Case law

New York State Deputies' Ass'n v. New York State Civil Service Commission

57 A.D.2d 550 · Appellate Division of the Supreme Court of the State of New York · Apr 4, 1977

Although a Deputy Sheriff may, on occasion, perform traditional police functions, this, in itself, fails to establish that he is responsible for the enforcement of the general criminal laws of the State. … determinations, clearly not the commission, that he had performed the requisite "creditable service” to qualify for retirement benefits under section 89-b of the Retirement and Social Security Law.

Maki v. Estate of Ziehm

55 A.D.2d 454 · Appellate Division of the Supreme Court of the State of New York · Jan 27, 1977

If *457 any claim is rejected, the court has jurisdiction to determine it on its merits and any trial needed to establish the facts takes place as part of the 'judicial settlement of his [the fiduciary’s] account’ (SCPA 1808 … A derivative action on behalf of the subject corporation is clearly a claim asserted against the estate for assets converted during the lifetime of the decedent.

Glenel Realty Corp. v. Worthington

4 A.D.2d 702 · Appellate Division of the Supreme Court of the State of New York · Jun 24, 1957

The record clearly establishes that the abolition of such use would cause a substantial loss to the respondent. … Moreover, by the express provisions of sections 1 and 4 of the town zoning ordinance, every existing nonconforming use and every permit issued are protected and rendered immune from any subsequent change in the ordinance.

Goodwin v. State Tax Commission

286 A.D. 694 · Appellate Division of the Supreme Court of the State of New York · Nov 23, 1955

These deductions undoubtedly had their genesis in governmental policy but it is difficult to ascertain now the precise policy which led to the establishment of each of the deductions. … The expenditures in controversy in this case are clearly a part of the petitioner’s personal activities in his home State.

People v. Sapia

48 A.D.2d 524 · Appellate Division of the Supreme Court of the State of New York · Jul 15, 1975

Aside from the "live” testimony of the undercover officer and his back-up team, tape recordings and videotapes were introduced into evidence clearly establishing defendant’s "guilt”. … My only concern is whether defendant was improperly precluded from establishing a viable entrapment defense.

Long Island Lighting Co. v. Mack

137 A.D.2d 285 · Appellate Division of the Supreme Court of the State of New York · May 16, 1988

Such acts are excluded from the immunity, indemnification and defense provisions of Public Authorities Law § 1020-bb. … A fair reading of the cases *296 relied on by the plaintiffs clearly indicates that mere negligence is not sufficient to establish liability under the Federal Acts, and that some kind of "intentional wrongdoing” is required

SUE/PERIOR CONCRETE & PAVING, INC. v. LEWISTON GOLF COURSE CORPORATION

Appellate Division of the Supreme Court of the State of New York · Jun 14, 2013

Notably, “the burden of proof for an entity asserting immunity as an arm of a sovereign tribe is on the entity to establish that it is, in fact, an arm of the tribe” (id. at 466). … That fact does not, however, establish legal title or ownership of the property at issue.

Matthews v. Hill

165 A.D. 672 · Appellate Division of the Supreme Court of the State of New York · Jan 6, 1915

The defendant made no effort to establish these facts upon the trial, but urges upon this appeal certain alleged errors on the part of the court in the receipt and rejection of evidence. … The second matter urged is that the court erred in receiving in evidence the lease claimed to have been made by Mary McG-arrity to the plaintiff of the premises in question, on the ground that the' witnesses were not qualified

Bongiovanni v. Cavagnuolo

138 A.D.3d 12 · Appellate Division of the Supreme Court of the State of New York · Feb 3, 2016

Rather, the affirmations of both physicians were clearly and narrowly drawn to address only the separate element of proximate cause. Dr. … Coyne did not establish that they were qualified to offer an opinion on the issue of the defendant’s alleged deviation or departure from the standard of chiropractic practice, their opinions should have been considered by

Bloom v. Brady

171 A.D.2d 910 · Appellate Division of the Supreme Court of the State of New York · Mar 7, 1991

Bloom was injured with a "No Trespassing” sign, the grant of immunity to property owners provided by the statute did not apply. … As this court has noted "[t]o the contrary, the ordinary meaning of the statutory language establishes clearly that it applies with equal force to a landowner who has not given such permission” and that protection under the

Manhattan Storage & Warehouse Co. v. Movers & Warehousemen's Ass'n of Greater New York, Inc.

262 A.D. 332 · Appellate Division of the Supreme Court of the State of New York · Jun 27, 1941

The holding in the Socony-Vacuum case that the rule of reason has no application appears to be clearly contrary to previous decisions of the Supreme Court of the United States. (See Cement Mfrs. Assn. v. … The immunity granted by the Donnelly Act is restricted to a bona fide labor activity.

Russian Reinsurance Co. v. Stoddard

211 A.D. 132 · Appellate Division of the Supreme Court of the State of New York · Jan 7, 1925

Clearly enough, the general rule to be followed is that “ acts or decrees, to be ranked as governmental, must proceed from some authority recognized as a government de facto.” … The plaintiffs’ witness testified that the Russian law is not inconsistent with the law of this State as to the right of directors to hold office until their successors are elected and qualify or as to the right of a board

In re La Cross

124 A.D.2d 870 · Appellate Division of the Supreme Court of the State of New York · Nov 13, 1986

Jason has apparently established strong emotional ties to the Scarincio family and they, in turn, treat him as a member of their family. … Special Term found that "[a]ll of the parties as well as the Court recognize that it is clearly in the best interests of the child that he continue to reside with the Scarincios”.

Albany Country Club v. State

19 A.D.2d 199 · Appellate Division of the Supreme Court of the State of New York · Jul 15, 1963

However, the record establishes that the court should have adopted the replacement value of the golf course, as testified to by claimant’s highly qualified expert, Robert Trent Jones, which did not include trees and water … However, that rule is not without exceptions, and if the evaluation is clearly inadequate it is erroneous.”

Claim of Forte v. Eastman Kodak Co.

27 A.D.2d 15 · Appellate Division of the Supreme Court of the State of New York · Dec 23, 1966

The rationale, as well as the effect of the board’s decision, is to equate or to treat as interdependent the terms ‘ ‘ employment ’ ’ and ‘ ‘ eligibility ’ ’ when the statute clearly and repeatedly treats them as separate … rights to benefits thus established by terminating the employment.

Heckstall v. McGrath

15 A.D.3d 824 · Appellate Division of the Supreme Court of the State of New York · Feb 24, 2005

The law also established a procedure for the application of news media to cover a particular proceeding, empowered the chief administrative judge to promulgate rules consistent with the legislation and provided punishment … Significantly, respondent’s ruling does not relate to any substantive or procedural issues with respect to the underlying criminal charges, issues which clearly could not be the subject of prohibition.

Empire State Ass'n of Adult Homes, Inc. v. Perales

142 A.D.2d 322 · Appellate Division of the Supreme Court of the State of New York · Dec 22, 1988

Plaintiffs have failed to meet their burden of establishing that "the regulation 'is so lacking in reason for its promulgation that it is essentially arbitrary’ ” (Ostrer v Schenck, 41 NY2d 782 , 786, quoting Matter of Marburg … settled that 'in no case does the owner of property acquire immunity against the exercise of the police power because he constructed it in full compliance with existing laws’ ” (Matter of Engelsher v Jacobs, supra, at 375

Commonwealth Motor Parts Ltd. v. Bank of Nova Scotia

44 A.D.2d 375 · Appellate Division of the Supreme Court of the State of New York · May 9, 1974

The first two causes, though falling within the protective aegis of qualified privilege, were sustained, as pleaded, on the theory that plaintiffs might overcome such defense at a trial by establishing a malicious motivation … The applicable law regarding the defense of qualified privilege was clearly enunciated by the Court of Appeals in Shapiro v. Health Ins.

Brennan v. Metropolitan Opera Ass'n

284 A.D.2d 66 · Appellate Division of the Supreme Court of the State of New York · Jul 12, 2001

Plaintiff failed to establish the fourth element of her prima facie case. … These facts and unsubstantiated suspicions do not support plaintiffs claim that Kneuss replaced “experienced, highly qualified, perceived heterosexuals” with “inexperienced, under-qualified, perceived homosexuals.”

In re the Estate of Harrison

184 A.D.2d 42 · Appellate Division of the Supreme Court of the State of New York · Nov 25, 1992

Respondent filed objections to the accounting, claiming that paragraph fourth of the will operated to rebut the presumption that decedent intended the accounts to be joint tenancies and clearly established the subject accounts … In opposition to that motion, Harrison submitted copies of signature cards for two of the four accounts clearly establishing that they were created in accord with the requirements of Banking Law § 675 (a), an affidavit from