matter of law defense in New York

2012Furthermore, the allegations in the petition are sufficient to make out a claim that the determination of the Appeals Officer was “made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803 [3]; see Matter of Kar-McVeigh, LLC v Zoning Bd. of Appeals of Town of Riverhead, 93 AD3d at 800 ; Matter of Miller v Mulligan, 73 AD3d at 783 ; accord Matter of Curry v Nassau County Sheriff’s Dept., 69 AD3d 622 [2010]).

2012Furthermore, the allegations in the petition are sufficient to make out a claim that the determination of the Appeals Officer was “made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803 [3]; see Matter of Kar-McVeigh, LLC v Zoning Bd. of Appeals of Town of Riverhead, 93 AD3d at 800 ; Matter of Miller v Mulligan, 73 AD3d at 783 ; accord Matter of Curry v Nassau County Sheriff’s Dept., 69 AD3d 622 [2010]).

1984(See, also, Ruggiero v Mandell, 49 AD2d 892 .) In Dury v Dunadee ( 52 AD2d 206 ), the Fourth Department, in a similar ruling, concluded that defendant’s general release of the owner and operator of a car involved in a collision with her own vehicle “does not as a matter of law bar her later claim for contribution from him when she is sued by a passenger in his car.

1976(Cahill v Regan, 5 NY2d 292, 299 .).” In Dury (supra, p 209 ), the court denied a m'hbr ' r summary judgment m facts similar to the instant case and held: "that Mrs. Dury ! general release of Mr. Dunadee at the conclusion of her negü once action against him for her personal injuries, does not a matter of law bar her k ter claim for contribution from him when she is sued by a passenger in his car.

1976Where there exits ic undisputed factual allegations that the contribution claims der Dole v Dow were neither bargained for nor discussed ijn release negotiations and that the confix, ration paid was exclusively for compensation o\ the releaser’s injuries, the general release executed will not release the right of apportionment (Tarantola v Williams, 48 AD2d 552 ).

1976Where there exist undisputed factual allegations that the contribution claims under Dole v Dow were neither bargained for nor discussed in release negotiations and that the consideration paid was exclusively for compensation of the releasor’s injuries, the general release executed and delivered will not release the right of apportionment (Tarantola v Williams, 48 AD2d 552 ).

2021Thus, 669 Meeker did not demonstrate, prima facie, that it was entitled to rely on the Workers' Compensation defense as a matter of law to bar this action ( see Masley v Herlew Realty Corp. , 45 AD3d 653, 654 ; see also Haracz v Cee Jay, Inc. , 74 AD3d 1147, 1148 ).

2007The testimony of Wilson-Cassano that she had entrusted her automobile to Hodge solely for repair work and “disavowing permission to [Hodge] to operate the vehicle at the time and place of the accidentt,] ‘although uncontradicted[,] presents a question of credibility and cannot be deemed to rebut as a matter of law the presumption created by [Vehicle and Traffic Law § 388]’ ” (Ryder v Cue Car Rental, 32 AD2d 143, 147 [1969], quoting Cosimo v Hollenbeck, 19 AD2d 921, 921 [1963]; see Ford v Guishard, 288 AD2d 430 [2001]; Reyes v Sternberg, 27 AD2d 828 [1967]).

1993Defendant did not preserve as a matter of law his challenge to the trial court’s charge regarding his failure to testify and the issue does not warrant review in the interest of justice (People v Warren, 162 AD2d 361, 362 , lv denied 76 NY2d 897 ).

1993In any event, the charge, when viewed as a whole, adequately conveyed the appropriate standard of proof, as the jurors were repeatedly instructed that the People were required to prove defendant’s guilt beyond a reasonable doubt (People v Molina, 171 AD2d 578 , lv denied 78 NY2d 970 ).

1993Defendant did not move prior to the imposition of sentence to withdraw his plea, and therefore has not preserved for appellate review as a matter of law his challenge to the sufficiency of the plea allocution People v Pellegrino, 60 NY2d 636 ).

1992In any event, defendant’s guilt thereof was proved by overwhelming evidence (see, People v Bleakley, 69 NY2d 490 ).

1991Defendant has failed to preserve as a matter of law his challenge to the court’s charge on causation (CPL 470.05 [2]; People v Creech, 60 NY2d 895 ).

1990(See, CPL 470.05 [2]; People v Leisner, 73 NY2d 140 .) Counsel’s objection, which was incorporated by reference as a continuing objection for subsequent proceedings, including the trial, was termed "eminently clear” by the hearing court, a description seconded by the ADA, who generously volunteered that, "It seemed clear to me, Your Honor.” Were it not to have been so clearly preserved, the egregious nature of this error would have dictated that we nevertheless reach the issue in the interest of justice.

1986(See, Matter of Beitler, 82 AD2d 276 [1st Dept 1981]; Matter of Mydanick, 78 AD2d 339 [1st Dept 1981].) Accordingly, the petition is granted, and respondent’s name is stricken from the roll of attorneys authorized to practice in this State.

1986(See, Matter of Beitler, 82 AD2d 276 [1st Dept 1981]; Matter of Mydanick, 78 AD2d 339 [1st Dept 1981].) Accordingly, the petition is granted, and respondent’s name is stricken from the roll of attorneys authorized to practice in this State.

1984(See, also, Ruggiero v Mandell, 49 AD2d 892 .) In Dury v Dunadee ( 52 AD2d 206 ), the Fourth Department, in a similar ruling, concluded that defendant’s general release of the owner and operator of a car involved in a collision with her own vehicle “does not as a matter of law bar her later claim for contribution from him when she is sued by a passenger in his car.

1983Co. v Tax Comm., 53 NY2d 1050 ).

1982Plaintiffs maintain, however, that as a matter of law a violation of section 240 of the Labor Law was established and, therefore, negligence, if any, on the part of plaintiff James Phillips would not preclude recovery (see Long v Murnane Assoc., 68 AD2d 166 , app dsmd 48 NY2d 607 ; see, also, Larabee v Triangle Steel, 86 AD2d 289 ).

1982When viewed in its totality, the attorney’s performance at trial and sentencing did not deprive defendant of “meaningful representation” (People v Baldi, 54 NY2d 137, 147 ).

1980In Hart (supra) involving a bicyclist, and Levy (supra) coasting on a sled, plaintiffs were found guilty of contributory negligence as a matter of law for violation of section 1907 of the former Penal Law.