Case law

James v. Libby, McNeil & Libby

103 A.D. 256 · Appellate Division of the Supreme Court of the State of New York · Jul 1, 1905

The agreement was that if a claim was made that the sausages contained too much fat, the defendant was to make good, which clearly meant that it would be responsible for any loss sustained by the vendee in consequence of … That evidence was controverted by the defendant, who endeavored to establish the fact that the sausages were properly manufactured, and did not have an excess of fat or moisture when delivered to the plaintiff’s assignor.

Town of Johnsburg v. Town of Johnsburg Zoning Board of Appeals

299 A.D.2d 796 · Appellate Division of the Supreme Court of the State of New York · Nov 27, 2002

Wholly recognizing the conflicting testimony on this issue, no viable evidence challenged the February 23, 1987 letter from the Zoning Enforcement Officer which clearly advised Torrington that the intended use of the property … For these reasons, CBC sustained its initial burden of establishing a rational basis for the ZBA’s initial determination and thus demonstrated, without viable opposition, that the use was legally created (see Matter of Squire

People v. Forde

153 A.D.2d 466 · Appellate Division of the Supreme Court of the State of New York · Feb 20, 1990

Without a waiver of immunity, Mr. Berk testified three times before the Grand Jury, on January 9, 26, and June 29, 1987. … Indeed, threats can be made and clearly understood without verbal communication” (People v Court, 52 AD2d 891, 892 [1976], affd on mem of App Div 43 NY2d 817 [1977]).

McIver-Morgan, Inc. v. Piaz

108 A.D.3d 47 · Appellate Division of the Supreme Court of the State of New York · May 9, 2013

A court may only disturb the award “when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator’s power” (Matter of New York State Correctional Officers … However, the evidence showed that the contract provided that “[d]esign services shall be performed by qualified architects, engineers and other professionals selected and paid by the Design/Builder” (id. at 536 [internal

Buckley v. McAteer

2022 NY Slip Op 06782 · Appellate Division of the Supreme Court of the State of New York · Nov 30, 2022

Since CPLR 6301 "requires a specific 'subject matter,' an action for money only does not qualify" (Siegel & Connors, NY Prac § 327 [6th ed June 2022 Update]). … We note that while the plaintiffs papers submitted to the Supreme Court contained a few incidental references to attachment or CPLR 6201, the remedy they clearly sought, and continue to seek on appeal, is that of a preliminary

McAvoy v. Press Publishing Co.

114 A.D. 540 · Appellate Division of the Supreme Court of the State of New York · Jul 12, 1906

Therefore, that he was a member of a political association, society and committee is established without contradiction. … It was to keep the police out of active, open participation in party politics and the management thereof, and, clearly, the deputy commissioner comes within the fair intendment of the statute.

Ortiz v. City of New York

67 A.D.3d 21 · Appellate Division of the Supreme Court of the State of New York · Aug 25, 2009

On a motion for summary judgment, “[w]here the City establishes that it lacked prior written notice . . ., the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the [requirement … Specifically, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be

People v. Parker

304 A.D.2d 146 · Appellate Division of the Supreme Court of the State of New York · Feb 7, 2003

Furthermore, defendant failed to establish that those prospective jurors should have been dismissed for cause pursuant to CPL 270.20 (1) (f) because he failed to establish any correlation between their views on mitigating … Contrary to defendant’s contention, the sentence is clearly specified. First, defendant must complete any sentence he is serving in connection with prior crimes.

Seidlitz v. Auerbach

186 A.D. 7 · Appellate Division of the Supreme Court of the State of New York · Jan 24, 1919

When these elements appear, I know of no rule of law that prevents partiej to a contract providing in advance that a certain sum shall be *11 established to be the damage flowing from the breach of the contract without further … The burden rested on the plaintiff, if upon any one, to show that the expressed language did not correctly represent the engagements of the parties, or to qualify the language used.

People v. Johnson

114 A.D.2d 210 · Appellate Division of the Supreme Court of the State of New York · Feb 20, 1986

Such failure was clearly demonstrated by the prosecutor’s closing argument. … While a report prepared in the ordinary course of business may, in proper circumstances, qualify for admissibility under the business record exception to the hearsay rule, statements contained in that report, made by one

Bua v. Purcell & Ingrao, P.C.

99 A.D.3d 843 · Appellate Division of the Supreme Court of the State of New York · Oct 17, 2012

A motion to dismiss a complaint pursuant to CPLR 3211 (a) *845 (1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes … The plaintiff alleges that the defendants should have taken additional steps to “clearly and unambiguously” terminate the contract of sale.

In re Brookfield

78 A.D. 520 · Appellate Division of the Supreme Court of the State of New York · Jul 1, 1903

Quinlan were duly appointed as commissioners of appraisal, subsequently qualifying, and in virtue whereof, and pursuant to the provisions of said act, the city of New York became seized in fee of parcels 61 and 62, the awards … This is clearly an entirely improper basis of calculation.

People v. Buyund

2019 NY Slip Op 8207 · Appellate Division of the Supreme Court of the State of New York · Nov 13, 2019

"In construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they [*5]have a definite meaning, which involves no absurdity or contradiction, there … While this may not have been the intent of the Legislature, the omission of a critical grammatical signpost or a parenthetical number preceding "as a sexually motivated felony" clearly limits the qualifying sexually motivated

Staten Island Edison Corp. v. Maltbie

270 A.D. 55 · Appellate Division of the Supreme Court of the State of New York · Nov 14, 1945

. * While the investigation was in progress defendants, on May 27, 1943, ordered the establishment of temporary rates pursuant to section 114 of the Public Service Law. … But to say that their findings of fact may be made conclusive where constitutional rights of liberty and property are involved, although the evidence clearly establishes that the findings are wrong and constitutional rights

Communications Leasing, Inc. v. Schoepflin

81 A.D.2d 627 · Appellate Division of the Supreme Court of the State of New York · Apr 20, 1981

That the use will not prevent the orderly and reasonable use of permitted or legally established uses in the district wherein the proposed use is to be located or of permitted or legally established uses in adjacent use districts … Section 518 (“Rear Yard”) has none of the qualifying language found in section 513 (“Height”).

Kennedy v. Kennedy

251 A.D.2d 407 · Appellate Division of the Supreme Court of the State of New York · Jun 8, 1998

Indeed, in the Practice Commentary to the comparable provision in the Domestic Relations Law § 244-b, it is noted that “[t]o qualify as support arrears for purposes of driver’s license suspension, the payments must be due … It is well established that statutes enacted to supply a remedy for the redress of wrongs already done, as well as “procedural” legislation designed to “provide a change in the form of a remedy or provide a new remedy for

National Surety Corp. v. Lybrand

256 A.D. 226 · Appellate Division of the Supreme Court of the State of New York · Feb 3, 1939

On the contrary, his balance sheet clearly separates cash in banks and on hand and cash borrowed from *231 customers’ accounts. … We are, therefore, not prepared to admit that accountants are immune from the consequences of their negligence because those *236 who employ them have conducted their own business negligently.

Epifani v. Johnson

65 A.D.3d 224 · Appellate Division of the Supreme Court of the State of New York · Jun 23, 2009

However, if the allegedly defamatory statement qualifies as slander per se, the failure to plead special damages with particularity will not be fatal. … Further, this alleged statement would clearly constitute one of fact rather than the privileged expression of an opinion (see Mann v Abel, 10 NY3d 271, 276 [2008] [expressions *235 of opinion, as opposed to assertions of

Farrelly v. Schaettler

121 A.D. 678 · Appellate Division of the Supreme Court of the State of New York · Oct 25, 1907

established, that at law no contract' made by the executor of the estate can be enforced against the estate. … The agent -of the executrix, being a member of the association, applied for'and" obtained' á' bond to qualify him as such a member, and it may be claimed the defendant, through her agent, agreed to indemnify the surety oh

In re Beiny

132 A.D.2d 190 · Appellate Division of the Supreme Court of the State of New York · Dec 9, 1987

Documents thus obtained, among which were predictably a considerable number immune from disclosure by reason of the attorney-client privilege, were proof of consultations between petitioner’s adversary, respondent Rotraut … Thus, even if petitioner had succeeded in establishing before the Surrogate, in the context of *205 the present motion, that the suppressed materials were not privileged as against him, he would not thereby establish any