Case law

Ghigone v. Joy

83 A.D.2d 839 · Appellate Division of the Supreme Court of the State of New York · Aug 3, 1981

In 1962 Frances married Matthew Thompson, and the couple established their home with Mrs. Scromo in the subject apartment. Sometime prior to November, 1963, Mrs. … Under the circumstances, the determination that the apartment failed to qualify for decontrol was not arbitrary and capricious (see Matter of Colton v Berman, 21 NY2d 322 ).

People v. Riley

2023 NY Slip Op 03806 · Appellate Division of the Supreme Court of the State of New York · Jul 12, 2023

"The credibility determinations of the hearing court are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record" ( id. ). … As the law existed in 2020, the odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, was [*2]alone sufficient to constitute probable cause to search

Bedford-Carp Constr., Inc. v. Brooklyn Union Gas Co.

2023 NY Slip Op 02097 · Appellate Division of the Supreme Court of the State of New York · Apr 26, 2023

"[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence … In this context, the use of the term "OPTIONS PRICED SERVICES" in the agreement clearly and unambiguously refutes the plaintiff's allegation that the defendant agreed to pay the plaintiff for those services even if they were

Willis v. Ronan

218 A.D.2d 794 · Appellate Division of the Supreme Court of the State of New York · Aug 28, 1995

After Willis’ subsequent motion and the estate of Ronan’s cross motion for summary judgment, the court granted the cross motion and dismissed the complaint because of Willis’ failure to establish the existence of a certified … "It is a fundamental principle of contract law that a valid acceptance must comply with the terms of the offer * * * and, if qualified with conditions it is equivalent to a rejection and counteroffer” (Roer v Cross County

People v. Epaski

57 A.D. 91 · Appellate Division of the Supreme Court of the State of New York · Jan 15, 1901

The charge was clearly erroneous. … read to the jury the definition of justifiable homicide as. contained in the Penal Code (§ 205), but the definition contains no statement or suggestion that justifiable homicide requires an acquittal, and the court nowhere qualified

Matter of Berger v. New York State Department of Environmental Conservation

125 A.D.3d 1128 · Appellate Division of the Supreme Court of the State of New York · Feb 19, 2015

The Rondout Riparian Section No. 2 map, filed pursuant to the WSA, clearly shows that parcel 33 was owned by Central Hudson and was improved by the dam. … The dam is clearly depicted on the map and, in the context of a condemnation proceeding, "'[a]n appropriation of land, unless qualified when made, is an appropriation of all that is annexed to the land, whether classified

Holliday v. Hudson Armored Car & Courier Service, Inc.

301 A.D.2d 392 · Appellate Division of the Supreme Court of the State of New York · Jan 14, 2003

In addition, this case is clearly distinct from Noseworthy because Holliday did not die until eight years after the accident and five years after the action was commenced. … In light of this determination, we need not consider Hudson’s alternative argument that the police officer’s directives rendered it immune from liability.

Lee v. Astoria Generating Co.

55 A.D.3d 124 · Appellate Division of the Supreme Court of the State of New York · Aug 12, 2008

Moreover, “a watercraft need not be in motion to qualify as a vessel under § 3” (id.). … The foregoing facts establish that the subject barge is “practically capable of maritime transportation” (Stewart, 543 US at 497 ) .

COOK, CURTIS v. PETERSON, ALYSSA S.

137 A.D.3d 1594 · Appellate Division of the Supreme Court of the State of New York · Mar 18, 2016

On May 19, 2014, Peterson cross-moved for summary judgment dismissing the complaint against her on the ground that plaintiff did not sustain a qualifying serious injury. … “The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned” (Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441).

People v. Restrepo-Velez

156 A.D.2d 488 · Appellate Division of the Supreme Court of the State of New York · Dec 11, 1989

The medical testimony established that the victim had various scratches and abrasions on her body. … Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v Garafolo, 44 AD2d 86, 88 ).

Horizons Hotels Corp. v. New York Patroons, Inc.

193 A.D.2d 911 · Appellate Division of the Supreme Court of the State of New York · May 13, 1993

To qualify that agreement as such an instrument, plaintiff must be able to establish a prima facie case merely by proof of the agreement and a failure to make the payments called for thereunder (see, Interman Indus. … Reversal would be required here even were we to hold that the consulting agreement qualified for treatment under CPLR 3213.

Bridgman v. Kern

257 A.D. 420 · Appellate Division of the Supreme Court of the State of New York · Jun 29, 1939

Once that list is established, the commission’s remaining duty consists in certifying the three highest names on the list when a vacancy occurs. … If such a practice were indulged in, it would clearly violate the statute. (Civil Service Law, § 25; Rules for the Classified Civil Service, rule II, subds. 3, 4 and 5.)

Owens v. Owens

107 A.D.3d 1171 · Appellate Division of the Supreme Court of the State of New York · Jun 13, 2013

Although the husband apparently qualified for Medicaid eight months before trial, the court found, and the record confirms, that he “continued to make significant expenditures! … The record further establishes that, throughout the majority of their marriage, the parties and their children enjoyed a very comfortable lifestyle in a dwelling that was beyond the average home.

Bali v. Board of Education

68 A.D.2d 360 · Appellate Division of the Supreme Court of the State of New York · Jun 1, 1979

The general rule established in Jerry must, therefore, govern. … Inasmuch as there are unresolved factual questions pertaining to the establishment of special education as a separate and distinct tenure area and, if it was so established, whether petitioner had been alerted to that fact

People v. Schollin

255 A.D.2d 465 · Appellate Division of the Supreme Court of the State of New York · Nov 16, 1998

We agree with the defendant that the declarations of other participants in the crime, to the effect that they beat and kicked the victim after he had been disarmed and was on the ground, qualified as declarations against … Furthermore, the defendant was not prejudiced by the charge, since he clearly had notice from the indictment that he was being tried on an acting-in-concert theory.

In re Patrick BB.

284 A.D.2d 636 · Appellate Division of the Supreme Court of the State of New York · Jun 7, 2001

Clearly, the inheritance remained patient property. Thus, we find Mental Hygiene Law § 13.29 (a) inapplicable in the instant case. … Otteson reportedly did not qualify as respondent’s special guardian. .

European American Bank v. Lofrese

182 A.D.2d 67 · Appellate Division of the Supreme Court of the State of New York · Aug 17, 1992

A note qualifies for treatment under CPLR 3213 as an instrument for payment of money only if the plaintiff can establish a prima facie case via "proof of the note and a *72 failure to make the payments called for by its terms … The 25 "trust receipts” in this case do not make reference to the terms of any other document and, therefore, clearly qualify as instruments for payment of money only within the meaning of CPLR 3213.

State Division of Human Rights v. New York State Department of Correctional Services

90 A.D.2d 51 · Appellate Division of the Supreme Court of the State of New York · Nov 8, 1982

Indeed, the commissioner completely fails to address this point in his application or reply papers though clearly raised by the Department of Correctional Services. … Only mandamus can establish a right to possession of an office or position, the title of which is held by the petitioner; unless such right be established, by mandamus, other adjudication or stipulation, recovery of back

Weinheimer v. Hoffman

97 A.D.2d 314 · Appellate Division of the Supreme Court of the State of New York · Dec 8, 1983

If Gall’s negligence is established, his estate is liable in a wrongful death action to the deceased vendee’s distributees, including the widow, for their pecuniary loss because of his death (EPTL 5-4.4). … Clearly, the disability of the plaintiff to sue the third-party defendant directly is no impediment to a claim over for contribution.

People v. Vicaretti

54 A.D.2d 236 · Appellate Division of the Supreme Court of the State of New York · Nov 5, 1976

Furthermore, in our opinion, the facts of this case clearly justify the prosecutor’s choice of the more serious offense. … It is well established that a defendant has no constitutional right to require the conferral of immunity on a defense witness who refuses to testify (see Earl v United States, 361 F2d 531, rehearing den 364 F2d 666, cert