substance claim in New York

1992Rather, in determining the applicable limitations period for a declaratory judgment action, it is necessary to examine the substance of the claim "to identify the relationship out of which the claim arises” and to determine "the relief sought” (Solnick v Whalen, 49 NY2d 224, 229 ).

1984Because the substance of the claim underlying the declaratory judgment action at bar (see Solnick v Whalen, 49 NY2d 224, 229-230 ) arises out of sections 801 and 804 of the General Municipal Law, Special Term properly applied the three-year Statute of Limitations governing statutory causes of action (see CPLR 214, subd 2).

2017Since the People did not act in bad faith and the defendant was not prejudiced by the People’s failure to produce the evidence at trial, the court did not improvidently exercise its discretion in declining to give an adverse inference charge (see People v Handy, 20 NY3d 663 [2013]; People v Austin, 134 AD3d 559 [2015]; People v Hester, 122 AD3d 880, 880-881 [2014]; People v Rice, 39 AD3d 567 [2007]).

2017Since the People did not act in bad faith and the defendant was not prejudiced by the People’s failure to produce the evidence at trial, the court did not improvidently exercise its discretion in declining to give an adverse inference charge (see People v Handy, 20 NY3d 663 [2013]; People v Austin, 134 AD3d 559 [2015]; People v Hester, 122 AD3d 880, 880-881 [2014]; People v Rice, 39 AD3d 567 [2007]).

2017Since the People did not act in bad faith and the defendant was not prejudiced by the People’s failure to produce the evidence at trial, the court did not improvidently exercise its discretion in declining to give an adverse inference charge (see People v Handy, 20 NY3d 663 [2013]; People v Austin, 134 AD3d 559 [2015]; People v Hester, 122 AD3d 880, 880-881 [2014]; People v Rice, 39 AD3d 567 [2007]).

2017Since the People did not act in bad faith and the defendant was not prejudiced by the People’s failure to produce the evidence at trial, the court did not improvidently exercise its discretion in declining to give an adverse inference charge (see People v Handy, 20 NY3d 663 [2013]; People v Austin, 134 AD3d 559 [2015]; People v Hester, 122 AD3d 880, 880-881 [2014]; People v Rice, 39 AD3d 567 [2007]).

2017Since the People did not act in bad faith and the defendant was not prejudiced by the People’s failure to produce the evidence at trial, the court did not improvidently exercise its discretion in declining to give an adverse inference charge (see People v Handy, 20 NY3d 663 [2013]; People v Austin, 134 AD3d 559 [2015]; People v Hester, 122 AD3d 880, 880-881 [2014]; People v Rice, 39 AD3d 567 [2007]).

2017Since the People did not act in bad faith and the defendant was not prejudiced by the People’s failure to produce the evidence at trial, the court did not improvidently exercise its discretion in declining to give an adverse inference charge (see People v Handy, 20 NY3d 663 [2013]; People v Austin, 134 AD3d 559 [2015]; People v Hester, 122 AD3d 880, 880-881 [2014]; People v Rice, 39 AD3d 567 [2007]).

2010CMiranda v Arizona, 384 US 436 [1966].) Officers need not recite the exact language set forth in Miranda v Arizona, so long as the substance of the warning adequately apprises defendant of the requisite information.

1977In Miranda v Arizona ( 384 US 436, 471 ) the Supreme Court stated "that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation * * * As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation.” Here, the admonitions given defendant by Hierholzer included the right to remain silent and "the right to an attorney at any time while in custody.” This latter warning was broad enough t

2005Eschewing a strict construction of the provision, the court held “the conflict may be avoided simply by allowing the remedy of section 10 (8) (a) to apply where a notice of intention was timely served on the Attorney General [without having been filed] and where all of the remaining statutory-prerequisites for relief thereunder have been met” (id. at 503). 13 Turning to the absence of the total sum claimed, the court observed: “the failure of the notice of intention to specify the amount of damages sought is not fatal to this application where the notice was otherwise sufficient to apprise the

2000The court notes that the failure of the notice of intention to specify the amount of damages sought is not fatal to this application where the notice was otherwise sufficient to apprise the State of the substance of the claim (see, Barski v State of New York, 43 AD2d 767, 768 ; McCabe v State of New York, 58 Misc 2d 823, 826 ; see also, Brown v State of New York, 250 AD2d 314, 319 ).

2005Eschewing a strict construction of the provision, the court held “the conflict may be avoided simply by allowing the remedy of section 10 (8) (a) to apply where a notice of intention was timely served on the Attorney General [without having been filed] and where all of the remaining statutory-prerequisites for relief thereunder have been met” (id. at 503). 13 Turning to the absence of the total sum claimed, the court observed: “the failure of the notice of intention to specify the amount of damages sought is not fatal to this application where the notice was otherwise sufficient to apprise the

2000The court notes that the failure of the notice of intention to specify the amount of damages sought is not fatal to this application where the notice was otherwise sufficient to apprise the State of the substance of the claim (see, Barski v State of New York, 43 AD2d 767, 768 ; McCabe v State of New York, 58 Misc 2d 823, 826 ; see also, Brown v State of New York, 250 AD2d 314, 319 ).

1994Indeed, the three-year limitation period of CPLR 214 (2) for statutory causes of action has been consistently applied to actions seeking equitable relief (see, Stettine v County of Suffolk, 105 AD2d 109, 113 , affd 66 NY2d 354 ["Because the substance of the claim underlying the declaratory judgment action at bar * * * arises out of sections 801 and 804 of the General Municipal Law, Special Term properly applied the three-year Statute of Limitations governing statutory causes of action”]; Sturgis v Sullivan County Harness Racing Assn., 98 AD2d 901 [three-year limitation period of CPLR 214 (2) a

1984If the period for invoking the other procedural vehicle for relief has expired before the institution of the action for declaratory relief, the latter action also is barred.” An examination of the substance of the claim underlying the declaratory judgment action at bar (see Stettine v County of Suffolk, 105 AD2d 109 ), discloses that the action or determination challenged by the plaintiff was reviewable pursuant to CPLR article 78 for which a specific time limitation (four months) is prescribed by CPLR 217.

1981(United States v Vanterpool, 394 F2d 697, 698-699; see, also, United States v Lamia, 429 F2d 373, cert den 400 US 907 ; People v Tutt, 47 AD2d 911 , affd 38 NY2d 1011 ; People v Congilaro, supra.) As Judge Gabrielli in his concurring opinion in People v Tutt ( 38 NY2d 1011, 1013 , supra) pointed out: “It is sufficient that the preinterrogation admonitions mandated by Miranda be imparted in a manner sufficiently clear and comprehensible for the ordinary person to understand his rights (People v Swift, 32 AD2d 183, 187 , cert den 396 US 1018 * * *).” Moreover, the rule is well established that:

1977Words which convey the substance of the warning along with required information are sufficient” (United States v Vanterpool, 394 F2d 697, 698-699; see, also, United States v Lamia, 429 F2d 373, cert den 400 US 907 ; People v Tutt, supra, p 1013 ).

2024(Id.; Robinson v Day, 103 AD3d 584 , 960 NYS2d 397 [1st Dept 2013).) Sufficient detail requires that the facts suffice to permit a "reasonable inference of the alleged misconduct." Id.

2024(Id.; Robinson v Day, 103 AD3d 584 , 960 NYS2d 397 [1st Dept 2013).) Sufficient detail requires that the facts suffice to permit a "reasonable inference of the alleged misconduct." Id.

2024In this respect, the lack of any conditions or compromise pertaining to religion in the order [FN4] all but encourages the father to fully immerse the child in [*6]his religion such that the next time a court considers the issue, which seems likely, that factor will inure to his favor ( see Cohen v Cohen , 177 AD3d 848 , 851 [2d Dept 2019], appeal dismissed 35 NY3d 947 [2020]; Matter of Gribeluk v Gribeluk , 120 AD3d at 579 ; compare Matter of Waldron v Dussek , 48 AD3d 471, 473 [2d Dept 2008]).

2017If the supervisor actually had the ability to identify synthetic marihuana and had, in fact, so identified the substance taken from petitioner when the supervisor viewed it before the testing was conducted, there is no explanation as to why he would thereafter have his subordinate use the entirety of the substance in a test for marihuana, which would not indicate a positive or a negative result for synthetic marihuana ( compare Matter of Wendell v Annucci , 149 AD3d at 1430-1431 ).

2017If the supervisor actually had the ability to identify synthetic marihuana and had, in fact, so identified the substance taken from petitioner when the supervisor viewed it before the testing was conducted, there is no explanation as to why he would thereafter have his subordinate use the entirety of the substance in a test for marihuana, which would not indicate a positive or a negative result for synthetic marihuana (compare Matter of Wendell v Annucci, 149 AD3d at 1430-1431 ).

2012Although County Court was of the view that defendant’s saliva could be a “dangerous instrument” within the meaning of Penal Law § 10.00 (13) 5 because it is a “substance,” we began our analysis in Owusu by recognizing that “a part of one’s body is not encompassed by the terms ‘article’ or ‘substance’ as used in the statute” ( 93 NY2d at 400-401 ).

2010(People v Evans, 162 AD2d 702 [2d Dept 1990].) A defendant’s post Miranda statements are admissible, if the totality of the circumstances surrounding defendant’s confession show that defendant voluntarily and intelligently waived those rights.

2004The decision acknowledged the fact that failure to have a personal representative {** 4 Misc 3d at 464 }duly appointed, before commencement of a wrongful death action, affects the substance of the claim, and therefore, renders such action defective and subject to dismissal.

2004His claim ignores the substance of that instruction, which, if followed, as presumed (People v Davis, supra), makes the demonstration a nullity.

2001Unlike the challenges in Tenore v AT&T Wireless Servs. (136 Wash 2d 322, 962 P2d 104 , cert denied 525 US 1171 ), where the subscribers claimed that the provider failed to disclose its practice of rounding up airtime to the next highest minute in its billing, and in the example provided by the Federal Communications Commission in Matter of Wireless Consumers Alliance (15 FCCR 17,021 at 26 n 84) of a carrier charging $.30 per minute, instead of the promised $.20 per minute, plaintiffs in the instant cases allege only a generalized dissatisfaction with the services as “unreliable,” and thus, the

2001Unlike the challenges in Tenore v AT&T Wireless Servs. (136 Wash 2d 322, 962 P2d 104 , cert denied 525 US 1171 ), where the subscribers claimed that the provider failed to disclose its practice of rounding up airtime to the next highest minute in its billing, and in the example provided by the Federal Communications Commission in Matter of Wireless Consumers Alliance (15 FCCR 17,021 at 26 n 84) of a carrier charging $.30 per minute, instead of the promised $.20 per minute, plaintiffs in the instant cases allege only a generalized dissatisfaction with the services as “unreliable,” and thus, the

1996The defendant’s answer alleged the substance of its claim (see, CPLR 3026; Santaniello v DeFrancisco, 74 Misc 2d 229, 233 , affd 44 AD2d 831 ) and the plaintiffs cannot claim prejudice or surprise (see, Rich v Lefkovits, 56 NY2d 276 ; Lederman v McLean Trucking Co., 41 AD2d 5 ).