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For April 9, 2010 through April 15, 2010, the following preliminary appeal statements were filed:

BOOTHE (JAMES O.), PEOPLE v (68 AD3d 402):
1st Dept. App. Div. order of 12/1/09; modification; leave to appeal granted by Read, J., 4/1/10; CRIMES - INSURANCE FRAUD - INSURANCE FRAUD IN THE FIRST DEGREE (PENAL LAW § 176.30) - WHETHER PENAL LAW § 176.30 APPLIES TO FRAUDULENT HEALTH CARE INSURANCE ACTS DEFINED IN PENAL LAW § 176.05(2); Supreme Court, New York County, among other things, dismissed those counts of the indictment alleging insurance fraud in the first degree, scheme to defraud in the first degree and falsifying business records in the first degree; App. Div. modified to the extent of reinstating the scheme to defraud and falsifying records counts, and otherwise affirmed.

CASHEL v CASHEL (65 AD3d 1182):
2nd Dept. App. Div. order of 9/22/09; modification; leave to appeal granted by Court of Appeals, 4/6/10; Rule 500.11 review pending; DEEDS - ACTION TO SET ASIDE A DEED ON THE BASIS OF FRAUD - RATIFICATION OF DEED BY ACCEPTING THE BENEFITS OF A PRIOR MORTGAGE ON THE PROPERTY; MORTGAGES - FORECLOSURE; HUSBAND AND WIFE - DIVORCE; Supreme Court, Suffolk County, among other things, denied those branches of the motion of Mortgage Electronic Registration Systems, Inc. (MERS) and Fremont Investment & Loan (FLL) which were for summary judgment dismissing the first cause of action in Action No. 2, to strike the answer and defenses of the defendants in Action No. 3, for summary judgment on the complaint in Action No. 3, or alternatively, to direct defendant Thomas P. Cashel to satisfy the subject mortgage should he prevail on his claims in Action No. 3, and to appoint a referee to compute the amount due on the subject note and mortgage and to ascertain whether the premises should be sold as one parcel in Action No. 3; App. Div. modified by deleting the provision denying that branch of the motion by MERS and FLL which was for summary judgment dismissing the first cause of action in Action No. 2 insofar as asserted against them and substituting therefor a provision granting that branch of the motion, and affirmed as so modified.

EVANS (SHAREEF), PEOPLE v (69 AD3d 649):
2nd Dept. App. Div. order of 1/5/10; affirmance; leave to appeal granted by Ciparick, J., 4/8/10; CRIMES - RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - TRIAL COUNSEL'S FAILURE TO RAISE THE STATUTE OF LIMITATIONS AS A DEFENSE TO THE FIRST-DEGREE MANSLAUGHTER COUNT AND TO SEEK TO REOPEN THE SUPPRESSION HEARING; Supreme Court, Queens County convicted defendant of manslaughter in the first degree and imposed sentence; App. Div. affirmed.

GRANT, PEOPLE ex rel. v CONNEL (2010 NY Slip Op 64533[U]):
1st Dept. App. Div. order of 3/2/10; denial of motion for poor person relief and dismissal of appeal; sua sponte examination whether any jurisdictional basis exists to support an appeal as of right; HABEAS CORPUS - DENIAL OF PETITION FOR A WRIT OF HABEAS CORPUS; Supreme Court, New York County denied petition for a writ of habeas corpus; App. Div. denied petitioner's motion for poor person relief and dismissed the appeal.

HAMLET ON OLDE OYSTER BAY HOME OWNERS ASSOCIATION v HOLIDAY ORGANIZATION (65 AD3d 1284):
2nd Dept. App. Div. order of 3/2/10; denial of motion for leave to appeal to the Court of Appeals; motion to dismiss appeal pending; FRAUD - MARTIN ACT - NO PRIVATE RIGHT OF ACTION FOR COMMON-LAW FRAUD; Supreme Court, Nassau County granted motion made by defendants other than defendants Charles A. DiGiovanna Architect and Charles A. DiGiovanna, to the extent of dismissing the causes of action alleging fraudulent inducement, negligent misrepresentation and negligence insofar as asserted against the moving defendants except for defendants O.B. Ventures Corp., Holcom Incorporated and Hamlet on Olde Oyster Bay Food and Beverage Corp., dismissed the causes of action for breach of fiduciary duty insofar as asserted against the moving defendants except for defendants O.B. Ventures Corp., Holcom Incorporated and Hamlet on Olde Oyster Bay Food and Beverage Corp. insofar as they sought to recover damages for a period beyond three years prior to commencement of the action, and dismissed the causes of action alleging breach of contract insofar as asserted against the moving defendants except for defendants O.B. Ventures Corp., Holcom Incorporated and Hamlet on Olde Oyster Bay Food and Beverage Corp. to the extent of directing plaintiffs to serve an amended complaint to plead the causes of action alleging breach of warranty separately from those alleging breach of contract (7/13/06 order); thereafter, Supreme Court, in effect, upon reargument, granted the moving defendants' motion to clarify the prior determination; granted defendants Charles A. DiGiovanna A. Architect and Charles A. DiGiovanna's motion to dismiss the causes of action in the amended complaint alleging breach of contract, fraudulent inducement, negligent misrepresentation and negligence/malpractice insofar as asserted against them; and granted defendants Sidney B. Bowne and Sons, LLP and Dane C. Kenny's motion for the same relief (1/8/08 order); App. Div. granted the branches of respondents' motion and cross motions (9/29/09 order) which were for leave to reargue appeals from the 7/13/06 and 1/8/08 orders, respectively; recalled and vacated it's 2/24/09 decision and order and substituted the 9/29/09 decision in its place; dismissed the appeal from the 7/13/06 order; and affirmed the 1/8/06 order insofar as appealed from.

SHEERAN, MATTER OF v NEW YORK STATE DEPARTMENT OF TRANSPORTATION (68 AD3d 1199):
3rd Dept. App. Div. order of 12/3/09; reversal; leave to appeal granted by Court of Appeals, 4/6/10; CIVIL SERVICE - COMPENSATION AND BENEFITS - WHETHER CIVIL SERVICE LAW § 72 APPLIES ONLY TO EMPLOYEES PLACED ON INVOLUNTARY LEAVE FROM AN "ACTIVE" STATUS OR ALSO TO EMPLOYEES PLACED ON INVOLUNTARY LEAVE FROM VOLUNTARY SICK LEAVE STATUS; Supreme Court, Albany County granted a CPLR article 78 petition to the extent of annulling respondent Department of Transportation's determination placing petitioner on involuntary leave of absence and remanding to the agency for reconsideration; App. Div. reversed and dismissed the petition.

SMITH (SEAN), PEOPLE v (69 AD3d 450):
1st Dept. App. Div. order of 1/12/10; affirmance; leave to appeal granted by Ciparick, J., 4/8/10; CRIMES - SENTENCE - DIRECTION BY SUPREME COURT THAT DEFENDANT REGISTER WITH THE NEW YORK CITY POLICE DEPARTMENT PURSUANT TO GUN OFFENDER REGISTRATION ACT (GORA) (ADMINISTRATIVE CODE OF THE CITY OF NEW YORK § 10-601, ET SEQ.) - WHETHER GORA CHALLENGE CAN BE RAISED ON DIRECT APPEAL - WHETHER GORA IS PREEMPTED BY EXECUTIVE LAW § 259-a(2) GIVING THE NEW YORK STATE DIVISION OF PAROLE RESPONSIBILITY FOR SUPERVISING EX-OFFENDERS; Supreme Court, New York County convicted defendant of criminal possession of a weapon in the second and third degrees and unlicensed driving, and sentenced him, as a second felony offender, to an aggregate term of 5 years; App. Div. affirmed.

STATE OF NEW YORK, MATTER OF v ANDREW O. (68 AD3d 1161):
3rd Dept. App. Div. order of 12/3/09; affirmance; leave to appeal granted by Court of Appeals, 4/1/10; CRIMES - SEX OFFENDERS - CIVIL COMMITMENT OR SUPERVISION - CROSS-EXAMINATION OF RESPONDENT'S EXPERT REGARDING HIS RELIGIOUS BELIEFS - COMMENTS IN SUMMATION REGARDING EXPERT'S RELIGIOUS BELIEFS - ALLEGED DENIAL OF FAIR TRIAL; Supreme Court, Saratoga County, in a proceeding pursuant to Mental Hygiene Law article 10, found respondent to be a dangerous sex offender and confined him to a secure treatment facility; App. Div. affirmed.

For April 16, 2010 through April 22, 2010, the following preliminary appeal statements were filed:

MEADOWSWEET DAIRY, LLC, MATTER OF v HOOKER (71 AD3d 1266):
3rd Dept. App. Div. order of 3/11/10; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; AGRICULTURE - MILK CONTROL - PROCEEDING TO REVIEW DETERMINATION OF COMMISSIONER OF AGRICULTURE AND MARKETS FINDING THAT PETITIONER'S PRODUCTION OF RAW MILK AND RAW MILK PRODUCTS WAS SUBJECT TO REGULATION BY RESPONDENTS - AGRICULTURE AND MARKETS LAW - MILK PLANT PERMIT AND RAW MILK PERMIT; Supreme Court, Albany County dismissed petitioners' CPLR article 78 application to, among other things, review a determination of respondent Commissioner of Agriculture and Markets finding that petitioners' activity in producing raw milk and raw milk products was subject to regulation by respondents; App. Div. affirmed.

O'BRIEN v TOWN OF HUNTINGTON (66 AD3d 160):
2nd Dept. App. Div. order of 8/11/09; reversal and denial of motion; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right and whether the App. Div. order finally determines the action within the meaning of the Constitution; DEEDS - DETERMINATION OF CLAIM TO REAL PROPERTY - CHALLENGE TO APPELLATE DIVISION RULING THAT TOWN HAD SUPERIOR TITLED TO VACANT LAND DERIVED FROM COLONIAL LAND GRANT PATENTS - PLAINTIFFS' CLAIMS PREMISED UPON DEEDS, CHAINS OF TITLE AND, IN CERTAIN CASES, TAX DEEDS; Supreme Court, Suffolk County, judgment that, as relevant here, declared that plaintiffs, other than plaintiffs Thomas E. O'Brien and Evelyn E. O'Connell, have good, valid, absolute and unencumbered title in fee simple to eight of the subject parcels of real property, and that defendants' claims to the subject parcels are invalid, null and void; App. Div., as relevant here, reversed the judgment, granted defendants' motion pursuant to CPLR 4401 for judgment as a matter of law with respect to all nine of the subject parcels, awarded full and exclusive possession of the subject parcels to the Town of Huntington and Board of Trustees of the Town of Huntington, declared plaintiffs' claims to the subject parcels invalid, declared that plaintiffs and every person claiming under them are barred from asserting such claims to the subject parcels, and directed plaintiffs to forthwith quit and vacate the subject parcels; App. Div. also denied defendants' motion for summary reversal of stated portions of the judgment.

PHILLIPS (JAMES), PEOPLE v (68 AD3d 541):
1st Dept. App. Div. order of 12/15/09; affirmance; leave to appeal granted by Pigott, J., 4/8/10; CRIMES - FITNESS TO PROCEED TO TRIAL - DEFENDANT WITH BRAIN INJURY RESULTING FROM STROKES - APPLICABILITY OF PROTOCOLS ESTABLISHED IN PEOPLE v FRANCABANDERA (33 NY2d 429 [1974]); Supreme Court, New York County convicted defendant of attempted murder in the second degree, assault in the first degree, two counts of aggravated criminal contempt, two counts of criminal contempt in the first degree, two counts of criminal possession of a weapon in the third degree, and menacing in the third degree, and sentenced him to an aggregate term of 16 years; App. Div. affirmed.

RODRIGUEZ (FREDDY), PEOPLE v (72 AD3d 238):
1st Dept. App. Div. order of 2/16/10; reversal; leave to appeal granted by McGuire, J., 4/15/10; CRIMES - JURORS - JURY INSTRUCTIONS - WHETHER THE TRIAL COURT ERRED IN REFUSING TO CHARGE THE JUSTIFICATION DEFENSE PURSUANT TO PENAL LAW § 35.05(2); Supreme Court, Bronx County convicted defendant of manslaughter in the second degree, two counts of assault in the second degree, vehicular manslaughter in the second degree, two counts of vehicular assault in the second degree, and two counts of operating a motor vehicle while under the influence of alcohol, and sentenced him to an aggregate term of 6 to 15 years; App. Div. reversed and remanded the matter for a new trial.

SYRACUSE UNIVERSITY, MATTER OF v PROJECT ORANGE ASSOCIATES SERVICES CORP. (71 AD3d 1432):
4th Dept. App. Div. order of 3/19/10; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; EMINENT DOMAIN - PUBLIC USE - CHALLENGE TO APPELLATE DIVISION ORDER ANNULLING RESPONDENT'S DETERMINATION AUTHORIZING THE CONDEMNATION OF CERTAIN OF PETITIONER'S REAL PROPERTY - ALLEGED MISCONSTRUCTION OF PUBLIC USE CLAUSES IN FEDERAL AND STATE CONSTITUTIONS - TRANSPORTATION CORPORATIONS LAW § 11(3-a); App. Div. annulled the determination of respondent authorizing the condemnation of certain real property owned by petitioner and granted the EDPL 201 petition.

For April 23, 2010 through April 29, 2010, the following preliminary appeal statements were filed:

BELL (JAMEL), PEOPLE v (68 AD3d 545):
1st Dept. App. Div. order of 12/15/09; affirmance; leave to appeal granted by Ciparick, J., 4/8/10; CRIMES - SENTENCE - PERSISTENT VIOLENT FELONY OFFENDER - CHALLENGE TO THE CONSTITUTIONALITY OF DEFENDANT'S ADJUDICATION AS A PERSISTENT VIOLENT FELONY OFFENDER -- APPRENDI v NEW JERSEY (530 US 466 [2000]); Supreme Court, New York County convicted defendant of robbery in the second degree and sentenced him, as a persistent violent felony offender, to a term of 16 years to life; App. Div. affirmed.

BRABHAM (JESSE), PEOPLE v (66 AD3d 557):
1st Dept. App. Div. order of 10/22/09; modification; leave to appeal granted by Pigott, J., 4/1/10; Rule 500.11 review pending; CRIMES - SENTENCE - CONCURRENT AND CONSECUTIVE TERMS - PENAL LAW § 70.25(2-c) - WHETHER THE APPELLATE DIVISION WAS REQUIRED TO SPECIFY "THE FACTS AND CIRCUMSTANCES" SUPPORTING ITS DETERMINATION THAT "MITIGATING CIRCUMSTANCES" WARRANTED CONCURRENT SENTENCES FOR BAIL JUMPING IN THE SECOND DEGREE AND ANOTHER CRIME; Supreme Court, New York County convicted defendant of attempted criminal possession of a controlled substance in the third degree and bail jumping in the second degree and sentenced him, as a second felony offender, to consecutive terms of 4 to 8 years and 1 1/2 to 3 years, respectively; App. Div. modified, as a matter of discretion and in the interest of justice, to the extent of directing that the sentences be served concurrently, and otherwise affirmed.

BROWN (KENNETH), PEOPLE v (69 AD3d 466):
1st Dept. App. Div. order of 1/14/10; affirmance; leave to appeal granted by Graffeo, J., 4/23/10; CRIMES - WHETHER TRIAL COURT ERRED IN DENYING DEFENDANT'S CPL 420.40 MOTION FOR A FINANCIAL HARDSHIP HEARING TO DEFER OR VACATE THE MANDATORY SURCHARGES AND FEES IMPOSED AT TIME OF SENTENCE - WHETHER DENIAL OF REQUEST TO DEFER MANDATORY SURCHARGES CAN BE REVIEWED ON APPEAL FROM JUDGMENT OF CONVICTION; Supreme Court, New York County convicted defendant, upon his guilty plea, of burglary in the second degree and sentenced him, as a second violent felony offender, to a term of 5 years; thereafter, the same court denied defendant's motion pursuant to CPL 420.40 for a financial hardship hearing to defer or vacate the mandatory surcharges and fees imposed at time of sentence; App. Div. affirmed.

DOLBERRY v STATE OF NEW YORK (71 AD3d 948):
2nd Dept. App. Div. order of 3/23/10; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; COURTS - COURT OF CLAIMS - LEAVE TO FILE LATE CLAIM - PERSONAL INJURY CLAIM BY PRISONER; Court of Claims denied claimant's motion, in effect, for leave to file a late claim pursuant to Court of Claims Act § 10(6); App. Div. affirmed.

GRIFFITH OIL COMPANY, INC. v NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA. (68 AD3d 1622):
4th Dept. App. Div. order of 12/30/09; reversal; leave to appeal granted by App. Div., 3/19/10; INSURANCE - DUTY TO DEFEND AND INDEMNIFY - EXCLUSION OF GENERAL LIABILITY COVERAGE FOR PROPERTY DAMAGE CAUSED BY A POLLUTANT - SPUR PIPELINE OIL LEAK - WHETHER EXCEPTION TO POLLUTION EXCLUSION APPLIES; SUMMARY JUDGMENT; Supreme Court, Monroe County, upon reargument, granted the motion of defendant Nation Union Fire Insurance Company of Pittsburgh, PA. for partial summary judgment and denied that part of plaintiffs' cross motion for summary judgment; App. Div. reversed and denied National Union's motion for partial summary judgment, vacated the declaration, granted plaintiffs' cross motion in part and granted judgment to plaintiffs declaring that National Union is obligated to indemnify plaintiffs in the underlying actions and the proceeding commenced by the U.S. Environmental Protection Agency.

JORDAN (GEORGE), PEOPLE v (66 AD3d 577):
1st Dept. App. Div. order of 10/22/09; affirmance; leave to appeal granted by Graffeo, J., 4/27/10; Rule 500.11 review pending; CRIMES - SENTENCE - RESENTENCE - ADDITION OF POST-RELEASE SUPERVISION TO SENTENCE AFTER DEFENDANT'S RELEASE FROM PRISON; Supreme Court, New York County resentenced defendant to a term of 7 years with 5 years' post-release supervision; App. Div. affirmed.

SIMMONS v SACCHETTI (65 AD3d 495):
1st Dept. App. Div. order of 8/25/09; reversal; leave to appeal granted by Court of Appeals, 4/1/10; Rule 500.11 review pending; NEGLIGENCE - MAINTENANCE OF PREMISES - PROXIMATE CAUSE - SUMMARY JUDGMENT - EXISTENCE OF TRIABLE ISSUES OF MATERIAL FACT - UNATTENDED, 17-MONTH OLD CHILD SCALDED AFTER GETTING OR FALLING INTO BATHTUB AFTER HER BROTHER HAD TURNED ON HOT WATER ONLY AND WHILE MOTHER WAS IN ANOTHER ROOM; Supreme Court, Bronx County orders that, in an action for personal injury to an infant, denied the respective motions by defendants building owner and management company, and by defendant boiler service contractor, for summary judgment dismissing the complaint and all cross claims against them; App. Div. reversed, granted the motions and dismissed the complaint and all cross claims against defendants building owner, management company and boiler service contractor.

WILLIAMS, MATTER OF v NEW YORK STATE DIVISION OF PAROLE (71 AD3d 524):
1st Dept. App. Div. order of 3/18/10; reversal; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; PAROLE - SPECIAL CONDITIONS - CONDITION OF PAROLE FORBIDDING PETITIONER FROM HAVING CONTACT WITH HIS WIFE WITHOUT THE PERMISSION OF HIS PAROLE OFFICER - ALLEGED VIOLATION OF PETITIONER' S CONSTITUTIONAL RIGHTS TO MARRY, RAISE CHILDREN AND DUE PROCESS; Supreme Court, New York County modified a special condition of petitioner's parole that forbade him from having any contact with his wife without the permission of his parole officer, to permit petitioner to see his wife during non-curfew hours so long as the wife wished to see him; App. Div. reversed, reinstated the special condition and dismissed the CPLR article 78 petition.