course hearing in New York

2013Thus, defendants have failed to establish as a matter of law that General Obligations Law § 5-326 does not apply here (see generally Bacchiocchi, 273 AD2d at 174-175 ; Rogowicki v Troser Mgt., 212 AD2d 1035, 1035 [1995]; Wurzer v Seneca Sport Parachute Club, 66 AD2d 1002, 1003 [1978]) and have failed to establish conclusively that plaintiff has no cause of action.

2002In determining whether a facility is recreational or instructional in nature, relevant factors include the certificate of incorporation of the corporate defendant, the statement of purpose contained therein (see Bacchiocchi v Ranch Parachute Club, 273 AD2d 173 ; Wurzer v Seneca Sport Parachute Club, 66 AD2d 1002 ), and the typical method of payment, that is, whether a tuition fee is paid for a course of instruction, or a use fee is paid for use of the facilities (see Baschuk v Diver’s Way Scuba, supra).

2013Thus, defendants have failed to establish as a matter of law that General Obligations Law § 5-326 does not apply here (see generally Bacchiocchi, 273 AD2d at 174-175 ; Rogowicki v Troser Mgt., 212 AD2d 1035, 1035 [1995]; Wurzer v Seneca Sport Parachute Club, 66 AD2d 1002, 1003 [1978]) and have failed to establish conclusively that plaintiff has no cause of action.

2013Thus, defendants have failed to establish as a matter of law that General Obligations Law § 5-326 does not apply here (see generally Bacchiocchi, 273 AD2d at 174-175 ; Rogowicki v Troser Mgt., 212 AD2d 1035, 1035 [1995]; Wurzer v Seneca Sport Parachute Club, 66 AD2d 1002, 1003 [1978]) and have failed to establish conclusively that plaintiff has no cause of action.

2015As such, the determination is annulled and the matter is remitted for a new hearing (see generally Matter of Laureano v Kuhlmann, 75 NY2d 141, 148-149 [1990]).

2015As such, the determination is annulled and the matter is remitted for a new hearing (see generally Matter of Laureano v Kuhlmann, 75 NY2d 141, 148-149 [1990]).

2015Furthermore, the Hearing Officer, in addition to other comments, questioned petitioner’s veracity on multiple occasions during the course of the hearing and, at one point, openly called petitioner “a liar.” Under these circumstances, particularly given the fact that the Hearing Officer improperly shifted the burden of proof, we find that petitioner’s right to an impartial hearing was denied (see 7 NYCRR 253.1 [b]; see generally Matter of Benito v Calero, 102 AD3d 778, 779 [2013]; Matter of Williams v Goord, 23 AD3d 872, 873 [2005]; Matter of Vicioso v Goord, 266 AD2d 655, 655-656 [1999]).

2015Furthermore, the Hearing Officer, in addition to other comments, questioned petitioner’s veracity on multiple occasions during the course of the hearing and, at one point, openly called petitioner “a liar.” Under these circumstances, particularly given the fact that the Hearing Officer improperly shifted the burden of proof, we find that petitioner’s right to an impartial hearing was denied (see 7 NYCRR 253.1 [b]; see generally Matter of Benito v Calero, 102 AD3d 778, 779 [2013]; Matter of Williams v Goord, 23 AD3d 872, 873 [2005]; Matter of Vicioso v Goord, 266 AD2d 655, 655-656 [1999]).

2015Furthermore, the Hearing Officer, in addition to other comments, questioned petitioner’s veracity on multiple occasions during the course of the hearing and, at one point, openly called petitioner “a liar.” Under these circumstances, particularly given the fact that the Hearing Officer improperly shifted the burden of proof, we find that petitioner’s right to an impartial hearing was denied (see 7 NYCRR 253.1 [b]; see generally Matter of Benito v Calero, 102 AD3d 778, 779 [2013]; Matter of Williams v Goord, 23 AD3d 872, 873 [2005]; Matter of Vicioso v Goord, 266 AD2d 655, 655-656 [1999]).

2015Furthermore, the Hearing Officer, in addition to other comments, questioned petitioner’s veracity on multiple occasions during the course of the hearing and, at one point, openly called petitioner “a liar.” Under these circumstances, particularly given the fact that the Hearing Officer improperly shifted the burden of proof, we find that petitioner’s right to an impartial hearing was denied (see 7 NYCRR 253.1 [b]; see generally Matter of Benito v Calero, 102 AD3d 778, 779 [2013]; Matter of Williams v Goord, 23 AD3d 872, 873 [2005]; Matter of Vicioso v Goord, 266 AD2d 655, 655-656 [1999]).

2015Furthermore, the Hearing Officer, in addition to other comments, questioned petitioner’s veracity on multiple occasions during the course of the hearing and, at one point, openly called petitioner “a liar.” Under these circumstances, particularly given the fact that the Hearing Officer improperly shifted the burden of proof, we find that petitioner’s right to an impartial hearing was denied (see 7 NYCRR 253.1 [b]; see generally Matter of Benito v Calero, 102 AD3d 778, 779 [2013]; Matter of Williams v Goord, 23 AD3d 872, 873 [2005]; Matter of Vicioso v Goord, 266 AD2d 655, 655-656 [1999]).

2015Furthermore, the Hearing Officer, in addition to other comments, questioned petitioner’s veracity on multiple occasions during the course of the hearing and, at one point, openly called petitioner “a liar.” Under these circumstances, particularly given the fact that the Hearing Officer improperly shifted the burden of proof, we find that petitioner’s right to an impartial hearing was denied (see 7 NYCRR 253.1 [b]; see generally Matter of Benito v Calero, 102 AD3d 778, 779 [2013]; Matter of Williams v Goord, 23 AD3d 872, 873 [2005]; Matter of Vicioso v Goord, 266 AD2d 655, 655-656 [1999]).

2014Likewise, we reject petitioner’s assertion that he was improperly denied the victim as a witness inasmuch as this individual never agreed to testify and executed a refusal form indicating the reason for his refusal (see Matter of Lamage v Fischer, 100 AD3d 1176, 1176-1177 [2012]; Matter of Tulloch v Fischer, 90 AD3d 1370, 1371 [2011]).

2014Likewise, we reject petitioner’s assertion that he was improperly denied the victim as a witness inasmuch as this individual never agreed to testify and executed a refusal form indicating the reason for his refusal (see Matter of Lamage v Fischer, 100 AD3d 1176, 1176-1177 [2012]; Matter of Tulloch v Fischer, 90 AD3d 1370, 1371 [2011]).

2014Moreover, we find no merit to petitioner’s contention that he was denied adequate employee assistance given that the Hearing Officer remedied any deficiencies during the course of the hearing (see Matter of Acosta v Fischer, 98 AD3d 1170, 1171 [2012]; Matter of Jenkins v Selsky, 51 AD3d 1239, 1240 [2008]).

2014Moreover, we find no merit to petitioner’s contention that he was denied adequate employee assistance given that the Hearing Officer remedied any deficiencies during the course of the hearing (see Matter of Acosta v Fischer, 98 AD3d 1170, 1171 [2012]; Matter of Jenkins v Selsky, 51 AD3d 1239, 1240 [2008]).

2014Likewise, we reject petitioner’s assertion that he was improperly denied the victim as a witness inasmuch as this individual never agreed to testify and executed a refusal form indicating the reason for his refusal (see Matter of Lamage v Fischer, 100 AD3d 1176, 1176-1177 [2012]; Matter of Tulloch v Fischer, 90 AD3d 1370, 1371 [2011]).

2014Likewise, we reject petitioner’s assertion that he was improperly denied the victim as a witness inasmuch as this individual never agreed to testify and executed a refusal form indicating the reason for his refusal (see Matter of Lamage v Fischer, 100 AD3d 1176, 1176-1177 [2012]; Matter of Tulloch v Fischer, 90 AD3d 1370, 1371 [2011]).

2014Contrary to the mother’s assertion, we find that Family Court properly dismissed the violation petition on this basis (see Matter of Gonzalez v Hunter, 50 AD3d 1262, 1264 [2008]).

2014Contrary to the mother’s assertion, we find that Family Court properly dismissed the violation petition on this basis (see Matter of Gonzalez v Hunter, 50 AD3d 1262, 1264 [2008]).

2014Moreover, we find no merit to petitioner’s contention that he was denied adequate employee assistance given that the Hearing Officer remedied any deficiencies during the course of the hearing (see Matter of Acosta v Fischer, 98 AD3d 1170, 1171 [2012]; Matter of Jenkins v Selsky, 51 AD3d 1239, 1240 [2008]).

2014Moreover, we find no merit to petitioner’s contention that he was denied adequate employee assistance given that the Hearing Officer remedied any deficiencies during the course of the hearing (see Matter of Acosta v Fischer, 98 AD3d 1170, 1171 [2012]; Matter of Jenkins v Selsky, 51 AD3d 1239, 1240 [2008]).

2013Contrary to the petitioner’s contention, under the circumstances of this case, the Family Court providently exercised its discretion in awarding the mother unsupervised visitation three times per week for up to four hours each visit (see Family Ct Act § 1030 [c]; Matter of Ice S., 30 AD3d 428, 428-429 [2006]; compare Matter of Jenna C. [Omisa C.], 81 AD3d 941, 942-943 [2011], with Matter of Arden A. [Leslie A.], 78 AD3d 825, 826 [2010]).

2013Contrary to the petitioner’s contention, under the circumstances of this case, the Family Court providently exercised its discretion in awarding the mother unsupervised visitation three times per week for up to four hours each visit (see Family Ct Act § 1030 [c]; Matter of Ice S., 30 AD3d 428, 428-429 [2006]; compare Matter of Jenna C. [Omisa C.], 81 AD3d 941, 942-943 [2011], with Matter of Arden A. [Leslie A.], 78 AD3d 825, 826 [2010]).

2013Contrary to the petitioner’s contention, under the circumstances of this case, the Family Court providently exercised its discretion in awarding the mother unsupervised visitation three times per week for up to four hours each visit (see Family Ct Act § 1030 [c]; Matter of Ice S., 30 AD3d 428, 428-429 [2006]; compare Matter of Jenna C. [Omisa C.], 81 AD3d 941, 942-943 [2011], with Matter of Arden A. [Leslie A.], 78 AD3d 825, 826 [2010]).

2013Contrary to the petitioner’s contention, under the circumstances of this case, the Family Court providently exercised its discretion in awarding the mother unsupervised visitation three times per week for up to four hours each visit (see Family Ct Act § 1030 [c]; Matter of Ice S., 30 AD3d 428, 428-429 [2006]; compare Matter of Jenna C. [Omisa C.], 81 AD3d 941, 942-943 [2011], with Matter of Arden A. [Leslie A.], 78 AD3d 825, 826 [2010]).

2013Contrary to the petitioner’s contention, under the circumstances of this case, the Family Court providently exercised its discretion in awarding the mother unsupervised visitation three times per week for up to four hours each visit (see Family Ct Act § 1030 [c]; Matter of Ice S., 30 AD3d 428, 428-429 [2006]; compare Matter of Jenna C. [Omisa C.], 81 AD3d 941, 942-943 [2011], with Matter of Arden A. [Leslie A.], 78 AD3d 825, 826 [2010]).

2013Contrary to the petitioner’s contention, under the circumstances of this case, the Family Court providently exercised its discretion in awarding the mother unsupervised visitation three times per week for up to four hours each visit (see Family Ct Act § 1030 [c]; Matter of Ice S., 30 AD3d 428, 428-429 [2006]; compare Matter of Jenna C. [Omisa C.], 81 AD3d 941, 942-943 [2011], with Matter of Arden A. [Leslie A.], 78 AD3d 825, 826 [2010]).

2019With few fundamental exceptions for decisions that belong solely to a defendant, counsel is responsible for determining how best to represent the client ( see People v. Hogan, 26 N.Y.3d 779 , 786, 28 N.Y.S.3d 1 , 48 N.E.3d 58 [2016] [collecting cases]; People v. Colon, 90 N.Y.2d 824 , 825-826, 660 N.Y.S.2d 377 , 682 N.E.2d 978 [1997] [decisions belonging to a defendant are those "such as 'whether to plead guilty, waive a jury trial, testifying in [their] own behalf or take an appeal' "], quoting People v. White, 73 N.Y.2d 468 , 478, 541 N.Y.S.2d 749 , 539 N.E.2d 577 [1989] ).

2019With few fundamental exceptions for decisions that belong solely to a defendant, counsel is responsible for determining how best to represent the client ( see People v. Hogan, 26 N.Y.3d 779 , 786, 28 N.Y.S.3d 1 , 48 N.E.3d 58 [2016] [collecting cases]; People v. Colon, 90 N.Y.2d 824 , 825-826, 660 N.Y.S.2d 377 , 682 N.E.2d 978 [1997] [decisions belonging to a defendant are those "such as 'whether to plead guilty, waive a jury trial, testifying in [their] own behalf or take an appeal' "], quoting People v. White, 73 N.Y.2d 468 , 478, 541 N.Y.S.2d 749 , 539 N.E.2d 577 [1989] ).

2019With few fundamental exceptions for decisions that belong solely to a defendant, counsel is responsible for determining how best to represent the client ( see People v. Hogan, 26 N.Y.3d 779 , 786, 28 N.Y.S.3d 1 , 48 N.E.3d 58 [2016] [collecting cases]; People v. Colon, 90 N.Y.2d 824 , 825-826, 660 N.Y.S.2d 377 , 682 N.E.2d 978 [1997] [decisions belonging to a defendant are those "such as 'whether to plead guilty, waive a jury trial, testifying in [their] own behalf or take an appeal' "], quoting People v. White, 73 N.Y.2d 468 , 478, 541 N.Y.S.2d 749 , 539 N.E.2d 577 [1989] ).

2019With few fundamental exceptions for decisions that belong solely to a defendant, counsel is responsible for determining how best to represent the client ( see People v. Hogan, 26 N.Y.3d 779 , 786, 28 N.Y.S.3d 1 , 48 N.E.3d 58 [2016] [collecting cases]; People v. Colon, 90 N.Y.2d 824 , 825-826, 660 N.Y.S.2d 377 , 682 N.E.2d 978 [1997] [decisions belonging to a defendant are those "such as 'whether to plead guilty, waive a jury trial, testifying in [their] own behalf or take an appeal' "], quoting People v. White, 73 N.Y.2d 468 , 478, 541 N.Y.S.2d 749 , 539 N.E.2d 577 [1989] ).

2019With few fundamental exceptions for decisions that belong solely to a defendant, counsel is responsible for determining how best to represent the client ( see People v. Hogan, 26 N.Y.3d 779 , 786, 28 N.Y.S.3d 1 , 48 N.E.3d 58 [2016] [collecting cases]; People v. Colon, 90 N.Y.2d 824 , 825-826, 660 N.Y.S.2d 377 , 682 N.E.2d 978 [1997] [decisions belonging to a defendant are those "such as 'whether to plead guilty, waive a jury trial, testifying in [their] own behalf or take an appeal' "], quoting People v. White, 73 N.Y.2d 468 , 478, 541 N.Y.S.2d 749 , 539 N.E.2d 577 [1989] ).

2019With few fundamental exceptions for decisions that belong solely to a defendant, counsel is responsible for determining how best to represent the client ( see People v. Hogan, 26 N.Y.3d 779 , 786, 28 N.Y.S.3d 1 , 48 N.E.3d 58 [2016] [collecting cases]; People v. Colon, 90 N.Y.2d 824 , 825-826, 660 N.Y.S.2d 377 , 682 N.E.2d 978 [1997] [decisions belonging to a defendant are those "such as 'whether to plead guilty, waive a jury trial, testifying in [their] own behalf or take an appeal' "], quoting People v. White, 73 N.Y.2d 468 , 478, 541 N.Y.S.2d 749 , 539 N.E.2d 577 [1989] ).

2019This includes counsel's exercise of informed professional judgment in choosing the proper course of the defense ( People v. Colville, 20 N.Y.3d 20 , 32, 955 N.Y.S.2d 799 , 979 N.E.2d 1125 [2012] ).

2019This includes counsel's exercise of informed professional judgment in choosing the proper course of the defense ( People v. Colville, 20 N.Y.3d 20 , 32, 955 N.Y.S.2d 799 , 979 N.E.2d 1125 [2012] ).

2017Contrary to defendant’s claims, Merrell’s conduct during the course of the inquiry did not elevate the encounter to a seizure requiring reasonable suspicion (see generally People v Bora, 83 NY2d 531, 535-536 [1994]; People v De Bour, 40 NY2d 210, 216 [1976]).

1990(People v De Bour, 40 NY2d 210, 221 .) Once Officer Clark noticed, during the course of his inquiry, an "abnormally large bulge” in the front of defendant’s pants, it was reasonable for him to request that defendant place his hands on the front seat of the car to ensure his and his partner’s safety, while he engaged in the minimal intrusion of touching the bulge.

2025See, Rainbow v. Swisher, 72 NY2d 106, 109 (1988).

2022As such, we are satisfied that whatever deficiencies may have existed in the assistance provided were cured during the course of the hearing ( see Matter of Alston v Annucci , 153 AD3d 981, 983 [2017]; Matter of Pricher v Annucci , 137 AD3d 1406, 1407 [2016]).