McDonald defendant in New York

2018With respect to the prejudice prong of defendant's ineffective assistance claim, appropriate factors to be weighed at the hearing include, among other things, evidence of defendant's incentive to remain in the United States rather than return to Haiti, his respective family and employment ties to the United States and his country of origin, the strength of the People's case and defendant's sentencing exposure ( see People v Chacko , 99 AD3d 527, 527 [1st Dept 2018], lv denied 20 NY3d 1060 [2012]; People v Picca , 97 AD3d 170 , 183-186 [2d Dept 2012]).

2014Therefore, the McDonald’s defendants met their initial burden of establishing that McDonald’s Corporation owed no duty to the plaintiff (see Alnashmi v Certified Analytical Group, Inc., 89 AD3d at 18-19 ; Panico v Jiffy Lube Intl., Inc., 86 AD3d 553 [2011]; Ross v Betty G.

2014Therefore, the McDonald’s defendants met their initial burden of establishing that McDonald’s Corporation owed no duty to the plaintiff (see Alnashmi v Certified Analytical Group, Inc., 89 AD3d at 18-19 ; Panico v Jiffy Lube Intl., Inc., 86 AD3d 553 [2011]; Ross v Betty G.

2014Therefore, the McDonald’s defendants met their initial burden of establishing that McDonald’s Corporation owed no duty to the plaintiff (see Alnashmi v Certified Analytical Group, Inc., 89 AD3d at 18-19 ; Panico v Jiffy Lube Intl., Inc., 86 AD3d 553 [2011]; Ross v Betty G.

2014Therefore, the McDonald’s defendants met their initial burden of establishing that McDonald’s Corporation owed no duty to the plaintiff (see Alnashmi v Certified Analytical Group, Inc., 89 AD3d at 18-19 ; Panico v Jiffy Lube Intl., Inc., 86 AD3d 553 [2011]; Ross v Betty G.

2014The McDonald’s defendants established, prima facie, that McDonald’s Restaurants of New York, Inc., did not own, occupy, control, or have a special use of the subject property at the time of the accident and, thus, could not be held liable for injuries caused by the allegedly dangerous conditions (see Mitchell v Icolari, 108 AD3d at 601-602 ; Gover v Mastic Beach Prop.

2009Hospitality, 192 Misc 2d 276 [Civ Ct, Queens County 2002].) A powerful argument was made by Judge Kenneth Gartner in Ressa Family v Dorfman ( 193 Misc 2d 315 [Nassau Dist Ct 2002]) that the McDonald rule should no longer apply (because the legislative and constitutional underpinnings of that earlier case had long since evaporated).

2009Hospitality, 192 Misc 2d 276 [Civ Ct, Queens County 2002].) A powerful argument was made by Judge Kenneth Gartner in Ressa Family v Dorfman ( 193 Misc 2d 315 [Nassau Dist Ct 2002]) that the McDonald rule should no longer apply (because the legislative and constitutional underpinnings of that earlier case had long since evaporated).

2009Hospitality, 192 Misc 2d 276 [Civ Ct, Queens County 2002].) A powerful argument was made by Judge Kenneth Gartner in Ressa Family v Dorfman ( 193 Misc 2d 315 [Nassau Dist Ct 2002]) that the McDonald rule should no longer apply (because the legislative and constitutional underpinnings of that earlier case had long since evaporated).

2009Hospitality, 192 Misc 2d 276 [Civ Ct, Queens County 2002].) A powerful argument was made by Judge Kenneth Gartner in Ressa Family v Dorfman ( 193 Misc 2d 315 [Nassau Dist Ct 2002]) that the McDonald rule should no longer apply (because the legislative and constitutional underpinnings of that earlier case had long since evaporated).

1993Nevertheless, while the record is devoid of newly discovered evidence, we find that sufficient cause exists for granting the motion in this case because it is substantively valid and the granting of the motion will further the ends of justice while eliminating an unnecessary burden on the resources of the courts and the McDonald’s defendants (see, Post v Post, 141 AD2d 518 ; Freeze Right Refrig. & Air Conditioning Servs. v City of New York, 101 AD2d 175 ).

1993Nevertheless, while the record is devoid of newly discovered evidence, we find that sufficient cause exists for granting the motion in this case because it is substantively valid and the granting of the motion will further the ends of justice while eliminating an unnecessary burden on the resources of the courts and the McDonald’s defendants (see, Post v Post, 141 AD2d 518 ; Freeze Right Refrig. & Air Conditioning Servs. v City of New York, 101 AD2d 175 ).

1993In any event, under the circumstances of this case the question of whether any act or omission of the McDonald’s defendants was a proximate cause of the accident is an issue for the court to resolve (see, Rivera v Goldstein, 152 AD2d 556 ).

1993Moreover, the plaintiffs have failed to come forward with any evidence that the intervening negligent conduct of Negron was a normal or foreseeable event so as to impose a duty on the McDonald’s defendants to prevent the resulting harm to the plaintiffs (see, Rivera v Goldstein, supra).

1990Moreover, the covenant against encumbrances protected the McDonald defendants in spite of their actual or constructive notice of the existence of the easement (see, Callarian v Keenan, 224 NY 503, 508 , rearg denied 225 NY 662 ; Pryor v City of Buffalo, 197 NY 123, 136 ; Huyck v Andrews, 113 NY 81, 90 ).

1990Moreover, the covenant against encumbrances protected the McDonald defendants in spite of their actual or constructive notice of the existence of the easement (see, Callarian v Keenan, 224 NY 503, 508 , rearg denied 225 NY 662 ; Pryor v City of Buffalo, 197 NY 123, 136 ; Huyck v Andrews, 113 NY 81, 90 ).

1990Moreover, the covenant against encumbrances protected the McDonald defendants in spite of their actual or constructive notice of the existence of the easement (see, Callarian v Keenan, 224 NY 503, 508 , rearg denied 225 NY 662 ; Pryor v City of Buffalo, 197 NY 123, 136 ; Huyck v Andrews, 113 NY 81, 90 ).

1990Moreover, the covenant against encumbrances protected the McDonald defendants in spite of their actual or constructive notice of the existence of the easement (see, Callarian v Keenan, 224 NY 503, 508 , rearg denied 225 NY 662 ; Pryor v City of Buffalo, 197 NY 123, 136 ; Huyck v Andrews, 113 NY 81, 90 ).

1990Moreover, the covenant against encumbrances protected the McDonald defendants in spite of their actual or constructive notice of the existence of the easement (see, Callarian v Keenan, 224 NY 503, 508 , rearg denied 225 NY 662 ; Pryor v City of Buffalo, 197 NY 123, 136 ; Huyck v Andrews, 113 NY 81, 90 ).

1990Moreover, the covenant against encumbrances protected the McDonald defendants in spite of their actual or constructive notice of the existence of the easement (see, Callarian v Keenan, 224 NY 503, 508 , rearg denied 225 NY 662 ; Pryor v City of Buffalo, 197 NY 123, 136 ; Huyck v Andrews, 113 NY 81, 90 ).

1990Moreover, the covenant against encumbrances protected the McDonald defendants in spite of their actual or constructive notice of the existence of the easement (see, Callarian v Keenan, 224 NY 503, 508 , rearg denied 225 NY 662 ; Pryor v City of Buffalo, 197 NY 123, 136 ; Huyck v Andrews, 113 NY 81, 90 ).

1990Moreover, the covenant against encumbrances protected the McDonald defendants in spite of their actual or constructive notice of the existence of the easement (see, Callarian v Keenan, 224 NY 503, 508 , rearg denied 225 NY 662 ; Pryor v City of Buffalo, 197 NY 123, 136 ; Huyck v Andrews, 113 NY 81, 90 ).

1990In the lease granted to the McDonald defendants, Hassett and Townsell, as lessors, covenanted that "the demised premises are free and clear of all tenancies” and that the lessor "will indemnify Lessee against any damage and expense which Lessee may suffer by reason of any lien, encumbrance, restriction or defect in title or description of the premises.” This language was sufficient to indemnify defendants for the damages caused by breach of the covenant against encumbrances, even if the damages were also incurred by reason of the McDonald defendants’ own negligence (see, Austro v Niagara Mohaw

1990In the lease granted to the McDonald defendants, Hassett and Townsell, as lessors, covenanted that "the demised premises are free and clear of all tenancies” and that the lessor "will indemnify Lessee against any damage and expense which Lessee may suffer by reason of any lien, encumbrance, restriction or defect in title or description of the premises.” This language was sufficient to indemnify defendants for the damages caused by breach of the covenant against encumbrances, even if the damages were also incurred by reason of the McDonald defendants’ own negligence (see, Austro v Niagara Mohaw

1990In the lease granted to the McDonald defendants, Hassett and Townsell, as lessors, covenanted that "the demised premises are free and clear of all tenancies” and that the lessor "will indemnify Lessee against any damage and expense which Lessee may suffer by reason of any lien, encumbrance, restriction or defect in title or description of the premises.” This language was sufficient to indemnify defendants for the damages caused by breach of the covenant against encumbrances, even if the damages were also incurred by reason of the McDonald defendants’ own negligence (see, Austro v Niagara Mohaw

1990In the lease granted to the McDonald defendants, Hassett and Townsell, as lessors, covenanted that "the demised premises are free and clear of all tenancies” and that the lessor "will indemnify Lessee against any damage and expense which Lessee may suffer by reason of any lien, encumbrance, restriction or defect in title or description of the premises.” This language was sufficient to indemnify defendants for the damages caused by breach of the covenant against encumbrances, even if the damages were also incurred by reason of the McDonald defendants’ own negligence (see, Austro v Niagara Mohaw

1985As against the McDonald defendants, plaintiff is entitled to recover damages for the diminution in the usable value of the property for the remainder of the term (see, Baumann v City of New York, 227 NY 25 ; Ann., 12 ALR2d 1192, 1214).

1985Nevertheless, the plaintiff has suffered a single injury and for that injury there may be but one satisfaction (see, Matter of Parchefsky v Kroll Bros., 267 NY 410, 414 ; Sarine v American Lumbermen’s Mut.