE SOFTWARE, INC (142 AD3d 776):
1st Dept. App. Div. order of 9/1/16; modification; leave to appeal granted by Court of Appeals, 2/16/17; Civil Rights--Right of Privacy--Whether plaintiff's allegation that defendant video game maker used plaintiff's likeness to advertise video game stated a cause of action under Civil Rights Law �� 50, 51; whether video game and subject images are protected works under the First Amendment; Supreme Court, New York County, denied defendants' motion to dismiss the first cause of action in the complaint and for sanctions; App. Div. modified by granting the part of the motion seeking to dismiss, and otherwise affirmed.

LOHAN v TAKE-TWO INTERACTIVE SOFTWARE, INC. (142 AD3d 776):
1st Dept. App. Div. order 9/1/16; modification; leave to appeal granted by Court of Appeals, 2/16/17; Civil Rights--Right of Privacy--Whether plaintiff's allegation that defendant video game maker used plaintiff's digital portrait to advertise video game stated a cause of action under Civil Rights Law �� 50, 51; Supreme Court, New York County, denied defendants' motion to dismiss the complaint and for sanctions; App. Div. modified by granting the part of the motion seeking to dismiss, and otherwise affirmed.

MARINE HOLDINGS, LLC, MATTER OF v NEW YORK CITY COMMISSION ON HUMAN RIGHTS (137 AD3d 1284):
2nd Dept. App. Div. order of 3/30/16; reversal; leave to appeal granted by Court of Appeals, 2/14/17; Civil Rights--Discrimination Based on Disability--Whether substantial evidence supported the Commission's determination that landlord failed to establish it would suffer an undue hardship if required to accommodate a tenant with disabilities; Supreme Court, Queens County, granted the petition pursuant to the Administrative Code of the City of New York � 8-123 and CPLR article 78 to the extent of reducing the award of damages for mental anguish from the sum of $75,000 to $60,000, and otherwise confirmed the determination of the New York City Commission on Human Rights, denied the petition, dismissed the proceeding, and granted the Commission's, in effect, cross petition to enforce the determination to the extent of directing enforcement of the determination as modified; App. Div. reversed, granted the petition in its entirety, denied the, in effect, cross petition in its entirety, and annulled the Commission's determination.