Case law

Caballero v. First Albany Corp.

237 A.D.2d 800 · Appellate Division of the Supreme Court of the State of New York · Mar 13, 1997

In opposition to a motion for summary judgment, the nonmoving party must assemble and lay bare affirmative proof to establish that the matters alleged are real and capable of being established at a trial (see, Hasbrouck v … Further, in opposition to defendant’s motion and in support of her first cause of action, plaintiff was required to establish (1) her membership in a protected class, (2) that she was qualified for the position, (3) that

Gutowska v. Childs Co.

5 A.D.2d 245 · Appellate Division of the Supreme Court of the State of New York · Mar 11, 1958

The jury awarded a total sum of $25,500 against both defendants, but the basis upon which the damages were fixed is not clearly ascertainable from the record. … However, insofar as the question of qualified privilege is concerned, the answers failed to allege that defense.

9th & 10th Street L.L.C. v. Board of Standards & Appeals

43 A.D.3d 36 · Appellate Division of the Supreme Court of the State of New York · May 29, 2007

It is not sufficient that you intend to enter into a lease with a qualifying entity, or that you intend to enter into a restrictive declaration that would meet the Department’s requirements. … Unlike most other uses that can be established by any party, a dormitory use can only be established by controlling educational institutions.”

Jones v. Carey

55 A.D.2d 260 · Appellate Division of the Supreme Court of the State of New York · Dec 30, 1976

qualified to fill, which will determine their right to relief. … Petitioners clearly have the burden of proof in establishing that there are or were vacant positions to which they were entitled to be transferred under section 86.

Balanoff v. Niosi

16 A.D.3d 53 · Appellate Division of the Supreme Court of the State of New York · Feb 7, 2005

It should be noted that in those proceedings Ditroia bears the ultimate burden of establishing her reasonable requirements and she may not continue to benefit from her default 3 (see Matter of Olson v Olson, supra; Matter … That income execution clearly stated that the respondents had to make monthly payments of maintenance directly to Ditroia.

Alex LL. v. Albany County Department of Social Services

270 A.D.2d 523 · Appellate Division of the Supreme Court of the State of New York · Mar 2, 2000

To the contrary, despite Family Court’s limitation on the evidence received, the record generally supports a finding that the father is qualified to serve as a custodian for the child. … Even if there was a basis for limiting the evidence to the statutory period (and, given the nature of the father’s defense to the petition, there clearly was not), we note that under Social Services Law § 384-b (7) (a) the

Page v. State

22 A.D.2d 834 · Appellate Division of the Supreme Court of the State of New York · Nov 17, 1964

At the trial of the claim the State, without objection, adduced expert testimony through a qualified forester that the presence of the trees was not an enhancing element. … Such is clearly the purport of its decision. Judgment affirmed, with costs. Gibson, P. J., Herlihy, Taylor, Aulisi and Hamm, JJ., concur.

BURKHART, NANCY v. PEOPLE, INC.

Appellate Division of the Supreme Court of the State of New York · Jun 12, 2015

The parties agree that the group home operated by defendant does not qualify as a nursing home. … institutions “serving principally as facilities . . . for the rendering of health-related service” (§ 2800 [emphasis added]), and the provisions of the article relate specifically to hospitals and nursing homes, institutions that clearly

Scully v. Haar

67 A.D.3d 1331 · Appellate Division of the Supreme Court of the State of New York · Nov 13, 2009

The agreement, inter alia, grants sole custody of the parties’ children to defendant and establishes a detailed access schedule for plaintiff. … Plaintiff cross-moved for summary judgment on the complaint, contending that the terms of the agreement clearly established that the parties were living separate and apart.

Jeda Capital-56, LLC v. Village of Potsdam

198 A.D.3d 1211 · Appellate Division of the Supreme Court of the State of New York · Oct 28, 2021

[FN1] Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint contending that it was immune from suit pursuant to the terms of the PCA. … Although "an indemnity contract will not be held to have retroactive effect unless by its express words or necessary implication it clearly appears to be the parties' intention to include past obligations" ( Cacanoski v 35

Dubon v. Drexel

151 N.Y.S.3d 126 · Appellate Division of the Supreme Court of the State of New York · Jun 30, 2021

The Supreme Court granted Drexel's motion, finding that Drexel "conclusively established that there was no retainer [*2]stating that [Drexel] would not bill for more than $100,000" and that the second breach of contract claim … "Contracts are among the documents that qualify as documentary evidence" ( Hohwald v Farm Family Cas. Ins. Co. , 155 AD3d 1009, 1010 ).

People v. Pisano

142 A.D. 524 · Appellate Division of the Supreme Court of the State of New York · Jan 31, 1911

There does not seem to be any exception which clearly presents this question ; but as there must be a new trial, and the point was discussed by both counsel, we should consider it. … Convictions of guilty men are desirable, but conviction must be had in accordance with established rules of law.

People ex rel. Glendening v. Glendening

259 A.D. 384 · Appellate Division of the Supreme Court of the State of New York · May 3, 1940

The outstanding success of the father’s care during the crucial years of the boy’s fife in which he had his sole custody is so clearly established that it cannot be successfully questioned. … The evidence in this record shows more clearly than in the prior records her guilty knowledge of this arrangement.

In re the Accounting of the Bank of New York

53 A.D.2d 55 · Appellate Division of the Supreme Court of the State of New York · Jun 24, 1976

The will itself supports the conclusion that the bequest to her cousins was of paramount concern in establishing the trust. … Such discrimination "is clearly invidious” (Labine v Vincent, supra, dissenting opn of Brennan, J., p 558).

Stuart v. Press Publishing Co.

83 A.D. 467 · Appellate Division of the Supreme Court of the State of New York · May 15, 1903

jeopardized by secret proceedings or hearings, and it would seem to follow logically that the privilege does not attach until an application is made to a magistrate, judge or court for some judicial action, and this is the rule established … Clearly such publication would not be privileged under the common law which gave no greater rights in this regard to the press than to an individual. (Cooley Const. Lim. [6th ed.] 556; 18 Am. & Eng.

Steuber v. Huber

107 A.D. 599 · Appellate Division of the Supreme Court of the State of New York · Oct 15, 1905

Steuber qualified as executors and trustees under said will, and entered upon the discharge of their duties as such. Prior to May 1, 1893, Prentzel died, and on that day Catliarina M. … December 20; 1902, in which he says: “ If you will draw proper surrender and acceptance of surrender and have same executed by your clients, I will have the duplicate. signed by the executors of the estate of Otto Huber,” clearly

Loewy v. Binghamton Housing Authority

4 A.D.2d 581 · Appellate Division of the Supreme Court of the State of New York · Nov 20, 1957

The four additional charges found to have been established were proven by substantial evidence but were of such minor nature as to approach the trivial. … He was appointed in 1950, qualifying by civil service examination and being first on the resulting list.

Farnsworth v. Village of Potsdam

228 A.D.2d 79 · Appellate Division of the Supreme Court of the State of New York · Jan 9, 1997

In any event, we are additionally not convinced that an inspection noting the presence of uneven sandstone would qualify as notice of a dangerous or defective condition for purposes of the prior written notice requirement … It is a well-established principle of law that a sidewalk is part of the public street or highway (see, Donnelly v Village of Perry, 88 AD2d 764, 765 ), and that the duty of maintaining the sidewalks in a safe condition belongs

Richards v. Gill

138 A.D. 75 · Appellate Division of the Supreme Court of the State of New York · Apr 22, 1910

Clearly such a cause of action could not arise in any event until the death of her.testator, leaving a valid, will, for until that time she was not. his devisee,’ and no property or rights therein could pass to her. … The judgment establishing the liability of her testator having been rendered against the defendant as his executrix did.not bind her individually; original proof of all the facts established in the action against her as executrix

Rodriguez v. Joseph

149 A.D.2d 14 · Appellate Division of the Supreme Court of the State of New York · Aug 3, 1989

Prior to the fall of 1983, when the New York City Board of Education established all-day kindergarten classes in its pubr lie elementary schools, such classes were a mixture of half-day and all-day sessions. … However, the proper procedure to obtain relief is for the Chancellor to appeal to the Board of Health instead of the Commissioner, who clearly *19 does not possess the power to grant a widespread dispensation from the requirements