proponent clause in New York

2023The father appeals. " 'The proponent of a violation petition must establish, by clear and convincing evidence, that there was a lawful court order in effect with a clear and unequivocal mandate, that the person who allegedly violated the order had actual knowledge of the order's terms, that the alleged violator's actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent and that the alleged violation was willful' " ( Matter of Damon B. v Amanda C. , 202 AD3d 1333, 1334 [3d Dept 2022] [citation omitted], quoting Matter of Carl KK. v Michelle JJ. , 175 AD3d 162

2023The father appeals. " 'The proponent of a violation petition must establish, by clear and convincing evidence, that there was a lawful court order in effect with a clear and unequivocal mandate, that the person who allegedly violated the order had actual knowledge of the order's terms, that the alleged violator's actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent and that the alleged violation was willful' " ( Matter of Damon B. v Amanda C. , 202 AD3d 1333, 1334 [3d Dept 2022] [citation omitted], quoting Matter of Carl KK. v Michelle JJ. , 175 AD3d 162

2022"In reviewing Family Court's determination on a violation petition, we defer to any credibility assessments made, and we will not disturb the court's decision absent an abuse of discretion" ( Matter of Carl KK. v Michelle JJ. , 175 AD3d at 1628 [citations omitted]; see Matter of Michael M. v Makiko M. , 152 AD3d 909, 909-910 [2017]).

2022"In reviewing Family Court's determination on a violation petition, we defer to any credibility assessments made, and we will not disturb the court's decision absent an abuse of discretion" ( Matter of Carl KK. v Michelle JJ. , 175 AD3d at 1628 [citations omitted]; see Matter of Michael M. v Makiko M. , 152 AD3d 909, 909-910 [2017]).

2020"The proponent of a violation petition must establish, by clear and convincing evidence, that there was a lawful court order in effect with a clear and unequivocal mandate, that the person who allegedly violated the order had actual knowledge of the order's terms, that the alleged violator's actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent and that the alleged violation was willful" ( Matter of Carl KK. v Michelle JJ. , 175 AD3d 1627 , 1628 [2019] [citations omitted]; see Matter of Eliza JJ. v Felipe KK. , 173 AD3d 1285 , 1286 [2019]; Matter of Wesko

2019"As the proponent of the violation petition, the mother was obliged to establish that there was a lawful court order in effect with a clear and unequivocal mandate, that the [guardians] had actual knowledge of the conditions of that order, and that [their] actions or failure to act [willfully] defeated, impaired, impeded or prejudiced a right of the mother" ( Matter of Prefario v Gladhill , 140 AD3d 1235, 1236 [2016] [internal quotation marks and citations omitted]).

2024"The proponent of a violation petition must establish, by clear and convincing evidence, that there was a lawful court order in effect with a clear and unequivocal mandate, that the person who allegedly violated the order had actual knowledge of the order's [*2]terms, that the alleged violator's actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent and that the alleged violation was willful" ( Matter of Timothy RR. v Peggy SS. , 206 AD3d 1123 , 1124 [3d Dept 2022] [internal quotation marks and citations omitted]; see Matter of Aaron K. v Laurie K. , 187 A

2023We similarly find no basis upon which to disturb Family Court's determination that the grandmother failed to establish a willful violation of the prior custody order. [FN3] "The proponent of a violation petition must establish, by clear and convincing evidence, that there was a lawful court order in effect with a clear and unequivocal mandate, that the person who allegedly violated the order had actual knowledge of the order's terms, that the alleged violator's actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent and that the alleged violation was willfu

2023"The proponent of a violation petition must establish, by clear and convincing evidence, that there was a lawful court order in effect with a clear and unequivocal mandate, that the person who allegedly violated the order had actual knowledge of the order's terms, that the alleged violator's actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent and that the alleged violation was willful" ( Matter of Timothy RR. v Peggy SS. , 206 AD3d 1123 [*2], 1124 [3d Dept 2022] [internal quotation marks and citations omitted]; see Matter of Wesko v Hollenbeck , 149 AD3

2020"The proponent of a violation petition must establish, by clear and convincing evidence, that there was a lawful court order in effect with a clear and unequivocal mandate, that the person who allegedly violated the order had actual knowledge of the order's terms, that the alleged violator's actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent and that the alleged violation was willful" ( Matter of Carl KK. v Michelle JJ. , 175 AD3d 1627 , 1628 [2019] [citations omitted]; see Matter of Eliza JJ. v Felipe KK. , 173 AD3d 1285 , 1286 [2019]; Matter of Wesko

2020"The proponent of a violation petition must establish, by clear and convincing evidence, that there was a lawful court order in effect with a clear and unequivocal mandate, that the person who allegedly violated the order had actual knowledge of the order's terms, that the alleged violator's actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent and that the alleged violation was willful" ( Matter of Carl KK. v Michelle JJ. , 175 AD3d 1627 , 1628 [2019] [citations omitted]; see Matter of Eliza JJ. v Felipe KK. , 173 AD3d 1285 , 1286 [2019]; Matter of James

2020"The proponent of a violation petition must establish, by clear and convincing evidence, that there was a lawful court order in effect with a clear and unequivocal mandate, that the person who allegedly violated the order had actual knowledge of the order's terms, that the alleged violator's actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent and that the alleged violation was willful" ( Matter of Carl KK. v Michelle JJ. , 175 AD3d 1627 , 1628 [2019] [citations omitted]; Matter of Eliza JJ. v Felipe KK. , 173 AD3d 1285 , 1286 [2019]; Matter of James XX.

2024Breach of Fiduciary Duty The proponent of a claim for breach of fiduciary duty must allege (1) the existence of a fiduciary relationship; (2) misconduct by the defendant; and (3) damages caused by defendant's misconduct ( Besen v Farhadian , 195 AD3d 548 , 549 [1st Dept 2021]; Vil. of Kiryas Joel v County of Orange , 144 AD3d 895, 898 [2d Dept 2016]; Varveris v Zacharakos , 110 AD3d 1059, 1059 [2d Dept 2013]; Burry v Madison Park Owner LLC , 84 AD3d 699, 700 [1st Dept 2011]).

2024Breach of Fiduciary Duty The proponent of a claim for breach of fiduciary duty must allege (1) the existence of a fiduciary relationship; (2) misconduct by the defendant; and (3) damages caused by defendant's misconduct ( Besen v Farhadian , 195 AD3d 548, 549 [1st Dept 2021]; Vil. of Kiryas Joel v County of Orange , 144 AD3d 895, 898 [2d Dept 2016]; Varveris v Zacharakos , 110 AD3d 1059, 1059 [2d Dept 2013]; Burry v Madison Park Owner LLC , 84 AD3d 699, 700 [1st Dept 2011]).

2024Breach of Fiduciary Duty The proponent of a claim for breach of fiduciary duty must allege (1) the existence of a fiduciary relationship; (2) misconduct by the defendant; and (3) damages caused by defendant's misconduct ( Besen v Farhadian , 195 AD3d 548 , 549 [1st Dept 2021]; Vil. of Kiryas Joel v County of Orange , 144 AD3d 895, 898 [2d Dept 2016]; Varveris v Zacharakos , 110 AD3d 1059, 1059 [2d Dept 2013]; Burry v Madison Park Owner LLC , 84 AD3d 699, 700 [1st Dept 2011]).

2024Breach of Fiduciary Duty The proponent of a claim for breach of fiduciary duty must allege (1) the existence of a fiduciary relationship; (2) misconduct by the defendant; and (3) damages caused by defendant's misconduct ( Besen v Farhadian , 195 AD3d 548, 549 [1st Dept 2021]; Vil. of Kiryas Joel v County of Orange , 144 AD3d 895, 898 [2d Dept 2016]; Varveris v Zacharakos , 110 AD3d 1059, 1059 [2d Dept 2013]; Burry v Madison Park Owner LLC , 84 AD3d 699, 700 [1st Dept 2011]).

2024With respect to the first element, "[a] fiduciary relationship exists between two persons when one of them is under a duty to act for the benefit of another upon matters within the scope of the relation" ( id . at 1059 [internal quotation marks omitted]; see EBC I, Inc. v Goldman, Sachs & Co. , 5 NY3d 11, 19 [2005]).

2024With respect to the first element, "[a] fiduciary relationship exists between two persons when one of them is under a duty to act for the benefit of another upon matters within the scope of the relation" ( id . at 1059 [internal quotation marks omitted]; see EBC I, Inc. v Goldman, Sachs & Co. , 5 NY3d 11, 19 [2005]).

2024Breach of Fiduciary Duty The proponent of a claim for breach of fiduciary duty must allege (1) the existence of a fiduciary relationship; (2) misconduct by the defendant; and (3) damages caused by defendant's misconduct ( Besen v Farhadian , 195 AD3d 548 , 549 [1st Dept 2021]; Vil. of Kiryas Joel v County of Orange , 144 AD3d 895, 898 [2d Dept 2016]; Varveris v Zacharakos , 110 AD3d 1059, 1059 [2d Dept 2013]; Burry v Madison Park Owner LLC , 84 AD3d 699, 700 [1st Dept 2011]).

2024Breach of Fiduciary Duty The proponent of a claim for breach of fiduciary duty must allege (1) the existence of a fiduciary relationship; (2) misconduct by the defendant; and (3) damages caused by defendant's misconduct ( Besen v Farhadian , 195 AD3d 548, 549 [1st Dept 2021]; Vil. of Kiryas Joel v County of Orange , 144 AD3d 895, 898 [2d Dept 2016]; Varveris v Zacharakos , 110 AD3d 1059, 1059 [2d Dept 2013]; Burry v Madison Park Owner LLC , 84 AD3d 699, 700 [1st Dept 2011]).

2022"This Court will accord deference to Family Court's credibility findings, and the determination of whether to hold a party in contempt will generally not be disturbed absent an abuse of discretion" ( Matter of Harley K. v Brittany J. , 189 AD3d 1738, 1739 [2020] [citations omitted]; see Matter of Ramon ZZ. v Amanda YY. , 189 AD3d 1906 , 1907 [2020]).

2021"This Court will accord deference to Family Court's credibility findings" ( Matter of Harley K. v Brittany J. , 189 AD3d 1738, 1739 [2020] [citations omitted]), and the court's determination of a willful violation "will be disturbed only if it is an abuse of discretion" ( Matter of Sandra R. v Matthew R. , 189 AD3d at 2000 [internal quotation marks and citations omitted]; see Matter of Khan v Khan , 140 AD3d 1252, 1254 [2016]).

2021"This Court will accord deference to Family Court's credibility findings" ( Matter of Harley K. v Brittany J. , 189 AD3d 1738, 1739 [2020] [citations omitted]), and the court's determination of a willful violation "will be disturbed only if it is an abuse of discretion" ( Matter of Sandra R. v Matthew R. , 189 AD3d at 2000 [internal quotation marks and citations omitted]; see Matter of Khan v Khan , 140 AD3d 1252, 1254 [2016]).

2019In reviewing Family Court's determination on a violation petition, we defer to any credibility assessments made, and we will not disturb the court's decision absent an abuse of discretion ( see Matter of Beesmer v Amato , 162 AD3d 1260 , 1261 [2018]; Matter of Khan v Khan , 140 AD3d 1252, 1254 [2016]).

2020We will not disturb Family Court's determination on a violation petition absent an abuse of discretion ( see Matter of Jemar H. v Nevada I. , 182 AD3d 805, 808 [2020]; Matter of Carl KK. v Michelle JJ. , 175 AD3d at 1628; Matter of Michael M. v Makiko M. , 152 AD3d 909, 910 [2017]).

2020This Court will accord deference to Family Court's credibility findings, and the determination of whether to hold a party in contempt will generally not be disturbed absent an abuse of discretion ( see Matter of Jemar H. v Nevada I. , 182 AD3d 805, 808 [2020]; Matter of Carl KK. v Michelle JJ. , 175 AD3d at 1628; Matter of Michael M. v Makiko M. , 152 AD3d 909, 910 [2017]; Matter of Wesko v Hollenbeck , 149 AD3d at 1176 ).

2017The father, as a proponent of a violation petition, was obligated to show the existence of a lawful court order in effect with a clear and unequivocal mandate, that the mother had actual knowledge of the conditions of the order, and that the mother’s “actions or failure to act defeated, impaired, impeded or prejudiced” the father’s rights, and that the alleged violation was willful (Matter of Prefario v Gladhill, 140 AD3d 1235, 1236 [2016] [internal quotation marks and citations omitted]; see Matter of Eller v Eller, 134 AD3d 1319, 1320 [2015]; Matter of Constantine v Hopkins, 101 AD3d 1190, 1

2016As the proponent of the violation petition, the mother was obliged to establish that there was a lawful court order in effect with a clear and unequivocal mandate, that the father had actual knowledge of the conditions of that order, and that his “actions or failure to act ‘defeated, impaired, impeded or prejudiced’ a right of the mother” (Matter of Constantine v Hopkins, 101 AD3d 1190, 1191 [2012], (quoting Matter of Aurelia v Aurelia, 56 AD3d 963 , 964 [2008]; see Matter of Eller v Eller, 134 AD3d 1319, 1320 [2015]).

2017The father, as a proponent of a violation petition, was obligated to show the existence of a lawful court order in effect with a clear and unequivocal mandate, that the mother had actual knowledge of the conditions of the order, and that the mother’s “actions or failure to act defeated, impaired, impeded or prejudiced” the father’s rights, and that the alleged violation was willful (Matter of Prefario v Gladhill, 140 AD3d 1235, 1236 [2016] [internal quotation marks and citations omitted]; see Matter of Eller v Eller, 134 AD3d 1319, 1320 [2015]; Matter of Constantine v Hopkins, 101 AD3d 1190, 1

2016As the proponent of the violation petition, the mother was obliged to establish that there was a lawful court order in effect with a clear and unequivocal mandate, that the father had actual knowledge of the conditions of that order, and that his “actions or failure to act ‘defeated, impaired, impeded or prejudiced’ a right of the mother” (Matter of Constantine v Hopkins, 101 AD3d 1190, 1191 [2012], (quoting Matter of Aurelia v Aurelia, 56 AD3d 963 , 964 [2008]; see Matter of Eller v Eller, 134 AD3d 1319, 1320 [2015]).

2025However, plaintiff, which as the proponent of the privilege bears the burden of proof, has not demonstrated that the Stiernon emails are documents of this type ( see John Blair Communications, Inc. v Reliance Capital Group , 182 AD2d 578, 579 [1st Dept 1992]).

2025Because the burden of proof is on the proponent of the privilege, the unlogged documents were properly ordered produced ( see John Blair Communications , 182 AD2d at 579).

2025Corp. at 623; Rossi v Blue Cross and Blue Shield of Greater New York , 73 NY2d 588, 593 [1989]; Spectrum Sys.

2002(Rossi v Blue Cross, 73 NY2d at 593 .) The proponent of the privilege has the burden of establishing that the information was a communication between client and counsel, that it was intended to be and was kept confidential, and it was made in order to assist in obtaining or providing legal advice or services to the client.

2024Breach of Fiduciary Duty The proponent of a claim for breach of fiduciary duty must allege (1) the existence of a fiduciary relationship; (2) misconduct by the defendant; and (3) damages caused by defendant's misconduct ( Besen v Farhadian , 195 AD3d 548 , 549 [1st Dept 2021]; Vil. of Kiryas Joel v County of Orange , 144 AD3d 895, 898 [2d Dept 2016]; Varveris v Zacharakos , 110 AD3d 1059, 1059 [2d Dept 2013]; Burry v Madison Park Owner LLC , 84 AD3d 699, 700 [1st Dept 2011]).

2024Breach of Fiduciary Duty The proponent of a claim for breach of fiduciary duty must allege (1) the existence of a fiduciary relationship; (2) misconduct by the defendant; and (3) damages caused by defendant's misconduct ( Besen v Farhadian , 195 AD3d 548, 549 [1st Dept 2021]; Vil. of Kiryas Joel v County of Orange , 144 AD3d 895, 898 [2d Dept 2016]; Varveris v Zacharakos , 110 AD3d 1059, 1059 [2d Dept 2013]; Burry v Madison Park Owner LLC , 84 AD3d 699, 700 [1st Dept 2011]).

2013Generally, the proponent of a waiver bears the initial burden of proving that it was clearly and unambiguously made; waiver of a constitutionally guaranteed due process right is not presumed (Melendez, 214 AD2d at 302 , citing Johnson v Zerbst, 304 US 458, 464 [1938]).

1995A waiver, however, particularly of a constitutionally guaranteed due process entitlement such as the one here at issue, will not in the first instance be presumed (see, Johnson v Zerbst, 304 US 458, 464 ), and it is accordingly the proponent of the waiver who must initially establish that the waiver was in fact made.

2006(Manufacturers & Traders Trust Co. v Servotronics, Inc., 132 AD2d 392, 398-399 [4th Dept 1987].) In order to succeed, defendant (LLC) must show (1) that production of the documents in question was inadvertent, (2) an intention to retain the confidentiality of privileged materials, (3) reasonable precautions to prevent disclosure, (4) a prompt objection, and (5) an absence of prejudice to defendants were a protective order to be granted.

1992It is also the burden of the proponent of the privilege to prove non-waiver (Manufacturers & Traders Trust Co. v Servotronics, Inc., 132 AD2d 392, 398-399 ).

2026The proponent of the privilege "has the burden of demonstrating that the communication being claimed as privileged was a confidential communication predominantly of a legal character between an attorney and a client for the purpose of facilitating the rendition of legal advice or services in the course of a professional relationship and that the privilege was not waived" ( Matter of Regen , 2018 NY Slip Op 32263[U], *9 [Sur Ct, Nassau County 2018], emphasis added; see also Charter One Bank, F.S.B. v Midtown Rochester, L.L.C. , 191 Misc 2d 154 [2002]; Stanwick v A.R.A.

2026The proponent of the privilege "has the burden of demonstrating that the communication being claimed as privileged was a confidential communication predominantly of a legal character between an attorney and a client for the purpose of facilitating the rendition of legal advice or services in the course of a professional relationship and that the privilege was not waived" ( Matter of Regen , 2018 NY Slip Op 32263[U] , *9 [Sur Ct, Nassau County 2018], emphasis added; see also Charter One Bank, F.S.B. v Midtown Rochester, L.L.C. , 191 Misc 2d 154 [2002]; Stanwick v A.R.A.

2026Luke's, 204 AD3d 1053 , 1055 [2d Dept 2022]; see also Puleo v Shore View Ctr. for Rehabilitation & Health Care, 132 AD3d 651, 652 [2d Dept 2015]; Casale v Sheepshead Nursing & Rehabilitation Ctr., 131 AD3d 436, 436 [2d Dept 2015]).

2026Luke's, 204 AD3d 1053, 1055 [2d Dept 2022]; see also Puleo v Shore View Ctr. for Rehabilitation & Health Care, 132 AD3d 651, 652 [2d Dept 2015]; Casale v Sheepshead Nursing & Rehabilitation Ctr., 131 AD3d 436, 436 [2d Dept 2015]).

2026Services, Inc. , [*3]124 AD2d 1041, 1042 [4th Dept 1986]).

2026Services, Inc. , [*3] 124 AD2d 1041 , 1042 [4th Dept 1986]).

2026"It is well established that a separation agreement that is incorporated but not merged into a judgment of divorce 'is a contract subject to the principles of contract construction and interpretation' " ( Roche v Lorenzo-Roche , 149 AD3d 1513 , 1513 [4th Dept 2017], quoting Matter of Meccico v Meccico , 76 NY2d 822, 823-824 [1990], rearg denied 76 NY2d 889 [1990]; see Matter of Wheeler v Wheeler , 174 AD3d 1507 , 1508 [4th Dept 2019]).

2026Luke's, 204 AD3d 1053, 1055 [2d Dept 2022]; see also Puleo v Shore View Ctr. for Rehabilitation & Health Care, 132 AD3d 651, 652 [2d Dept 2015]; Casale v Sheepshead Nursing & Rehabilitation Ctr., 131 AD3d 436, 436 [2d Dept 2015]).

2026Luke's, 204 AD3d 1053 , 1055 [2d Dept 2022]; see also Puleo v Shore View Ctr. for Rehabilitation & Health Care, 132 AD3d 651, 652 [2d Dept 2015]; Casale v Sheepshead Nursing & Rehabilitation Ctr., 131 AD3d 436, 436 [2d Dept 2015]).

2025In order to defeat Proponent's motion, Phillips was required to raise an issue of fact concerning Proponent's dishonesty by making a "strong showing that Petitioner has committed improper acts related to money matters" (Matter of Fink, NYLJ, Apr. 11, 2012, at 17, col 1 [Sur Ct, Bronx County], citing Matter of Flood, 236 NY 408, 411 [ 1923 ]; Matter o.f Latham, 145 App Div 849,854 [1st Dept 1911]).