Invoice or legal notice from New York Law Journal, Aug

z 1 Thursday, August 12, 2004 NEW YORK LAW JOURNAL 29 z o o

I i o Upon the papers filed in support of the application and no papers having been filed in opposition or relation missed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. Green Constr. Corp., 100 .W2d dated February 10, 2004, on the ground that the appellant has been deported. Upon the papers filed in support of mental joint record containing the peti­ tion, the opposition to the petition, and the order of reference (see CPLR 5026); gerous condition upon the land itself. As foolhardy as Ligon's conduct in the present case might have been, it does not after the filing of the respondent’s brief. FR;\NCOIS. res,, v. SULNEY, ap — CD

o Motion by defendant-appellant seeking, “0 thereto, it is 509): and it is further, the motion and the papers filed in oppo­ and it is further, rise to the level of an intervening act that in essence, to vacate dismissal of the o ORDERED that the application is ORDERED that the application is sition and relation thereto, it is ORDERED that Allstate Insurance becomes a superseding cause of his c o granted and the appeal Is marked with­ denied as academic ORDERED that the appellant show Company shall serve and file its answer­ injuries. The rule of superseding cause appeal is granted on condition that the O’ appeal is perfected by October 1, 2004; drawn. PRUDENTI, P.J., SMITH, ADAMS and cause before this court why an order ing brief, including its points of argu­ has been stated as follows: otherwise motion denied. o o> GESSMAN, plf-res, v. HERMAN def-ap, RIVERA, JJ., concur. should or should not be made and ment on the cross appeal, on or before “Where the acts of a third person MISULOVIN, res,, v, CHRISOMAUS, ap "0 Ca5 entered dismissing the appeal on the September 27, 2004 (see 22 NYCRR [or, as here, plaintiff himself] inter­ O> ECHHOUSE def-res — Separate applica­ By Gail Prudenti, P.J.; Smith, Adams ground that the appellant is no longer 670.8[cj[3]): and it is further, vene between the defendant’s con­ — Motion by plaintiff-respondent to o tions by the appellants to withdraw and Rivera, JJ. enlarge time to submit a respondent’s 3. available to obey the mandate of this ORDERED that the motion is other­ duct and plaintiff’s injury, the causal their respective appeals from an order MATTER OF SINGH, res, v. SINGH, ap court (see People u. Hutchings, 4G NY2d wise denied. connection is not automatically sev­ brief is granted, and said brief shall be 9L of the Supreme Court, Rockland — Appeal by Anjanee Singh from an served and filed within 21 days from the S36-, People u. Smith, 115 AD2d 625; Peo- ALTMAN, J.P., KRAUSMAN, SPOLZINO ered. In such a case, liability turns O County, dated December 24, 2003. order of the Family Court, Queens date of the order hereon. Upon the papers filed in support of ple u. Davis, 87 AD2d 578) by filing an and SKELOS, JJ., concur. upon whether the intervening act is Appellant, if he be so advised, may o the applications and no papers having County, dated June 22, 2004. affidavit on that issue in the office of the a normal or foreseeable conse­ o been filed in opposition or relation Now, on the court’s own motion, it is Clerk of this court on or before Septem- quence of the situation created by serve and file a reply brief within 14 days c ORDERED that the appeal is dis­ defendant’s negligence.. ..If the inter­ after the date of filing of the respondent’s thereto, it Is missed, without costs or disbursements, ber 3, 2004; and it is lurther, vening act is extraordinary under brief. 3 ORDERED that the motion by the ORDERED that the applications are granted and the appeals are marked as the order is not appealable as of right (see Family Ct Act §1112) and we decline appellant’s assigned counsel is held in abeyance in the interim; and it is further, APPELLATE the circumstances, not foreseeable in the normal course of events, or By: Aronin, J.P.; PeWerson and Goha, JJ. Q 3 withdrawn. MATTER OF CROMWELL, pet, v. to grant leave to appeal. PRUDENTI. P.J., SMITH, ADAMS and ORDERED that the Clerk of this court, or his designee is directed to serve a TERM independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks HEINZ, res., v. SERBAN, ap — Motion by defendants-appeliants for reargument GOORD, ETC., ap — Application by the RIVERA, JJ., concur. copy of this order to show cause upon or in the alternative leave to appeal to petitioner pursuant to 22 NYCRR By Gail Prudenti, P.J.: Smith, Adams the appellant at the institution in which ---------- mil--------------------------- the causal nexus.. ..Becau.se ques­ the Appellate Division denied. 670.8(d)(2) to enlarge the time to per­ and Rivera, JJ. he is confined, upon his attorney, and tions concerning what is foreseeable fect a proceeding pursuant to CPLR and what is normal may be the sub­ PEOPLE, res., v. YADEV BISNAUTH, ap MATTER OF SOLIWADA. ST. JOHNS upon the People, by ordinary mail pur­ SECOND & ELEVENTH — Motion by defendant-appellant for article 78 which was transferred to this suant to CPL 470.60(2). ject of varying inferences, as is the court by order of the Supreme Court, QUEENS HOSPITAL, res, IWACHIW, ap ALTMAN, J.P., KRAUSMAN, SPOLZINO JilDIGBAL DISTRICTS question of negligence itself, these leave to appeal is denied. Orange County, dated January 13, 2004. — Appeal by Walter Iwachiw from an ex By: Pesce, P.J., Golla issues generally are for the fact find­ By: Pesce, P.J.; Aronin parte order of the Supreme Court, and SKELOS, Jj., concur. ORDERED that the application is and Rios, JJ. er to resolve. and Patterson, JJ. Queens County, dated May 11, 2004. By Gail Pradend. P.J.; Ritter, Santucci, granted and the petitioner’s time to per­ Florio and Smith, JJ. MORRIS, ap., V. HOFSTRA UNIVERSITY, There are instances, to be sure, WESTERN ESTATES LLC, res., v. fect the proceeding is enlarged until Sep­ Now, on the court’s own motion, it is res — Appeal by plaintiff from an order where only one conclusion may be ROBERTS, ap — That branch of the tember 13,2004, and the record or ORDERED that the appeal is dis­ CARLINO, pif-res, v. SLOVAC ROMAN drawn from the established facts missed, without costs or disbursements, of the Civil Court, Richmond County (P. motion by tenant-appellant seeking to be appendix on the appeal and the appel­ CATHOLIC CHURCH OF BF HOLY Straniere, J.), entered June 13, 2003, and where the question of legal restored to possession pending appeal is lant’s brief must be served and filed on as no appeal lies from an ex parte order FAMILY, def THIRD-PARTY pif-ap: cause may be decided as a matter of which granted defendant Hofstra granted on condition tenant-appellant or before that date. (see CPLR 5701), and we decline to treat BUILDERS FOR THE FAMILY AND law. Those cases generally involve pay landlordrespondenl the sum of the appeal as an application pursuant to University’s motion for summary judg­ YOUTH DIOCESE OF BROOKLYN. INC., ment. independent intervening acts which $2,368.74 within 15 days of the date of PEOPLE, ETC., res, v. SCOTT CPLR 5704. THIRD-PARTY def-res — Application by operate upon but do not flow from FARRELL, ap — Application by the Order unanimously reversed without the order hereon. Tenant-appellant shall PRUDENTI, P.J., SMITH, ADAMS and the appellant for leave to withdraw an the original negligence” (Derdiarian be restored to possession forthwith respondent pursuant to 22 NYCRR RIVERA, JJ., concur. costs and motion by defendant Hofstra appeal from an order of the Supreme University for summary judgment v. Felix Contr. Corp., 51 NY2d 308, upon making the payment. Any applica­ 670,8(d)(2) to enlarge the time to serve By Gail Prudenti, P.J.; Ritter, Santucci, Court, Kings County, dated October 28, 315 [1980] [citations omitted]). and file a brief on an appeal from a denied, tion for an enlargement of the time to Florio and Smith, JJ. 2004. “The proponent of a summary judg­ Key to this determination is whether make payment shall be accompanied by judgment of the County Court, Nassau Upon the papers filed in support of LEE, ap, v. HENRY PHIPPS PLAZA ment motion must make a prima facie the “intervening act was divorced from a commitment from the Department of County, rendered January 18, 2002. the application, and no papers having SOUTH ASSOCIATES, L.P. RESPON­ showing of entitlement to judgment as a and not the foreseeable risk associated Social Services or other proof of the abil­ ORDERED that the application is been filed in opposition or in relation DENTS def — Application to withdraw matter of law, tendering sufficient evi­ with the original negligence” as well as ity to make payment. granted and the respondent’s time to thereto, it is That branch of the motion by tenant­ an appeal from an order of the Supreme dence to eliminate any material issues of whether “the injuries were different in serve and file a brief is enlarged until ORDERED that the application is appellant seeking a stay pending determi­ Court, Queens County, dated December fact from the case.. .In this slipand-fall kind than those which would have nor­ August 20, 2004, and the respondent’s granted and the appeal is deemed with­ mally been expected" to occur as a con­ nation of the appeal granted on condition brief must be served and filed on or 12, 2002. case, the defendantf ] bore the initial bur­ drawn, without costs or disbursements. den of submitting evidence that [it] did sequence of such negligence (id.). If that tenant-appellant, after being before that date. Upon the stipulation of the attorneys PRUDENTI, P.J.. RITTER, SANTUCCI, not create the allegedly defective or dan­ these conditions are met, defendant’s restored, continue to pay rent and/or use for the respective parties, dated July 23, KOEPPEL ap, v. CARLANDIA FLORIO and SMITH, JJ., concur. gerous condition, and did not have actual putative negligence merely “fumishefs] and occupancy to landlord-respondent 2004, it is CORPORATION res. ET AL., def — By Smith, J.P.: Miller, Adams, Rivera or constructive notice thereof” (Avellino the occasion for an unrelated act to a.s it becomes due at the rate of $789.58 ORDERED that the application is cause injuries not ordinarily anticipated,” per month for the period commencing Application by the respondents pur­ granted and the appeal is deemed with­ and Lifson, JJ. v. Trizechahn Newport, Inc., 5 AD3d 519 suant to 22 NYCRR 670.8(d)(2) to [2004] [citations and internal quotation cutting off causation by defendant’s negli­ with the date of her restoration to pos­ drawn, without costs or disbursements. MATTER OF ALGIERI, res, v. NEW gence (id.). Typical of this scenario is session and on the further condition that enlarge the time to serve and file a brief marks omitted]). PRUDENTI. P.J.. RITTER, SANTUCCI, YORK CITY HOUSING AUTHORITY, ap Boltax v. ,Ioy Day Camp (67 NY2d 617 she perfect the appeal by October 1, on appeals from an order of the Viewing the testimony contained in the FLORIO and SMITH, JJ., concur. — Application to withdraw an appeal [1986]), in which the plaintiff, a young 2(104. Supreme Court, Westchester County, transcripts of the examinations before elated December 12, 2003, and a judg­ By Gail Prudenti, P.J.; Smith, Adams from an order of the Supreme Court, trial, which were annexed to the motion adult, entered a closed pool area, at That branch of the motion by tenant- ment of the same court entered and Rivera, JJ. Kings County, dated November 12, papers submitted by defendant Hofstra night, and dove from a lifeguard's chair appellant seeking to punish landlor­ December 24, 2003. MATTER OF PARKER, ap, v. 2003. University, in the light most favorable to into the shallow end of the pool, which drespondent for contempt is severed. ORDERED that the application is MALFETANO, res--Appeal by Sandra Upon the stipulation of the attorneys plaintiff, the non-moving party (see was not completely filled. Plaintiff admit­ In this nonpayment proceeding, the granted and the respondents’ time to for the respective parties, dated June 21, Corvino v Mount Pleasant Cent, School ted that he was fully familiar with the petition, filed February 4, 2004, demand­ Parker from an order of the Family ed $1,453.91, consisting of alleged month­ serve and file a brief is enlarged until Court, Westchester County, dated July 2004, it is DiSt., 305 AD2d 364 [2003]; Torres vJere- existence of all of these conditions, but September 13, 2004, and the respon­ ORDERED that the application is mias, 283 AD2d 484f20Dl]), Hofstra Uni­ dove anyway. Even if defendant were pre­ ly rent of $811.91 for January 2004, a 16, 2003. December 2003 balance of $'537 and legal dents’ brief must be served and filed on granted and the appeal is deemed with­ versity’s employees cut the grass one or sumed to have negligently maintained Now, on the court’s own motion, it is fees of $105. The petition and notice of or before that date. drawn, without costs or disbursements. two days before plaintiff tell, the grass the pool and its fence, and even if this ORDERED that the appeal is dis­ negligence were presumed to be a petition were served by conspicuous- SMITH, J.P., S. MILLER, ADAMS. clippings were intended to remain on the By Altman, J.P.; Smith, Krausman and missed, without costs or disbursements, causative factor, as a matter of law it was place service. A default final judgment RIVERA and LIFSON, JJ., concur. grass, albeit as mulch, and that if the Skelos, JJ. as the order is not appealable as of right not reasonably foreseeable to defendant was entered on April 6,2004, awarding By Gail Prudenti, P.J.; Ritter, Santucci, grass was mowed while it was wet, (see Family Ct Act §1112) and we decline clumps of grass could have formed. In that a self-admittedly knowledgeable landlord possession only, and a warrant CORRADO, res, V. CORRADO, ap— to grant leave to appeal. Florio and Smith, JJ. Appeal by the defendant from an order addition, Hofstra University’s director of adult swimmer would act as plaintiff in issued that day. The warrant was execut­ PRUDENTI, P.J.. SMITH, ADAMS and DROBNAK, res, v. ST. ANDREWS grounds and landscaping and/or his that case did (id. at 620). ed on April 27, 2004. Tenant thereafter of the Supreme Court, Suffolk County, RIVERA, JJ., concur. dated March 30. 2004. By decision and GOLF CLUB ap-res, SUPERIOR AIR assistant looked at the intramural field There are limits to the doctrine of moved in the court below to be restored order on motion dated May 27, 2004, By Gail Prudenti, P.J.; Smith, Adams SYSTEMS MECHANICAL after it was mowed, but before plaintiff intervening acts and superseding cause, to possession, asserting, inter alia, that that branch of the appellant’s motion and Rivera, JJ. CORPORATION, res-ap (AND A THIRD- fell. As a result, the moving papers tailed however. Even acts that the onlooker she had no notice of the proceeding prior which was to stay all proceedings in MATTER OF MITCHELL, res, v. PARTY ACTION). — Separate applica­ to establish, as a matter of law, that Hofs­ might consider foolhardy in the extreme to the eviction, that her mailbox had the above-entitled action pending hear­ tions by the appellants-respondents tra University did not create the condi­ do not necessarily cut off defendant’s lia­ been broken into on several occasions; MITCHELL, ap — Appeal by Frederick that she had made partial payments; and ing and determination of the appeal and respondent-appellant for leave to tion or possess notice of its existence. bility where the resulting injury is one Mitchell from an order of the Supreme that she was being overcharged. The was granted on condition that the wi thdraw appeals and cross appeals Moreover, plaintiff submitted an affidavit that defendant might reasonably expect Court, Westchester County, dated June to result from its negligence, and plaintiff matter w.as .set down for a traverse. After appeal was perfected on or before June 8,2004. from two orders of the Supreme Court, from a witness who stated that on the 28, 2004. The appeal has not been per­ Westchester County, dated April 11, date ot plaintiff’s injury, she observed need not usmonstrate that the preci.se the traverse, at which the process server Now, on the court's own motion, it is clumps of grass on the field, people slip­ manner in which the accident occurred did not appear because he was allegedly fected. ORDERED that the appeal is dis­ 2003, and June 25, 2003, respectively. T' Now, on the court’s own motion, it is missed, without costs or disbursements, Upon the papers filed in support of ping on clumps of grass before plaintiff fell and plaintiff falling after slipping on a was foreseeable to defendant (Derdiari­ an, 51 NY2d 308, 315; Mesick v. State of out of the country, the court denied ten­ ant's motion based on its finding that ORDERED that the stay granted by the as no appeal lies from an order denying the applications, and no papers having been filed in opposition or in relation clump of grass. In light of the foregoing, New York, 118 AD.2d 214, 218 [1986]). In missing mail was not as big a problem as decision and order on motion dated a motion for reargument. Mesick, the 17-year-old plaintiff slipped tenant asserted it to be. May 27, 2004, is vacated forthwith, for thereto, it is Hofstra University's motion for summary PRUDENTI, P.J., SMITH, ADAMS and judgment should have been denied (see while getting up speed to grab a rope On June 16, 2004, this court signed an failure to perfect the appeal by June 28, RIX'ERA, JJ., concur. ORDERED that the applications are granted and the appeals and cross Gordon v. American Museum of Natural swing attached to a tree, overhanging not order directing landlord to show cause 2004. why tenant should not be restored to AITMAM TD SAfltTtJ VD AnCA4 AM ar-H By Gail Prudenti, P.J.; Ritter, Santucci, appeals are deemed withdrawn, without History, 67 NY2d 836 [1986]; Winegrad v. only a creek but a cluster of jagged rocks, i»t.. T i_j.. J r'x,. j oci orhiz'b lUointiff foil nftor mivcincf tbp nossession nendinc auoeal. The order to