tripartite test in New York

2023Turning to the merits, we agree with petitioner that the People were seeking nonconfidential material that triggered the tripartite test set forth in Civil Rights Law § 79-h. [FN2] To overcome the qualified privilege afforded to petitioner under the New York Shield Law, it was incumbent on the People to make "a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source" (Civil Rights Law § 79-h [c]; see O

2012The Reporter’s Privilege under New York Law In New York, a news reporter’s qualified privilege regarding nonconfidential news gathering materials derives from New York State Constitution, article I, § 8, as well as Civil Rights Law § 79-h, based on a tripartite test “more demanding than the requirements of CPLR 3101 (a).” (O’Neill v Oakgrove Constr., 71 NY2d 521, 527 [1988].) “Under the tripartite test, discovery may be ordered only if the litigant demonstrates, clearly and specifically, that the items sought are (1) highly material, (2) critical to the litigant’s claim, and (3) not otherwise

2026THE PRELIMINARY INJUNCTION STANDARD A preliminary injunction is a drastic remedy, entrusted to the sound discretion of the court and issued only upon a clear showing that the movant has satisfied each prong of the familiar tripartite test: (1) a probability of success on the merits; (2) irreparable injury absent injunctive relief; and (3) a balance of equities tipping in the movant's favor (CPLR 6301; Camp Bearberry, LLC v Khanna, 212 AD3d 897, 898 [3d Dept 2023]).

2025To guide the court in the exercise of its discretion, CPLR 6301 offers a familiar tripartite test: the party seeking a preliminary injunction must demonstrate (1) a probability of success on the merits (the merits prong), (2) a danger of irreparable injury in the absence of an injunction (the irreparable injury prong) and (3) a balance of equities in its favor (the equity prong) ( Camp Bearberry, LLC v Khanna , 212 AD3d 897 , 898 [3d Dept 2023]).

1990Central to the inquiry as to whether a statute gives rise to a private right of action for civil damages is the tripartite test first set forth in Bums Jackson Miller Summit & Spitzer v Lindner ( 59 NY2d 314 ; see also, Sheehy v Big Flats Community Day, 73 NY2d 629 ): "(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme” (Sheehy v Big Flats Community Day, supra, at 633

1990Central to the inquiry as to whether a statute gives rise to a private right of action for civil damages is the tripartite test first set forth in Bums Jackson Miller Summit & Spitzer v Lindner ( 59 NY2d 314 ; see also, Sheehy v Big Flats Community Day, 73 NY2d 629 ): "(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme” (Sheehy v Big Flats Community Day, supra, at 633

1999(Sheehy v Big Flats Community Day, 73 NY2d 629, 633 [1989], citing Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 329-331 [1983].) Assuming that the plaintiff’s allegations satisfy the first two prongs of the test, the most critical inquiry is whether such action would be consistent with the over-all legislative scheme.

1990Central to the inquiry as to whether a statute gives rise to a private right of action for civil damages is the tripartite test first set forth in Bums Jackson Miller Summit & Spitzer v Lindner ( 59 NY2d 314 ; see also, Sheehy v Big Flats Community Day, 73 NY2d 629 ): "(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme” (Sheehy v Big Flats Community Day, supra, at 633

1998Turning now to the issue of standing, we cannot subscribe to the majority’s implicit conclusion that not one of the organizational plaintiffs has satisfied the tripartite test for organizational standing, i.e, that (1) some or all of the members themselves have standing to sue, (2) the interests which the organization seeks to protect must be germane to its purposes, and (3) neither the relief requested nor the claims asserted require the participation of the individual members (see, Matter of Dental Socy. v Carey, 61 NY2d 330, 333-334 ; see also, So ciety of Plastics Indus. v County of Suffol

1993Initially, despite the presence of an obvious economic motive for petitioner to bring this proceeding, we conclude that it meets the tripartite test announced in Society of Plastics Indus. v County of Suffolk ( 77 NY2d 761 ) for standing to challenge this SEQRA determination.

1997Although several of the individual Supreme Court Justices have questioned the continuing utility of Lemon (see, Lamb’s Chapel v Center Moriches Union Free School Dist., 508 US 384, 398-399 [Scalia, J., concurring] [collecting cases]), the case remains the law of the land and must guide our analysis (see, id., at 395, n 7 ["there is a proper way to inter an established decision and Lemon * * * has not been overruled”]).

1997Although several of the individual Supreme Court Justices have questioned the continuing utility of Lemon (see, Lamb’s Chapel v Center Moriches Union Free School Dist., 508 US 384, 398-399 [Scalia, J., concurring] [collecting cases]), the case remains the law of the land and must guide our analysis (see, id., at 395, n 7 ["there is a proper way to inter an established decision and Lemon * * * has not been overruled”]).

2006Specifically, pursuant to the third prong of the tripartite test set forth in Lemon v Kurtzman ( 403 US 602 [1971]), it is our belief that the WHWA evinces a decided tendency to excessively entangle the state in the internal affairs of religious organizations {see Catholic Charities of Sacramento, Inc. v Superior Ct., supra, 32 Cal 4th at 582, 85 P3d at 105 [Brown, J., dissenting]).

1999The standard most often used is the tripartite test of Lemon v Kurtzman ( 403 US 602 , supra), which requires that legislation have a secular purpose, that its principal effect neither advance nor inhibit religion, and that it not foster excessive entanglement between church and State.

2025State Dept. of Transp. v Polite , 236 AD3d 82, 114; Matter of Merscorp, Inc. v Romaine , 295 AD2d 431, 432-433).

2003The Supreme Court failed to set forth specific findings with respect to the tripartite test for preliminary injunctive relief, which requires that the moving party establish (1) a likelihood of success on the merits, (2) irreparable harm if the injunction is denied, and (3) a balance of the equities in favor of the injunction (see CPLR 6312 [a]; Matter of Merscorp, Inc. v Romaine, 295 AD2d 431 [2002]).

2010Once a prima facie case of impermissible discrimination has been established, the burden shifts, at step two, to the opposing party to set forth a race-neutral reason for each of the stricken jurors (Hernandez, 500 US at 358-359 ).

1995In the present case, we focus on the third component of the tripartite analysis noted above, which has been adopted as a matter of Federal constitutional law in the recent case of Purkett v Elem (514 US —, 115 S Ct 1769 ; see also, Hernandez v New York, 500 US 352 ; People v Allen, 86 NY2d 101 ).

2025However, unlike the majority, we would not apply the tripartite test derived from K9 Bytes, Inc. v Arch Capital Funding, LLC ( 56 Misc 3d 807, 816-818 [Sup Ct, Westchester County 2017]), adopted by the Second Department in LG Funding, LLC v United Senior Props. of Olathe, LLC ( 181 AD3d 664, 665-666 [2d Dept 2020]) and by our Court in Samson MCA LLC v Joseph A. Russo M.D.

2025However, unlike the majority, we would not apply the tripartite test derived from K9 Bytes, Inc. v Arch Capital Funding, LLC ( 56 Misc 3d 807, 816-818 [Sup Ct, Westchester County 2017]), adopted by the Second Department in LG Funding, LLC v United Senior Props. of Olathe, LLC ( 181 AD3d 664, 665-666 [2d Dept 2020]) and by our Court in Samson MCA LLC v Joseph A. Russo M.D.

2020A Brady violation is established when it is shown that "(1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material" ( People v Fuentes , 12 NY3d at 263 , citing Strickler v Greene , 527 US 263, 281-282 [1999]).

2016In arguing that relation back is unavailable, Hirsch Wolf LLC asserts that the amended complaint fails to allege the second element of the tripartite test: that Hirsch Wolf and Hirsch Wolf LLC were united in interest and, by reason of that relationship, Hirsch Wolf LLC can be charged with notice of the institution of the action such that it will not be prejudiced in maintaining a defense on the merits ( see Mongardi , 45 AD3d at 1150-1151, supra ).

2016In arguing that relation back is unavailable, Hirsch Wolf LLC asserts that the amended complaint fails to allege the second element of the tripartite test: that Hirsch Wolf and Hirsch Wolf LLC were united in interest and, by reason of that relationship, Hirsch Wolf LLC can be charged with notice of the institution of the action such that it will not be prejudiced in maintaining a defense on the merits ( see Mongardi , 45 AD3d at 1150-1151 , supra ).

2007In 1990, the Legislature enacted Civil Rights Law § 79-h (c) in which it codified the three-pronged test adopted by the Court of Appeals in O’Neill , making it applicable to both civil and criminal proceedings (see People v Combest, 4 NY3d 341, 345 [2005], rearg dismissed 4 NY3d 859 [2005]). .

2006It cannot be questioned “that religious freedom encompasses the ‘power (of religious bodies) to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine’ ” {Serbian Eastern Orthodox Diocese for United States & Canada v Milivojevich, 426 US 696, 721-722 [1976], quoting Kedroff v Saint Nicholas Cathedral of Russian Orthodox Church of North America, 344 US 94, 116 [1952]; see Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v Amos, 483 US 327, 344 [1987], supra [Brennan, J., concurring]).

2006It cannot be questioned “that religious freedom encompasses the ‘power (of religious bodies) to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine’ ” {Serbian Eastern Orthodox Diocese for United States & Canada v Milivojevich, 426 US 696, 721-722 [1976], quoting Kedroff v Saint Nicholas Cathedral of Russian Orthodox Church of North America, 344 US 94, 116 [1952]; see Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v Amos, 483 US 327, 344 [1987], supra [Brennan, J., concurring]).

2006It cannot be questioned “that religious freedom encompasses the ‘power (of religious bodies) to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine’ ” {Serbian Eastern Orthodox Diocese for United States & Canada v Milivojevich, 426 US 696, 721-722 [1976], quoting Kedroff v Saint Nicholas Cathedral of Russian Orthodox Church of North America, 344 US 94, 116 [1952]; see Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v Amos, 483 US 327, 344 [1987], supra [Brennan, J., concurring]).

2006Specifically, pursuant to the third prong of the tripartite test set forth in Lemon v Kurtzman ( 403 US 602 [1971]), it is our belief that the WHWA evinces a decided tendency to excessively entangle the state in the internal affairs of religious organizations {see Catholic Charities of Sacramento, Inc. v Superior Ct., supra, 32 Cal 4th at 582, 85 P3d at 105 [Brown, J., dissenting]).

2006Specifically, pursuant to the third prong of the tripartite test set forth in Lemon v Kurtzman ( 403 US 602 [1971]), it is our belief that the WHWA evinces a decided tendency to excessively entangle the state in the internal affairs of religious organizations {see Catholic Charities of Sacramento, Inc. v Superior Ct., supra, 32 Cal 4th at 582, 85 P3d at 105 [Brown, J., dissenting]).

2006The Supreme Court failed to set forth specific findings with respect to the tripartite test for preliminary injunctive relief, which requires that the moving party establish (1) a likelihood of success on the merits, (2) irreparable harm if the injunction is denied, and (3) a balance of the equities in favor of the injunction (s ee CPLR 6312 [a]; Livas v Mitzner, 303 AD2d 381, 382 [2003] ).