Case law

Weaver Organization, Inc. v. Manette

41 A.D.2d 138 · Appellate Division of the Supreme Court of the State of New York · Mar 15, 1973

It must be observed, however tritely, that the Trial Judge, having observed the witnesses, having viewed the premises and having gouged the proof as it was 'developed, is better qualified to weigh the determinative facts. … The other charges warrant no consideration, having been clearly shown to lack merit.

People v. Decker

2023 NY Slip Op 03950 · Appellate Division of the Supreme Court of the State of New York · Jul 27, 2023

However, the jury clearly credited the testimony that defendant owed $4,182.62 to FWH, $50,000 to Warren County, $53,610 to the FUND and $4,937.84 to the Village of Lake George[*8]. … inasmuch as the general requirement that an indictment "contain . . . a statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time" is qualified

People v. Williams

142 A.D.2d 310 · Appellate Division of the Supreme Court of the State of New York · Dec 30, 1988

Thus, '[t]o qualify for admission into evidence as a declaration against the maker’s penal interest the following elements must be present: first, the declarant must be unavailable as a witness at trial; second, when the … Supportive evidence is sufficient if it establishes a reasonable possibility that the statement might be true.

B.D. v. E.D.

2023 NY Slip Op 03971 · Appellate Division of the Supreme Court of the State of New York · Jul 27, 2023

Like the agreement's reference to the "law," the reference to "a parent's insurance" is broad, and unrestricted by any particular qualifier (such as a specific policy or type of policy). … Clearly the parties contemplated that plaintiff might not be able to maintain health insurance for T.D. under the family plan, and they planned for that contingency, requiring plaintiff to maintain health insurance for T.D

Wechsler v. Drey

203 A.D. 692 · Appellate Division of the Supreme Court of the State of New York · Dec 1, 1922

The trust was to be established and to become effective immediately upon his death. There was available property at that time to set it up. … But there is another well- established rule applicable to the situation.

In re the Estate of Doris Duke

220 A.D.2d 241 · Appellate Division of the Supreme Court of the State of New York · Oct 10, 1995

It has long been recognized that a testator is entitled to designate who will settle her estate from among those qualified by statute (Matter of Leland, 219 NY 387, 393 ). … The burden of proof is clearly on the party seeking to disqualify an executor for mismanagement of the estate (Matter of Krom, 86 AD2d 689, 690 , Iv dismissed 56 NY2d 505).

David v. 3 West 16th Street, LLC

89 A.D.3d 24 · Appellate Division of the Supreme Court of the State of New York · Sep 29, 2011

To qualify for such an exchange, the entity that acquired the interest in the building had to be owned and controlled by the taxpayer, Mr. Braha. Therefore, Mr. … However, the plain language of article 9.5 clearly excuses the landlord’s cooperation in executing documents or taking action where “such action would broaden his obligations hereunder.”

MUIR LAKE ASSOCIATES v. ASSOCIATED INDEMNITY CORPORATION

Appellate Division of the Supreme Court of the State of New York · Feb 10, 2017

As a preliminary matter, we note that D&D’s expert did not aver that he has any expertise in mechanical engineering, dynamics, or a related field that would qualify him to give an opinion with respect to the effect of mechanical … By its plain terms, the contract limits coverage to $25,000 for damage caused when ground water enters the basement through a gap, hole, or opening in the wall, and the conduit clearly falls within the water damage exclusion

Warberg Opportunistic Trading Fund,L.P. v. GeoResources, Inc.

112 A.D.3d 78 · Appellate Division of the Supreme Court of the State of New York · Oct 22, 2013

Here, the “notwithstanding” provision in section 8 (h) clearly overrides any conflicting provisions in section 8 (f). … The “notwithstanding” clause in section 8 (h) clearly indicates that the formula in section 8 (f) cannot achieve a reduction in the exercise price below $32.43.

Bischoff v. Yorkville Bank

170 A.D. 679 · Appellate Division of the Supreme Court of the State of New York · Dec 30, 1915

He duly qualified and received the assets of the estate. He opened an account in the Bowery Bank entitled “ Estate of Josephine F. Schneider, per H. F. W. Poggenburg, Executor.” … This case is clearly distinguishable from those in which the transaction itself afforded notice, not only that the depositor was using the funds of another, but also that he was diverting such funds.

Muller v. Manhattan Railway Co.

124 A.D. 295 · Appellate Division of the Supreme Court of the State of New York · Feb 21, 1908

Therefore, as to the undivided two-fiftlis interest in the premises, which was vested in the two infants who became of age within ten years prior to the commencement of the action the recovery is clearly right and should … By this construction no force , or effect is given to the significant word “ except ” and the words following it which qualify the phrase that the time of the disability is not a part of the. time prescribed in the Statute

Hyatt v. California Franchise Tax Board

105 A.D.3d 186 · Appellate Division of the Supreme Court of the State of New York · Mar 13, 2013

Thus, the subject subpoenas were issued under authority of a court of record of a state other than New York and, thus, qualify as out-of-state subpoenas under CPLR 3119. … However, a demand seeking such a communication on that basis would be clearly overbroad.

Hyatt v. California Franchise Tax Board

105 A.D.3d 186 · Appellate Division of the Supreme Court of the State of New York · Mar 13, 2013

Thus, the subject subpoenas were issued under authority of a court of record of a state other than New York and, thus, qualify as out-of-state subpoenas under CPLR 3119. … However, a demand seeking such a communication on that basis would be clearly overbroad.

Warberg Opportunistic Trading Fund,L.P. v. GeoResources, Inc.

112 A.D.3d 78 · Appellate Division of the Supreme Court of the State of New York · Oct 22, 2013

Here, the “notwithstanding” provision in section 8 (h) clearly overrides any conflicting provisions in section 8 (f). … The “notwithstanding” clause in section 8 (h) clearly indicates that the formula in section 8 (f) cannot achieve a reduction in the exercise price below $32.43.

Slezak v. Ingraham

42 A.D.2d 987 · Appellate Division of the Supreme Court of the State of New York · Oct 23, 1973

counsel stated that petitioners are prepared to install a sprinkler system if that would result in a waiver of the alleged two-hour fire-resistive Life Safety Code defect and that they would do “ whatever anyone who is qualified … stay in order to afford petitioners an opportunity to promptly make those Life Safety Code corrections which can reasonably be made, i.e., the above-mentioned “Specified Corrections” — which, if originally expressly and clearly

In re Construction of the Will of Carlin

6 A.D.2d 281 · Appellate Division of the Supreme Court of the State of New York · Jul 10, 1958

Analyzing these provisions, we find a clearly expressed testamentary scheme. … We prefer to adhere to the established rules which the courts of this State have established. (Matter of Bump, 234 N. Y. 60 ; Matter of White, 213 App. Div. 82 .)

Trump-Equitable Fifth Avenue Co. v. Gliedman

98 A.D.2d 487 · Appellate Division of the Supreme Court of the State of New York · Jan 24, 1984

The Court of Appeals reversed, holding that we “erred in not vacating an agency determination expressly based upon an administrative regulation clearly inconsistent with the plain words of the governing statute” ( 57 NY2d … Section 421-a does not require ‘substantial’ under-utilization, nor does the provision imply that only one specific type of under-utilization may qualify property for the exemption” (supra, p 594).

Rueda v. Charmaine D.

76 A.D.2d 443 · Appellate Division of the Supreme Court of the State of New York · Aug 17, 2010

The application at issue here was made pursuant to subdivision (b) (11), pertaining to a qualified psychiatrist. … She thus qualified for admission under section 9.39, and should have been committed pursuant thereto.

SHAD Alliance v. Smith Haven Mall

106 A.D.2d 189 · Appellate Division of the Supreme Court of the State of New York · Feb 4, 1985

The amphitheatre is surrounded by a number of take-out food establishments and seating areas where shoppers and other visitors are encouraged to sit and relax. … The nature and function of the shopping center in Lloyd was clearly not nearly so broad and far reaching.

HNC Realty Co. v. Bay View Towers Apartments, Inc.

64 A.D.2d 417 · Appellate Division of the Supreme Court of the State of New York · Nov 13, 1978

writing by lender, which contracts and subcontracts shall be in form and substance satisfactory to, and shall be approved in writing by, lender, together with surety payment bonds, issued by a surety company or companies qualified … Here, the building loan contract states very clearly that Bay View was to provide surety payment bonds "covering * * * subcontractors”. (Emphasis added.)