seven factors in New York

2013In performing the effects analysis, we consider the seven factors articulated in Kennedy v Mendoza-Martinez ( 372 US 144, 168-169 [1963]): (1) does the sanction involve an affirmative disability or restraint?; (2) has the sanction been historically regarded as punishment?; (3) is the sanction imposed only upon a finding of scienter?; (4) does the operation of the sanction promote retribution and deterrence?; (5) is the behavior to which it applies already a crime?; (6) is there an alternative purpose to which the sanction may rationally be connected?; and (7) is the sanction excessive in relat

2013In performing the effects analysis, we consider the seven factors articulated in Kennedy v Mendoza-Martinez ( 372 US 144, 168-169 [1963]): (1) does the sanction involve an affirmative disability or restraint?; (2) has the sanction been historically regarded as punishment?; (3) is the sanction imposed only upon a finding of scienter?; (4) does the operation of the sanction promote retribution and deterrence?; (5) is the behavior to which it applies already a crime?; (6) is there an alternative purpose to which the sanction may rationally be connected?; and (7) is the sanction excessive in relat

2013The United States Supreme Court has not allocated a specific weight to each factor, but has observed that the factors “often point in differing directions” (see id. at 169 ) and that no one factor is determinative (see Hudson v United States, 522 US 93, 101 [1997]).

2013The United States Supreme Court has not allocated a specific weight to each factor, but has observed that the factors “often point in differing directions” (see id. at 169 ) and that no one factor is determinative (see Hudson v United States, 522 US 93, 101 [1997]).

2023As in the state courts, no single factor is determinative in the federal courts, and the totality of the circumstances must be - 10 - - 11 - No. 86 considered (see Matter of Menik v Roth, 280 AD2d 702, 703 [3d Dept 2001]; Fiataruolo, 8 F3d at 939 ).3 Notably, the factors employed by the federal courts do not merely look to whether the individual had authority over the finances of the corporation at issue but “divide into the following three groups: (1) those that identify the [person’s] status within the corporation, (2) those that identify [the person’s] involvement in the daily affairs of th

2023The seven factors serve as a guide—not a mechanistic checklist—for answering the “core question” of whether an “individual has significant control over the -7- -8- No. 86 enterprise’s finances” (Fiataruolo, 8 F3d at 939 [internal quotation marks omitted]).

2023Although the dissenters state that there was “a paucity of factors applied by the Tribunal that resemble factors applied by the federal courts” (dissenting op at 9), we note that the Tribunal expressly considered four of the seven factors set forth in Vinick (205 F3d at 8), as well as petitioner’s holding oneself out as a responsible person, which is also a relevant factor under federal law (see Hochstein, 900 F2d at 548 n 1).

2023As in the state courts, no single factor is determinative in the federal courts, and the totality of the circumstances must be - 10 - - 11 - No. 86 considered (see Matter of Menik v Roth, 280 AD2d 702, 703 [3d Dept 2001]; Fiataruolo, 8 F3d at 939 ).3 Notably, the factors employed by the federal courts do not merely look to whether the individual had authority over the finances of the corporation at issue but “divide into the following three groups: (1) those that identify the [person’s] status within the corporation, (2) those that identify [the person’s] involvement in the daily affairs of th

2018"A contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk" ( Sturm v Myrtle Catalpa, LLC , 149 AD3d 1130, 1132 [internal quotation marks omitted]; see Hayes v DeMicco Bros., Inc ., 34 AD3d 641 ; Tobias v DiFazio Elec ., 288 AD2d 209, 210 ). 24 Seven established its prima facie [*2]entitlement to summary judgment through evidence demonstrating that its road work did not create the sinkhole that allegedly caused the plaintiff's fall ( see Lewis v City of New York , 82 AD3d 1054 ; Baker v Punancy , 37 A

2018"A contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk" ( Sturm v Myrtle Catalpa, LLC , 149 AD3d 1130, 1132 [internal quotation marks omitted]; see Hayes v DeMicco Bros., Inc ., 34 AD3d 641 ; Tobias v DiFazio Elec ., 288 AD2d 209, 210 ). 24 Seven established its prima facie [*2]entitlement to summary judgment through evidence demonstrating that its road work did not create the sinkhole that allegedly caused the plaintiff's fall ( see Lewis v City of New York , 82 AD3d 1054 ; Baker v Punancy , 37 A

2012Co., 21 NY2d 403, 406 [1968]), may follow the seven factors set forth in Zubulake: “1. [t]he extent to which the request is specifically tailored to discover relevant information; “2. [t]he availability of such information from other sources; “3. [t]he total cost of production, compared to the amount in controversy; “4. [t]he total cost of production, compared to the resources available to each party; “5. [t]he relative ability of each party to control costs and its incentive to do so; “6. [t]he importance of the issues at stake in the litigation; and “7. [t]he relative benefits to the parties

2011Rather, the decision states “[t]hese factors, none of which should be determinative, may include” the seven factors set forth above (see Matter of Hyde, 15 NY3d at 186 [emphasis added]).

1999As previously discussed, the presumption of rehabilitation does not preclude the Board from considering any of the other seven factors, unrelated to rehabilitation, including prior convictions in the context of the license or employment being sought (see, Matter of Bonacorsa v Van Lindt, supra, 71 NY2d, at 614 ).

1999We stated in Matter of Bonacorsa v Van Lindt (supra, at 614) that, even where an applicant has the benefit of a presumption of rehabilitation: “[i]n some cases, consideration of other factors such as severity of the criminal offenses, the age of the offender at the time of the offenses, the passage of time between the offenses and the application, and the nature of the license or employment sought can warrant denial of the license notwithstanding the absence of new evidence specifically addressed at overcoming the presumption of rehabilitation” (emphasis supplied).

1990(See, Anderson v Montgomery Ward & Co., 650 F Supp 1480, 1486 [ND Ill 1987] ["waiver of 'all provisions of any compensation practices’ ” did not bar discrimination action]; Bernstein v Consolidated Foods Corp., 622 F Supp 1096, 1106 [ND Ill 1984] [release of "right to 'remuneration’ ” and " 'compensation’ ” rather than " 'causes of action’ ” or " 'suits’ ” creates genuine issues of material fact precluding summary judgment]; Oglesby v Coca-Cola Bottling Co., 620 F Supp, supra, at 1341 [" 'any claim * * * with respect to employee benefits, insurance, salary or any other claim related to employm

1990(See, Anderson v Montgomery Ward & Co., 650 F Supp 1480, 1486 [ND Ill 1987] ["waiver of 'all provisions of any compensation practices’ ” did not bar discrimination action]; Bernstein v Consolidated Foods Corp., 622 F Supp 1096, 1106 [ND Ill 1984] [release of "right to 'remuneration’ ” and " 'compensation’ ” rather than " 'causes of action’ ” or " 'suits’ ” creates genuine issues of material fact precluding summary judgment]; Oglesby v Coca-Cola Bottling Co., 620 F Supp, supra, at 1341 [" 'any claim * * * with respect to employee benefits, insurance, salary or any other claim related to employm