Case law

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

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.

Franklin National Bank v. Skeist

49 A.D.2d 215 · Appellate Division of the Supreme Court of the State of New York · Oct 23, 1975

Said language "clearly qualifies the responsibility of [Skeist] and not the amount of [Epsilon’s] future transaction with the plaintiff.” (Gates v McKee, 13 NY 232, 234 .) … Aside from the insufficiency of the papers submitted below to show the capability of establishing such defense, the instant case (unlike Millerton Agway Coop, v Briarcliff Farms, 17 NY2d 57 , relied on by respondents, but

Deas v. Levitt

139 A.D.2d 1 · Appellate Division of the Supreme Court of the State of New York · Jun 28, 1988

The States are free to create substantive adjudicatory defenses or immunities to the rights they create and, in so doing, they do not offend due process notions. (See, Martinez v California, 444 US 277 .) … In light of the definitive holding in Tanzosh and the clearly delineated reservation as to nonexhaustion of administrative review, it ill-behooves this court to hold New York’s review process unconstitutional.

Great American Insurance v. Nordic Diesel & Machine Co.

38 A.D.2d 906 · Appellate Division of the Supreme Court of the State of New York · Mar 14, 1972

The record clearly establishes, and plaintiff concedes, that at the time of the accident to Bemtsen, Nordic’s employee, Lokhammer, came within the definition of insured as an executive officer, director and stockholder acting … The plaintiff admits that he qualifies as an additional insured under the terms of the policy. He is clearly entitled to the sought declaration. (See Greaves v. Public Serv. Mut. Ins.

People v. Fitzpatrick

47 A.D.2d 70 · Appellate Division of the Supreme Court of the State of New York · Mar 6, 1975

Defendant, an official of the steamfitters union, under a grant of immunity, had testified before a Grand Jury investigating bribery of labor officials. … That this unlawful use of Hanley’s Grand Jury testimony had a prejudicial impact on the trial jury is clearly established by the fact that the jury’s notes and questions related to Hanley’s Grand Jury testimony.

Davenport v. Prentice

126 A.D. 451 · Appellate Division of the Supreme Court of the State of New York · May 8, 1908

The Legislature thought that a conscientious bank president or official might discharge his duties to the full and yet be not qualified and could not in the nature of things qualify himself to make positive oath to the report … As the rule is that the respondent must establish that the error could not have affected the verdict (Greene v. White, supra; People v. Smith, 172 N.

Russo v. New York State Division of Human Rights

137 A.D.3d 1600 · Appellate Division of the Supreme Court of the State of New York · Mar 18, 2016

“To establish a prima facie case of employment discrimination, petitioner was required to demonstrate that she was a member of a protected class, that she was qualified for her position, that she was terminated from employment … “The burden then shifts to the employer ‘to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support

People ex rel. City of New York v. Woodruff

57 A.D. 273 · Appellate Division of the Supreme Court of the State of New York · Jan 15, 1901

But the control intended to- be given was a qualified control. … It is difficult to understand why the statute should thus qualify the grant to which conditions should be annexed.

In re Ranftle

108 A.D.3d 437 · Appellate Division of the Supreme Court of the State of New York · Jul 2, 2013

To qualify as a Florida resident for tax purposes, Ranftle kept diaries to show he spent 183 days, or more than one half a year, in the state for each year from 2003 through 2007. … In this case, both decedent’s and his attorney’s actions clearly conflict with her statement.

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.

County of Erie v. Kerr

49 A.D.2d 174 · Appellate Division of the Supreme Court of the State of New York · Oct 24, 1975

Rentals are established as percentages *177 of gross ticket sales with a minimum annual rental of $500,-000 per lease year. … Special Term granted judgment for the County of Erie, concluding that the actual present usage of the subject property, as well as the legislative history, clearly establishes that the stadium was devoted to the public use

Rush v. Sears, Roebuck & Co.

92 A.D.2d 1072 · Appellate Division of the Supreme Court of the State of New York · Mar 31, 1983

Since that determination is supported by the record, and further because the other proof in the case clearly establishes the jury’s finding of defendant’s liability, the motion for a mistrial was appropriately denied (Simpson … Accordingly, the report does not qualify as an exception to the hearsay rule, under records kept in the due course of business (Matter of Leon RR, 48 NY2d 117, 122-123 ), as properly found by the trial court.

People v. Johnson

74 A.D.3d 427 · Appellate Division of the Supreme Court of the State of New York · Jun 1, 2010

The Court of Appeals has established a commonsense rule regarding evaluation of potential juror bias, recognizing that “most if not all jurors bring some predispositions, of varying intensity, when they enter the jury box … The documents at issue did not qualify as Rosario material, and in any event, defendant was not prejudiced by their nondisclosure (see CPL 240.75). We have considered and rejected defendant’s remaining claims.

Dolan v. Jaeger

285 A.D.2d 844 · Appellate Division of the Supreme Court of the State of New York · Jul 19, 2001

Indeed, Gevirtz conceded that he was not qualified to render such an opinion. … Such a removal entailed the risk of being unable to reestablish access to decedent’s vein, which clearly would have been life threatening.

Miller v. State

253 A.D. 182 · Appellate Division of the Supreme Court of the State of New York · Jan 19, 1938

As already pointed out, claimant was appointed to his position after having been duly examined and certified as qualified by the State Civil Service Commission. … . * * * Subject to the provisions of this chapter and of the rules established thereunder, the Commission shall make regulations for and have control of examinations for the service of the State and the civil divisions thereof

Freedman v. Oppenheim

80 A.D. 487 · Appellate Division of the Supreme Court of the State of New York · Jul 1, 1903

accordance with the statute that he is well acquainted with the handwriting of the notary and verily believes his signature to the acknowledgment is genuine, merely certifies that said notary is “ duly commissioned and qualified … specific performance of a contract to purchase will not be compelled in a proper case, notwithstanding the vendor’s title rests upon adverse possession. “ If there is no disputed question of fact, and the possession has been clearly

In re Merow

112 A.D. 562 · Appellate Division of the Supreme Court of the State of New York · May 2, 1906

Clearly such should be the determination if any mandatory requirement of the .statute was not complied with, or'if it appears that by the methods employed the voters were misled or prevented from-freely answering the questions … The object of election laws is to secure the rights of duly qualified electors and not to defeat them.

Curry v. Blum

73 A.D.2d 965 · Appellate Division of the Supreme Court of the State of New York · Jan 28, 1980

In the instant case the record fails to establish that the local agency complied with the applicable State and Federal regulations in this regard. … This statement is clearly insufficient compliance with the requirement that the periodic notification "Specifically and comprehensively in simple phraseology indicate the type of information to be disclosed by the recipient

People v. Marshall

106 A.D.3d 1 · Appellate Division of the Supreme Court of the State of New York · Mar 26, 2013

The court held that Marshall had not established any “compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution [on this count] would constitute or result in [an] injustice.” … We are not convinced that as an aged felon Marshall should be categorically immune from incarceration and it is generally inappropriate to use the interest of justice as a device for granting dispensations from mandatory