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Treatment trajectory · 2011 → 2026 · click a year to view as-of
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Top citers, strongest first. 17 distinct citers.
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discussed
Cited as authority (rule)
Chen v. Wen Fang Wang
However, because "there is no indication on this record that [the defendant is] prejudiced" by the omission in the notice of cross appeal, we exercise our discretion to reach beyond the notice of cross appeal and address the merits of the issue ( Mesler v PODD LLC , 89 AD3d 1533, 1534 [internal quotation marks omitted]; see McSparron v McSparron , 87 NY2d 275, 282 ).
discussed
Cited as authority (rule)
Lingenfelter v. Delevan Terrace Associates
Moreover, even assuming, arguendo, that Krotz was negligent in failing to plow the parking spaces as alleged by plaintiff, we conclude that “such negligence would amount [ ] to a finding that [Krotz] may have merely failed to become an instrument for good, which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party” (Mesler v PODD LLC, 89 AD3d 1533, 1535 [2011] [internal quotation marks omitted]; see Church, 99 NY2d at 112 ; Foster, 76 AD3d at 215).
discussed
Cited as authority (rule)
LINGENFELTER, MILDRED v. DELEVAN TERRACE ASSOCIATES
Moreover, even assuming, arguendo, that Krotz was negligent in failing to plow the parking spaces as alleged by plaintiff, we conclude that “such negligence would amount[] to a finding that [Krotz] may have merely failed to become an instrument for good, which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party” (Mesler v PODD LLC, 89 AD3d 1533, 1535 [internal quotation marks omitted]; see Church, 99 NY2d at 112 ; Foster, 76 AD3d at 215).
discussed
Cited as authority (rule)
Lingenfelter v. Delevan Terrace Associates
Moreover, even assuming, arguendo, that Krotz was negligent in failing to plow the parking spaces as alleged by plaintiff, we conclude that “such negligence would amount [ ] to a finding that [Krotz] may have merely failed to become an instrument for good, which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party” (Mesler v PODD LLC, 89 AD3d 1533, 1535 [2011] [internal quotation marks omitted]; see Church, 99 NY2d at 112 ; Foster, 76 AD3d at 215).
discussed
Cited as authority (rule)
Lingenfelter v. Delevan Terrace Associates
Moreover, even assuming, arguendo, that Krotz was negligent in failing to plow the parking spaces as alleged by plaintiff, we conclude that “such negligence would amount [ ] to a finding that [Krotz] may have merely failed to become an instrument for good, which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party” (Mesler v PODD LLC, 89 AD3d 1533, 1535 [2011] [internal quotation marks omitted]; see Church, 99 NY2d at 112 ; Foster, 76 AD3d at 215).
discussed
Cited as authority (rule)
Dalmau v. Vertis, Inc.
Any personal decision of the assistant manager to monitor the lot and contact the responsible entity to remove any snow or ice as a courtesy to customers did not amount to an assumption of control over the parking lot giving rise to a duty of care on the part of Price Rite (see Hamelin v Town of Chateaugay, 100 AD3d 1330, 1331 [2012]; Mesler v PODD LLC, 89 AD3d 1533, 1536 [2011]; Figueroa v Tso, 251 AD2d 959, 959 [1998]).
discussed
Cited as authority (rule)
Dalmau v. Vertis, Inc.
Any personal decision of the assistant manager to monitor the lot and contact the responsible entity to remove any snow or ice as a courtesy to customers did not amount to an assumption of control over the parking lot giving rise to a duty of care on the part of Price Rite (see Hamelin v Town of Chateaugay, 100 AD3d 1330, 1331 [2012]; Mesler v PODD LLC, 89 AD3d 1533, 1536 [2011]; Figueroa v Tso, 251 AD2d 959, 959 [1998]).
discussed
Cited as authority (rule)
WILLIAMS, TYSHAWN J. v. JONES, LAVALRA M.
We decline to exercise our discretion to reach beyond the scope of the notice of appeal (see Canandaigua Emergency Squad, Inc. v Rochester Area Health Maintenance Org., Inc., 130 AD3d 1530 , 1531 [2015]; cf. Mesler v PODD LLC, 89 AD3d 1533, 1534 [2011]; see generally McSparron v McSparron, 87 NY2d 275, 282 [1995], rearg dismissed 88 NY2d 916 [1996]).
discussed
Cited as authority (rule)
Hannigan v. Staples, Inc.
Co., 90 AD3d 446, 448 [2011]; Mesler v PODD LLC, 89 AD3d 1533, 1534-1535 [2011]; Cook v Orchard Park Estates, Inc., 73 AD3d 1263, 1266 [2010]; Gomez v National Ctr. for Disability Servs., 306 AD2d 103, 103-104 [2003]; State of New York v Travelers Prop.
discussed
Cited as authority (rule)
McHenry v. Bader
(People v Brown, 98 NY2d 226 , 232 and n 2 [2002]; Naughton v City of New York, 94 AD3d 1, 12 [1st Dept 2012]; Mesler v PODD LLC, 89 AD3d 1533, 1536 [4th Dept 2011]; Rahman v Smith, 40 AD3d 613, 615 [2d Dept 2007]; see Seldon v Crow, 112 AD3d 472, 472 [1st Dept 2013].) In fact, since the judgment was not actually vacated until September 2008, by the Appellate Division, and plaintiff does not show that the judgment ever was stayed before then, 13 months remained as of August 2007 to seize San Miguel’s assets if he owned any.
discussed
Cited as authority (rule)
Greco v. City of Buffalo
We therefore conclude on the record before us that there are issues of fact whether Buffalo Place exercised the requisite level of control over the sidewalk sufficient to hold it liable for the presence of a dangerous condition on the property (see Mesler v PODD LLC, 89 AD3d 1533, 1536 [2011]; Figueroa v Tso, 251 AD2d 959, 959 [1998]; see also Mollino v Ogden & Clarkson Corp., 243 NY 450, 455 [1926]), and whether the contractual obligation of Buffalo Place to provide “comprehensive maintenance” for the area in question created a duty of care extending to plaintiff (see Palka v Servicemaste…
discussed
Cited as authority (rule)
Greco v. City of Buffalo
We therefore conclude on the record before us that there are issues of fact whether Buffalo Place exercised the requisite level of control over the sidewalk sufficient to hold it liable for the presence of a dangerous condition on the property (see Mesler v PODD LLC, 89 AD3d 1533, 1536 [2011]; Figueroa v Tso, 251 AD2d 959, 959 [1998]; see also Mollino v Ogden & Clarkson Corp., 243 NY 450, 455 [1926]), and whether the contractual obligation of Buffalo Place to provide “comprehensive maintenance” for the area in question created a duty of care extending to plaintiff (see Palka v Servicemaste…
discussed
Cited as authority (rule)
Boice v. PCK Development Co., LLC
Inasmuch as plaintiff contends that her fall was caused by the ladder shifting away from the loft, causing her to lose her balance, and viewing the evidence in the light most favorable to her, we find a triable issue of fact exists as to whether the ladder was constructed negligently and as to whether defendants created the dangerous condition (see Stickles v Fuller, 9 AD3d at 600-601 ). 2 Finally, based upon the applicable provisions of the lease agreement, our finding that an issue of fact exists as to defendants’ liability renders their motion for summary judgment as to their third-party …
discussed
Cited as authority (rule)
BoicevPCKDevelopmentCompany,LLC
Inasmuch as plaintiff contends that her fall was caused by the ladder shifting away from the loft, causing her to lose her balance, and viewing the evidence in the light most favorable to her, we find a triable issue of fact exists as to whether the ladder was constructed negligently and as to whether defendants created the dangerous condition (see Stickles v Fuller, 9 AD3d at 600-601 ).2 Finally, 2 To the extent that defendants contend that, inasmuch as third-party defendant leased the premises pursuant to an "as is" clause, they were not liable for plaintiff's injuries, such a clause would o…
discussed
Cited as authority (rule)
Boice v. PCK Development Co., LLC
Inasmuch as plaintiff contends that her fall was caused by the ladder shifting away from the loft, causing her to lose her balance, and viewing the evidence in the light most favorable to her, we find a triable issue of fact exists as to whether the ladder was constructed negligently and as to whether defendants created the dangerous condition (see Stickles v Fuller, 9 AD3d at 600-601 ). 2 Finally, based upon the applicable provisions of the lease agreement, our finding that an issue of fact exists as to defendants’ liability renders their motion for summary judgment as to their third-party …
cited
Cited as authority (rule)
Naughton v. City of New York
Here, the legal arguments made by W & W Glass’s counsel in its motion papers below do not constitute judicial admissions (see Mesler v PODD LLC, 89 AD3d 1533, 1536 [2011]; Rahman at 615 ).
discussed
Cited "see"
Bregaudit v. Loretto Health & Rehabilitation Ctr.
That exception does not apply when "the breach of contract consists 'merely in withholding a benefit . . . where inaction is at most a refusal to become an instrument for good' " ( id. at 112 ; see Mesler v PODD LLC , 89 AD3d 1533, 1535 [4th Dept 2011]).
Retrieving the full opinion text from the archive…
K.J.D.E. Corp., Doing Business as K.J. Electric
v.
The Hartford Fire Insurance Company
v.
The Hartford Fire Insurance Company
Appeal No. 2.
Appellate Division of the Supreme Court of the State of New York.
Nov 18, 2011.
Published
Same memorandum as in K.J.D.E. Corp. v Hartford Fire Ins. Co. ([appeal No. 1] 89 AD3d 1531 [2011]). Present — Scudder, EJ., Smith, Sconiers, Gorski and Martoche, JJ.