Case law

Faith Assembly v. Titledge of New York Abstract, LLC

106 A.D.3d 47 · Appellate Division of the Supreme Court of the State of New York · Mar 27, 2013

Moreover, the underwriting agreement clearly contemplates Titledge taking possession of escrow funds for a variety of purposes. … “A breach of fiduciary duty cause of action must be pleaded with the requisite particularity under CPLR 3016 (b)” (Parekh v Cain, 96 AD3d 812, 816 [2012]; see Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83 AD3d

People v. Simmons

2022 NY Slip Op 00284 · Appellate Division of the Supreme Court of the State of New York · Jan 18, 2022

In any event, the remarks quoted by the People are too vague to establish that the legislature intended to include all sexually motivated felony offenses as registerable under SORA. … The Second Department held that the "the omission of a critical grammatical signpost or a parenthetical number preceding 'as a sexually motivated felony' [in subparagraph (iii) of section 168-a(2)(a)] clearly limits the qualifying

People v. Simmons

2022 NY Slip Op 00284 · Appellate Division of the Supreme Court of the State of New York · Jan 18, 2022

In any event, the remarks quoted by the People are too vague to establish that the legislature intended to include all sexually motivated felony offenses as registerable under SORA. … The Second Department held that the "the omission of a critical grammatical signpost or a parenthetical number preceding 'as a sexually motivated felony' [in subparagraph (iii) of section 168-a(2)(a)] clearly limits the qualifying

People ex rel. Anne N. v. Nassau County Department of Social Services

152 A.D.2d 30 · Appellate Division of the Supreme Court of the State of New York · Oct 30, 1989

"I * * * understand that if a specific date or event is established for the return of the child, he (she) shall be returned by that date or upon the occurrence of that event unless such return is contrary to a court order … Thus, the use of the qualifying term "identifiable” in the statute appears to be a means of restricting the authority of the agency and safeguarding the interests of the parents.

Holmquist v. Bavarian Star Brewing Co.

72 N.Y. St. Rep. 443 · Appellate Division of the Supreme Court of the State of New York · Feb 7, 1896

This does not affect her right, for, as she still remained bound by her lease, the tenant still remains bound by his covenant to pay rent, modified or qualified only by her *446 right to a proportionate part thereof; and … Applying the principle established in these cases, it must be held that the plaintiff’s intestate was in possession of the premises upon the execution of the lease by her to defendant, and the execution of that lease, reserving

Knight v. McGuire

94 A.D.2d 623 · Appellate Division of the Supreme Court of the State of New York · May 5, 1983

To conclude otherwise would establish a line of demarcation which would have no rational basis. … In our case, clearly the injury was the result of an unexpected, external force, albeit while petitioner was performing his routine functions as a police officer.

Adriana Development Corp. v. Gaspar

81 A.D.2d 235 · Appellate Division of the Supreme Court of the State of New York · Jun 16, 1981

The individual defendants have established by their own affidavits that they are not residents of New York; that they are not doing business in New York; that they own no property in New York; and that they have not been … Accordingly, at least as to those defendants, the action must be dismissed insofar as it rests on jurisdiction of the person. • Clearly, the courts of New York have jurisdiction over the person as to Adriana, which is qualified

PEREZ, JAMIE, PEOPLE v

Appellate Division of the Supreme Court of the State of New York · Jun 10, 2011

Although the correction officer admitted at the hearing that defendant was restrained to a greater degree than other inmates, that statement does not establish that defendant was restrained in a manner over and above that … Contrary to defendant’s contention, the felony conviction for which he was incarcerated at the time of the incident at issue qualified as the requisite predicate felony conviction for second felony offender status (cf.

Hoffman v. Board of Education

64 A.D.2d 369 · Appellate Division of the Supreme Court of the State of New York · Nov 6, 1978

Defendant then posits that "[w]hat will not be done in a direct challenge * * * should even more clearly not *385 be done in the context of an individual’s claim for civil damages.” … New York State and its municipalities have long since surrendered immunity from suit.

Bovis Lend Lease (LMB), Inc. v. Lower Manhattan Development Corp.

108 A.D.3d 135 · Appellate Division of the Supreme Court of the State of New York · May 28, 2013

The court dismissed the portions of the second cause of action seeking damages for changes in the scope of work, changed project conditions, and acceleration, reasoning that the contract “clearly provided that additional … However, nowhere in its pleading or in its supporting affidavits has Bovis alleged facts that, if proved, would establish that LMDC knowingly relinquished the right to insist on a change order.

Dougherty v. Thompson

54 A.D. 456 · Appellate Division of the Supreme Court of the State of New York · Jul 1, 1900

question which the case presents, he bequeathed as follows : ' “ One other of said shares, .amounting at par to one hundred thousand dollars, I give and bequeath unto, my executors herein named, or such of them as shall qualify … Such rule is well established and has been continuously recognized. (Monarque v. Monarque, 80 N. Y. 320 ; Matter of Brown, supra.)

Sanka Classics, Inc. v. Atlantic Terra Cotta Co.

274 A.D. 103 · Appellate Division of the Supreme Court of the State of New York · Jun 22, 1948

It is established that many of these buildings were dilapidated, and that all of them were greatly in need of repair. Some of them were incapable of repair. … This determination, as it seems to *111 me, is clearly erroneous.

Bovis Lend Lease (LMB), Inc. v. Lower Manhattan Development Corp.

108 A.D.3d 135 · Appellate Division of the Supreme Court of the State of New York · May 28, 2013

The court dismissed the portions of the second cause of action seeking damages for changes in the scope of work, changed project conditions, and acceleration, reasoning that the contract “clearly provided that additional … However, nowhere in its pleading or in its supporting affidavits has Bovis alleged facts that, if proved, would establish that LMDC knowingly relinquished the right to insist on a change order.

People v. Montes

2019 NY Slip Op 9324 · Appellate Division of the Supreme Court of the State of New York · Dec 26, 2019

Photographs from the ATMs where each of the three deposits were made clearly identified defendant as the individual who made the deposits. … did not wish to continue with deliberations given the initial contentious nature thereof and the fact she did not feel comfortable in the jury room, "a declaration regarding emotions alone does not render a juror grossly qualified

Card v. Moore

68 A.D. 327 · Appellate Division of the Supreme Court of the State of New York · Jan 15, 1902

If it were not material and precedent, then the abuses incident to sham and fraudulent corporations foisted upon the public to prey upon credulity, with immunity therefor, might well abound. … We cannot say that the finding is against the weight of evidence, or that the proof so clearly preponderated in favor of a contrary result that it can be said that the trial court erred in its conclusions. (Lowery v.

In re the Arbitration between Brookside Mills, Inc. & Raybrook Textile Corp.

276 A.D.2d 357 · Appellate Division of the Supreme Court of the State of New York · Jan 31, 1950

Special Term was clearly correct in eliminating any liability on the part of Krug individually from the subject matter of the arbitration. … qualified assignee under said agreement.

Mersereau v. Bennet

124 A.D. 413 · Appellate Division of the Supreme Court of the State of New York · Feb 21, 1908

Mersereau died intestate, leaving the plaintiffs his only heirs at law ..arid next of kin, and, subsequently and on the 23d of March, 1905,.lett-ers..of administration duly issued to the plaintiffs, who thereupon duly qualified … All that was necessary to establish in this case was the fact that the trustee had not fully accounted and that, seems to be conceded.

In re the Estate of Prevratil

121 A.D.3d 137 · Appellate Division of the Supreme Court of the State of New York · Jul 24, 2014

Matter of Duke, 87 NY2d at 473 [“Removal of a fiduciary constitutes a judicial nullification of the testator’s choice and may only be decreed when the grounds set forth in the relevant statutes have been clearly established … Our courts have regularly recognized the importance of a testator’s choice of executor, acknowledging that it “should be given great deference and not disregarded unless that executor is not legally qualified to act as a

In re the Estate of Prevratil

121 A.D.3d 137 · Appellate Division of the Supreme Court of the State of New York · Jul 24, 2014

Matter of Duke, 87 NY2d at 473 [“Removal of a fiduciary constitutes a judicial nullification of the testator’s choice and may only be decreed when the grounds set forth in the relevant statutes have been clearly established … Our courts have regularly recognized the importance of a testator’s choice of executor, acknowledging that it “should be given great deference and not disregarded unless that executor is not legally qualified to act as a

Callahan v. O'Rourke

110 A.D. 779 · Appellate Division of the Supreme Court of the State of New York · Dec 29, 1905

The continued use of the machine in the promotion 'of his own business interests, with knowledge of its imperfections, was an unequivocal act of acceptance which no words' of his own could qualify.” … They are offered to establish-a. transaction of. the"sort which men usually want to define with great care' and .put in written, form. • - ■ The talk to which Mr.