Case law

Bell v. City of New York

61 N.Y.S. 709 · Appellate Division of the Supreme Court of the State of New York · Dec 19, 1899

The plaintiff was originally appointed as librarian, under section 6 of an act to establish free schools in *711 school district No. 4 in the town of Eastchester, Westchester county (chapter 344, Laws 1853), as amended by … Clearly, a- library in a public school house owned by the corporation, as this was, is appurtenant to the school, and the necessity of caring for it authorizes the execution of a contract with a person to act as librarian

People v. Washington

107 A.D.3d 4 · Appellate Division of the Supreme Court of the State of New York · Apr 17, 2013

Thus, the record establishes that, at 3:30 a.m., the defendant validly waived her qualified statutory right to refuse the test, and her uncounseled waiver provides no basis for suppressing the test results. … In my view, this goes too far in expanding the previously established limited right to counsel to assist the defendant in determining whether to exercise the qualified statutory right to refuse a chemical test under Vehicle

People v. Washington

107 A.D.3d 4 · Appellate Division of the Supreme Court of the State of New York · Apr 17, 2013

Thus, the record establishes that, at 3:30 a.m., the defendant validly waived her qualified statutory right to refuse the test, and her uncounseled waiver provides no basis for suppressing the test results. … In my view, this goes too far in expanding the previously established limited right to counsel to assist the defendant in determining whether to exercise the qualified statutory right to refuse a chemical test under Vehicle

Matter of Universal Metal & Ore, Inc. v. Westchester County Solid Waste Commn.

145 A.D.3d 46 · Appellate Division of the Supreme Court of the State of New York · Sep 21, 2016

The Commission concluded that the County Board clearly intended for the Solid Waste Law to cover scrap metal yards. … On the other hand, the Commission asserts that there is simply no proof that haulers of scrap metal were immune from corrupt influences, and thus not subject to the Solid Waste Law.

Walker v. Best

107 A.D. 304 · Appellate Division of the Supreme Court of the State of New York · Aug 15, 1905

Clearly I was too precipitate in my action and I very much regret having been so.” … On its face it is only a qualified approval of the approximate correctness of Mr.

Nistal v. Hausauer

282 A.D. 7 · Appellate Division of the Supreme Court of the State of New York · May 12, 1953

By virtue of his office, the Governor is Commander-in-Chief of the Militia of the State (Military Law, § 6), but it does not follow that his immunity to process relieves respondent or the Adjutant General from court review … That view is erroneously based upon the applicable statutes, which clearly empower respondent to perform that function.

Burton v. Brooklyn Doctors Hospital

88 A.D.2d 217 · Appellate Division of the Supreme Court of the State of New York · Jul 22, 1982

Plaintiff’s proof clearly established that the prolonged liberal administration of oxygen to which he was subjected caused his blindness, and defendants do not challenge this finding. … Abramson, was sufficient to establish the duty. Whether the hospital followed its own practice, and informed plaintiff’s parents of the risks involved was, of course, a question of fact for the jury.

Spano v. Kings Park Central School District

61 A.D.3d 666 · Appellate Division of the Supreme Court of the State of New York · Apr 7, 2009

In order to establish a breach of the duty of fair representation against a union, a member must show that “the union’s conduct was arbitrary, discriminatory, or in bad faith” (Lundgren v Kaufman Astoria Studios, 261 AD2d … Nonetheless, denial of that branch of the cross motion on the merits was appropriate, since the plaintiffs “use of the courts is ‘clearly inconsistent with [his] later claim that the parties "were obligated to settle their

Stephan B. Gleich & Associates v. Gritsipis

87 A.D.3d 216 · Appellate Division of the Supreme Court of the State of New York · Jun 21, 2011

The cause of action alleging unjust enrichment, which is clearly stated in the summons with notice, requires proof that (1) the defendant was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and … Generally, an account stated may qualify for relief under CPLR 3215 (see Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524 [2008]; Imperial Med. & Surgical Sup. v Country-Wide Ins.

Rapid Armored Truck Corp. v. Local 807 Armored Car Division Pension Fund

88 A.D.2d 434 · Appellate Division of the Supreme Court of the State of New York · Aug 30, 1982

The agreement provides that the Pension Fund “shall establish the amount and frequency of contributions to be made by the employer to maintain the level of benefits as scheduled above on a sound actuarial basis” (art 25, … principle is that controversies arising between the parties to a collective agreement in the private sector will be held to fall within the ambit of the arbitration clause “unless the parties have employed language which clearly

People ex rel. Drake v. Knauber

43 A.D. 342 · Appellate Division of the Supreme Court of the State of New York · Jul 1, 1899

-applicant for a position in the civil service has clearly established his- title to eligibility by both merit and fitness, he should not be deprived of his constitutional rights by the arbitrary action of the body whose … Their duty is performed when they certify that the relator is qualified by both merit and fitness to be placed upon the eligible list, and when this is done the appointing, power, in obedience to the plain mandate of the

Srikishun v. Edye

137 A.D.3d 1 · Appellate Division of the Supreme Court of the State of New York · Jan 19, 2016

Plaintiff also argued that damages necessarily flow from the performance of a second surgery due to a retained foreign object as long as a departure is established in connection therewith, as was the case here. … an item negligently left behind during the first surgery did not qualify under the available category of "pain and suffering" damages listed on the special verdict sheet.

People v. Kightlinger

276 A.D.2d 230 · Appellate Division of the Supreme Court of the State of New York · Dec 20, 1949

One of the purposes -of the statute is to prevent the practice of deception by use of a name such as would induce a belief that the completion of a course of study would qualify one to practice medicine. … A statute such as this, vilich is penal in nature, must be strictly construed and in a manner not to embrace cases which do not clearly fall within its terms.

Armstrong v. Galusha

43 A.D. 248 · Appellate Division of the Supreme Court of the State of New York · Jul 1, 1899

Armstrong and Eugene Van Voorhis, who were named as executors in said will, and who duly qualified, entered upon the discharge of their duties and are now acting as such executors. … But it is equally well established that it is the province and the duty of the court in each case to ascertain what the testator meant and intended when he used such words, and when so ascertained to give to such meaning

In re the Removal of Koch

232 A.D. 483 · Appellate Division of the Supreme Court of the State of New York · May 29, 1931

Unless otherwise provided in these By-Laws, a majority vote of qualified voters present and voting shall be sufficient for an election or to carry a motion.” … Robert’s Rules of Order provide: “ There has been established as a compromise between the rights of the individual and the rights of the assembly the principle that a two-thirds vote is required to adopt any motion that *

Matter of Jackalyne WW. (Kevin VV.)

2021 NY Slip Op 03497 · Appellate Division of the Supreme Court of the State of New York · Jun 3, 2021

To meet this burden, the petitioner must present evidence of the parent's underlying mental illness or intellectual disability, as well as the testimony of a qualified psychiatrist or psychologist explaining how such mental … Although the record clearly demonstrates that respondent genuinely loves and desires to care for the child, there was ample evidence to establish that respondent suffers from a profound mental illness [FN5] that places the

Larkin v. State

84 A.D.2d 438 · Appellate Division of the Supreme Court of the State of New York · Jan 22, 1982

At the conclusion of the trial the State moved to dismiss on the ground that claimant failed “to prove a prima facie” case and established nothing more than a “misdiagnosis”. … So long as a physician remains within the bounds of accepted medical practice, he is immune from liability for *446 an error in judgment or for lack of success in his medical treatment.

Stanton v. State

29 A.D.2d 612 · Appellate Division of the Supreme Court of the State of New York · Dec 29, 1967

The immunity afforded the driver of an emergency vehicle from the regulations governing speed and direction of travel can only be denied when there is evidence of an exercise of these privileges in excess of reasonableness … The record clearly reveals that after Trooper Radloff had first apprehended Hayden, a second “ chase ” ensued during which their two vehicles travelled at speeds of 100 miles per hour or more, and during which time the two

McFeely v. Mercy Hosp. of Buffalo & Catholic Health Sys., Inc.

2019 NY Slip Op 8030 · Appellate Division of the Supreme Court of the State of New York · Nov 8, 2019

"Although the issue whether a certain condition qualifies as dangerous or defective is usually a question of fact for the jury to decide . . . , summary judgment in favor of a defendant is appropriate where a plaintiff fails … Regardless, the surveillance video shows that a black mat was also laid on the floor at the end of the stairway and clearly demarcated the beginning of the floor from the end of the stairway.

Lediger v. Canfield

79 N.Y.S. 758 · Appellate Division of the Supreme Court of the State of New York · Jan 9, 1903

It must be “clearly inferred.” Bradley, J., In Re Powers, 124 N. Y. 361, 368 , 26 N. E. 940 . It must be “clear and matiifest.” Hosmer, C. J., in Swift v. Edson, 5 Conn. 531 . It “must be clear upon the words.” … the intent regardless of the' qualifying force of other expressions of the will.