Case law

Serpe v. Eyris Productions, Inc.

243 A.D.2d 375 · Appellate Division of the Supreme Court of the State of New York · Oct 28, 1997

Although the dissent does not view the floor of an uncompleted building as an elevated worksite, the above cases clearly refute that notion. … Rather, as we have noted in the past, this term, under standard canons of statutory construction, necessarily is qualified by the terms that precede it (Ryan v Morse Diesel, supra), all of which are safety devices that specifically

390 West End Associates v. Wildfoerster

241 A.D.2d 402 · Appellate Division of the Supreme Court of the State of New York · Jul 24, 1997

In my opinion, the evidence clearly establishes that respondent qualifies as a “family member” of the decedent, the tenant of record, such that respondent should be found to have acquired succession rights to the rent stabilized

Feigman v. Klepak

62 A.D.2d 816 · Appellate Division of the Supreme Court of the State of New York · Jun 27, 1978

That fact is insufficient to raise a triable issue; nor does it prima facie establish selective enforcement of the rules. … It does not (and indeed cannot be expected to) qualify as a methadone maintenance treatment program.

Sears, Roebuck & Co. v. Enco Associates, Inc.

54 A.D.2d 13 · Appellate Division of the Supreme Court of the State of New York · Jul 12, 1976

The services here rendered, unlike those of carpenters or masons, were clearly professional. … By training and by law they are peculiarly limited to those who qualify by accredited academic studies in the discipline and by subsequent governmental licensing.

Claim of Reichel v. General Electric Co.

33 A.D.2d 728 · Appellate Division of the Supreme Court of the State of New York · Nov 25, 1969

Reich as to pre-existing hypertension and the possibility of headaches and dizziness resulting from that condition, his testimony in sum is sufficient to establish that the accident of June 10, 1964 caused an injury in the … He then even further qualified this opinion by stating: “I feel that as Mr.

Rapess v. Ortiz

99 A.D.2d 413 · Appellate Division of the Supreme Court of the State of New York · Jan 5, 1984

The mandamus issues to compel the performance of official duty clearly imposed by law, where there is no other adequate specific remedy. … These averments, if established by appropriate proof, would warrant the issuance of an order of mandamus.

Hammel v. Camp Ranger, Inc.

275 A.D.2d 23 · Appellate Division of the Supreme Court of the State of New York · Mar 9, 1949

The court below held that the course along Pleasant Pond was qualified by the latter clause " to run to the low water mark thereof ”. … Exclusive use is one of the cardinal elements of a prescriptive right, and common use or acquiescence will not suffice to establish such a right (Commonwealth Water Co. v. Brunner, 175 App. Div. 153 ; Mix v.

In re the Judicial Settlement of the Account of the Long Island Loan & Trust Co.

92 A.D. 5 · Appellate Division of the Supreme Court of the State of New York · Mar 15, 1904

last will and testament, in and by which he named the Long Island Loan and Trust Company as his executor; the will was duly probated by the surrogate of the county of Kings on the 13th day of September, 1893 ; the executor qualified … The proof introduced by the special guardian established that when this agreement was acknowledged, and for some time after the death of Mr.

In re Michael Anthony Vincent J.

253 A.D.2d 619 · Appellate Division of the Supreme Court of the State of New York · Sep 10, 1998

Littman was qualified by the court as an expert in psychiatric social work. … They established a prima facie case, but a prima facie case is not clear and convincing proof when everything comes out from the respondent’s side.”

Schieffelin v. Leary

219 A.D. 660 · Appellate Division of the Supreme Court of the State of New York · Mar 9, 1927

The defendant Leary is a duly elected and qualified justice of the Municipal Court of the City of New York in the Sixth District in the borough of Manhattan, having been elected from said district for a term of office beginning … The Municipal Court Code clearly relates to a branch of the judicial system of the State of New York. It has nothing to do with the property, affairs or government of the city.

People v. Hebert

2023 NY Slip Op 03947 · Appellate Division of the Supreme Court of the State of New York · Jul 27, 2023

Although the prosecutor's further inquiry clearly exceeded the scope of the pretrial Sandoval ruling, we conclude that County Court did not abuse its discretion in allowing the People to engage in this questioning in response … That County Court did not conduct a further inquiry of each individual juror about juror No. 5's removal does not qualify as a mode of proceedings error ( see People v King , 27 NY3d at 153 ).

Chester v. Buffalo Car Manufacturing Co.

70 A.D. 443 · Appellate Division of the Supreme Court of the State of New York · Mar 15, 1902

The first of the other two rules is too well established to require discussion. … The trial court in a qualified manner has found for this claim.

Slingerland v. International Contracting Co.

43 A.D. 215 · Appellate Division of the Supreme Court of the State of New York · Jul 1, 1899

It is at once perceived that the acquisition of the right by prescription, which presumes some ancient and lost grant, must be difficult to establish. … His ownership was not practically disputed,, but the question was whether it was absolute ownership or such qualified ownership as precluded him from complaining if the government deposited dredged material on the two acres

Douglaston Electric Sales, Inc. v. Royal Bank of Canada

69 A.D.2d 565 · Appellate Division of the Supreme Court of the State of New York · Jul 30, 1979

Quite clearly the drafts are not orders on the bank to pay; rather, they contemplate that the funds will be payable through the bank. … Nor can defendant’s payment to Servindo, without plaintiff’s *578 authorization, establish a basis for liability.

Young v. Young

212 A.D.2d 114 · Appellate Division of the Supreme Court of the State of New York · Jun 26, 1995

Green’s testimony was of limited probative value, there was, in essence, no qualified expert opinion to contradict the recommendation of Dr. Reubins. … Yet, in his report, the Law Guardian clearly articulated reasons as to why he thought that the mother was unfit, and those reasons clearly had to do with the mother’s interference with the father’s visitation with the children

Stewart v. New York City Transit Authority

125 A.D.3d 129 · Appellate Division of the Supreme Court of the State of New York · Dec 30, 2014

Since the parties clearly excluded appellate work from the initial retainer, and executed a second retainer providing for a separate fee for appellate work, it cannot be said that the award of an additional 10% contingency … To establish that showing, the movant must show "some legitimate interest . . .

In re the Estate of Ellis

252 A.D.2d 118 · Appellate Division of the Supreme Court of the State of New York · Dec 31, 1998

Here, not only did discovery occur after the service and claimed filing of objections, but also, the respondents’ conduct clearly exceeded that protected by the statutory scheme. … Thus, although SCPA 1404 (4), by its express terms, permits examinations either before or after the filing of objections, the legislative intent in enacting EPTL 3-3.5 (b) (3) (D) was to immunize only “preliminary” (pre-objection

Hager v. Mooney Aircraft, Inc.

63 A.D.2d 510 · Appellate Division of the Supreme Court of the State of New York · Jul 20, 1978

Support for this conclusion was advanced by the critical testimony of plaintiff’s highly qualified expert Joseph F. Ware, Jr. … The trial court was clearly justified in finding on this record that plaintiff’s proffered explanation of the cause of the crash fitted all the known facts as observed and testified to.

People v. Cyrus

48 A.D.3d 150 · Appellate Division of the Supreme Court of the State of New York · Dec 18, 2007

“A single error may qualify as ineffective assistance, but only when the error is sufficiently egregious and prejudicial as to compromise a defendant’s right to a fair trial” (Caban, 5 NY3d at 152 ). … After a few more questions establishing that the police or prosecutor secured a copy of the video from Duane Reade, counsel finished his cross-examination of Harper.

People v. Barnes

106 A.D.3d 600 · Appellate Division of the Supreme Court of the State of New York · May 23, 2013

Mere losing tactics do not suffice to establish ineffective assistance (id. at 712). … However, “[w]here a single, substantial error by counsel so seriously compromises a defendant’s right to a fair trial, it will qualify as ineffective representation” (People v Hobot, 84 NY2d 1021, 1022 [1995]).