second prong test in New York

2014Realty Corp., 101 AD3d 579 [2012]; Lofstad v S & R Fisheries, Inc., 45 AD3d 739, 742 [2007]; Duncan v Corbetta, 178 AD2d 459 [1991]; Crosby v Stone, 137 AD2d 785 [1988]).

2013Realty Corp., 101 AD3d 579 [2012]; Lofstad v S & R Fisheries, Inc., 45 AD3d 739, 742 [2007]; Duncan v Corbetta, 178 AD2d 459 [1991]; Crosby v Stone, 137 AD2d 785 [1988]).

2014Realty Corp., 101 AD3d 579 [2012]; Lofstad v S & R Fisheries, Inc., 45 AD3d 739, 742 [2007]; Duncan v Corbetta, 178 AD2d 459 [1991]; Crosby v Stone, 137 AD2d 785 [1988]).

2013Realty Corp., 101 AD3d 579 [2012]; Lofstad v S & R Fisheries, Inc., 45 AD3d 739, 742 [2007]; Duncan v Corbetta, 178 AD2d 459 [1991]; Crosby v Stone, 137 AD2d 785 [1988]).

2014Realty Corp., 101 AD3d 579 [2012]; Lofstad v S & R Fisheries, Inc., 45 AD3d 739, 742 [2007]; Duncan v Corbetta, 178 AD2d 459 [1991]; Crosby v Stone, 137 AD2d 785 [1988]).

2013Realty Corp., 101 AD3d 579 [2012]; Lofstad v S & R Fisheries, Inc., 45 AD3d 739, 742 [2007]; Duncan v Corbetta, 178 AD2d 459 [1991]; Crosby v Stone, 137 AD2d 785 [1988]).

2012Viewing the evidence in the light most favorable to defendant, as we must (see People v Daniels, 97 AD3d 845, 848 [2012]; People v March, 89 AD3d 1496 , 1498 [2011], lv denied 18 NY3d 926 [2012]), we conclude that the jury could reasonably have concluded that defendant intended to cause physical injury rather than serious physical injury to the victim, or that he recklessly caused physical injury to the victim.

2012Viewing the evidence in the light most favorable to defendant, as we must (see People v Daniels, 97 AD3d 845, 848 [2012]; People v March, 89 AD3d 1496 , 1498 [2011], lv denied 18 NY3d 926 [2012]), we conclude that the jury could reasonably have concluded that defendant intended to cause physical injury rather than serious physical injury to the victim, or that he recklessly caused physical injury to the victim.

2012Viewing the evidence in the light most favorable to defendant, as we must (see People v Daniels, 97 AD3d 845, 848 [2012]; People v March, 89 AD3d 1496 , 1498 [2011], lv denied 18 NY3d 926 [2012]), we conclude that the jury could reasonably have concluded that defendant intended to cause physical injury rather than serious physical injury to the victim, or that he recklessly caused physical injury to the victim.

2012Viewing the evidence in the light most favorable to defendant, as we must (see People v Daniels, 97 AD3d 845, 848 [2012]; People v March, 89 AD3d 1496 , 1498 [2011], lv denied 18 NY3d 926 [2012]), we conclude that the jury could reasonably have concluded that defendant intended to cause physical injury rather than serious physical injury to the victim, or that he recklessly caused physical injury to the victim.

2020Where, as here, a physician working for a professional corporation renders medical care to a patient within the scope of his or her employment, the professional corporation is considered vicariously liable for the negligence of the physician ( see Business Corporation Law § 1505[a]; Nani v Gould , 39 AD3d 508, 509-510 ; Connell v Hayden , 83 AD2d 30, 50 ).

1984In order to determine whether parties are “united in interest” for the purpose of determining whether the claims asserted in an amended complaint relate back to the date of service of the original summons and complaint, the “jural relationship of the parties whose interests are said to be united” and “the nature of the claim asserted against them by the plaintiff” must be examined (Connell v Hayden, 83 AD2d 30, 42-43 ).

2020With respect to the second prong of the test for a preliminary injunction, plaintiff established by clear and convincing evidence a danger of irreparable injury in the absence of injunctive relief ( see generally Nobu Next Door, LLC , 4 NY3d at 840 ).

2020With respect to the second prong of the test for a preliminary injunction, we likewise conclude that the court did not abuse its discretion in determining that plaintiff established, by clear and convincing evidence, a danger of irreparable injury in the absence of injunctive relief ( see generally Nobu Next Door, LLC , 4 NY3d at 840 ; Eastman Kodak Co. , 77 AD3d at 1435 ).

2015Under the second -4- 727 CA 14-00117 prong, “ ‘only the most egregious official conduct can be said to be arbitrary in the constitutional sense’ ” (Bower Assoc., 2 NY3d at 628 ).

2015Under the second prong, “ 'only the most egregious official conduct can be said to be arbitrary in the constitutional sense’ ” (Bower Assoc., 2 NY3d at 628 ).

2015Here, however, the intervenors did not meet the second prong of that test because they failed to identify any facts that give rise to a claim that injustice of any kind would be avoided by vacating the judgment (cf. Bond v Giebel, 101 AD3d 1340 , 1342-1343 [3d Dept 2012], appeal dismissed, lv dismissed 21 NY3d 884 [2013]; Lane v Lane, 175 AD2d 103, 105-106 [2d Dept 1991]).

2015Here, however, the intervenors did not meet the second prong of that test because they failed to identify any facts that give rise to a claim that injustice of any kind would be avoided by vacating the judgment (cf. Bond v Giebel, 101 AD3d 1340 , 1342-1343 [3d Dept 2012], appeal dismissed, lv dismissed 21 NY3d 884 [2013]; Lane v Lane, 175 AD2d 103, 105-106 [2d Dept 1991]). * * * * * * * * * * * * * * * * * Order, insofar as appealed from, affirmed, with costs, in a memorandum.

2015Here, however, the intervenors did not meet the second prong of that test because they failed to identify any facts that give rise to a claim that injustice of any kind would be avoided by vacating the judgment (cf. Bond v Giebel, 101 AD3d 1340 , 1342-1343 [3d Dept 2012], appeal dismissed, lv dismissed 21 NY3d 884 [2013]; Lane v Lane, 175 AD2d 103, 105-106 [2d Dept 1991]).

2015Here, however, the intervenors did not meet the second prong of that test because they failed to identify any facts that give rise to a claim that injustice of any kind would be avoided by vacating the judgment (cf. Bond v Giebel, 101 AD3d 1340 , 1342-1343 [3d Dept 2012], appeal dismissed, lv dismissed 21 NY3d 884 [2013]; Lane v Lane, 175 AD2d 103, 105-106 [2d Dept 1991]). * * * * * * * * * * * * * * * * * Order, insofar as appealed from, affirmed, with costs, in a memorandum.

2010Under the second prong of the test, the grievance is arbitrable if the parties have agreed to do so (see Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d at 278 ).

2010The second prong of the test requires that we “examine the CBA to determine if the parties have agreed to arbitrate the dispute at issue” (Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d at 278 ).

2007After the court initially determined that the defendant was a persistent felony offender under Penal Law § 70.10 (1) because he previously had been convicted of at least two felonies, and the sentences imposed were in excess of one year, the court’s conclusory recitation at sentencing that it had reviewed the defendant’s presentence report and conferred with the attorneys was insufficient to fulfill the statute’s mandate (see People v Garcia, supra at 248; People v Smith, supra at 587 ; People v Gaines, supra; People v Montes, supra; People v Oliver, 96 AD2d 1104 [1983], affd 63 NY2d 973 [1984

1991The exercise of Supreme Court’s discretion in treating defendant as a persistent felony offender under the second prong of the test prescribed in People v Oliver ( 96 AD2d 1104, 1105 , affd 63 NY2d 973 ) permits our disturbance of such treatment only if the proper standards were not applied or Supreme Court abused its discretion.

2007After the court initially determined that the defendant was a persistent felony offender under Penal Law § 70.10 (1) because he previously had been convicted of at least two felonies, and the sentences imposed were in excess of one year, the court’s conclusory recitation at sentencing that it had reviewed the defendant’s presentence report and conferred with the attorneys was insufficient to fulfill the statute’s mandate (see People v Garcia, supra at 248; People v Smith, supra at 587 ; People v Gaines, supra; People v Montes, supra; People v Oliver, 96 AD2d 1104 [1983], affd 63 NY2d 973 [1984

1991The exercise of Supreme Court’s discretion in treating defendant as a persistent felony offender under the second prong of the test prescribed in People v Oliver ( 96 AD2d 1104, 1105 , affd 63 NY2d 973 ) permits our disturbance of such treatment only if the proper standards were not applied or Supreme Court abused its discretion.

2004Since the parties appear to agree that, on this record, second-degree manslaughter could properly have been submitted to the jury as a lesser included offense of intentional murder, we need not independently determine whether such submission of the charge would have been appropriate under the second prong of the analysis prescribed by People v Glover ( 57 NY2d 61 [1982]). .

1993While, concededly, it is possible to commit grand larceny in the third degree without also committing unauthorized use of a vehicle in the third degree, thus meeting the first prong of the test enunciated in People v Glover ( 57 NY2d 61, 63 ), we conclude that defendant’s request to charge was properly refused because it failed to meet the second prong of that test, namely that a reasonable view of the evidence supports a finding that defendant committed the lesser offense but not the greater (see, supra).

1996This prong can be satisfied by placing the informant under oath (People v Johnson, supra; People v Wheatman, 29 NY2d 337 , cert denied sub nom.

1979Here, the detail of the informer’s information was such that it can be safely said that his information was reliable, which thus satisfies the second prong of the test (People v Wheatman, 29 NY2d 337, 344-345 ; People v Hendricks, 25 NY2d 129, 134 ).

1994Thus, the defendant has not satisfied the second prong of the test (see, People v Linares, 158 AD2d 296 ; People v Collins, 154 AD2d 901, 902 ).

1992Thus, the defendant has not satisfied the second prong of the test by demonstrating the possibility of prejudice created by the recanted testimony (see, People v Hutson, supra, at 574-575; People v Collins, 154 AD2d 901, 902 ).

1985The cases of People v Blim ( 63 NY2d 718, 720 ) and People v Scarborough ( 49 NY2d 364, 369 ) teach that, in applying the second prong of the test under CPL 300.50, a jury may only differentiate between offenses and pick and choose from portions of the prosecution’s proof on an identifiable, rational basis rather than on speculation.

1985This requires that there must be “ ‘some identifiable, rational basis on which the jury could reject a portion of the prosecution’s case which is indispensable to establishment of the higher crime and yet accept so much of the proof as would establish the lesser crime’ ” (People v Blim, 63 NY2d 718, 720 , quoting People v Scarborough, 49 NY2d 364, 369-370 ).

1985The cases of People v Blim ( 63 NY2d 718, 720 ) and People v Scarborough ( 49 NY2d 364, 369 ) teach that, in applying the second prong of the test under CPL 300.50, a jury may only differentiate between offenses and pick and choose from portions of the prosecution’s proof on an identifiable, rational basis rather than on speculation.

1985This requires that there must be “ ‘some identifiable, rational basis on which the jury could reject a portion of the prosecution’s case which is indispensable to establishment of the higher crime and yet accept so much of the proof as would establish the lesser crime’ ” (People v Blim, 63 NY2d 718, 720 , quoting People v Scarborough, 49 NY2d 364, 369-370 ).

1979Here, the detail of the informer’s information was such that it can be safely said that his information was reliable, which thus satisfies the second prong of the test (People v Wheatman, 29 NY2d 337, 344-345 ; People v Hendricks, 25 NY2d 129, 134 ).

1977The reliability of the information, the second prong of the test, was sufficiently established by the allegation that the informants’ information was based upon personal observation (People v Wirchansky, 41 NY2d 130 [Dec. 22, 1976]; People v Hendricks, 25 NY2d 129 ).