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Thursday, August 12, 2004 NEW YORK LAW JOURNAL 27 z z o 2003, which denied its motion to vacate ALTMAN, J.R, CRANE, FISHER and UF- o an order of the same court dated June SON, JJ., concur. claim (see People v. Doshi, 93 NY2d 499, 506). Although the complainants were or if assigned counsel cites or relies upon the probation report in a brief or of the Supreme Court. Kings County, rendered January 7,1994, MATTER OF MICHAEL ANGEL R. (ANONYMOUS). SALVATION ARMY, res. co 2, 2003, granting the petition to compel By Luciano, J.P.; Mastro, Spolzino and represented by an attorney during the motion in any other way, counsel shall Upon the papers filed in support of ROSELLA ELLEN R, (ANONYMOUS), ap § it to pay the petitioner the sum of $77,266.52, upon Its default in opposing Skelo8,JJ. defendant’s trial, this attorney took steps to keep his clients’ plans a secret, includ­ provide a complete copy of such report and any attachments to the court and the motion and no papers having been filed in opposition or in relation thereto. — Appeal by Rosella Ellen R. from an order of the Family Court, Kings ■D c '2 the petition. MATTER OF CRYSTAL R. ing having the notices of claim he filed the District Attorney’s office prior to the it is County, dated January 23, 2004. By ORDERED that the order is reversed, (ANONYMOUS), ap — (DOCKET NO. D- against the school district kept confiden­ filing of such brief or motion; and it is ORDERED that the motion is granted decision and order of this court dated CT on the law and as a matter of discretion, 509-03) — In a juvenile delinquency pro­ tial. further, o with costs, the motion is granted, and ceeding pursuant to Family Court Act Furthermore, we agree with the defen­ and the appeal is dismissed (see 22 June 10, 2004, the appellant was gr ant­ o' o ORDERED that pursuant to County NYCRR 670.8[f]: CPL47O.60[1]). ed leave to renew a motion for leave to the order dated June 2, 2C03, is vacated. article 3, Crystal R. appeals from an dant that the trial court improperly Law §722 the following named attorney RITTER, J.P., S. MILLER, GOLDSTEIN, prosecute the appeal as a poor person ■a A court may vacate a default where order of disposition of the Family Court, restricted the cross-examination of one is assigned as counsel to prosecute the and SPOLZINO, JJ.. concur. on or before July 28, 2004. The appel­ o o> the moving party demonstrates both a Richmond County (McElrath, J.), dated of the complainants concerning a false appeal: By Ritter, J.P.; Miller, Goldstein and lant has failed to do so. Pursuant to 3. Ca3 reasonable excuse for the default and June 25, 2003. which, after a hearing, police report that complainant allegedly 03 Raymond E. Kerno, Esq. Spolzino, JJ. §670.4(a)(5) of the rules of this court O> the existence of a meritorious defense and upon a fact-finding order of the had filed against his father. Since the 1527 Franklin Avenue (22 NYCRR 670.4[a]I5]), it is 0 Ca5 (see CPLR5015[a][l];/?ay/?ea/l>-Fu/ton. same court dated April 7, 2003, finding issue of that complainant’s credibility A.B. MEDICAL SERVICES, PLLC ap, v. Mineola, New York 11501 ORDERED that the parties or their o Inc. V. Kwang Hee Lee, 7 AD3d 772; Orwell that the appellant committed acts vis—vis that of the defendant was para­ STATE FARM MUTUAL AUTOMOBILE which, if committed by an adult, would and it is further, attorneys are directed to show cause o Bldg. Corp. u. Bessaha, 5 AD3d 573; Quis have constituted the crimes of assault mount. it was prejudicial error to have ORDERED that the appellant’s time to INSURANCE COMPANY res — Motion before this court why an order should c u. Bolden, 298 AD2d 375). The appellant’s precluded this line of questioning on by the plaintiffs for leave to appeal to attorney submitted sufficient evidence in the third degree (two counts), cross examination (see People v. Mills, perfect the appeal is enlarged; assigned counsel shall prosecute the appeal expe­ this court from an order of the or should not be made and entered dis­ 3 adjudged her to be a juvenile delin­ missing the appeal in the above-entitled CD to substantiate his explanation for his 146 AD2d 810; People v. Scoon, 130 AD2d ditiously in accordance with this court’s Appellate Term of the Supreme Court, proceeding by each filing an affirmation 3 failure to timely submit the papers in quent and placed her in the custody of 597). Second and Eleventh Judicial Districts, the New York State Office of Children rules (see 22 NYCRR 670.1, et seq.) and or affidavit on that issue in the office of opposition to the petition (see CPLR The defendant’s remaining con­ written directions; and it is further, dated February 10, 2004, which modi­ the Clerk of this court and serving one 2005). Furthermore, the appellant and Family Services for a period of 12 tentions either are unpreserved for fied an order of the Civil Court. Kings months with credit for lime spent in ORDERED that in the event the file copy of the same on each other on or demonstrated a meritorious defense to appellate review or without merit. has been sealed, it is hereby unsealed County, entered November 22, 2002. before August 23,2004; and it is further, the petition to compel payment of the detention. The appeal brings up for ALTMAN, J.P., S. MILLER, LUCIANO and Upon the papers filed in support of review the fact-finding order dated April for the limited purpose of allowing ORDERED that the Clerk of this court, judgment (see Insurance Law CRANE, JJ., concur. assigned counsel or his representative the motion and the papers filed in oppo­ or his designee, is directed to serve a §5208[a][3]: Matter of McCray u. Motor 7, 2003. sition thereto, it is ORDERED that the appeal from so access to the record for the purpose of copy of this decision and order upon Vehicle Acc. Indem. Corp., 232 AD2d 948; By Ritter, J.R; Miller, Goldstein and preparing the appeal; such access shall ORDERED that the motion is denied. the parties or their attorneys. Matter of Wilcox v. Motor Vehicle Acc. much of the order of disposition as Spolzino, JJ. RITTER, J.P. S. MILLER, GOLDSTEIN placed the appellant in the custody of include permission to copy the papers MATTER OF KHIERKT. Indent. Corp., 187 AD2d 909; Sain o. For­ insofar as they pertain to the appellant; and SPOLZINO, JJ., concur. rest, 130 AD2d 733). Accordingly, the the New York State Office of Children. PEOPLE, ETC., plf. v. GIL SHEARER, (ANONYMOUS). CHILD DEVELOPMENT and Family Services for a period of 12 def — Motion by the defendant pro se and it is further, REED, res, v. REED, ap — Appeal by SUPPORT CORPORATION, res, NABILA Supreme Court should have granted the ORDERED that assigned counsel is motion to vacate an order granting the months with credit for time spent in pursuant to CPL 460.30 for an extension George Hopp Reed from a judgment of T. (ANONYMOUS) ap — Appeals by detention is dismissed as academic, as of time to take an appeal from a judg­ directed to serve a copy of this order the Supreme Court, Richmond County, Macee P. and Nabila T, from an order of petition entered upon its default in the period of placement has expired (see ment of the County Court, Westchester upon the Clerk of the court from which dated November 14. 2003. The appel­ the Family Court, Queens County, dated opposing the petition. Matter of Paul C., 5 AD3d 592; Matter of County, rendered March 10, 2004, for the appeal is taken. lant’s brief was served and filed on August 29, 2003. The brief of the appel­ ALTMAN, J.P., GOLDSTEIN, SCHMIDT, Shamasia M., 4 AD3d 359); and it is fur­ leave to prosecute the appeal as a poor RITTER, J.P., S. MILLER, GOLDSTEIN, June 24, 2004, and the respondent’s COZIER and SKELOS, JJ., concur. lant Nabila T. was filed in the office of ther, person, and for the assignment of coun­ and SPOLZINO, JJ., concur. brief was served and filed on July 21, By Smith, J.R; Miller, Adams, Rivera the Clerk of this court on May 6, 2004, ORDERED that the order of disposition sel. By Ritter, J.P.; Miller, Goldstein and 2004. Pursuant to §670.4(a)(2) of the and the brief of the appellant Macee P, and Lifson, JJ. is modified, on the law, by vacating the Upon the papers filed in support of Spolzino, JJ. rules of this court (see 22 NYCRR Was filed on June 14, 2004. Pursuant to CORDERO, ap, v. SALAZAR res — provision thereof adjudging the appel­ the motion and the papers filed in oppo­ 670.4la][2]),itis §670,4(a)(2) of the rules of this court PEOPLE, ETC., res, v. LORENZO ORDERED that the time of the law GNDEX NO. 6779/01) — In an action to lant to be a juvenile delinquent based sition thereto, it is (see 22 NYCRR 670.4[a][2]), it Is recover damages for personal injuries, MCFARLANE, ap — Motion by the upon the finding that she committed ORDERED that the motion is denied. guardian to serve and file a brief on the ORDEl^D that the law guardian’s time the plaintiffs appeal from (1) an order of appellant for leave to prosecute an acts which, if committed by an adult, RITTER, J.P., S. MILLER, GOLDSTEIN, appeal is enlarged until September 3, to serve and file a brief on the appeal is the Supreme Court, Suffolk County appeal from a judgment of the County 2004. would have constituted the crime of and SPOLZINO, JJ., concur. enlarged until August 16, 2004. (Underwood. J.), dated July 25, 2003, Court, Nassau County, rendered July 1, assault in the third degree under Penal By Gail Prudeuti, P.Jg Smith, Adams MATTER OF JASON Z. which granted the motion of the defen­ 2004, as a poor person, and for the MATTER OF OLIPHANT, res, v. Law §120.00(3), and substituting therefor and Rivera, JJ. (ANONYMOUS), ap — Appeal by Jason dants Ingris Salazar and Maria 1. a provision dismissing the fourth count assignment of counsel. OLIPHANT, ap — Appeal by Bryan Gutierrez and the separate motion of PEOPLE, ETC., res, v. TIMOTHY Upon the papers filed in support of Z. from an order of the Family Court, Oliphant from an order of the Family of the petition; as so modified, the order Orange County, dated December 17. the defendant Yaira Y. Carranza for sum­ of disposition is affirmed insofar as STUCKEY, ap — Motion by the respon­ the motion and the papers filed in rela­ Court, Westchester County, dated mary Judgment dismissing the com­ dent to dismiss as abandoned an tion thereto, it is 2003. Pursuant to §670.4(a)(2) of the December 9, 2003. Pursuant to reviewed, without costs or disburse­ rules of this court (see 22 NYCRR plaint insofar as asserted against them ments, and the fact-finding order is modi­ appeal from a judgment of the County ORDERED that the motion is granted; §670.4(a)(2) of the rules of this court on the ground that neither plaintiff sus­ fied accordingly. Court, Rockland County, rendered and it is further, 670.4(al[2J). it is (see 22 NYCRR 670.4IaJ[2]), it is tained a serious injury within the mean­ October 27, 1999. ORDERED that the appeal will be ORDERED that the appellant’s time to ORDERED that the appellant’s time to Viewing the evidence in the light most ing of Insurance Law §5102(d), and (2) a favorable to the presentment agency Upon the papers filed in support of heard on the original papers (including perfect the appeal by causing the origi­ perfect the appeal by causing the origi­ judgment of the same court entered (see Matter of Stafford B., 187 AD2d 649, the motion and no papers having been a certified transcript of the proceedings, nal papers constituting the record on nal papers constituting the record on October 8, 2003, which, upon the order, filed in opposition or in relation thereto, if any) and on the appellant’s and the the appeal to be filed in the office of the the appeal to be filed in the office of the 650; cf. People v. Contes, 60 NY2d 620), dismissed the complaint. we find that it was legally sufficient to it is respondent's briefs; the parties are Clerk of this court (see 22 NYCRR Clerk of this court (see 22 NYCRR ORDERED that the appeal from the prove beyond a reasonable doubt that ORDERED that the motion is granted directed to file nine copies of their 670.4[a]j2]) and by serving and filing 670.4[a][2]) and by serving and filing order is dismissed; and it is further, the appellant committed acts which, if and the appeal is dismissed (see 22 respective briefs and to serve one copy the appellant’s brief on the appeal is the appellant’s brief on the appeal is ORDERED that the judgment is committed by an adult, would have con­ NYCRR 670.8{f]; CPL 470.60(1]). on each other; and it is further, enlarged until September 3,2004. enlarged until September 3, 2004. reversed, on the law, the motions are stituted the crime of assault in the third PRUDENTI, P.J., SMITH, ADAMS, and ORDERED that the stenographer of MATTER OF MEDOVAYA, res, v. the trial court is directed promptly to MATTER OF FRENCH, ap, v, FRENCH, denied, the complaint is reinstated, and degree under Penal Law §120.00(2). Res­ RIVERA, JJ., concur. MEDOVOY, ap — Appeal by Yuriy res — Appeal by Rollo French from an the order dated July 25, 2003, is vacated; olution of issues of credibility, as well as make, certify, and file two transcripts of Medovoy from an order of the Family By Gail Prudenti, RJ.; Smith, Adams the proceedings of any pretrial hearings, order of the Family Court, Kings and it is further, the weight to be accorded the evidence, and Rivera, JJ. Court, Kings County, dated May 7, 2004. County, dated December 17. 2003. The ORDERED that one bill of costs is are primarily questions to be determined of the plea of guilty or of the trial, and of By scheduling order dated June 10, PEOPLE, ETC., res. v. MELVIN the imposition of sentence in this appellant’s brief was filed in the office awarded to the plaintiffs. by the trier of fact, which saw and heard 2004, the appellant was directed to file of the Clerk of this court on June 10, The appeal from the intermediate the witnesses (see People v. Prahalad, WHITEHURST, ap — Motion by the action, except for those minutes previ­ one of the following in the office of the respondent to dismiss as abandoned an ously transcribed and certified (see 22 2004. Pursuant to §670.4(a)(2) of the order must be dismissed because the 295 AD2d 373). Its determination should clerk of the court, within 30 days after rules of this court (see 22 NYCRR right of direct appeal therefrom termi­ be accorded great weight on appeal and appeal from a judgment of the Supreme NYCRR 671.9); and it is further, the date of the scheduling order- nated with the entry of judgment in the Court, Kings County, rendered March ORDERED that in the event that the 670.4[a](2]). it is should not be disturbed unless clearly (I) an affidavit or affirmation stating ORDERED that the respondent’s time action (see Matter ofAho, 39 NY2d 241, unsupported by the record (see People 15,1995. case was tried to a conclusion before a Upon the papers filed in support of jury, the stenographer shall also make, that there were no minutes of the to serve and file a brief on the appeal is 248). The issues raised on the appeal u. Garafolo, 44 AD2d 86, 88; see also Mat­ the motion and no papers having been certify, and file two transcripts of the Family Court proceedings to be enlarged until August 30, 2004. from the order are brought up for review ter of James B., 262 M)2d 480; Matter of filed in opposition or in relation thereto, minutes of proceedings during jury treinscribed for the appeal; or By Gail Prudeuti, P. J.; Smith, Adams and have been considered on the appeal Stephanie E, 194 AD2d 789). Upon the from the judgment (see CPLR exercise of our factual review power, we it is selection; and it is further, (2) if there were such minutes, an and Rivera, JJ. 5501[a][l]). are satisfied that the finding of guilt was ORDERED that the motion is granted ORDERED that the Clerk of the trial affidavit or affirmation that the tran­ GURGITANO ap, v. PACE When the defendants fail to meet their not against the weight of the evidence and the appeal is dismissed (see 22 court shall furnish one certified tran­ script was received, and indicating UNIVERSITY, res (AND A THIRD-PARTY initial burden of establishing prima facie (cf. CPL47O.15[5J). NYCRR 670.8[f]; CPL 470.60(1]). script of each of the proceedings set the date that it was received; or ACTION). — Motion by the appellants that neither of the two plaintiffs sus­ However, as the presentment agency PRUDENTI, P.J., SMITH, ADAMS, and forth above to the appellant’s counsel, to enlarge the time to perfect an appeal (3) if the transcript was not tained a serious injury, “it is not neces­ correctly conceded, the fourth count of RIVERA, JJ., concur. without charge (see CPL 460.70); from,a judgment of the Supreme Court, sary to consider whether the plaintiffs' received, an affidavit or affirmation the petition which alleged that the appel­ By Gail Prudeuti, RJ/, Smith, Adams assigned counsel is directed to turn stating that it was ordered and paid Westchester County, dated June 17, papers in opposition to the defendants’ lant committed acts which, if committed and Rivera, JJ. over those transcripts to the respon­ 'I motion were sufficient to raise a triable by an adult, would have constituted the dent when counsel serves the appel­ for, the date thereof and the date by 2003. PEOPLE, ETC., res, v. DAMIEN which the transcript was expected; Upon the papers filed in support of issue of fact” (Coscia v. 938 Trading crime of assault in the third degree lant’s brief on the respondent, and it is the motion and the papers filed in oppo­ WILLIAMS, ap — Motion by the respon­ or Coip., 283 AD2d 538; see Mariaca-Olmos under Penal Law §120.00(3), should have further, sition thereto, it is V. Mizrhy, 226 AD2d 437). In this particu­ been dismissed as inconsistent with the dent to dismiss as abandoned Jin ORDERED that in the event the ste­ (4) if the appellant was indigent and lar case, one of the defendants’ examin­ appeal from a judgment of the Supreme ORDERED that the motion is granted; finding that the appellant committed nographer has already prepared a copy could not afford to obtain the min­ and it is further, ing physicians identified limitations in acts which, if committed by an adult, Court, Kings County, rendered May 12, of any of the minutes for a codefendant, utes or perfect the appeal, a motion the ranges of motion of the plaintiffs’ cer­ 1994. ORDERED that the appellants’ time to would have constituted the crime of then the Clerk of the trial court is direct­ in this court for leave to prosecute vical and lumbar spines, and in the Upon the papers filed in support of perfect the appeal is enlarged until Sep­ assault in the third degree under Penal ed to reproduce a copy thereof for the appeal as a poor person and for tember 7. 2004, and the record or apoen- shoulder of one of the plaintiffs sufficient Law §120.00(2) (see CPL 300.40(5}; Peo- the motion and no papers having been assigned counsel: and it is further. the assivnmpnl'nf cniinool r.iir_ X:l—I --------------- = - - ..... to preclude a findino that the defenHantc