dismissed claim in New York

2024As such, "when a complaint involving title to or the right to possess and enjoy real property has been dismissed on the merits and there is no outstanding notice of pendency or stay, the property owner has a right to transfer or otherwise dispose of the property unrestricted by the dismissed claim" (Da Silva v Musso, 76 NY2d 436, 440 [1990]) and "[a] purchaser's actual knowledge of a pending appeal is not legally significant" (id. at 438).

2024As such, "when a complaint involving title to or the right to possess and enjoy real property has been dismissed on the merits and there is no outstanding notice of pendency or stay, the property owner has a right to transfer or otherwise dispose of the property unrestricted by the dismissed claim" (Da Silva v Musso, 76 NY2d 436, 440 [1990]) and "[a] purchaser's actual knowledge of a pending appeal is not legally significant" (id. at 438).

2024However, "[a] recorded mortgage itself gives notice of an encumbrance on the property, [and the] concerns regarding the notice of pendency restricting the alienability of the property are eliminated" (Campbell v Smith, 309 AD2d 581,582 [1st Dept 2003]; Pacific Lime v Lowenberg Corp., 77AD2d 737, 738-739 [3d Dept 1980] [stating that, where the notice ofpendency had expired, ''the mortgage, ... as a recorded instrument, remain(ed) effective as notice of the rights of the [mortgagee] to all subsequently acquired interests in the real property"]).

2024However, "[a] recorded mortgage itself gives notice of an encumbrance on the property, [and the] concerns regarding the notice of pendency restricting the alienability of the property are eliminated" (Campbell v Smith, 309 AD2d 581,582 [1st Dept 2003]; Pacific Lime v Lowenberg Corp., 77AD2d 737, 738-739 [3d Dept 1980] [stating that, where the notice ofpendency had expired, ''the mortgage, ... as a recorded instrument, remain(ed) effective as notice of the rights of the [mortgagee] to all subsequently acquired interests in the real property"]).

2014This is so even where the “purchaser who has acquired the property for value during the pendency of a claimant’s appeal” has “actual knowledge of the appeal” (id. at 442; see Sakow v 633 Seafood Rest., 1 AD3d 298 , 299 [1st Dept 2003]).

2014This is so even where the “purchaser who has acquired the property for value during the pendency of a claimant’s appeal” has “actual knowledge of the appeal” (id. at 442; see Sakow v 633 Seafood Rest., 1 AD3d 298 , 299 [1st Dept 2003]).

2013In order to recover, claimants were required to establish that the allegedly dangerous condition of the drop-off at the edge of the pavement was a proximate cause of the accident (see Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987]; Hill v Carpenter, 77 AD3d 1130, 1131 [2010], lv denied 16 NY3d 712 [2011]; Owens v Campbell, 16 AD3d 1000, 1001-1002 [2005], lv denied 5 NY3d 704 [2005]).

2013In order to recover, claimants were required to establish that the allegedly dangerous condition of the drop-off at the edge of the pavement was a proximate cause of the accident (see Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987]; Hill v Carpenter, 77 AD3d 1130, 1131 [2010], lv denied 16 NY3d 712 [2011]; Owens v Campbell, 16 AD3d 1000, 1001-1002 [2005], lv denied 5 NY3d 704 [2005]).

2013In order to recover, claimants were required to establish that the allegedly dangerous condition of the drop-off at the edge of the pavement was a proximate cause of the accident (see Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987]; Hill v Carpenter, 77 AD3d 1130, 1131 [2010], lv denied 16 NY3d 712 [2011]; Owens v Campbell, 16 AD3d 1000, 1001-1002 [2005], lv denied 5 NY3d 704 [2005]).

2013In order to recover, claimants were required to establish that the allegedly dangerous condition of the drop-off at the edge of the pavement was a proximate cause of the accident (see Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987]; Hill v Carpenter, 77 AD3d 1130, 1131 [2010], lv denied 16 NY3d 712 [2011]; Owens v Campbell, 16 AD3d 1000, 1001-1002 [2005], lv denied 5 NY3d 704 [2005]).

2013In order to recover, claimants were required to establish that the allegedly dangerous condition of the drop-off at the edge of the pavement was a proximate cause of the accident (see Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987]; Hill v Carpenter, 77 AD3d 1130, 1131 [2010], lv denied 16 NY3d 712 [2011]; Owens v Campbell, 16 AD3d 1000, 1001-1002 [2005], lv denied 5 NY3d 704 [2005]).

2013In order to recover, claimants were required to establish that the allegedly dangerous condition of the drop-off at the edge of the pavement was a proximate cause of the accident (see Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987]; Hill v Carpenter, 77 AD3d 1130, 1131 [2010], lv denied 16 NY3d 712 [2011]; Owens v Campbell, 16 AD3d 1000, 1001-1002 [2005], lv denied 5 NY3d 704 [2005]).

2025Although defendants also assert that the claim was duplicative of the dismissed claim seeking to compel the board to approve plaintiff's alteration plans, they differ to the extent that the instant claim does not seek to require the board to approve its specific plans but rather to obtain an award of damages based on the board's bad-faith exercise of the discretion afforded to it under the roof purchase agreement ( Parlux Fragrances, LLC , 204 AD3d at 92 ).

2025Although defendants also assert that the claim was duplicative of the dismissed claim seeking to compel the board to approve plaintiff's alteration plans, they differ to the extent that the instant claim does not seek to require the board to approve its specific plans but rather to obtain an award of damages based on the board's bad-faith exercise of the discretion afforded to it under the roof purchase agreement ( Parlux Fragrances, LLC , 204 AD3d at 92).

2023While this Court can make its own findings ( see CPLR 5501; Northern Westchester Professional Park Assoc. v Town of Bedford , 60 NY2d 492, 499 [1983]), this is not the proper case for the exercise of that power, since much would depend on the credibility of the witnesses ( see Power v Falk , 15 AD2d 216, 218 [1961]).

2023While this Court can make its own findings ( see CPLR 5501; Northern Westchester Professional Park Assoc. v Town of Bedford , 60 NY2d 492, 499 [1983]), this is not the proper case for the exercise of that power, since much would depend on the credibility of the witnesses ( see Power v Falk , 15 AD2d 216, 218 [1961]).

2020"Since the ability to transfer clear title is a natural incident of [property] ownership, it follows that when a complaint involving title to or the right to possess and enjoy real property has been dismissed on the merits and there is no outstanding notice of pendency or stay, the property owner has a right to transfer or otherwise dispose of the property unrestricted by the dismissed claim" ( Da Silva v Musso , 76 NY2d 436, 440 [1990]; accord Gabriel v Prime , 30 AD3d 955, 956 [2006]). "'[A] purchaser's actual knowledge of litigation and a pending appeal is not legally significant and[,] abs

2020"Since the ability to transfer clear title is a natural incident of [property] ownership, it follows that when a complaint involving title to or the right to possess and enjoy real property has been dismissed on the merits and there is no outstanding notice of pendency or stay, the property owner has a right to transfer or otherwise dispose of the property unrestricted by the dismissed claim" ( Da Silva v Musso , 76 NY2d 436, 440 [1990]; accord Gabriel v Prime , 30 AD3d 955, 956 [2006]). "'[A] purchaser's actual knowledge of litigation and a pending appeal is not legally significant and[,] abs

2020"Since the ability to transfer clear title is a natural incident of [property] ownership, it follows that when a complaint involving title to or the right to possess and enjoy real property has been dismissed on the merits and there is no outstanding notice of pendency or stay, the property owner has a right to transfer or otherwise dispose of the property unrestricted by the dismissed claim" ( Da Silva v Musso , 76 NY2d 436, 440 [1990]; accord Gabriel v Prime , 30 AD3d 955, 956 [2006]). "'[A] purchaser's actual knowledge of litigation and a pending appeal is not legally significant and[,] abs

2020"Since the ability to transfer clear title is a natural incident of [property] ownership, it follows that when a complaint involving title to or the right to possess and enjoy real property has been dismissed on the merits and there is no outstanding notice of pendency or stay, the property owner has a right to transfer or otherwise dispose of the property unrestricted by the dismissed claim" ( Da Silva v Musso , 76 NY2d 436, 440 [1990]; accord Gabriel v Prime , 30 AD3d 955, 956 [2006]). "'[A] purchaser's actual knowledge of litigation and a pending appeal is not legally significant and[,] abs

2018On plaintiff's appeal of the trial court's judgment, County Court affirmed, writing that this case "primarily involves a credibility issue and this Court is in no position to overturn the determination made by the trial court[,] which had the advantage of having seen and heard the witnesses." County Court concluded that, based on its review of the record, "it cannot be said that the judgment was so shocking as not to be substantial justice,' " citing Coppola v Kandey Co. ( 236 AD2d 871, 872 [4th Dept 1997]).

2014The court dismissed the claim as against the City in view of plaintiff’s lack of opposition to its motion for summary judgment, and plaintiff does not present any basis to reverse this determination. *423 The court providently exercised its discretion in denying plaintiff’s cross motion to submit a disclosure of his expert professional engineer, since it was first submitted in opposition to defendants’ motions for summary judgment dismissing the complaint, and subsequent to the filing of the note of issue and certificate of readiness (see Garcia v City of New York, 98 AD3d 857, 858-859 [1st De

2011Cetta v City of New York, 46 AD2d 762, 762-763 [1974]).

2009However, while there is evidence that plaintiff acquiesced in defendants’ reassumption of the Collection line and relinquished its interest in that trademark, whether it did so voluntarily or against its own wishes is disputed (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 104 [2006]).

2008On the instant motion, the court correctly declined to dismiss the claim for assault because the record presents issues of fact whether defendant Leila Hadley Luce’s “physical conduct plac[ed] [her minor granddaughter] in imminent apprehension of harmful contact” (Fugazy v Corbetta, 34 AD3d 728, 729 [2006] [internal quotation marks and citation omitted]; see Charkhy at 414 ; Reichle v Mayeri, 110 AD2d 694 [1985]).

2008On defendants’ prior motion addressed to the sufficiency of the pleadings, the court dismissed the claim for battery because there was no allegation of offensive bodily contact (see Charkhy v Altman, 252 AD2d 413, 414 [1998]).

2007However, as the State correctly concedes, the trial court improperly relied on 17 NYCRR 190.9, as the State never asserted it as a defense (see Shepardson v Town of Schodack, 83 NY2d 894, 895 [1994]; Kolkmeyer v Westhampton Taxi & Limo Serv., 261 AD2d 587, 588 [1999]).