provision rule in New York

1854Still, were it not for the concluding words of the section, we might perhaps apply to the provision the doctrine of Dash v. Van Kleek ( 7 John., 477 ), and of the class of cases which hold that general words in a statute should be construed prospectively, where a different interpretation would take away vested rights.

1854Still, were it not for the concluding words of the section, we might perhaps apply to the provision the doctrine of Dash v. Van Kleek ( 7 John., 477 ), and of the *Page 211 class of cases which hold that general words in a statute should be construed prospectively, where a different interpretation would take away vested rights.

2023As such, there is a question as to whether this provision is in violation of General Obligations Law § 5-311 in that the wife "is likely to become a public charge." Because of this, we find that Supreme Court erred when it failed to make an inquiry into the circumstances surrounding the wife's waiver of spousal support ( see Curran v Curran , 169 AD2d at 976 ; Miller v Miller , 104 AD2d 403 , 404-405 [2d Dept 1984], lv dismissed 63 NY2d 952 [1984]).

2023As such, there is a question as to whether this provision is in violation of General Obligations Law § 5-311 in that the wife "is likely to become a public charge." Because of this, we find that Supreme Court erred when it failed to make an inquiry into the circumstances surrounding the wife's waiver of spousal support ( see Curran v Curran , 169 AD2d at 976 ; Miller v Miller , 104 AD2d 403 , 404-405 [2d Dept 1984], lv dismissed 63 NY2d 952 [1984]).

2023Therefore, the matter must be remitted for a hearing ( see Christian v Christian , 42 NY2d 63, 73-74 [1977]; Hadi v Hadi , 34 AD3d 1153, 1155 [3d Dept 2006]; Curran v Curran , 169 AD2d at 976 ; Schisler v Schisler , 106 AD2d 441, 443 [2d Dept 1984]).

2023Seifullah v City of New York , 161 AD3d 1206 , 1207; cf. Waring v Sunrise Yonkers SL, LLC , 134 AD3d 488, 489 ).

2020Arts and Cultural Affairs Law § 25.11), (2) was part of the original statute ( see L 1991, ch 704), (3) does not depend on information uniquely within a defendant ticket seller's knowledge, and (4) does not require the People to shoulder an unreasonably onerous burden to negate the existence of a lawful resale, all factors that suggest the provision could be an exception ( see People v Davis , 13 NY3d 17, 31-32 [2009]; People v Tatis , 170 AD3d 45 , 46-49 [2019], lv denied 33 NY3d 981 [2019]; People v Adekoya , 50 Misc 3d 99, 102 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

2018Rather, all that is necessary to trigger the provision is a claim arising from any act or omission of Cayre or Cayre's contractor, here, XCEL ( see Santos v BRE/Swiss, LLC , 9 AD3d 303 [1st Dept 2004]; Tobio v Boston Props., Inc. , 54 AD3d 1022, 1024 [2d Dept 2008] [finding that "(t)he indemnification clause does not, by its terms, limit indemnification only to claims arising out of the negligence of (the indemnitor) in the performance of the work"]).

2013(Staron v Staron, 215 AD2d 646 [2d Dept 1995]; Richardson v Richardson, 58 AD2d 861 [2d Dept 1977].) But, the Fourth Department in Paparella v Paparella ( 74 AD2d 106 [4th Dept 1980]) declined to limit the “marital domicile” provision to just the “last before separation” and Justice Moule, in a concurrence, interpreted the provision in rule 302 (b) to permit the exercise of jurisdiction if New York was the domicile at “some time before their separation” subject to due process limitations (at 111).

2013(Staron v Staron, 215 AD2d 646 [2d Dept 1995]; Richardson v Richardson, 58 AD2d 861 [2d Dept 1977].) But, the Fourth Department in Paparella v Paparella ( 74 AD2d 106 [4th Dept 1980]) declined to limit the “marital domicile” provision to just the “last before separation” and Justice Moule, in a concurrence, interpreted the provision in rule 302 (b) to permit the exercise of jurisdiction if New York was the domicile at “some time before their separation” subject to due process limitations (at 111).

2013(Staron v Staron, 215 AD2d 646 [2d Dept 1995]; Richardson v Richardson, 58 AD2d 861 [2d Dept 1977].) But, the Fourth Department in Paparella v Paparella ( 74 AD2d 106 [4th Dept 1980]) declined to limit the “marital domicile” provision to just the “last before separation” and Justice Moule, in a concurrence, interpreted the provision in rule 302 (b) to permit the exercise of jurisdiction if New York was the domicile at “some time before their separation” subject to due process limitations (at 111).

2013Co., 47 NY2d 12 [1979].) The courts have generally related the right to recover to the breach of the insurance contract, specifically, a provision to provide a defense.

2013The Court of Appeals in Mighty Midgets v Centennial, noted that when a party is cast in a defensive posture, “an insurer’s responsibility to defend reaches the defense of any actions arising out of the occurrence,” including declaratory judgments to deny coverage. ( 47 NY2d at 21 .) The cases dealing with the right to attorneys’ fees for successfully defending a declaratory judgment action by an insurer all involve insureds who were defendants in personal injury actions.

2008While the federal decisions are not uniform, a long line of cases from the Court of Appeals for the Second Circuit recognizes that the rule serves not only to provide a defendant with fair notice, but also to guard against "improvident charges of wrongdoing" and "the institution of a strike suit" ( Harsco Corp. v Segui, 91 F3d 337 , 347 [2d Cir 1996], quoting Acito v IMCERA Group, Inc., 47 F3d 47, 52 [2d Cir 1995]).

2006Owners Corp., 166 AD2d 272 [1990]).

2003See In re Kane v. McClellan , 110 App. Div. 44 , 47-48 (2d Dep't 1906) ("It is quite conceivable that a man who would otherwise hesitate or refuse to undertake the duties of a public office for the pecuniary compensation attached thereto by law, might be most willing to do so if assured in advance that he would not himself be compelled to pay out of his own pocket for the successful refutation before a criminal court of an unjust accusation affecting his official probity and conduct; and the assurance against such a liability . . . might well operate with many persons as an inducement to enter

2003The provision of defense for employees may be considered additional remuneration, see Corning v. Village of Laurel Hollow , 48 N.Y.2d 348 , 354 (1979), and as such, the enactment of local legislation allowing this benefit is authorized by Municipal Home Rule Law § 10 (1)(ii)(a)(1) (relating to the compensation of municipal employees).

1996There was also evidence in the record that petitioner made some attempts to obtain the proper cost of living increases either by seeking enforcement, or contacting respondent to no avail (see, Mattera v Mattera, 214 AD2d 544 ; cf., Laurence v Rosen, 228 AD2d 373 ).