benefits principle in New York

1907(Matter of Lampson, 161 N. Y. 511 -520.) •It is urged by the appellant that the trustee has power under the will to so distribute the estate that corporations formed under the original act of 1848 may receive the benefits of it in violation of that act, and that while the will provides for the payment of the income to religious, educational and eleemosynary institutions, that the educational institutions may be public or private, may be conducted as a charity or for gain¿ and that the trustee may so administer the trust that educational institutions conducted for the pur pose of gain may recei

1907(Matter of Lampson, 161 N. Y. 511 -520.) •It is urged by the appellant that the trustee has power under the will to so distribute the estate that corporations formed under the original act of 1848 may receive the benefits of it in violation of that act, and that while the will provides for the payment of the income to religious, educational and eleemosynary institutions, that the educational institutions may be public or private, may be conducted as a charity or for gain¿ and that the trustee may so administer the trust that educational institutions conducted for the pur pose of gain may recei

2024Consulting, Inc. v Blank, 25 AD3d 364, 367 [1st Dept 2006] [internal quotations and citations omitted]). “[I]n the case of common-law indemnification, the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident” (Correia, 259 AD2d at 65 ).

2008Co., 90 NY2d 274 [1997]).

2007In order to avail himself of the benefits of this doctrine, a three-pronged test needed to be satisfied, namely, that (1) both claims must arise out of the same occurrence, (2) defendant and BJ’s Warehouse were united in interest, and by reason of that relationship can be charged with notice of the institution of the action such that it will not be prejudiced in maintaining a defense on the merits, and (3) defendant knew or should have known that, but for a mistake by plaintiff as to the identity of the proper party, the action would have been brought against it as well (see Buran v Coupal, 87

1994Although a liberal interpretation of discovery rules is often encouraged (Kenford Co. v County of Erie, 55 AD2d 466 , supra), this is not a case where the privilege can be overcome.

1991Because an individual’s status as a corporate officer or director will not preclude him from litigating an issue which was previously determined against the corporation (see, Kessler v Fligel, 240 App Div 232, 234 , affd 266 NY 508 ; Rusciano & Son Corp. v Mihalyfi, 165 Misc 932, 942 ; Restatement [Second] of Judgments § 59, at 103, comment a), respondents, “the part[ies] seeking to invoke the benefits of the principle” (Gramatan Home Investors Corp. v Lopez, supra, at 485), have not proved the elements necessary to collaterally estop the Reaches (see, supra).

1991Because an individual’s status as a corporate officer or director will not preclude him from litigating an issue which was previously determined against the corporation (see, Kessler v Fligel, 240 App Div 232, 234 , affd 266 NY 508 ; Rusciano & Son Corp. v Mihalyfi, 165 Misc 932, 942 ; Restatement [Second] of Judgments § 59, at 103, comment a), respondents, “the part[ies] seeking to invoke the benefits of the principle” (Gramatan Home Investors Corp. v Lopez, supra, at 485), have not proved the elements necessary to collaterally estop the Reaches (see, supra).

1991Because an individual’s status as a corporate officer or director will not preclude him from litigating an issue which was previously determined against the corporation (see, Kessler v Fligel, 240 App Div 232, 234 , affd 266 NY 508 ; Rusciano & Son Corp. v Mihalyfi, 165 Misc 932, 942 ; Restatement [Second] of Judgments § 59, at 103, comment a), respondents, “the part[ies] seeking to invoke the benefits of the principle” (Gramatan Home Investors Corp. v Lopez, supra, at 485), have not proved the elements necessary to collaterally estop the Reaches (see, supra).

1987Traditionally, courts have held that inadvertent disclosure waives the privilege because the client and attorney possess sufficient means to preserve the secrecy of a communication and because disclosure makes achievement of the benefits of the privilege impossible (see, e.g., Grace & Co. v Pullman, Inc., 446 F Supp 771 [WD Okla 1976]; Underwater Stor. v United States Rubber Co., 314 F Supp 546 [D DC 1970]; 8 Wigmore, Evidence §§ 2325, 2326, at 633 [McNaughton rev]).

1987Traditionally, courts have held that inadvertent disclosure waives the privilege because the client and attorney possess sufficient means to preserve the secrecy of a communication and because disclosure makes achievement of the benefits of the privilege impossible (see, e.g., Grace & Co. v Pullman, Inc., 446 F Supp 771 [WD Okla 1976]; Underwater Stor. v United States Rubber Co., 314 F Supp 546 [D DC 1970]; 8 Wigmore, Evidence §§ 2325, 2326, at 633 [McNaughton rev]).

1980They are required to operate under the more restrictive procedure of section 216 (subd [b]) of Title 29 of the United States Code, which provides that only persons who affirmatively consent to join the action are affected by its judgment and does not provide for any court-approved notice to potential class members apprising them of the pending action (Wagner v Loew’s Theatres, 76 FRD 23; McGinley v Burroughs Corp., 407 F Supp 903 ; Hill v Western Elec.

1979Although the previous requirement that there be mutuality of estoppel is now a "dead letter” (see Schwartz v Public Administrator of County of Bronx, 24 NY2d 65, 70 ), the party seeking to invoke the benefits of the principle must still prove two necessary elements.

1974Because the plaintiff in this case failed ,to timely move for a deficiency judgment in the farm foreclosure action, a conclusive presumption arose that the debt was paid (Bedcro, supra) and the benefits of the presumption extended not only to the principal debtor, but also to the guarantor of the mortgage debt (Kings County Sav.

1969The metamorphosis of the concept of juvenile delinquency proceedings in the Family Court from ‘1 civil ” to “ criminal ’ ’ or “ at the very least, quasi-criminal ’ ’ has continued apace and can be traced through such decisions as Matter of William L. (29 A D 2d 182 [Jan., 1968]) holding that there is no valid ground for denying a child the benefits of the warnings required by Miranda v. Arizona ( 384 U. S. 436 ) simply because he is a child; Matter of Richard W. (29 A D 2d 873 [March, 1968]) holding that admissions made without representation of counsel violated his constitutional rights; and

1969The metamorphosis of the concept of juvenile delinquency proceedings in the Family Court from ‘1 civil ” to “ criminal ’ ’ or “ at the very least, quasi-criminal ’ ’ has continued apace and can be traced through such decisions as Matter of William L. (29 A D 2d 182 [Jan., 1968]) holding that there is no valid ground for denying a child the benefits of the warnings required by Miranda v. Arizona ( 384 U. S. 436 ) simply because he is a child; Matter of Richard W. (29 A D 2d 873 [March, 1968]) holding that admissions made without representation of counsel violated his constitutional rights; and

1943First, the record here at least suggests that the splitting was really done by the other two purported assignees who filed separate proofs of claim in bankruptcy before this suit was brought (Gock v. Keneda, 29 Barb. 120 ; Jackson v. Moore, 94 App. Div. 504 ), and that plaintiff trustee, by acquiescence, probably waived the benefits of the rule against splitting.

1943First, the record here at least suggests that the splitting was really done by the other two purported assignees who filed separate proofs of claim in bankruptcy before this suit was brought (Gock v. Keneda, 29 Barb. 120 ; Jackson v. Moore, 94 App. Div. 504 ), and that plaintiff trustee, by acquiescence, probably waived the benefits of the rule against splitting.

1940(Dyer v. Broadway Central Bank, 252 N. Y. 430 .) In so far as the motion is directed against the second cause of action, it is denied.

1926(Meinig Co. v. U. S. Fastener Co., supra.) Plaintiff must assume the burden as well as enjoy the benefits for the privilege of suing in this State.

1886Id.