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Top citers, strongest first. 17 distinct citers.
How cited ↗
discussed
Cited "see"
Matter of Diedrichs v. McAvoy
Here, we conclude that the mother failed to establish the requisite change in circumstances, and Family Court therefore did not err in granting the father's motion to dismiss the petition ( see Matter of Jessica EE. v Joshua EE. , 188 AD3d 1479, 1481-1482 [3d Dept 2020]; see also Berg , 179 AD3d at 1545; Matter of De Cicco v De Cicco , 29 AD3d 1095, 1096 [3d Dept 2006]; see generally Matter of Chrysler v Fabian , 66 AD3d 1446 , 1447 [4th Dept 2009], lv denied 13 NY3d 715 [2010]).
discussed
Cited "see"
Matter of United Helpers Canton Nursing Home, Inc. v. Zucker
In this regard, the case law makes clear— and the parties again readily acknowledge * —that “a challenge to the methodology is properly considered by way of CPLR article 78 review” (Matter of Amsterdam Nursing Home Corp. [1992] v Daines, 68 AD3d 1591, 1591-1592 [2009]; see generally Matter of New Franklin Ctr. for Rehabilitation & Nursing v Novella, 64 AD3d 1132, 1134 [2009], lvs denied 13 NY3d 715 , 716 [2010]).
discussed
Cited "see"
Noble v. Paris
We also reject the contention of the mother and the AFC that the court erred in dismissing the petition without conducting a hearing. “ 'A hearing is not automatically required whenever a parent seeks modification of a custody order’ ” (Matter of Warrior v Beatman, 70 AD3d 1358, 1359 [2010], lv denied 14 NY3d 711 [2010]), and here the mother failed to “make a sufficient evidentiary showing of a change in circumstances to require a hearing” (Matter of Di Fiore v Scott, 2 AD3d 1417, 1417-1418 [2003] [internal quotation marks omitted]; see Matter of Chrysler v Fabian, 66 AD3d 1446 , 144…
discussed
Cited "see"
Noble v. Paris
We also reject the contention of the mother and the AFC that the court erred in dismissing the petition without conducting a hearing. “ 'A hearing is not automatically required whenever a parent seeks modification of a custody order’ ” (Matter of Warrior v Beatman, 70 AD3d 1358, 1359 [2010], lv denied 14 NY3d 711 [2010]), and here the mother failed to “make a sufficient evidentiary showing of a change in circumstances to require a hearing” (Matter of Di Fiore v Scott, 2 AD3d 1417, 1417-1418 [2003] [internal quotation marks omitted]; see Matter of Chrysler v Fabian, 66 AD3d 1446 , 144…
discussed
Cited "see"
NOBLE, YVETTE v. PARIS, TROY
Here, we conclude that the mother was not prejudiced by the timing of the father’s motion (see generally Bucklaew v Walters, 75 AD3d 1140, 1141 ). -2- 848 CAF 14-01949 We also reject the contention of the mother and the AFC that the court erred in dismissing the petition without conducting a hearing. “ ‘A hearing is not automatically required whenever a parent seeks modification of a custody order’ ” (Matter of Warrior v Beatman, 70 AD3d 1358, 1359 , lv denied 14 NY3d 711 ), and here the mother failed to “make a sufficient evidentiary showing of a change in circumstances to require…
discussed
Cited "see"
Connaughton v. Chipotle Mexican Grill, Inc.
(2×)
When a claim sounds in fraud, the measure of damages is governed by the "out-of-pocket" rule, which states that the measure of damages is "indemnity for the actual pecuniary loss sustained as the direct result of the wrong" ( Lama Holding Co. v Smith Barney , 88 NY2d 413, 421 [1996]; see Rather v CBS Corp. , 68 AD3d 49, 58 [1st Dept 2009] , lv denied 13 NY3d 715 [2010] [explaining that under Lama Holding Co. , plaintiff Rather was "required to plead that he had something of value, was defrauded by CBS into relinquishing it for something of lesser value, and that the difference between the two …
discussed
Cited "see"
People v. Roberts
“An offender who has a substance abuse history or was abusing drugs and/or alcohol at the time of the offense may be assessed points” in this category (People v Clavette, 96 AD3d 1178, 1179 [2012], lv denied 20 NY3d 851 [2012] [additional emphasis added and citations omitted]; see People v Lerch, 66 AD3d 1088, 1089 [2009], lv denied 13 NY3d 715 [2010]).
discussed
Cited "see"
People v. Roberts
“An offender who has a substance abuse history or was abusing drugs and/or alcohol at the time of the offense may be assessed points” in this category (People v Clavette, 96 AD3d 1178, 1179 [2012], lv denied 20 NY3d 851 [2012] [additional emphasis added and citations omitted]; see People v Lerch, 66 AD3d 1088, 1089 [2009], lv denied 13 NY3d 715 [2010]).
discussed
Cited "see"
Hoffmeier v. Byrnes
It is well settled that “where an order and decision conflict, the decision controls” (Matter of Triplett v Scott, 94 AD3d 1421, 1421 [2012] [internal quotation marks omitted]; see Matter of King v King, 309 AD2d 1207, 1208 [2003]), and we thus conclude that the court made the requisite threshold finding that the mother failed to establish a change in circumstances sufficient to warrant an inquiry into whether the best interests of the children would be served by altering their existing custody arrangement (see Matter of Chrysler v Fabian, 66 AD3d 1446 , 1447 [2009], lv denied 13 NY3d 715 …
discussed
Cited "see"
Hoffmeier v. Byrnes
It is well settled that “where an order and decision conflict, the decision controls” (Matter of Triplett v Scott, 94 AD3d 1421, 1421 [2012] [internal quotation marks omitted]; see Matter of King v King, 309 AD2d 1207, 1208 [2003]), and we thus conclude that the court made the requisite threshold finding that the mother failed to establish a change in circumstances sufficient to warrant an inquiry into whether the best interests of the children would be served by altering their existing custody arrangement (see Matter of Chrysler v Fabian, 66 AD3d 1446 , 1447 [2009], lv denied 13 NY3d 715 …
discussed
Cited "see"
HOFFMEIER, SUZALYN E. v. BYRNES, THOMAS
It is well settled that “where an order and decision conflict, the decision controls” (Matter of Triplett v Scott, 94 AD3d 1421, 1421 [internal quotation marks omitted]; see Matter of King v King, 309 AD2d 1207, 1208 ), and we thus conclude that the court made the requisite threshold finding that the mother failed to establish a change in circumstances sufficient to warrant an inquiry into whether the best interests of the children would be served by altering their existing custody arrangement (see Matter of Chrysler v Fabian, 66 AD3d 1446, 1447 , lv denied 13 NY3d 715 ; cf. Matter of Care…
discussed
Cited "see"
CAREY, JAMES R. v. WINDOVER, SARAH L.
We reject the mother’s contention that Family Court erred in determining that the father established the requisite change in circumstances to warrant modification of the existing custody arrangement. “ Tt is well established that alteration of an established custody arrangement will be ordered only upon a showing of a change in circumstances [that] reflects a real need for change to ensure the best interests] of the child’ ” (Matter of Amy L.M. v Kevin M.M., 31 AD3d 1224, 1225 [2006]; see Matter of Chrysler v Fabian, 66 AD3d 1446 [2009], v denied 13 NY3d 715 [2010]).
discussed
Cited "see"
People v. Rhodehouse
An assessment of points under that factor is permissible if “an offender has a substance abuse history or was abusing drugs and or alcohol at the time of the offense” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [2006]; see People v Lerch, 66 AD3d 1088, 1089 [2009], lv denied 13 NY3d 715 [2010]).
discussed
Cited "see"
Dormio v. Mahoney
“A party seeking a change in an established custody arrangement must show ‘a change in circumstances [that] reflects a real need for change to ensure the best interests] of the child’ ” (Matter of Di Fiore v Scott, 2 AD3d 1417, 1417 [2003]; see Matter of Chrysler v Fabian, 66 AD3d 1446 [2009], lv denied 13 NY3d 715 [2010]).
discussed
Cited "see"
Horn v. Horn
“A party seeking a change in an established custody arrangement must show ‘a change in circumstances [that] reflects a real need for change to ensure the best interests] of the child’ ” (Matter of Di Fiore v Scott, 2 AD3d 1417, 1417 [2003]; see Matter of Chrysler v Fabian, 66 AD3d 1446 [2009], lv denied 13 NY3d 715 [2010]) and, here, the mother failed to meet that burden.
discussed
Cited "see, e.g."
Davis v. Stuckey
The deposition testimony of the parties, as well as the testimony of a nonparty witness, was conflicting and raises triable issues of fact with respect to the details of the accident, thereby precluding summary judgment based upon the applicability of the emergency doctrine (see Rhodes v United Parcel Serv., 33 AD3d 455 [2006]; compare Brown v Muniz, 61 AD3d 526, 526-527 [2009], lv denied 13 NY3d 715 [2010]).
discussed
Cited "see, e.g."
Starr Foundation v. American International Group, Inc.
As the Court of Appeals noted in Lama, under the out-of-pocket rule “the loss of an alternative contractual bargain . . . cannot serve as a basis for fraud or misrepresentation damages because the loss of the bargain was ‘undeterminable and speculative’ ” ( 88 NY2d at 422 , quoting Dress Shirt Sales v Hotel Martinique Assoc., 12 NY2d 339, 344 [1963]; see also Rather v CBS Corp., 68 AD3d 49, 58 [2009], lv denied 13 NY3d 715 [2010]; Geary v Hunton & Williams, 257 AD2d 482 [1999]; Alpert v Shea Gould Climenko & Casey, 160 AD2d 67, 72 [1990]).
Retrieving the full opinion text from the archive…
MATTER OF LONG
v.
WOODRUFF.
v.
WOODRUFF.
Mo. No. 2009-1199.
New York Court of Appeals.
Jan 12, 2010.
Published
Motion for leave to appeal denied.[*]
[*] Motion for poor person relief dismissed as academic or denied.