instance rule in New York

2024The single instance rule is an exception to [*6]the general per se rule, pertaining to language that charges a party with a single dereliction in connection with the conduct of a business, trade, or profession ( see D'Agrosa v Newsday, Inc. , 158 AD2d 229, 237 ).

2024The single instance rule is an exception to [*6]the general per se rule, pertaining to language that charges a party with a single dereliction in connection with the conduct of a business, trade, or profession ( see D'Agrosa v Newsday, Inc. , 158 AD2d 229, 237 ).

2012In any event, a claim based on challenged statements 6, 7 and 8 is barred by the single instance rule (see Bowes v Magna Concepts, 166 AD2d 347 [1990]).

1993Moreover, we do not deem the statement defamatory and, in any event, would be governed by the single instance rule which would require the pleading of special damages, here absent (Bowes v Magna Concepts, 166 AD2d 347 ).

1954In Murray v. Physical Culture Hotel ( 258 App. Div. 334 ) decided in 1939, it was pointed out that “ it is often as much in the interest of the patient to reveal what an examination by his physician discloses as it is to conceal it. ’ ’ (P. 337.) The court further stated: “In this instance the waiver which the plaintiff attempts to elicit is not to be made by the patient but by his administrator as a witness.

1948S. 2d 978, 981-982, affd. on opinion below 258 App. Div. 334, 338-339 ): “In this instance the waiver which the plaintiff attempts to elicit is not to be made by the patient but by his administrator as a witness.

2007The Second Department held that the use of a notice to admit for this matter was improper (DeSilva v Rosenberg, 236 AD2d 508 [2d Dept 1997]); • In an action involving an alleged elevator malfunction, one party served upon another party a notice to admit regarding a contract that that party held relative to the elevator and what kind of work and/or actions it did in regard to the elevator.

2004Defense counsel began his summation by commenting that "I think this case is a fabrication." The comment might have been better left unsaid since it is well settled law that a trial counsel improperly acts as an unsworn witness when he interjects "unsworn statements of personal knowledge of the facts of the case." See Code of Professional Responsibility, DR 7-106 [C] [3] ) ..."; Sanchez v. Manhattan and Bronx Surface Transit , 170 A.D.2d 402 (1st Dept. 1991); Caraballo v. City of New York , 86 A.D.2d 580 (1st Dept.1982); See also , Weinberger v. City of New York , 97 A.D.2d 819, 820 (2nd Dept.

2004Defense counsel began his summation by commenting that "I think this case is a fabrication." The comment might have been better left unsaid since it is well settled law that a trial counsel improperly acts as an unsworn witness when he interjects "unsworn statements of personal knowledge of the facts of the case." See Code of Professional Responsibility, DR 7-106 [C] [3] ) ..."; Sanchez v. Manhattan and Bronx Surface Transit , 170 A.D.2d 402 (1st Dept. 1991); Caraballo v. City of New York , 86 A.D.2d 580 (1st Dept.1982); See also , Weinberger v. City of New York , 97 A.D.2d 819, 820 (2nd Dept.

2001Ctr., 252 AD2d 936, 939 ; D'Agrosa v Newsday, Inc., 158 AD2d 229, 237 ), and plaintiff failed to plead special damages in connection with those statements (see, Larson v Albany Med.

2000Contrary to the majority’s view, the Speaker has both the power to appear and bring his grievance before the court and “a sufficiently cognizable stake in the outcome so as to ‘cast[ ] the dispute “in a form traditionally capable of judicial resolution” ’ ” (Community Bd. 7 v Schaffer, 84 NY2d 148, 155 , quoting Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772-773 , quoting Schlesinger v Reservists Comm. to Stop War, 418 US 208, 220-221 ).

2000Contrary to the majority’s view, the Speaker has both the power to appear and bring his grievance before the court and “a sufficiently cognizable stake in the outcome so as to ‘cast[ ] the dispute “in a form traditionally capable of judicial resolution” ’ ” (Community Bd. 7 v Schaffer, 84 NY2d 148, 155 , quoting Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772-773 , quoting Schlesinger v Reservists Comm. to Stop War, 418 US 208, 220-221 ).

2000Contrary to the majority’s view, the Speaker has both the power to appear and bring his grievance before the court and “a sufficiently cognizable stake in the outcome so as to ‘cast[ ] the dispute “in a form traditionally capable of judicial resolution” ’ ” (Community Bd. 7 v Schaffer, 84 NY2d 148, 155 , quoting Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772-773 , quoting Schlesinger v Reservists Comm. to Stop War, 418 US 208, 220-221 ).

2000We also reject defendant’s claim that the statements in issue charge plaintiff with only a single instance of error and therefore are not actionable without allegations of special damages (see, Armstrong v Simon & Schuster, 85 NY2d 373, 379, n 5 , affg 197 AD2d 87, 91-92 ).

1998The statements involved alleging that plaintiffs were insubordinate or engaged in unprofessional conduct are subject to the single instance exception because such charges did not suggest that plaintiffs were incompetent as nurses (see, Shaw v Consolidated Rail Corp., 74 AD2d 985 ).

1996As to the instance where defense counsel suggested that the prosecutor thought the prospective juror may have had a criminal record merely because he was Hispanic, the contention was insufficient to warrant a conclusion that the prosecutor was exercising challenges to jurors in an intentionally discriminatory manner (see, People v Gooden, 220 AD2d 683 ).

1996The factual determination by the trial court that the reasons given by the prosecutor were not pretextual is entitled to deference on appeal (see, People v Mancini, 219 AD2d 456, 458 ), and, on this record, should not be disturbed.

1995The other alleged instance of defense counsel’s ineffective representation involves matters outside the record and cannot be addressed on direct appeal (see, People v Brown, 190 AD2d 510, 511 , lv denied 81 NY2d 968 ; People v Reid, 137 AD2d 844 , lv denied 71 NY2d 901 ).

1995The other alleged instance of defense counsel’s ineffective representation involves matters outside the record and cannot be addressed on direct appeal (see, People v Brown, 190 AD2d 510, 511 , lv denied 81 NY2d 968 ; People v Reid, 137 AD2d 844 , lv denied 71 NY2d 901 ).

1992While the court’s actions were clearly imprudent, given that this examination was extremely brief, consisting of three open-ended questions, was not carried out in a manner as to give the jury the impression that the court entertained an opinion regarding the issue (cf., People v Moulton, 43 NY2d 944, 945-946 ), and the record is replete with other testimonial and documentary evidence establishing an excuse for the victim’s delay in coming forward with the allegations, we cannot say in this instance that the error operated to deprive defendant of a fair trial.

1988Given the likelihood that defendant’s confession should have been suppressed (see, Rhode Is. v Innis, 446 US 291, 301-302 ), the only evidence remaining implicating defendant is the testimony of the victim, a man with an extensive criminal record, including a conviction for "falsely reporting an incident”.

1988Our examination of the record leads us to conclude that this is not an instance where defense trial strategy went awry (cf., People v Baldi, 54 NY2d 137, 146 ), but one where the representation afforded defendant in critical aspects of this case was meaningless rather than meaningful, and thus left defendant without fundamental constitutional protections.

1986We further conclude, as a matter of law, that the single instance rule is inapplicable to this case, for the articles charged the plaintiff with committing a series of incompetent and unethical acts (see, Ocean State Seafood v Capital Newspaper, supra), and these charges of multiple instances of alleged professional misconduct effectively accused the plaintiff of general incompetence and dishonesty in his profession (see, November v Time Inc., supra; Mason v Sullivan, 26 AD2d 115 ).

1986The court erred, however, in finding that the single instance rule does not apply to a complaint alleging libel per se (Amelkin v Commercial Trading Co., 23 AD2d 830, 831 , affd 17 NY2d 500 ; see also, comment, 2 NY PJI 101-102 [Supp]).