Massachusetts rule in New York

2009In our view, the alleged nexus between the out-of-state statements and defendants’ activities in New York is too attenuated for the purpose of long-arm jurisdiction (see Kim v Dvorak, 230 AD2d 286 [1997] [Massachusetts defendant who sent allegedly defamatory letters to New York complaining of parent’s medical treatment here was not engaged in purposeful activity in this state]).

1999The newscasts were researched, written, produced and reported by Minarcin in this State (see, Legros v Irving, supra [virtually all work attendant upon, and including, publication of allegedly defamatory book occurred in New York, including research, contract execution, printing]; cf., Talbot v Johnson Newspaper Corp., supra [allegedly defamatory letters written by the defendant from California to New York did not support long-arm jurisdiction since there was no nexus between the defendant’s prior activities in New York and the action]; Kim v Dvorak, 230 AD2d 286 [Massachusetts defendant who s

2009The facts in this case are indistinguishable from Talbot v Johnson Newspaper Corp. ( 71 NY2d 827 [1988]), where the al legedly defamatory statements were too attenuated for the purpose of long-arm jurisdiction.

1999The newscasts were researched, written, produced and reported by Minarcin in this State (see, Legros v Irving, supra [virtually all work attendant upon, and including, publication of allegedly defamatory book occurred in New York, including research, contract execution, printing]; cf., Talbot v Johnson Newspaper Corp., supra [allegedly defamatory letters written by the defendant from California to New York did not support long-arm jurisdiction since there was no nexus between the defendant’s prior activities in New York and the action]; Kim v Dvorak, 230 AD2d 286 [Massachusetts defendant who s

1994Our decision was in direct response to the Supreme Court’s decision in Jackson v. Denno ( 378 U. S. 368 ) finding the procedure employed in New York to test voluntariness constitutionally infirm, thus overruling their prior decision[s] * * *.

1994Our decision was in direct response to the Supreme Court’s decision in Jackson v. Denno ( 378 U. S. 368 ) finding the procedure employed in New York to test voluntariness constitutionally infirm, thus overruling their prior decision[s] * * *.

1980Finally, in People v Rutigliano (supra, at p 107 ), the court adopted the so-called "Massachusetts rule”, 2 which entirely precluded the use of a defendant’s silence while in custody as evidence in chief.

1935We are therefore of opinion that the verdict must be set aside and a new trial granted.” Again, in Commonwealth v. McDermott ( 123 Mass. 440 ) the same court reiterated the rule in the following language: ‘‘A person who is held in custody on a charge of crime jointly with another person is not called upon to contradict statements prejudicial to him, made in his presence by the other person, in answer to inquiries made by an officer; and such statements, though not contradicted by him, are not admissible in evidence against him.” Our Court of Appeals in two recent decisions handed down on the s

1958Our court in the Per Curiam, opinion in the New York Life case (supra) stated that it was adopting the Massachusetts rule as found in Sewall v. Wilmer ( 132 Mass. 131 ) but the same rule had been applied in many earlier decisions in the lower courts of New York State and has been followed many times since in our lower courts (see City Bank Farmers Trust Co. v. Meyn, 263 App. Div. 671, 674 ).

1958Our court in the Per Curiam, opinion in the New York Life case (supra) stated that it was adopting the Massachusetts rule as found in Sewall v. Wilmer ( 132 Mass. 131 ) but the same rule had been applied in many earlier decisions in the lower courts of New York State and has been followed many times since in our lower courts (see City Bank Farmers Trust Co. v. Meyn, 263 App. Div. 671, 674 ).

1935We are therefore of opinion that the verdict must be set aside and a new trial granted.” Again, in Commonwealth v. McDermott ( 123 Mass. 440 ) the same court reiterated the rule in the following language: ‘‘A person who is held in custody on a charge of crime jointly with another person is not called upon to contradict statements prejudicial to him, made in his presence by the other person, in answer to inquiries made by an officer; and such statements, though not contradicted by him, are not admissible in evidence against him.” Our Court of Appeals in two recent decisions handed down on the s

1935We are therefore of opinion that the verdict must be set aside and a new trial granted.” Again, in Commonwealth v. McDermott ( 123 Mass. 440 ) the same court reiterated the rule in the following language: ‘‘A person who is held in custody on a charge of crime jointly with another person is not called upon to contradict statements prejudicial to him, made in his presence by the other person, in answer to inquiries made by an officer; and such statements, though not contradicted by him, are not admissible in evidence against him.” Our Court of Appeals in two recent decisions handed down on the s

2007Although defendant attorney, a member of defendant law firm and of the Massachusetts bar, was not admitted to practice in New York, he was acting of-counsel in the Brooklyn litigation and was assisting the attorney of record, who was a member of defendant law firm and a member of the New York bar, and the statements contained in the letter were clearly pertinent to the pending Brooklyn action (see Sexier & Warmflash, P.C. v Margrabe, 38 AD3d 163 [2007]).

2006In other jurisdictions, there appear to be four different approaches concerning whether claims based on encroaching branches/roots are properly sustainable based on the laws of nuisance, trespass or negligence. 2 The Massachusetts rule provides that in cases involving trees not noxious or poisonous in nature, an action" at law or in equity for nuisance or trespass will not lie, and that the sole remedy available to an adjoining property owner is that of self-help (see Michalson v Nutting, 275 Mass 232, 175 NE 490 [1931]). 3 This rule derives from the concern that allowing a cause of action any

2006In other jurisdictions, there appear to be four different approaches concerning whether claims based on encroaching branches/roots are properly sustainable based on the laws of nuisance, trespass or negligence. 2 The Massachusetts rule provides that in cases involving trees not noxious or poisonous in nature, an action" at law or in equity for nuisance or trespass will not lie, and that the sole remedy available to an adjoining property owner is that of self-help (see Michalson v Nutting, 275 Mass 232, 175 NE 490 [1931]). 3 This rule derives from the concern that allowing a cause of action any

2006The state courts that have adopted the Massachusetts rule are the District of Columbia, Florida, Kentucky, Maryland, Missouri, North Dakota, Texas and Utah (see Sterling v Weinstein, 75 A2d 144 [DC 1950]; Richmond v General Eng’g Enters.

2006The state courts that have adopted the Massachusetts rule are the District of Columbia, Florida, Kentucky, Maryland, Missouri, North Dakota, Texas and Utah (see Sterling v Weinstein, 75 A2d 144 [DC 1950]; Richmond v General Eng’g Enters.

1999The newscasts were researched, written, produced and reported by Minarcin in this State (see, Legros v Irving, supra [virtually all work attendant upon, and including, publication of allegedly defamatory book occurred in New York, including research, contract execution, printing]; cf., Talbot v Johnson Newspaper Corp., supra [allegedly defamatory letters written by the defendant from California to New York did not support long-arm jurisdiction since there was no nexus between the defendant’s prior activities in New York and the action]; Kim v Dvorak, 230 AD2d 286 [Massachusetts defendant who s

1999The newscasts were researched, written, produced and reported by Minarcin in this State (see, Legros v Irving, supra [virtually all work attendant upon, and including, publication of allegedly defamatory book occurred in New York, including research, contract execution, printing]; cf., Talbot v Johnson Newspaper Corp., supra [allegedly defamatory letters written by the defendant from California to New York did not support long-arm jurisdiction since there was no nexus between the defendant’s prior activities in New York and the action]; Kim v Dvorak, 230 AD2d 286 [Massachusetts defendant who s

1999The newscasts were researched, written, produced and reported by Minarcin in this State (see, Legros v Irving, supra [virtually all work attendant upon, and including, publication of allegedly defamatory book occurred in New York, including research, contract execution, printing]; cf., Talbot v Johnson Newspaper Corp., supra [allegedly defamatory letters written by the defendant from California to New York did not support long-arm jurisdiction since there was no nexus between the defendant’s prior activities in New York and the action]; Kim v Dvorak, 230 AD2d 286 [Massachusetts defendant who s

1980The "Massachusetts rule” was laid down in Commonwealth v Kenney (12 Met [53 Mass] 235) and followed in Commonwealth v McDermott (123 Mass 440) and State v Bates (140 Conn 326; see, generally, Fisch, New York Evidence [2d ed], at p 461; McCormick, Evidence [2d ed], at pp 353-354). .

1980This is such a case, and reference is now made to the opinion in Rosenthal v Warren ( 374 F Supp 522 ), which was a "fixed location” case as distinguished from an "in transit” case and which involved the question whether New York would apply the Massachusetts doctrine of charitable immunity in a wrongful death action instituted by a New York decedent’s estate to recover damages as a result of medical malpractice committed in the State of Massachusetts by residents of that State.

1980This is such a case, and reference is now made to the opinion in Rosenthal v Warren ( 374 F Supp 522 ), which was a "fixed location” case as distinguished from an "in transit” case and which involved the question whether New York would apply the Massachusetts doctrine of charitable immunity in a wrongful death action instituted by a New York decedent’s estate to recover damages as a result of medical malpractice committed in the State of Massachusetts by residents of that State.

1980In contrast, in People v Rothschild ( 35 NY2d 355 ), we held that it was not improper for the People to cross-examine the defendant on his prior silence in an effort to impeach his testimony because, under the peculiar circumstances in that case, his silence was deemed to have particular probative worth.

1977We do, however, glean some insight from Matter of Robins ( 38 F Supp 468 [Dist Ct, DC, 1941]), wherein the court, although finding that stirpital distribution was there intended, implied that a different result would have followed had words importing an equal distribution been used by the testator.

1977We do, however, glean some insight from Matter of Robins ( 38 F Supp 468 [Dist Ct, DC, 1941]), wherein the court, although finding that stirpital distribution was there intended, implied that a different result would have followed had words importing an equal distribution been used by the testator.

1977Seider v Roth (supra) recognizes the duty to defend and indemnify under such a contract as an attachable debt where the plaintiff is a resident of New York but the doctrine has not been expanded to cases where the plaintiff is a nonresident (Donawitz v Danek, 42 NY2d 138 ).

1977Seider v Roth (supra) recognizes the duty to defend and indemnify under such a contract as an attachable debt where the plaintiff is a resident of New York but the doctrine has not been expanded to cases where the plaintiff is a nonresident (Donawitz v Danek, 42 NY2d 138 ).

1973(Commonwealth v. Berley, 254 Mass. 556 .)” Therefore, the question is whether or not this court should re-evaluate its position in view of the fact that the Massachusetts rule change has weakened the foundation of the New York law.

1969Our decision was in direct response to the Supreme Court’s decision in Jackson v. Denno ( 378 U. S. 368 ) finding the procedure employed in New York to test voluntariness constitutionally infirm, thus overruling their prior decision in Stein v. New York ( 346 U. S. 156 ).

1969Our decision was in direct response to the Supreme Court’s decision in Jackson v. Denno ( 378 U. S. 368 ) finding the procedure employed in New York to test voluntariness constitutionally infirm, thus overruling their prior decision in Stein v. New York ( 346 U. S. 156 ).

1964See Lisenba v. California, 314 U. S. 219, 236-238 ; Payne v. Arkansas, 356 U. S. 560, 561-562 . “ The heart of the supposed distinction is the requirement under the Massachusetts rule that the judge resolve disputed questions of fact and actually determine the issue of coercion; under the New York rule, the judge decides only whether a jury determination of voluntariness would be ‘ against the weight of the evidence. ’ See, supra, p. 428.

1964See Lisenba v. California, 314 U. S. 219, 236-238 ; Payne v. Arkansas, 356 U. S. 560, 561-562 . “ The heart of the supposed distinction is the requirement under the Massachusetts rule that the judge resolve disputed questions of fact and actually determine the issue of coercion; under the New York rule, the judge decides only whether a jury determination of voluntariness would be ‘ against the weight of the evidence. ’ See, supra, p. 428.

1961Co. ( 151 N. Y. 107 ), Mr. Justice Holmes described it as “ an arbitrary exception, based upon a notion of what is practicable, that prevents a recovery for visible illness resulting from nervous shock alone.

1961Co. ( 151 N. Y. 107 ), Mr. Justice Holmes described it as “ an arbitrary exception, based upon a notion of what is practicable, that prevents a recovery for visible illness resulting from nervous shock alone.

1960This point of difference with the Massachusetts act also existed in the Virginia statute and was recognized by the United States District Court as satisfying the test of reasonable probability of notice under Wuchter (supra) rather than the Massachusetts requirement of actual notice as found in Hess (supra).

1960This point of difference with the Massachusetts act also existed in the Virginia statute and was recognized by the United States District Court as satisfying the test of reasonable probability of notice under Wuchter (supra) rather than the Massachusetts requirement of actual notice as found in Hess (supra).

1960(Powell v. Knight, 74 F. Supp. 191 .) In Ohio, it was similarly reasoned, in the case of the somewhat unusual statute there, that, “ Were it intended in every case that notice be actually delivered to a defendant, there would be no necessity for providing that notice should be sent to a particular place, to wit, the ‘ last known address ’ ” (Hendershot v. Ferkel, 144 Ohio St. 112,119 ) and the thus conflicting statutory requirement of a registered mail return receipt was held not prerequisite to jurisdiction.

1960(Powell v. Knight, 74 F. Supp. 191 .) In Ohio, it was similarly reasoned, in the case of the somewhat unusual statute there, that, “ Were it intended in every case that notice be actually delivered to a defendant, there would be no necessity for providing that notice should be sent to a particular place, to wit, the ‘ last known address ’ ” (Hendershot v. Ferkel, 144 Ohio St. 112,119 ) and the thus conflicting statutory requirement of a registered mail return receipt was held not prerequisite to jurisdiction.

1959Louis Union Trust Co., 317 Mo. 1028, 1043 ): “ The three doctrines may be summed up by saying the Massachusetts rule considers the character of the dividend, the Pennsylvania rule the source of the dividend, and the Kentucky rule the time of the dividend.” (Emphasis in original.) Oddly enough, New York, during different periods, has followed all three rules.

1959Louis Union Trust Co., 317 Mo. 1028, 1043 ): “ The three doctrines may be summed up by saying the Massachusetts rule considers the character of the dividend, the Pennsylvania rule the source of the dividend, and the Kentucky rule the time of the dividend.” (Emphasis in original.) Oddly enough, New York, during different periods, has followed all three rules.

1959Prior to 1913 the Kentucky rule was in force in this State (Matter of Kernochan, 104 N. Y. 618 ).

1959Prior to 1913 the Kentucky rule was in force in this State (Matter of Kernochan, 104 N. Y. 618 ).

1958Our court in the Per Curiam, opinion in the New York Life case (supra) stated that it was adopting the Massachusetts rule as found in Sewall v. Wilmer ( 132 Mass. 131 ) but the same rule had been applied in many earlier decisions in the lower courts of New York State and has been followed many times since in our lower courts (see City Bank Farmers Trust Co. v. Meyn, 263 App. Div. 671, 674 ).

1958Our court in the Per Curiam, opinion in the New York Life case (supra) stated that it was adopting the Massachusetts rule as found in Sewall v. Wilmer ( 132 Mass. 131 ) but the same rule had been applied in many earlier decisions in the lower courts of New York State and has been followed many times since in our lower courts (see City Bank Farmers Trust Co. v. Meyn, 263 App. Div. 671, 674 ).