Case law

Shenkman v. O'Malley

1 Misc. 2d 794 · New York Supreme Court · Nov 3, 1955

These opinions clearly fall short of establishing the truth of the averment that the “medical profession ” appreciated that the first operation had been successful. One of the four doctors was Dr. … The defense is a good defense of qualified privilege.

Nick's Brick Oven Pizza, Inc. v. Excelsior Insurance

19 Misc. 3d 736 · New York Supreme Court · Mar 20, 2008

“That being the case, the ambiguity must be construed against [defendant Excelsior Insurance] and [Travis Schmidt] qualifies as a ‘temporary worker’. … Because it is the insurer’s responsibility to clearly set forth what damages are excluded from coverage under the terms of the policy and ambiguous provisions are construed . . . strictly against the insurer,” the construing

People ex rel. Williams v. Warden, Department of Correction Detention Pens

54 Misc. 2d 907 · New York Supreme Court · Oct 16, 1967

An illegal Kings County arraignment would not immunize relator from being held on a subsequent legal commitment, nor would an illegal Kings County arraignment immunize him from being held to answer the charge of having committed … That case is clearly inapposite for we are not dealing here with the finding of an indictment, or a trial being held, in a county other than the county in which the crime was committed but rather with a preliminary appearance

Morano v. St. Francis Hospital

100 Misc. 2d 621 · New York Supreme Court · Jul 5, 1979

Malpractice, therefore, qualifies as a "wrongful act, neglect or default” as set forth in EPTL 5-4.1, and which may form the basis of an action for wrongful death. … Francis Hosp. ( 44 NY2d 604 ) has clearly established that a common-law cause of action for wrongful death does not exist in this State.

Schoening v. Board of Education

8 Misc. 2d 957 · New York Supreme Court · Nov 29, 1957

An examination of the various resolutions and hy-laws adopted by the respondent clearly establishes that the only position in the area of swimming instructions which respondent created was the one which it created in 1936 … In fact, the exhibits clearly establish the contrary, and demonstrate that considerable thought had been given to the compromise.

Fauci v. Lee

38 Misc. 2d 564 · New York Supreme Court · Jan 31, 1963

It is a well-established rule in New York that the authority to appoint is vested in the appointing power in office when the vacancy arises. The Court of Appeals in People v. Fitzgerald ( 180 N. … There is clearly, then, a conflict, present and potential.

Union Circulation Co. v. Hardel Publishers Service Inc.

6 Misc. 2d 340 · New York Supreme Court · Apr 12, 1957

Here all of the necessary elements are alleged and if established would make the case one for this relief. The counterclaim is valid. We come now to the defenses. … As the breach complained of in the complaint has no connection with the clause in question the presence of that clause confers no immunity on the defendant.

Cohalan v. New York World-Telegram Corp.

172 Misc. 1061 · New York Supreme Court · Nov 25, 1939

This inference of the law establishes a prima facie cause of action upon the face of the complaint. (Callahan v. Israels, 140 Misc. 295 .) … There are, however, four defenses to a publication which is libelous per se, viz., (a) truth, (b) privilege — absolute or qualified, (c) fair report of an official proceeding, and (d) fair comment on a matter of public interest

Anonymous v. CVS Corp.

188 Misc. 2d 616 · New York Supreme Court · Mar 1, 2001

Public Health Law § 18 (6) states: *626 “Whenever a health care provider, as otherwise authorized by law, discloses patient information to a person or entity other than the subject of such information or to other qualified … Then, pharmacists, along with other health care providers, would have an opportunity to comply with the requirements, and obtain immunity from civil liability under Public Health Law § 18.

Adler v. Wilson

203 Misc. 456 · New York Supreme Court · Apr 16, 1953

The petitioners had no greater statutory immunity from inquiry as to political affiliation with the Communist party than had the probationary policeman. … conclusion, it is the announced policy of the Board of Education that a teacher or other employee who is a member of the Communist Party or of a group advocating the overthrow of the government by force and violence is not qualified

Conyne v. McGibbon

179 Misc. 54 · New York Supreme Court · Jul 6, 1942

In the main, defendant’s defenses which are based upon documentary evidence or official records, while perhaps establishing certain facts prima facie, are not, in my opinion, “sufficient as a matter of law.” … accountings having been regularly had, allowed and settled, they are conclusive and binding upon the plaintiff; that, this action being a collateral and not a direct attack on the accounting proceedings, the latter are also immune

Fox v. Dunckel

55 Barb. 431 · New York Supreme Court · Nov 1, 1869

The party injured is provided with a summary remedy, it is true, but a remedy established by long usage, and rules of statute and common law, entirely suited to the exigencies of the case, giving the owner full protection … Eor can it be contended that justices are less qualified to appraise damages by sworn testimony, than fence viewers.

Foo Long v. Chu Fong

6 N.Y.S. 406 · New York Supreme Court · Jul 9, 1889

Y. 518 , where it was declared that in a civil action the plaintiff is not bound to establish any fact so clearly that it shall be free from doubt. … But in the present case the erroneous instructions as to the effect of a doubt with reference to the defense was not corrected, or qualified, or modified, so far as I can discover, by anything else in the charge.

Henry v. New York State Commission of Investigation

141 Misc. 2d 849 · New York Supreme Court · Jun 20, 1988

In Hannah , the United States Supreme *857 Court was required to pass upon the validity of certain procedural rules adopted by the Commission on Civil Rights, which was established by Congress in 1957. … Clearly, the S.I.C.’s function is investigative and fact finding. It does not adjudicate. It cannot indict. It is not a Grand Jury. (See, Matter of Di Brizzi [Proskauer], 303 NY 206, 216 .)

Wolf v. Davis

108 Misc. 2d 19 · New York Supreme Court · Feb 25, 1981

In Richardson on Evidence (§ 210 [10th ed]), it is pointed out that the cases now clearly establish that an admission is not received in evidence solely for the purpose of discrediting a party by showing that he has made … Nor can the names and addresses of “admission” witnesses qualify as material prepared for litigation.

Breslin Realty Development Corp. v. Stanley

48 Misc. 3d 424 · New York Supreme Court · Apr 8, 2015

For purposes of this subdivision, all [accounts] . . . qualified as an individual retirement account ... or other plan . . . qualified under section 401 of the United States Internal Revenue Code . . . shall be considered … The income exemption thus is clearly directed to *428 current expenses, and deposits into a retirement account, by their nature, are not to be used for those expenses.

Gay Alliance of Genesee Valley, Inc. v. City Assessor

158 Misc. 2d 127 · New York Supreme Court · Apr 6, 1993

In addition, the City’s last-minute discovery demands are so clearly frivolous that this court orders a hearing on possible sanctions under 22 NYCRR 130-1.1. 1 FACTS The Gay Alliance of Genesee Valley has among its purposes … ordinance, regulation, custom, or usage, of any State * * * subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities

People v. Burnet

25 Misc. 3d 307 · New York Supreme Court · Jul 1, 2009

appeared to blow into the machine, but when he failed to provide a sufficient breath sample, was deemed to have constructively refused. 6 Conclusions of Law As stated, the purpose for which this court ordered a hearing was clearly … Notwithstanding the clearly stated purpose for which this court ordered a Frye hearing, the assistant district attorney inexplicably failed to present any testimony, scientific or otherwise, to establish the scientific reliability

Kashman v. Board of Elections

54 Misc. 2d 543 · New York Supreme Court · Jul 17, 1967

Kashman, against respondents Commissioners of the Board of Elections to compel the respondents to accept the registration of the petitioner as a duly qualified voter in Onondaga County, New York. … Clearly, it does not here.

Smith v. Wynkoop

175 Misc. 645 · New York Supreme Court · Dec 9, 1940

Judge Crouch clearly and completely stated the law in Koso v. Greene ( 260 N. … The position in question is in the competitive class and cannot be filled by one who has not become qualified through competitive examination.