New York State Court of Appeals Lists More Filings for March 23 Through 29

By Daily Record

A list of appeals with short title, jurisdictional predicate, subject matter and key issues is prepared each week.

Some of these filed appeals may never reach decision on the merits because of dismissal on motion, sua sponte, time deficiencies or because of stipulated withdrawals by the parties. Also, some counsel fail to file timely preliminary appeal statements, therefore the list should not be treated as comprehensive for any particular week.

The court welcomes motions for amicus curiae participation from those qualified and interested in the subject matter of these newly filed appeals. Please refer to Court Rule 500.23 and direct any questions to the clerk's office.

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

Ederer v. Gutsky, et al.: First Dept. App. Div. order of 12/5/ 06; affirmance; Partnership - accounting - withdrawal of partner - whether Partnership Law Section 26(b) exempted partners in limited liability partnership from individual obligations to account to withdrawing partner under earlier enacted and unamended Partnership Law Section 74; validity of withdrawal agreement - whether terms of withdrawal agreement were unreasonable or onerous, or agreement was entered under duress; Supreme Court, New York County, among other things, denied defendants' motion to dismiss the complaint, granted plaintiff's cross motion to the extent of dismissing defendants' counterclaims for fraud, unjust enrichment, and breach of contract, declared the withdrawal agreement dated June 26, 2003 to be valid and enforceable, granted so much of plaintiff's cross motion for summary judgment as was for an accounting against all defendants, and refused to rule in defendants' favor that goodwill should not be valued in the accounting; App. Div. affirmed.

Hospital for Joint Diseases, &c. v. Travelers Property Casualty Insurance Co. et al.: Second Dept. App. Div. order of 11/14/06; affirmance; leave to appeal granted by Court of Appeals, 3/22/07; Insurance - no-fault automobile insurance - waiver - failure to timely object to the adequacy of the claim forms or to seek verification of the purported assignment of claim; summary judgment - whether hospital adequately established that it mailed the statutorily prescribed billing forms to the insurance company; standing; Supreme Court, Nassau County granted the plaintiff hospital's motion for summary judgment on the third cause of action, denied defendants' cross motion for summary judgment dismissing the complaint, and directed judgment in favor of the hospital against the insurance company in the amount of $24,344.96 plus statutory no- fault interest and attorneys' fees pursuant to 11 NYCRR 65-4.6(e); App. Div. affirmed.

Kirksey (Alphonso), People v.: Second Dept. App. Div. order of 1/ 12/07; Appeals - challenge to appellate division order denying motion to file a supplemental reply brief; App. Div. denied motion by pro se appellant to serve and file a supplemental reply brief on an appeal from a judgment of the County Court, Orange County.

Ortega et al. v. City of New York: Second Dept. App. Div. order of 12/05/06; Torts - negligence - "third-party spoliation" - whether plaintiffs may maintain cause of action for third-party negligent spoliation of evidence for inadvertent violation of court order to preserve a vehicle that might have provided evidence enabling plaintiffs to pursue negligence claims against other parties; Supreme Court, Kings County denied plaintiffs' motion for summary judgment and, upon searching the record, granted the City of New York summary judgment dismissing Ortega's spoliation and contempt claims and plaintiff Peralta's contempt claim; App. Div. affirmed and, upon searching the record, granted the City of New York summary judgment dismissing plaintiff Peralta's cause of action to recover damages for spoliation of evidence.

Serio, et al., Matter of, v. Hevesi: First Dept. App. Div. order of 3/6/07; State - comptroller - audit power - New York State Insurance Department Liquidation Bureau - operations and property of insolvent insurers - quashing of subpoenas - New York State Constitution, Article V, Section 1; State Finance Law Section 111; Abandoned Property Law Section 1412-a; Supreme Court, New York County granted petitioner's application to quash subpoenas dated March 23, 2004 and served by respondent on petitioners, quashed such subpoenas, denied respondent's counterclaim for an order directing petitioners to comply with remaining portions of the subpoenas, declared that Article V, Section 1 of the State Constitution, State Finance Law Section 111 and the Abandoned Property Law Section 1412-a do not empower the State Comptroller to pre-audit and post- audit the financial management and operations of all insolvent insurers operated by the State Insurance Department Liquidation Bureau and do not grant the Comptroller authority to audit all property of insolvent insurers held by the Superintendent of the State Department of Insurance; App. Div. reversed, reinstated the subpoenas and declared that respondent has the power to post-audit the Liquidation Bureau's financial management and operations and to audit property of distressed insurers held by the Superintendent of Insurance.

Teichman, People ex rel. v. Riordan: First Dept. App. Div. order of 1/18/07; Appeal - academic and moot questions - appellate division dismissal of appeal as moot; [Habeas Corpus]; Supreme Court, New York County denied application for writ of habeas corpus; App. Div. dismissed appeal as moot.

White v. Continental Casualty Co. et al.: Fourth Dept. App. Div. order of 3/16/06; Insurance - disability insurance - breach of contract action - summary judgment - whether plaintiff physician was totally disabled as defined under disability income policy; Supreme Court, Erie County granted co-defendants' separate motions for summary judgment dismissing plaintiff's complaint as against each of them, denied plaintiff's motion for summary judgment, and ordered that co-defendant Continental Casualty Co. have forty days from entry of the court's order to submit its application for costs or such request would be deemed waived; App. Div. affirmed.

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