power inquiry in New York

2003Rent Commn., 10 NY2d 263, 269 [1961].) Additionally, “[i]f any state of facts, known or to be assumed, justify the law, the court’s power of inquiry ends.” (Matter of Spielvogel v Ford, 1 NY2d 558, 562 [1956], appeal dismissed 352 US 957 [1957].) Where, as here, a party seeks facial nullification of a statute (as opposed to nullification as applied to a given set of facts), the party is required to show that “ ‘in any degree and in every conceivable application,’ the law suffers wholesale constitutional impairment.” (See Cohen v State of New York, 94 NY2d 1, 8 [1999], quoting McGowan v Burstei

1984(Matter of Spielvogel v Ford, 1 NY2d 558 , app dsmd 352 US 957 ; McKinney’s Cons Laws of NY, Book 1, Statutes, § 150, subd a.) It must also be presumed by the court that the legislative body has investigated and found the existence of a situation showing or indicating the need for or desirability of the local law, and if any state of facts known or to be assumed justifies the disputed measure, the court’s power of inquiry ends.

2000“There is a further presumption that the Legislature has investigated and found facts necessary to support the legislation * * * as well as the existence of a situation showing or indicating its need or desirability * * * Thus, if any state of facts, known or to be assumed, justify the law, the court’s power of inquiry ends * * * “Under the doctrine of separation of powers, courts may not legislate * * * or extend legislation.” (See also, Matter of Van Berkel v Power, 16 NY2d 37, 40 [1965]; Fenster v Leary, 20 NY2d 309, 314 [1967]; People v Pagnotta, 25 NY2d 333, 337 [1969].) To prevail on thi

1998(See also, Matter of Van Berkel v Power, 16 NY2d 37, 40 [1965]; Fenster v Leary, 20 NY2d 309, 314 [1967]; People v Pagnotta, 25 NY2d 333, 337 [1969].) To prevail on this motion, therefore, the defendant must demonstrate, beyond a reasonable doubt, exactly how the statute violates a constitutionally protected right.

2024Similarly, "[w]here there is a broad arbitration clause and the parties' agreement specifically incorporates by reference the AAA rules providing that the arbitration panel shall have the power to rule on its own jurisdiction, courts will leave the question of arbitrability to the arbitrators." Zachariou v. Manios , 68 AD3d 539, 539 (1st Dep't 2009) (internal quotation marks and citation omitted); see also Flintlock Const. Servs, LLC v. Weiss , 122 AD3d 51, 54 (1st Dep't 2014) ("Where parties agree that the AAA rules will govern, questions concerning the scope and validity of the arbitration a

2016Relatedly, this Court has previously held that where there is a broad arbitration clause and the parties’ agreement specifically incorporates by reference the American Arbitration Association rules providing that the arbitration panel shall have the power to rule on its own jurisdiction, the gateway issue of arbitrability belongs to the arbitrators (Zachariou v Manios, 68 AD3d 539, 539 [1st Dept 2009]; see Life Receivables Trust v Goshawk Syndicate 102 at Lloyd’s, 66 AD3d 495 , 495-496 [1st Dept 2009], affd 14 NY3d 850 [2010], cert denied 562 US 962 [2010]).

2013In the parties’ contract, petitioner agreed that arbitration would take place pursuant to the International Arbitration Rules of the International Centre for Dispute Resolution, and article 15 (1) of those rules provides that the arbitrator “shall have the power to rule on its own jurisdiction, including any objections with respect to the . . . scope ... of the arbitration agreement.” In addition, petitioner prevented respondent from conducting the audit that petitioner now contends, in essence, was a condition precedent to awarding underreported royalties. “[A] party to a contract cannot rely

2013In the parties’ contract, petitioner agreed that arbitration would take place pursuant to the International Arbitration Rules of the International Centre for Dispute Resolution, and article 15 (1) of those rules provides that the arbitrator “shall have the power to rule on its own jurisdiction, including any objections with respect to the . . . scope ... of the arbitration agreement.” In addition, petitioner prevented respondent from conducting the audit that petitioner now contends, in essence, was a condition precedent to awarding underreported royalties. “[A] party to a contract cannot rely

2013In the parties’ contract, petitioner agreed that arbitration would take place pursuant to the International Arbitration Rules of the International Centre for Dispute Resolution, and article 15 (1) of those rules provides that the arbitrator “shall have the power to rule on its own jurisdiction, including any objections with respect to the . . . scope ... of the arbitration agreement.” In addition, petitioner prevented respondent from conducting the audit that petitioner now contends, in essence, was a condition precedent to awarding underreported royalties. “[A] party to a contract cannot rely

2013In the parties’ contract, petitioner agreed that arbitration would take place pursuant to the International Arbitration Rules of the International Centre for Dispute Resolution, and article 15 (1) of those rules provides that the arbitrator “shall have the power to rule on its own jurisdiction, including any objections with respect to the . . . scope ... of the arbitration agreement.” In addition, petitioner prevented respondent from conducting the audit that petitioner now contends, in essence, was a condition precedent to awarding underreported royalties. “[A] party to a contract cannot rely

2000“There is a further presumption that the Legislature has investigated and found facts necessary to support the legislation * * * as well as the existence of a situation showing or indicating its need or desirability * * * Thus, if any state of facts, known or to be assumed, justify the law, the court’s power of inquiry ends * * * “Under the doctrine of separation of powers, courts may not legislate * * * or extend legislation.” (See also, Matter of Van Berkel v Power, 16 NY2d 37, 40 [1965]; Fenster v Leary, 20 NY2d 309, 314 [1967]; People v Pagnotta, 25 NY2d 333, 337 [1969].) To prevail on thi

1998(See also, Matter of Van Berkel v Power, 16 NY2d 37, 40 [1965]; Fenster v Leary, 20 NY2d 309, 314 [1967]; People v Pagnotta, 25 NY2d 333, 337 [1969].) To prevail on this motion, therefore, the defendant must demonstrate, beyond a reasonable doubt, exactly how the statute violates a constitutionally protected right.

2000“There is a further presumption that the Legislature has investigated and found facts necessary to support the legislation * * * as well as the existence of a situation showing or indicating its need or desirability * * * Thus, if any state of facts, known or to be assumed, justify the law, the court’s power of inquiry ends * * * “Under the doctrine of separation of powers, courts may not legislate * * * or extend legislation.” (See also, Matter of Van Berkel v Power, 16 NY2d 37, 40 [1965]; Fenster v Leary, 20 NY2d 309, 314 [1967]; People v Pagnotta, 25 NY2d 333, 337 [1969].) To prevail on thi

1998(See also, Matter of Van Berkel v Power, 16 NY2d 37, 40 [1965]; Fenster v Leary, 20 NY2d 309, 314 [1967]; People v Pagnotta, 25 NY2d 333, 337 [1969].) To prevail on this motion, therefore, the defendant must demonstrate, beyond a reasonable doubt, exactly how the statute violates a constitutionally protected right.

2022The agreement's arbitration provision, which stipulated Chicago or New York as the place for arbitration, applies to "all disputes of any kind," and incorporates the rules of the CPR, including the rules that give CPR arbitrators the power to rule on their own jurisdiction to decide what, if any, issues are not to be decided by the arbitrator ( see Life Receivables Trust v Goshawk Syndicate 102 at Lloyd's , 66 AD3d 495 , 496 [1st Dept 2009], affd 14 NY3d 850 [2010], cert denied 562 US 962 [2010]).

2016Relatedly, this Court has previously held that where there is a broad arbitration clause and the parties’ agreement specifically incorporates by reference the American Arbitration Association rules providing that the arbitration panel shall have the power to rule on its own jurisdiction, the gateway issue of arbitrability belongs to the arbitrators (Zachariou v Manios, 68 AD3d 539, 539 [1st Dept 2009]; see Life Receivables Trust v Goshawk Syndicate 102 at Lloyd’s, 66 AD3d 495 , 495-496 [1st Dept 2009], affd 14 NY3d 850 [2010], cert denied 562 US 962 [2010]).

2022The agreement's arbitration provision, which stipulated Chicago or New York as the place for arbitration, applies to "all disputes of any kind," and incorporates the rules of the CPR, including the rules that give CPR arbitrators the power to rule on their own jurisdiction to decide what, if any, issues are not to be decided by the arbitrator ( see Life Receivables Trust v Goshawk Syndicate 102 at Lloyd's , 66 AD3d 495 , 496 [1st Dept 2009], affd 14 NY3d 850 [2010], cert denied 562 US 962 [2010]).

2016Relatedly, this Court has previously held that where there is a broad arbitration clause and the parties’ agreement specifically incorporates by reference the American Arbitration Association rules providing that the arbitration panel shall have the power to rule on its own jurisdiction, the gateway issue of arbitrability belongs to the arbitrators (Zachariou v Manios, 68 AD3d 539, 539 [1st Dept 2009]; see Life Receivables Trust v Goshawk Syndicate 102 at Lloyd’s, 66 AD3d 495 , 495-496 [1st Dept 2009], affd 14 NY3d 850 [2010], cert denied 562 US 962 [2010]).

2020That section provides that "[t]he [arbitration] hearing shall be conducted in accordance with the Voluntary Labor Arbitration Rules of the American Arbitration Association." The AAA Rules, in turn, provide that "[t]he parties shall be deemed to have made these rules a part of their arbitration agreement whenever, in a collective bargaining agreement or submission, they have provided for arbitration by the American Arbitration Association." The AAA Rules go on to specify, under the subdivision titled "Jurisdiction," that "[t]he arbitrator shall have the power to rule on his or her own jurisdict

2009Although the question of arbitrability is generally an issue for judicial determination, when the parties’ agreement specifically incorporates by reference the AAA rules, which provide that “[t]he tribunal shall have the power to rule on its own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement,” and employs language referring “all disputes” to arbitration, courts will “leave the question of arbitrability to the arbitrators” (see Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 47 [1997] [internal quotation marks omitted

2019The court also did not have the power to terminate the criminal proceeding by entering a trial order of dismissal on the merits, since no trial had been commenced ( see Matter of Holtzman , 71 NY2d 564, 571 [finding that the plain language of the statute authorizing a trial order of dismissal "manifests the Legislature's intention only to grant the court the power to rule on insufficiency, not the power to terminate the proceedings by default"]; People v Sullivan , 142 AD2d 695 [1988]; People v Chisholm , 140 AD2d 534 [1988]; Tartaglione , 5 Misc 3d 126[A] , 2004 NY Slip Op 51190[U] ).

1996"The plain language of the statute manifests the Legislature’s intention only to grant the court the power to rule on insufficiency, not the power to terminate the proceedings by default” (Matter of Holtzman v Goldman, 71 NY2d 564, 571 ).

2024Similarly, "[w]here there is a broad arbitration clause and the parties' agreement specifically incorporates by reference the AAA rules providing that the arbitration panel shall have the power to rule on its own jurisdiction, courts will leave the question of arbitrability to the arbitrators." Zachariou v. Manios , 68 AD3d 539, 539 (1st Dep't 2009) (internal quotation marks and citation omitted); see also Flintlock Const. Servs, LLC v. Weiss , 122 AD3d 51, 54 (1st Dep't 2014) ("Where parties agree that the AAA rules will govern, questions concerning the scope and validity of the arbitration a

2023See In re O'Connell , 98 AD3d 673 (2nd Dept. 2012).

2019Although courts have the power to bar the assertion of the affirmative defense of statute of limitations where a defendant's affirmative wrongdoing produced the delay between the accrual of the cause of action and the institution of the legal proceeding, plaintiff failed to sustain his burden of showing that there was an issue of fact as to whether he was induced by defendant's fraud, misrepresentation, or deception to delay in adding defendant to the action he had filed against others ( see Zumpano v Quinn , 6 NY3d 666, 673-674 [2006]).