vitality doctrine in New York

1980While the doctrine of parens patriae does not permit any unfairness in judicial procedure towards juveniles (Matter of Gault, 387 U. S. 1 , supra) * * * the vitality of that doctrine continues in that the State has the power to perform the parental role of insuring the child’s * * * training [to which we add protection and support], when the parent is unable to control [her] sufficiently to perform it.

1971While the doctrine of parens patriae does not permit any unfairness in judicial procedure towards juveniles (Matter of Gault, 387 U. S. 1 , supra), in this court’s opinion the vitality of that doctrine continues in that the State has the power to perform the parental role of insuring the child’s education and training, when the parent is unable to control him sufficiently to perform it.

2017School Dist., 14 NY3d at 395 ; accord Custodi v Town of Amherst, 20 NY3d at 89 ).

1996As we have already quoted, the core principle of the Establishment Clause is that religious observance must be "a matter of voluntary choice" ( id. , at 640), and that the State may not " force nor influence a person to go to * * * church against his will or force him to profess a belief" ( Everson v Board of Educ. , supra , 330 US, at 15-16 ). *695 Even those scholars who urge a shift to a more flexible, accommodating approach to Establishment Clause jurisprudence than the present Supreme Court decisions would dictate, recognize the need for retaining the vitality of that principle.

1993(VDR Realty Corp. v Mintz, 167 AD2d 986 [4th Dept 1990]; Skinner v Stone, Raskin & Israel, 724 F2d 264 [2d Cir 1983]; 76 NY Jur 2d, Malpractice, § 39.) Here plaintiff sues essentially for the difference in the value of his claim as having been diminished by defendants’ negligence; that is, the value of the claim had it been properly prepared and tried in the Court of Claims less any payments received in the Supreme Court action. (1 Hallen and Smith, op. cit., § 16.19.) Had any of the exonerated defendants in the underlying action pleaded an affirmative defense that the present defendants could

1992Malpractice is both a defense to an action to recover for professional services and a predicate for a counterclaim, and if used for either purpose it destroys the vitality of the claim for services (Kossover v Trattler, 104 Mise 2d 424, 428, affd 82 AD2d 610 ).

1983We all agree that the Equitable Distribution Law (Domestic Relations Law, § 236, part B), applicable to matrimonial actions commenced after July 19, 1980, saps the vitality of the rule barring financial disclosure in a matrimonial action unless and until the support provisions of an existing separation agreement are set aside (see Shiffman v Shiffman, 57 AD2d 519 ; Gleeson v Gleeson, 69 AD2d 964 , mot for lv to app dsmd 47 NY2d 709 ).

1983We all agree that the Equitable Distribution Law (Domestic Relations Law, § 236, part B), applicable to matrimonial actions commenced after July 19, 1980, saps the vitality of the rule barring financial disclosure in a matrimonial action unless and until the support provisions of an existing separation agreement are set aside (see Shiffman v Shiffman, 57 AD2d 519 ; Gleeson v Gleeson, 69 AD2d 964 , mot for lv to app dsmd 47 NY2d 709 ).

1982Corp. (supra) which restated the vitality of the immunity doctrine set forth in Rottkamp (supra) were decided after the amendment to CPLR 2512, and gave no expression to the claimed abrogation of immunity now contended by the plaintiffs.

1980If children were permitted the same freedom of choice as adults, they might well be unequipped when they attain adulthood to exercise any freedom of choice” (Matter of Mario, 65 Misc 2d 708, 717 ).

1976We note that the vitality of the doctrine was expressly recognized in People v Miles ( 23 NY2d 527 ) decided by our court more than 15 months after the Penal Law revision became effective.

1939It is to be recalled that no will has a brother (Collister v. Fassitt, 163 N. Y. 281, 286 ), and that there is a dominant rule that “ each will is to be construed by itself and depends for its meaning largely upon its own context and subject matter.” (See Matter of Spitz-miller, 96 Misc. 381, 384 .) There is no doubt of the vitality of the principle, or that the courts have held that a clause referring to the death of a beneficiary contemplates the latter’s death in the lifetime of the testator.

1939(Matter of Evans, supra, and numerous cases there cited.) In the last-mentioned case Surrogate Foley stated, however (at p. 763), that “ It is true that this general rule that the death referred to in the will is death in the lifetime of the testator, yields to facts or circumstances or language in the will indicating a different intention.” He called attention, also (p. 763), to the fact that “ words of present gift in reference to a remainder are strong evidence of an intention that the remainder is to vest on the death of the testator.” In clause “ Fourth ” (supra) no such words are found.

1939It is to be recalled that no will has a brother (Collister v. Fassitt, 163 N. Y. 281, 286 ), and that there is a dominant rule that “ each will is to be construed by itself and depends for its meaning largely upon its own context and subject matter.” (See Matter of Spitz-miller, 96 Misc. 381, 384 .) There is no doubt of the vitality of the principle, or that the courts have held that a clause referring to the death of a beneficiary contemplates the latter’s death in the lifetime of the testator.