countervailing factors in New York

1983“The most cogent and significant reason for not following the fiction in the present case is the countervailing rule that criminal statutes must be ‘strictly construed against the party seeking their enforcement and in favor of the person being proceeded against’ (People v. O’Neill, 208 Misc. 24, 25 ; McKinney’s Cons.

1965The most cogent and significant reason for not following the fiction in the present case is the countervailing rule that criminal statutes must be “ strictly construed against the party seeking their enforcement and in favor of the person being proceeded against ” (People v. O’Neill, 208 Misc. 24, 25 ; McKinney’s Cons.

2016Indeed, in this context, “the countervailing risks of delay, prejudice and confusion are particularly acute” and “ [i] f those concerns were not weighed against the probative value of evidence, the fact-finding process would break down under a mass of speculation and conjecture” (Primo, 96 NY2d at 356-357 ).

2008With the usefulness of genetic marker testing well established, we recognize that guiding the Legislature in balancing the countervailing factors inherent in these proceedings has been the concept of reasonable practicability and evolving statutory safeguards (see Matter of Lalli, 43 NY2d 65, 69-70 [1977], affd 439 US 259 [1978]; 4th Rep of Temp St Commn on Modernization, Rev and Simplification of Law of Estates, Rep No. 1.8A, 1965 NY Legis Doc No. 19, at 265-268; Recommendation of Law Rev Commn, 1981 NY Legis Doc No. 65[B], at 1-10; Matter of Bonanno, 192 Misc 2d 86, 88 [2002]; Matter of Gayn

2003Contrary to the employer and carrier’s central contentions, our decision in Matter of Miller v Congel-Palenscar, Inc. ( 236 AD2d 645 [1997]) neither establishes a countervailing rule to Matter of Carbonaro v Chinatown Sea Food (supra) and its progeny nor represents the development of irreconcilable lines of apportionment cases.

2002Accordingly, respondents did not err in imposing a penalty without an adjudicatory hearing and, given that the penalties stipulated in the order of consent far exceeded those actually imposed, we find that the imposition of a $50,000 penalty was not arbitrary or capricious (cf., Matter of Vito v Jorling, 197 AD2d 822, 824 ).

1989(See, e.g., Matter of Carew, 131 Misc 2d 835 [Fam Ct, Suffolk County 1986, Hurley, J.].) Countervailing factors inherent in the needs of the subject child and of the respondents must be considered.

1979As stated in Commission of Public Charities of City of Hudson v Wortman ( 255 App Div 241, 245 , affd 279 NY 711 ): "There being a presumption that official acts and duties have been performed, we may assume in the absence of showing to the contrary that the proper, procedural steps necessary to enactment were taken.” Under these circumstances, plaintiffs carried a heavy burden in attempting to show that no issue of fact was raised in the opposing papers of the town and that the 1956 zoning ordinance was invalid as a matter of law.

1979As stated in Commission of Public Charities of City of Hudson v Wortman ( 255 App Div 241, 245 , affd 279 NY 711 ): "There being a presumption that official acts and duties have been performed, we may assume in the absence of showing to the contrary that the proper, procedural steps necessary to enactment were taken.” Under these circumstances, plaintiffs carried a heavy burden in attempting to show that no issue of fact was raised in the opposing papers of the town and that the 1956 zoning ordinance was invalid as a matter of law.

1945(Matter of Newcomb, 192 N. Y. 238, 251 ; Reese v. Reese, supra; Shuart v. Shuart, supra.) Further basis for such conclusion are the nature and objectives of support orders of this court of limited jurisdiction, especially one which indemnifies the community, in whole or in part, against the cost of a wife’s maintenance.

1945(Matter of Newcomb, 192 N. Y. 238, 251 ; Reese v. Reese, supra; Shuart v. Shuart, supra.) Further basis for such conclusion are the nature and objectives of support orders of this court of limited jurisdiction, especially one which indemnifies the community, in whole or in part, against the cost of a wife’s maintenance.

1945(Matter of Newcomb, 192 N. Y. 238, 251 ; Reese v. Reese, supra; Shuart v. Shuart, supra.) Further basis for such conclusion are the nature and objectives of support orders of this court of limited jurisdiction, especially one which indemnifies the community, in whole or in part, against the cost of a wife’s maintenance.

1945However, on balance, the countervailing factors above enumerated bring the case within the sound principle that “ Where there has been but a brief sojourn in another State, default decrees should be set aside upon slight additional evidence that there was no intention of remaining indefinitely ” (Forster v. Forster, 182 Misc. 382, 387 ), and justify the conclusion that respondent has not sustained the onus of clear and convincing proof of a change of domicile from New York to Florida already at the date of filing the divorce complaint.