factual predicate claim in New York

2014In order to establish actual innocence as a gateway for review of a constitutional claim, federal law concerning habeas corpus petitions requires that the habeas corpus petitioner establish that, in “ Tight of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt’ ” (McQuiggin v Perkins, 569 US at —, 133 S Ct at 1928 , quoting Schlup v Delo, 513 US at 329 ).

2014In order to establish actual innocence as a gateway for review of a constitutional claim, federal law concerning habeas corpus petitions requires that the habeas corpus petitioner establish that, in “ Tight of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt’ ” (McQuiggin v Perkins, 569 US at —, 133 S Ct at 1928 , quoting Schlup v Delo, 513 US at 329 ).

2014In order to establish actual innocence as a gateway for review of a constitutional claim, federal law concerning habeas corpus petitions requires that the habeas corpus petitioner establish that, in “ Tight of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt’ ” (McQuiggin v Perkins, 569 US at —, 133 S Ct at 1928 , quoting Schlup v Delo, 513 US at 329 ).

2014In order to establish actual innocence as a gateway for review of a constitutional claim, federal law concerning habeas corpus petitions requires that the habeas corpus petitioner establish that, in “ Tight of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt’ ” (McQuiggin v Perkins, 569 US at —, 133 S Ct at 1928 , quoting Schlup v Delo, 513 US at 329 ).

2013“The duty to defend an insured is not triggered, however, ‘when the only possible interpretation of the allegations against the insured is that the factual predicate for the claim falls wholly within a policy exclusion’ ” (Campoverde v Fabian Bldrs., LLC, 83 AD3d at 988 , quoting Howard & Norman Baker, Ltd. v American Safety Cas.

2013“The duty to defend an insured is not triggered, however, ‘when the only possible interpretation of the allegations against the insured is that the factual predicate for the claim falls wholly within a policy exclusion’ ” (Campoverde v Fabian Bldrs., LLC, 83 AD3d at 988 , quoting Howard & Norman Baker, Ltd. v American Safety Cas.

2009Co., 39 AD3d at 157-158 ) or when the only interpretation of the allegations against the insured is that the factual predicate for the claim falls wholly within a policy exclusion” (Global Constr.

2008Co., 39 AD3d at 157-158 ) or when the only interpretation of the allegations against the insured is that the factual predicate for the claim falls wholly within a policy exclusion (see Automobile Ins.

2016“At best, petitioner merely raise [s] factual disputes [as to whether the alleged determination that he engaged in misconduct with respect to Echevarria’s death is correct] that do not entitle [him] to a hearing” (Matter of Bradford v New York City Dept. of Correction, 56 AD3d 290 , 291 [1st Dept 2008], lv denied 12 NY3d 711 [2009]).The majority finds that petitioner “present [s] a substantial issue of bad faith — namely, whether [his] discharge was unrelated to work performance — sufficient to require a denial of the pre-answer motion to dismiss.” The majority also states that petitioner esta

2010Even if the holding of Calderock Joint Ventures, L.P. v Mitiku, 45 AD3d 452 [2007]) were as broad as the majority reads it to be, the majority errs in concluding that the wife “waived any objection to the court’s jurisdiction over her.” The factual predicate for the waiver appears to be that “the IAS court determined that . . . the wife did not deny that she submitted the 1985 divorce judgment to the Queens County Family Court in 1992 to obtain support for herself and her children.” As discussed above, however, the wife did deny this assertion by denying all the allegations in the husband’s af

2009Co., 89 NY2d 990 [1997]; Jenel Mgt.

2008Co. of Hartford v Cook, 7 NY3d at 137 ; Bruckner Realty, LLC v County Oil Co., Inc., 40 AD3d at 900 ).

1984Under these circumstances the retroactivity of Payton is irrelevant (People v Grosfeld, supra), as are the trial court’s beliefs or observations concerning retroactivity (People v Kaminski, 58 NY2d 886 ).

1984Under these circumstances the retroactivity of Payton is irrelevant (People v Grosfeld, supra), as are the trial court’s beliefs or observations concerning retroactivity (People v Kaminski, 58 NY2d 886 ).

1984Here, as in Grosfeld , the defendant failed to meet the threshold requirement for such relief because he did not establish a factual predicate at the hearing to support his contention that the warrant-less arrest violated his rights under Payton v New York ( 445 US 573 ), and this defect was not cured by the papers he submitted on the motion to reopen.