showing defense in New York

2013Although the failure to give such timely notice appears on the face of the record, the defendant’s ineffective assistance claim also depends, in part, upon matter outside the record, including a showing that defense counsel did not have a “strategic or other legitimate explanation[ ]” for his allegedly deficient conduct (People v Rivera, 71 NY2d 705, 709 [1988]).

2013Although the failure to give such timely notice appears on the face of the record, the defendant’s ineffective assistance claim also depends, in part, upon matter outside the record, including a showing that defense counsel did not have a “strategic or other legitimate explanation[ ]” for his allegedly deficient conduct (People v Rivera, 71 NY2d 705, 709 [1988]).

2013Since the defendant’s claim of ineffective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, he has presented a “ ‘mixed claim[ ]’ of ineffective assistance” (People v Maxwell, 89 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d 571 , 575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]).

2013Since the defendant’s claim of ineffective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, he has presented a “ ‘mixed claim[ ]’ of ineffective assistance” (People v Maxwell, 89 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d 571 , 575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]).

2015Fourth, “prejudice to the right of a party to the litigation must be demonstrated” {id.; see Karg v Kern, 125 AD3d 527, 528-529 [1st Dept 2015] [contempt requires a showing of a violation of a clear and unequivocal court mandate and that the movant was thereby prejudiced]; Matter of Vernon D. [Tarah F.], 119 AD3d 784, 784 [2d Dept 2014] [civil contempt was properly found where the contemnor did not obey a clear and unequivocal order]; Matter of North Tonawanda First v City of N. Tonawanda, 94 AD3d 1537, 1538 [4th Dept 2012] [order violated must be an unequivocal mandate]; Conners v Pallozzi, 2

2015Kern v City of N. Tonawanda, 94 AD3d 1537, 1538 [4th Dept 2012] [order violated must be an unequivocal mandate]; Conners v Pallozzi, 241 AD2d 719 , 719 [3d Dept 1997] [evidence proving with a reasonable certainty that a prior court order has been violated will support a finding of civil contempt]; N.A.

2015Fourth, “prejudice to the right of a party to the litigation must be demonstrated” {id.; see Karg v Kern, 125 AD3d 527, 528-529 [1st Dept 2015] [contempt requires a showing of a violation of a clear and unequivocal court mandate and that the movant was thereby prejudiced]; Matter of Vernon D. [Tarah F.], 119 AD3d 784, 784 [2d Dept 2014] [civil contempt was properly found where the contemnor did not obey a clear and unequivocal order]; Matter of North Tonawanda First v City of N. Tonawanda, 94 AD3d 1537, 1538 [4th Dept 2012] [order violated must be an unequivocal mandate]; Conners v Pallozzi, 2

2015Fourth, "prejudice to the right of a party to the litigation must be demonstrated" (id.; see Karg v Kern, 125 AD3d 527, 528-529 [1st Dept 2015] [contempt requires a showing of a violation of a clear and unequivocal court mandate and that the movant was thereby prejudiced]; Matter of Vernon D., 119 AD3d 784, 784 [2d Dept 2014] [civil contempt was properly found where the contemnor did not obey a clear and unequivocal order]; N. Tonawanda First ex rel.

2015Fourth, “prejudice to the right of a party to the litigation must be demonstrated” {id.; see Karg v Kern, 125 AD3d 527, 528-529 [1st Dept 2015] [contempt requires a showing of a violation of a clear and unequivocal court mandate and that the movant was thereby prejudiced]; Matter of Vernon D. [Tarah F.], 119 AD3d 784, 784 [2d Dept 2014] [civil contempt was properly found where the contemnor did not obey a clear and unequivocal order]; Matter of North Tonawanda First v City of N. Tonawanda, 94 AD3d 1537, 1538 [4th Dept 2012] [order violated must be an unequivocal mandate]; Conners v Pallozzi, 2

2015Fourth, "prejudice to the right of a party to the litigation must be demonstrated" (id.; see Karg v Kern, 125 AD3d 527, 528-529 [1st Dept 2015] [contempt requires a showing of a violation of a clear and unequivocal court mandate and that the movant was thereby prejudiced]; Matter of Vernon D., 119 AD3d 784, 784 [2d Dept 2014] [civil contempt was properly found where the contemnor did not obey a clear and unequivocal order]; N. Tonawanda First ex rel.

2017The facts of this case are distinguishable from Figueroa ( 141 AD3d 468 ) as petitioner, who was advised three times in the course of her proceedings, makes no claim that the Housing Authority refused to provide her with requested assistance. “[N]othing in the Federal regulation requires respondent to grant a formal hearing to every person who makes a bare assertion that he or she is the remaining family member of a deceased tenant but is unable to make a preliminary showing that the claim is reasonably based” (Henderson, 76 NY2d at 974).

2016The Court of Appeals found that NYCHA is not required to “grant a formal hearing to every person who makes a bare assertion that he or she is the [RFM] of a deceased tenant but is unable to make a preliminary showing that the claim is reason *482 ably based” ( 76 NY2d at 974 ).

2011Generally, claimants are “not entitled to the medical information contained in [a resident-patient’s] clinical record absent a showing that the privilege [pursuant to CPLR 4504] ha[s] been waived . . . and absent a finding that the interests of justice significantly outweigh[ ] the need for and the right of the patient’s confidentiality” (J.Z. v South Oaks Hosp., 67 AD3d 645, 645-646 [2009]; see generally Mental Hygiene Law § 33.13 [c]).

2011Generally, claimants are “not entitled to the medical information contained in [a resident-patient’s] clinical record absent a showing that the privilege [pursuant to CPLR 4504] ha[s] been waived . . ., and absent a finding that the interests of justice significantly outweigh[ ] the need for and the right of the patient’s confidentiality” (J.Z. v South Oaks Hosp., 67 AD3d 645, 645-646 ; see generally Mental Hygiene Law § 33.13 [c]).

2006Likewise, the defendant failed to show that defense counsel’s ultimate decision not to put into writing his oral motion pursuant to CPL 270.10 was not “legitimately based on the justifiable belief that there [was] no ‘colorable’ basis to do so” (People v DeFreitas, 213 AD2d 96, 101 [1995], quoting People v Garcia, 75 NY2d 973, 974 [1990]; see Duren v Missouri, 439 US 357, 364 [1979]; People v Faulk, 251 AD2d 345 [1998]; People v Branch, 244 AD2d 562 [1997]; People v Hobson, 227 AD2d 643, 644 [1996]).

1993Indeed, the present record suggests that there may not have been any colorable basis for a suppression motion (see, People v Garcia, 75 NY2d 973 ; People v Sullivan, 153 AD2d 223, 231 ).

2006As the defendant failed to make a showing that defense counsel had no legitimate explanation for failing to make the suppression motion, it should “be presumed that counsel acted in a competent manner and exercised professional judgment in not pursuing” such a motion (People v Montana, 71 NY2d 705, 709 [1988]; see People v Cabo, 228 AD2d 689, 689 [1996]; People v Allen, 193 AD2d 609, 609-610 [1993]).

1996Because the defendant failed to make a showing that defense counsel had no legitimate explanation for failing to make the suppression motion, it should "be presumed that counsel acted in a competent manner and exercised professional judgment in not pursuing” such a motion (P eople v Rivera, 71 NY2d 705, 709 ; People v Allen, supra).

1996While the complete failure to disclose Rosario material results in an automatic right to a new trial, a mere delay in disclosure requires reversal and a new trial only if there is a showing that the defense was "substantially prejudiced” by the delay (People v Banch, 80 NY2d 610, 617 ; see also, People v Ranghelle, 69 NY2d 56, 63 ).

1991Thus, there must be a showing that the defense was "substantially prejudiced” by the delay in order to trigger the defendant’s right to a de novo suppression hearing (see, People v Ranghelle, supra; cf., People v Martinez, 71 NY2d 937, 940 ).

2022"While the complete failure to disclose Rosario material results in an automatic right to a new trial, a mere delay in disclosure requires reversal and a new trial only if there is a showing that the defense was substantially prejudiced by the delay" ( People v Perkins , 227 AD2d 572, 573 [1996] [internal quotation marks omitted]; see also People v Fermin , 150 AD3d 876 [2017]).

2022Upon a defendant's showing that the doctrine applies, the plaintiff may defeat summary judgment by raising a triable issue of fact as to whether the landowner had undertaken snow removal activities that created or exacerbated a hazardous condition ( Baumann v Dawn Liqs., Inc ., 148 AD3d 535, 537 [1st Dept 2017]).

2022"While the complete failure to disclose Rosario material results in an automatic right to a new trial, a mere delay in disclosure requires reversal and a new trial only if there is a showing that the defense was substantially prejudiced by the delay" ( People v Perkins , 227 AD2d 572, 573 [1996] [internal quotation marks omitted]; see also People v Fermin , 150 AD3d 876 [2017]).

2020In appeal No. 1, defendant contends that defense counsel was ineffective because, at the suppression hearing, he failed to use the purported inconsistencies between the testimony of a police officer and the statements in a report prepared by that officer concerning the sequence of events leading up to the vehicle stop to undermine the People's showing at the hearing that the vehicle stop was based on probable cause, i.e., that the police stopped the vehicle after observing the driver of the vehicle commit a traffic violation ( see generally People v Robinson , 97 NY2d 341, 349 [2001]).

2016As such, Defendant has not met its prima facie burden of establishing that the four year limitation period set forth in UCC § 2-725(1) applies to Plaintiff's breach of contract cause of action, and Defendant therefore cannot make an initial showing that this claim is time barred ( see QK Healthcare , 108 AD3d at 69; Paris Suites Hotel, Inc. v Seneca Ins.

2016As such, Defendant has not met its prima facie burden of establishing that the four year limitation period set forth in UCC § 2-725(1) applies to Plaintiff's breach of contract cause of action, and Defendant therefore cannot make an initial showing that this claim is time barred ( see QK Healthcare , 108 AD3d at 69; Paris Suites Hotel, Inc. v Seneca Ins.

2010NN-27160-63/07, 49922/08, citing Matter of Shannon ZZ., 8 AD3d 699, 701 [3d Dept 2004] [although respondent admitted she violated an order of protection by permitting her child to return home, there was no evidence that the child witnessed marijuana smoking or was at risk of being with anyone under the influence of the drug, therefore, respondent’s violation did not cause or threaten any actual harm to the child and did not establish neglect per se]; Matter of Tylena S. v Darin J., 4 AD3d 568, 571 [3d Dept 2004], lv dismissed sub nom.

2010Suffolk, 87 NY2d 514, 522 [1996]).