| THE FOLLOWING MOTION ORDERS WERE ENTERED AND FILED ON AUGUST 26, 2004 |
| Buckley, P.J., Nardelli, Tom, Mazzarelli, Andrias, JJ. M-3298 The New York Times Newspaper Division of the New York Times Company v Lehrer McGovern Bovis, Inc. (And other actions) Appeal and cross appeal withdrawn. |
| Buckley, P.J., Nardelli, Tom, Mazzarelli, Andrias, JJ. M-3311X Beckhard Richlan Szerbaty & Associates, L.L.P. v AMCC Corp. (And another action) Appeals withdrawn. |
| Buckley, P.J., Nardelli, Tom, Mazzarelli, Andrias, JJ. M-3232 People v Amuso, Michael M-3233 Bonet, Angel M-3236 Chandler, Gregory M-3239 Duram, James, also known as Durham, James M-3240 Gaymon, William, also known as Gaymon, Willie M-3241 Goodson, Michael M-3243 Johnson, Fatin Leave to prosecute appeals as poor persons granted, as indicated. |
| Buckley, P.J., Nardelli, Tom, Mazzarelli, Andrias, JJ. M-3244 People v Nieves, Heriberto M-3246 Roberts, Marlon M-3247 Rodriguez, Jose M-3249 Smith, Kevin M-3250 White, James Leave to prosecute appeals as poor persons granted, as indicated. |
| Buckley, P.J., Nardelli, Andrias, Williams, Gonzalez, JJ. M-2308 In the Matter of Sanders, also known as Burgess v New York State Division of Parole Moving papers deemed a timely filed notice of appeal. |
| Buckley, P.J., Mazzarelli, Sullivan, Friedman, Gonzalez, JJ. M-1774 Edwardo Galleries, Ltd. v Federal Express Corporation M-2000 Leave to appeal to the Court of Appeals denied; modification denied. |
| Nardelli, J.P., Tom, Sullivan, Ellerin, Williams, JJ. M-2659 Oil Heat Institute of Long Island, Inc. v Gerber Life Insurance Company Time to perfect appeal enlarged to the December 2004 Term. |
| Nardelli, J.P., Tom, Sullivan, Ellerin, Williams, JJ. M-2869 Wallace v Foundation for Research on Sexually M-2940Transmitted Diseases, also known as FROST'D Leave to vacate interim stay granted by a Justice of this Court dated June 21, 2004 denied; stay of enforcement denied; appellant directed to perfect appeal for the January 2005 Term. |
| Nardelli, J.P., Lerner, Friedman, Gonzalez, JJ. M-3050 People v Stevenson, Anthony, also known as Stevenson, Anthony D. Reargument denied. |
| Tom, J.P., Mazzarelli, Sullivan, Williams, Gonzalez, JJ. M-3052 People v Figueroa, Hector Leave to prosecute appeal as a poor person granted, as indicated. |
| Tom, J.P., Saxe, Williams, Gonzalez, JJ. M-2335 In re Murray v Murray Amendment of this Court's order granted, as indicated. |
| Tom, J.P., Saxe, Lerner, Marlow, Gonzalez, JJ. M-2876 Green v New York City Housing Authority Reargument or other relief denied. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3169 People v Frazier, Lamar Notice of appeal deemed timely filed; leave to prosecute appeal as a poor person granted, as indicated. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3134 S., Ira v S., Lauren Leave to prosecute appeal as a poor person granted, as indicated. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-2900 People v Pena, Esteban Moving papers deemed a timely filed notice of appeal; leave to prosecute appeal as a poor person denied, with leave to renew, as indicated. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3170 People v Johnson, William Notice of appeal deemed timely filed; leave to prosecute appeal as a poor person denied, with leave to renew, as indicated. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3172 People v Lopez, Ricardo, also known as Lopez, Carlos Moving papers deemed a timely filed notice of appeal; leave to prosecute appeal as a poor person denied, with leave to renew, as indicated. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-2925 People v Castillo, Freddy Leave to prosecute appeal as a poor person denied, with leave to renew, as indicated. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3043 People v Ramon, Pichardo, also known as Pichardo, Ramon Leave to prosecute appeal as a poor person denied, with leave to renew, as indicated. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3027 Braun v 941 Park Ave., Inc. Appeals consolidated; time to perfect same enlarged to the December 2004 Term. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3094 Schechter v The Opera Owners, Inc. (And other actions) Time to perfect appeals enlarged to the December 2004 Term. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3129 Lipsky v Bierman M-3135 In the Matter of "P., Male", also known as P., Terry; "P., Male", also known as P., Allen; "P., Male", also known as P., Miguel; and McC., Gary Thomas - Cardinal McCloskey Children and Family Services M-3139 Uriondo v Timberline Camplands, Inc. M-3148 Griffin v New York City Transit Authority M-3150 (And other actions) M-3161 Powell v The Metropolitan Entertainment Co. M-3209 Carter-Clark v Random House, Inc. M-3333 Mars v Mars Time to perfect appeals enlarged to the December 2004 Term. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3117 Simms v APA Truck Leasing Corporation Time to perfect appeal enlarged to the December 2004 Term, as indicated. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3136 In the Matter of M., "Male", also known as M., Jose - - Little Flower Children's Services Time to perfect appeal enlarged to the December 2004 Term, as indicated. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3177 In the Matter of K., Tristram v K., Ging (And other actions) Time to perfect consolidated appeals enlarged to the December 2004 Term; motion otherwise denied. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3048 Paradise Heating Oil, Inc. v Commonwealth Land Title Insurance Company Time to perfect appeal enlarged to the January 2005 Term. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3293 Crespo v Dormitory Authority of the State of New York (And a third-party action) Time to perfect appeal enlarged to the February 2005 Term. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3193 Colgate Scaffolding & Equipment Corp. v ABI Property Partners L.P. XXVI Time to perfect appeal enlarged to the February 2005 Term. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3262 Welch v Scheinfeld (And another action) Time to perfect appeal and cross appeal enlarged to the February 2005 Term. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3156 Roberts v 112 Duane Associates, LLC M-3335 - Abra Construction Corp. Appeal dismissed unless perfected for the December 2004 Term, as indicated; enlargement of time to perfect same granted accordingly. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3058 Reyes v Sequiera Moving papers deemed a timely filed notice of appeal from order of the Supreme Court, Bronx County, entered on or about June 16, 2004 and from order and judgment (one paper) of said court entered on or about July 1, 2004; stay granted on condition appeal perfected for the December 2004 Term, as indicated. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3228 In the Matter of New York Foundation for Senior Citizens, Guardian Services, Inc. - Schoon Stay denied. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3127 Movado Group, Inc. v Gucci Group N.V. CPLR 5704(a) and other relief denied. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3192 Van Dusen v Van Dusen Stay denied. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3163 Prince Fashions, Inc. v 542 Holding Corp. M-3300 Stay granted on condition appeal perfected for the January 2005 Term and undertaking posted; leave to expedite appeal granted accordingly, all as indicated. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3131 Fuks v Rakia Associates Stay granted on condition appeal perfected for the December 2004 Term, as indicated. |
| Mazzarelli, J.P., Andrias, Friedman, Catterson, JJ. M-3281 Finova Capital Corporation v Berger (And a third-party action) Appeals consolidated; time to perfect same enlarged to the December 2004 Term, as indicated. |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-3120 Urbina v 26 Court Street Associates, LLC (And other actions) Appeal deemed withdrawn. |
| Mazzarelli, J.P., Andrias, Ellerin, Friedman, Gonzalez, JJ. M-1691 DeRosa v Chase Manhattan Mortgage Corporation Reargument granted to the extent of recalling and vacating the decision and order of this Court entered on March 23, 2004 (Appeal Nos. 1918-1919) and substituting a new decision and order therefor. (See Appeal Nos. 1918-1919, decided simultaneously herewith.) All concur except Andrias, J., who dissents as follows: I respectfully dissent and would deny reargument. Initially, plaintiff, not defendant Chase, seeks reargument solely on the grounds that this Court improperly assumed jurisdiction to be a trier of fact and then repeatedly erred on the facts; that this Court disregarded written evidence of defects in the notice of foreclosure sale; and that, inasmuch as this Court acted as a de novo trier of fact, plaintiff should have an automatic appeal to the Court of Appeals. Counsel for Chase, other than noting that he represents "Chase Manhattan Mortgage Corp. (improperly named as JP Morgan Chase Bank in the above caption and hereinafter referred to as 'Chase')," does not object to the appellate caption, does not cross-move for any relief, and simply opposes plaintiff's motion on the ground that it seeks to raise issues (about lack of discovery) not previously argued and that it fails to establish that this Court overlooked or misapprehended relevant facts or misapplied controlling law. Chase merely asks that the motion be denied and does not ask for any sanctions based on frivolousness or otherwise. To act as the nisi prius court and decide this motion as if it came directly to us set an unfortunate precedent. In Matter of Harkness Apt. Owners Corp. v Abdus-Salaam (232 AD2d 309), this Court took what I consider the proper corrective action in such a situation, viz., declaring that the nisi prius justice is without jurisdiction to act in respect to this matter and remanding the case to Supreme Court for disposition before a different justice. Thus, to the extent that the majority is now recalling and vacating its original decision, the state of appellate jurisprudence is better off. Nevertheless, on the present record, there is no basis for granting reargument. Moreover, for the majority to now use plaintiff's reargument motion as an opportunity to sua sponte find that plaintiff and his counsel may have acted improperly in unilaterally amending the caption, and supplementing the record to include documents not before the IAS court to raise a claim of statutory disqualification is both inappropriate and based upon pure conjecture. This Court should not, on plaintiff's motion for reargument, which is made on entirely different grounds, now attempt to ignore such statutory disqualification under the guise of finding such disqualification not properly raised for the first time on appeal. Accordingly, inasmuch as plaintiff, as the moving party, has failed to demonstrate that this Court overlooked or misapprehended any of the legal or factual issues raised by him, the appropriate disposition is to simply deny plaintiff's motion and I recommend that we do so without further ado. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3285 Vicente v DaimlerChrysler Corporation, sued herein as DaimlerChrysler Motors Corporation Appeal dismissed unless perfected for the December 2004 Term, as indicated. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3419 Toni Industries, Inc. v Heller Financial, Inc. Appeal dismissed unless perfected for the December 2004 Term, as indicated. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3455 Papadopoulas v Papadopoulas Appeals dismissed unless perfected on or before November 8, 2004 for the January 2005 Term, as indicated. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3532 McNamara v Guazzoni M-3593 Time to perfect appeal and cross appeal enlarged to the January 2005 Term, as indicated; cross motion otherwise denied. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3202 Pennsylvania Building Company v Schaub Time to perfect appeal enlarged to the December 2004 Term. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3266 Messinger v Girl Scouts of the U.S.A. Time to perfect appeal enlarged to the December 2004 Term. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, JJ. M-3443 In the Matter of Snitow & Pauley v Abramowitz Time to perfect appeal enlarged to the January 2005 Term. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3517 Plotnick v The American Society for the Prevention of Cruelty to Animals Time to perfect appeal enlarged to the December 2004 Term. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3444 McKnight v McKnight Time to perfect appeal enlarged to the December 2004 Term. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3387 Maloney v Spencer Time to perfect appeal enlarged to the December 2004 Term. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3276Gorbea v Uriel Time to perfect appeal enlarged to the December 2004 Term. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3376Mitchell v The City of New York Time to perfect appeal from order entered on or about September 10, 2003 enlarged to the January 2005 Term; Clerk directed to calendar appeal with previously perfected appeal from order entered on or about February 6, 2003 for hearing together in said January 2005 Term. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3618In the Matter of G., Angel Shante; G., Christia Brittany and G., Robin Jamaal - New York Foundling Hospital Appellant/mother's mother appeal enlarged to the December 2004 Term to which Term respondent-appellant/father's appeal adjourned; Clerk directed to calendar appeals for hearing together during said Term. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3416 B.D. Cooke & Partners Limited v Nationwide Mutual Insurance Company Appeal and cross appeal from order entered October 15, 2003 adjourned to the December 2004 Term; plaintiff directed to perfect appeal from order entered July 2, 2004 for said Term; Clerk directed to calendar the appeals and cross appeal for hearing together in said December 2004 Term. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3619 In the Matter of G., Joseph Ori Meir - Commissioner of Social Services of the City of New York Time to perfect appeal enlarged to the November 2004 Term. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3669 MKP Master Fund, LDC v Salomon Smith Barney, Inc. Supplemental record on appeal submitted with moving papers deemed filed under seal. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3483 Brown v Aames Capital Corporation Time to perfect appeals enlarged to the December 2004 Term. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3462 Motto v New York City Transit Authority Leave to strike portions of defendant-respondent's brief denied. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3310 Feder v Tower Air, Inc. Stay of trial and other relief granted. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3278 Spector v Spector Stay denied. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3374 Steinberg v W.J. Nolan & Co., Inc. (And a third-party action) Stay granted on condition appeal perfected for the December 2004 Term, as indicated. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3383 Joy v City of New York Stay granted; appellant directed to perfect appeal for the January 2005 Term. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3099 Triangle Equities Inc. v Listokin M-3489 Stay granted on condition appeal perfected for the December 2004 Term; leave to expedite appeal granted; all as indicated. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3315 Flores v Willard J. Price Associates, LLC (And a third-party action) Stay granted. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3330 W., Lynn v W., David Stay denied. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3344 In the Matter of R., Lee Mark, Jr. - Administration for Children's Services Stay denied. |
| Mazzarelli, J. M-5823 People v Gould, Khalib Leave to appeal to this Court denied. |
| Nardelli, J.P., Mazzarelli, Saxe, Ellerin, Williams, JJ. In the Matter of Attorneys Who Are in Violation of Judiciary Law Section 468-a: M-3225Virginia Ehrlich, admitted on 5-2-88, at a Term of the Appellate Division, First Department Respondent reinstated as an attorney and counselor-at-law in the State of New York, effective the date hereof. No opinion. All concur. |
| The following orders were entered and filed on August 19, 2004 |
| Buckley, P.J., Nardelli, Tom, Mazzarelli, Andrias, JJ. M-3488X 1114 Trizechahn-Swig, LLC v W.R. Grace & Co.-CONN., Inc. Appeal from order entered on or about September 30, 2003, withdrawn. (See M-2812 & M-3309, decided simultaneously herewith.) |
| Mazzarelli, J.P., Andrias, Saxe, Friedman, Catterson, JJ. M-2812 1114 Trizechahn-Swig, LLC v W.R. Grace & Co.-CONN., M-3309Inc. Dismissal of appeal from order entered on or about March 16, 2004 granted unless perfected for the December 2004 Term, as indicated. (See M-3488X, decided simultaneously herewith.) |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3326 In the Matter of R., Vincent - Administration for Children's Services Time to perfect appeal enlarged to the November 2004 Term. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3313 In the Matter of C., Ezekiel; C., Pedro; C., Christopher; C., Calvin and R., Victor - Administration for Children's Services Appeal adjourned to the November 2004 Term. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3390 In the Matter of Buffalo Civic Auto Ramps, Inc. v Serio Time to perfect proceeding enlarged to the December 2004 Term. |
| Lerner, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ. M-3227 Baker v Winter Interim relief granted by order of a Justice of this Court, dated July 15, 2004, continued; appellant's counsel directed to perfect appeal for the November 2004 Term. |