method challenge in New York

2013Initially, to the extent that respondent challenges the finding of a willful violation, that issue is not properly before us as he did not use the proper method to challenge the February 2011 order establishing the willful violation, i.e., a motion to vacate that consent order (see Matter of Connor CC. [Jennifer DD.], 99 AD3d 1127 , 1127 [2012]).

2013Initially, to the extent that respondent challenges the finding of a willful violation, that issue is not properly before us as he did not use the proper method to challenge the February 2011 order establishing the willful violation, i.e., a motion to vacate that consent order (see Matter of Connor CC. [Jennifer DD.], 99 AD3d 1127 , 1127 [2012]).

1991The proper method to challenge the facial validity of an indictment is by a pretrial motion to dismiss (see, CPL 210.20, 210.25), brought within the time prescribed by CPL 255.20 (see, People v Soto, 44 NY2d 683 ; People v Stamen, 163 AD2d 499 ; People v Smith, 113 AD2d 905 ; People v Di Noia, 105 AD2d 799 , cert denied 471 US 1022 ).

1990When not timely raised, the issue is not preserved for appellate review (see, People v Soto, 44 NY2d 683 ; People v Smith, 113 AD2d 905 ; People v Di Noia, 105 AD2d 799 ).

1991The proper method to challenge the facial validity of an indictment is by a pretrial motion to dismiss (see, CPL 210.20, 210.25), brought within the time prescribed by CPL 255.20 (see, People v Soto, 44 NY2d 683 ; People v Stamen, 163 AD2d 499 ; People v Smith, 113 AD2d 905 ; People v Di Noia, 105 AD2d 799 , cert denied 471 US 1022 ).

1990When not timely raised, the issue is not preserved for appellate review (see, People v Soto, 44 NY2d 683 ; People v Smith, 113 AD2d 905 ; People v Di Noia, 105 AD2d 799 ).

1978Admin, of City of N. Y., 31 NY2d 184 ; Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400 ), it is an appropriate method of collaterally attacking an administrative action threatened or taken pursuant to an allegedly invalid law (Matter of Roosevelt Raceway v County of Nassau, 18 NY2d 30, 41 , app dsmd 385 US 453 ; Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508, 519-520 ; Matter of Elefante v Hanna, 54 AD2d 822 , mod on other grounds 40 NY2d 908 ; Matter of Policemen’s Benevolent Assn. of Westchester County v Board of Trustees of Vil. of Cr

1976True, when a case is properly before the court, that is, under unrestricted appealability, such as by appeal from the Appellate Division under CPLR 5602 (subd [a], par 2), it may convert an article 78 proceeding into a declaratory judgment action (see, e.g., Matter of Kovarsky v Housing & Development Admin., City of N. Y., supra, at p 192; Matter of Lake-land Water Dist. v Onondaga County Water Auth., 24 NY2d 400, 406 ).

1962Although this is not a motion directed against the examination as such, a motion to vacate or quash a subpoena duces tecum is an appropriate method to test the propriety of its issuance, and the relevancy and materiality of the documents sought (Matter of State Comm,, v. Manhattan Water Works, 10 A D 2d 306; Matter of Sun-Ray Cloak Co., 256 App. Div, 620, 623 ).

1960A motion to vacate or quash a subpoena duces tecum is an appropriate method to test the propriety of its issuance and the relevancy and materiality of the documents sought (see Matter of Sun-Ray Cloak Co., 256 App. Div. 620 , 623 and cases cited therein).

2026Rather, the defendant should have commenced a plenary action seeking vacatur or reformation of the agreement"]; see also , Candela v. Kiel , 33 AD3d 833 [2d Dept 2006] ["The Referee properly denied that branch of the plaintiff's motion which was to vacate this provision of the stipulation, since a post-judgment motion is not the proper method to challenge a separation agreement incorporated but not merged into a divorce judgment"]; Sloboda v. Sloboda , 24 AD3d 533 [2d Dept 2005] ["Furthermore, as the Supreme Court correctly observed, the plaintiff's application to set aside the stipulation of

2026A plenary action is required to set aside a stipulation, as here, incorporated but not **110 merged into the judgment of divorce"]; Reiter v. Reiter , 39 AD3d 616 [2d Dept 2007] ["Here, the plaintiff sought to modify the stipulation of settlement by motion rather than by plenary action.

2017In light of claimant’s continued use of, for the three months in question, the same method of hearing protection against the workplace noise that he used while contracting occupational hearing loss, we conclude that substantial evidence supports the Board’s decision that claimant has not established, for the purpose of an accurate appraisal of his hearing loss, that he has been removed from the noise for the requisite time period (see Matter of MacVittie v Guterl Speciality Steel Co., 154 AD2d at 751 ). * We note that the statute requires claimant to use effective protection, but that it would

2011In such a case, it is appropriate to look to the law of the place of the tort so as to give effect to that jurisdiction’s interest in regulating conduct within its borders, and it would be almost unthinkable to seek the applicable rule in the law of some other place” ( 12 NY2d at 483 ).

2005We note that a direct appeal is not the proper method for a challenge to the authority of the judge who issued the order of dismissal (People v Dunn, 4 NY3d 495 [2005], supra).

2003While the Court of Appeals has not specifically overruled Cardinale’s harsh and mechanical approach for lawyers who move to a new firm, it has set forth a method and standard for resolving those motions which involves inquiry into the fact of conflict and established that more than the mere possibility of conflict is required for disqualification of attorneys (Solow v Grace & Co., 83 NY2d 303 [1994]; Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123 [1996]; Jamaica Pub.

2003While the Court of Appeals has not specifically overruled Cardinale’s harsh and mechanical approach for lawyers who move to a new firm, it has set forth a method and standard for resolving those motions which involves inquiry into the fact of conflict and established that more than the mere possibility of conflict is required for disqualification of attorneys (Solow v Grace & Co., 83 NY2d 303 [1994]; Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123 [1996]; Jamaica Pub.

2001Co., 30 AD2d 499, 502 ; see, Schnabel v Grimes, 31 AD2d 375, 377-378 ).

1998The Civil Court also properly found that the application of Kenya Ausch to intervene was barred by laches (cf., Cohen v Krantz, 227 AD2d 581, 582 ; Dwyer v Mazzola, 171 AD2d 726, 727 ).

1998The Civil Court also properly found that the application of Kenya Ausch to intervene was barred by laches (cf., Cohen v Krantz, 227 AD2d 581, 582 ; Dwyer v Mazzola, 171 AD2d 726, 727 ).

1998Moreover, they did not commence a CPLR article 78 proceeding, which the statute provides as the exclusive method to challenge the Town Board’s determination (see, Town Law § 195 [2]; Gusdore Corp. v Michaels, 13 Misc 2d 762 , affd 8 AD2d 663 , lv denied 7 NY2d 706 ).

1996Such inquiry would constitute a clear "judicial displacement of complex educational determinations’’ (Paladino v Adelphi Univ., 89 AD2d 85, 90 , supra), that is best left to the educational community.