legally cognizable claim in New York

2024Similarly, CPLR § 3211(a)(7) permits dismissal where a pleading fails to state a cause of action, requiring the court to determine whether the allegations, accepted as true and construed liberally in favor of the plaintiff, state a legally cognizable claim ( see Rovello v. Orofino Realty Co. , 40 NY2d 633, 636 [1976]).

2024In deciding such a motion, the court must determine whether, accepting the allegations as true and construing them liberally in favor of the plaintiff, the pleading states a legally cognizable claim ( see Rovello v. Orofino Realty Co ., 40 NY2d 633, 636 [1976]).

2019On this point, the parties cite Holodook v Spencer ( 36 NY2d 35 ), which ruled that "a child does not have a legally cognizable claim for damages against his [or her] parent for negligent supervision," and "the absence of [a] primary cause of action defeat[ed] the counterclaim and third-party complaint" ( id . at 40, 51).

2017The motion court also properly dismissed the complaint against the foster mother because a child does not have a legally cognizable claim for damages in this case ( McCabe v Dutchess County , 72 AD3d 145, 148 [2d Dept 2010]; see also Holodook v Spencer , 36 NY2d 35 [1974]).

2024Parking Sys., Inc. , 283 AD2d 268, 272 [1st Dept 2001]), such person is presumed to have read and understood it, and any claim thereafter that the party did not understand what he/she signed is not a legally cognizable defense ( Chase Lincoln First Bank, N.A. v Mark Homes, Inc. , 170 AD2d 995, 995 [4th Dept 1991] ["Defendant Zemke seeks to avoid enforcement of his guarantee by averring that he failed to read the document before signing it, that he was never informed that he was signing a personal guarantee and that the legal implications of the document were never explained to him.

2024Parking Sys., Inc. , 283 AD2d 268, 272 [1st Dept 2001]), such person is presumed to have read and understood it, and any claim thereafter that the party did not understand what he/she signed is not a legally cognizable defense ( Chase Lincoln First Bank, N.A. v Mark Homes, Inc. , 170 AD2d 995, 995 [4th Dept 1991] ["Defendant Zemke seeks to avoid enforcement of his guarantee by averring that he failed to read the document before signing it, that he was never informed that he was signing a personal guarantee and that the legal implications of the document were never explained to him.

2024Parking Sys., Inc. , 283 AD2d 268, 272 [1st Dept 2001]), such person is presumed to have read and understood it, and any claim thereafter that the party did not understand what he/she signed is not a legally cognizable defense ( Chase Lincoln First Bank, N.A. v Mark Homes, Inc. , 170 AD2d 995, 995 [4th Dept 1991] ["Defendant Zemke seeks to avoid enforcement of his guarantee by averring that he failed to read the document before signing it, that he was never informed that he was signing a personal guarantee and that the legal implications of the document were never explained to him.

2024Parking Sys., Inc. , 283 AD2d 268, 272 [1st Dept 2001]), such person is presumed to have read and understood it, and any claim thereafter that the party did not understand what he/she signed is not a legally cognizable defense ( Chase Lincoln First Bank, N.A. v Mark Homes, Inc. , 170 AD2d 995, 995 [4th Dept 1991] ["Defendant Zemke seeks to avoid enforcement of his guarantee by averring that he failed to read the document before signing it, that he was never informed that he was signing a personal guarantee and that the legal implications of the document were never explained to him.

2014Having sufficiently pleaded a legally cognizable claim, plaintiffs’ first cause of action “ survive [s] dismissal under the liberal test employed on a CPLR 3211 motion” (Matter of Quiver Rock, LLC v New York State Adirondack Park Agency, 93 AD3d 1135, 1136 [2012]).

2014Having sufficiently pleaded a legally cognizable claim, plaintiffs’ first cause of action “ survive [s] dismissal under the liberal test employed on a CPLR 3211 motion” (Matter of Quiver Rock, LLC v New York State Adirondack Park Agency, 93 AD3d 1135, 1136 [2012]).

2014Nor was the dismissal of plaintiffs’ trespass and private nuisance causes of action appropriate, as the complaint alleged that defendant’s maintenance of a roped-off swimming area directly in front of plaintiffs’ property was contrary to plaintiffs’ riparian rights and without authorization (see Ferrari v Belawa, 241 AD2d 841, 843 [1997]) and, further, that it substantially interfered with plaintiffs’ use and enjoyment of their lakefront property (see McNeary v Niagara Mohawk Power Corp., 286 AD2d 522, 524-525 [2001]; compare Jennings v Fisher, 258 AD2d 722, 723-724 [1999]).

2014Nor was the dismissal of plaintiffs’ trespass and private nuisance causes of action appropriate, as the complaint alleged that defendant’s maintenance of a roped-off swimming area directly in front of plaintiffs’ property was contrary to plaintiffs’ riparian rights and without authorization (see Ferrari v Belawa, 241 AD2d 841, 843 [1997]) and, further, that it substantially interfered with plaintiffs’ use and enjoyment of their lakefront property (see McNeary v Niagara Mohawk Power Corp., 286 AD2d 522, 524-525 [2001]; compare Jennings v Fisher, 258 AD2d 722, 723-724 [1999]).

2014Nor was the dismissal of plaintiffs’ trespass and private nuisance causes of action appropriate, as the complaint alleged that defendant’s maintenance of a roped-off swimming area directly in front of plaintiffs’ property was contrary to plaintiffs’ riparian rights and without authorization (see Ferrari v Belawa, 241 AD2d 841, 843 [1997]) and, further, that it substantially interfered with plaintiffs’ use and enjoyment of their lakefront property (see McNeary v Niagara Mohawk Power Corp., 286 AD2d 522, 524-525 [2001]; compare Jennings v Fisher, 258 AD2d 722, 723-724 [1999]).

2014Nor was the dismissal of plaintiffs’ trespass and private nuisance causes of action appropriate, as the complaint alleged that defendant’s maintenance of a roped-off swimming area directly in front of plaintiffs’ property was contrary to plaintiffs’ riparian rights and without authorization (see Ferrari v Belawa, 241 AD2d 841, 843 [1997]) and, further, that it substantially interfered with plaintiffs’ use and enjoyment of their lakefront property (see McNeary v Niagara Mohawk Power Corp., 286 AD2d 522, 524-525 [2001]; compare Jennings v Fisher, 258 AD2d 722, 723-724 [1999]).

2003Health Care Facilities Assn. v DeBuono, 91 NY2d 716, 720 [1998].) Such section provides that in proceedings brought pursuant to article 78, “[t]he court . . . may allow other interested parties to intervene.” (CPLR 7802 [d].) However, to be an “interested” party, one must have a legally cognizable claim to intervene pursuant to CPLR 7802 (d), rather than just a general interest in the result of the article 78.

2003A person must have a legally cognizable claim to intervene under CPLR 7802 (d) as a party intervener in an article 78 proceeding (see id. at 718, 720-721 ; Ferguson v Barrios-Paoli, 279 AD2d 396, 398-399 [1st Dept 2001]).

2019This rule also applies to an adult child with developmental disabilities in the care of his or her parent ( see LaTorre v Genesee Mgt ., 90 NY2d 576 ) and to a child in the care of an unemancipated older sibling ( see Smith v Sapienza , 52 NY2d 82 ).

2003The Court subsequently extended its reasoning to preclude a cause of action for negligent supervision “between unemancipated minor siblings.” (See Smith v Sapienza, 52 NY2d 82, 84 [1981].) But lower appellate courts have allowed the claim against grandparents with temporary custody and control (see Hadden v Kero-Sun, Inc., 197 AD2d 668, 668-669 [2d Dept 1993]), and even against a parent who voluntarily assumed a duty to supervise a child in a particular activity (see Young v Greenberg, 181 AD2d 492 [1st Dept 1992]).

2024Although Supreme Court is correct that no fiduciary relationship was specifically alleged in the petition/complaint, the "criterion [on a motion to dismiss] is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one" ( Leon v Martinez , 84 NY2d 83, 88 [1994] [internal quotation marks and citation omitted]). [*4]Nevertheless, the facts as pleaded do not give rise to a fiduciary or confidential relationship between the Town and petitioners sufficient to warrant an equitable accounting.

2021Battalla overruled Mitchell v Rochester Railway Co. ( 151 NY 107, 110 [1896]), which prohibited recovery for emotional disturbance without physical injury.

2017The motion court also properly dismissed the complaint against the foster mother because a child does not have a legally cognizable claim for damages in this case ( McCabe v Dutchess County , 72 AD3d 145, 148 [2d Dept 2010]; see also Holodook v Spencer , 36 NY2d 35 [1974]).

2016Indeed, case law establishes that if the plaintiff does not "allege a mutual promise or undertaking to share the burden of the losses of the alleged enterprise," he or she cannot state a legally cognizable claim based upon a joint venture agreement ( Rocchio v Biondi , 40 AD3d 615, 616 [2d Dept 2007]; see also First Keystone Consultants, Inc. v DDR Constr.

2016Indeed, case law establishes that if the plaintiff does not "allege a mutual promise or undertaking to share the burden of the losses of the alleged enterprise," he or she cannot state a legally cognizable claim based upon a joint venture agreement ( Rocchio v Biondi , 40 AD3d 615, 616 [2d Dept 2007]; see also First Keystone Consultants, Inc. v DDR Constr.

2016Partners, 96 AD3d 646 , 650 [1st Dept 2012]; see also Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]).

2016Partners , 96 AD3d 646 , 650 [1st Dept 2012]; see also Eurycleia Partners, LP v Seward & Kissel, LLP , 12 NY3d 553, 559 [2009]).

2016Servs. , 74 AD3d 1135 , 1137 [2d Dept 2010]; Latture , 1 AD3d at 408-409; Ginsberg v Schron , 288 AD2d 146, 146 [1st Dept 2001]; Mawere v Landau , 130 AD3d 986 [2d Dept 2015]).

2016Servs. , 74 AD3d 1135 , 1137 [2d Dept 2010]; Latture , 1 AD3d at 408-409 ; Ginsberg v Schron , 288 AD2d 146, 146 [1st Dept 2001]; Mawere v Landau , 130 AD3d 986 [2d Dept 2015]).