party claiming error in New York

2024A question of law with respect to a ruling of a suppression court is preserved for appeal when "a protest thereto was registered, by the party claiming error, at the time of such ruling . . . or at any subsequent time when the court had an opportunity of effectively changing the same . . . , or if in response to a protest by a party, the court expressly decided the question raised on appeal" (CPL 470.05 [2]; see People v Parker , 32 NY3d 49, 57 [2018]; People v Miranda , 27 NY3d 931, 932 [2016]).

2024A question of law with respect to a ruling of a suppression court is preserved for appeal when "a protest thereto was registered, by the party claiming error, at the time of such ruling . . . or at any subsequent time when the court had an opportunity of effectively changing the same . . . , or if in response to a protest by a party, the court expressly decided the question raised on appeal" (CPL 470.05 [2]; see People v Parker , 32 NY3d 49, 57 [2018]; People v Miranda , 27 NY3d 931, 932 [2016]).

2024A question of law with respect to a ruling of a suppression court is preserved for appeal when "a protest thereto was registered, by the party claiming error, at the time of such ruling . . . or at any subsequent time when the court had an opportunity of effectively changing the same . . . , or if in response to a protest by a party, the court expressly decided the question raised on appeal" (CPL 470.05 [2]; see People v Parker , 32 NY3d 49, 57 [2018]; People v Miranda , 27 NY3d 931, 932 [2016]).

2024A question of law with respect to a ruling of a suppression court is preserved for appeal when "a protest thereto was registered, by the party claiming error, at the time of such ruling . . . or at any subsequent time when the court had an opportunity of effectively changing the same . . . , or if in response to a protest by a party, the court expressly decided the question raised on appeal" (CPL 470.05 [2]; see People v Parker , 32 NY3d 49, 57 [2018]; People v Miranda , 27 NY3d 931, 932 [2016]).

1994A party claiming a violation of this statute, which was modeled after the Federal Sherman Antitrust Act ( 15 USC § 1 ; see, State of New York v Mobil Oil Corp., 38 NY2d 460, 463 ), must (1) identify the relevant product market, (2) describe the nature and effects of the alleged conspiracy, (3) describe how the economic impact of the conspiracy restrained trade in the market in question, and (4) identify a conspiracy or reciprocal relationship between two or more parties (Creative Trading Co. v Larkin-Pluznick-Larkin, 136 AD2d 461, 462 ; see, International Tel.

1988A party claiming a violation of the Donnelly Act, which was modeled on the Federal Sherman Antitrust Act ( 15 USC § 1 ; see, State of New York v Mobil Oil Corp., 38 NY2d 460 ), must identify the relevant product market, describe the nature and effects of the purported conspiracy and allege how the economic impact of that conspiracy is to restrain trade in the market in question (International Tel.

2025A waiver is an intentional abandonment of a known right and the party claiming waiver has the burden of proving it. ( see City of New York v State , 40 NY2d 659, 669 [1976].

2025A waiver is an intentional abandonment of a known right and the party claiming waiver has the burden of proving it. ( see City of New York v State , 40 NY2d 659, 669 [1976].

2025This is usually a triable issue. ( see 145 East 16th Street LLC v Nanda , 61 Misc 3d 128(A) [App Term, 1st Dept 2018] citing Jefpaul Garage Corp. v Presbyterian Hosp. , 61 NY2d 442, 446 [1984] ("waiver is essentially a matter of intent which must be proved" and "is an issue better suited to be decided at trial."); see also Georgetown Unsold Shares, LLC v Ledet , 130 AD3d 99, 105 [2d Dept 2015] (holding there must be "unequivocal evidence of a landlord's intent to waive its right to proceed)).

2025This is usually a triable issue. ( see 145 East 16th Street LLC v Nanda , 61 Misc 3d 128(A) [App Term, 1st Dept 2018] citing Jefpaul Garage Corp. v Presbyterian Hosp. , 61 NY2d 442, 446 [1984] ("waiver is essentially a matter of intent which must be proved" and "is an issue better suited to be decided at trial."); see also Georgetown Unsold Shares, LLC v Ledet , 130 AD3d 99, 105 [2d Dept 2015] (holding there must be "unequivocal evidence of a landlord's intent to waive its right to proceed)).

2025"A waiver is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence," but rather, "the party claiming a waiver must proffer evidence of a voluntary and intentional relinquishment of a known and otherwise enforceable right" ( Cavayero v Cavayero , 184 AD3d 801, 802 [internal quotation marks omitted]).

2023"A waiver is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence," but rather "the party claiming a waiver must proffer evidence of a voluntary and intentional relinquishment of a known and otherwise enforceable right" ( Cavayero v Cavayero , 184 AD3d 801, 802 [internal quotation marks omitted]).

2025This is usually a triable issue. ( see 145 East 16th Street LLC v Nanda , 61 Misc 3d 128(A) [App Term, 1st Dept 2018] citing Jefpaul Garage Corp. v Presbyterian Hosp. , 61 NY2d 442, 446 [1984] ("waiver is essentially a matter of intent which must be proved" and "is an issue better suited to be decided at trial."); see also Georgetown Unsold Shares, LLC v Ledet , 130 AD3d 99, 105 [2d Dept 2015] (holding there must be "unequivocal evidence of a landlord's intent to waive its right to proceed)).

2025This is usually a triable issue. ( see 145 East 16th Street LLC v Nanda , 61 Misc 3d 128(A) [App Term, 1st Dept 2018] citing Jefpaul Garage Corp. v Presbyterian Hosp. , 61 NY2d 442, 446 [1984] ("waiver is essentially a matter of intent which must be proved" and "is an issue better suited to be decided at trial."); see also Georgetown Unsold Shares, LLC v Ledet , 130 AD3d 99, 105 [2d Dept 2015] (holding there must be "unequivocal evidence of a landlord's intent to waive its right to proceed)).

2018A question of law is preserved for appeal when "a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same" (CPL 470.05 [2]). "[A] general objection—such as that contained in defendant's omnibus motion—is sufficient to preserve an issue for our review when the trial court 'expressly decided the question raised on appeal' " ( People v Graham , 25 NY3d 994, 997 [2015], quoting CPL 470.05 [2]).

2016“CPL 470.05 (2) provides that a question of law regarding a ruling is presented in a criminal proceeding ‘when a protest thereto was registered, by the party claiming error, at [a] time . . . when the court had an opportunity of effectively changing the same . . . or if in response to a protest by a party, the court expressly decided the question raised on appeal’ ” (People v Graham, 25 NY3d 994, 996 [2015]).

2015The court’s replacement of the sick juror in the presence of defense counsel was not a mode of proceedings error which “provides an exception to traditional preservation rules” (People v Gray, 86 NY2d 10, 21 [1995]).

2014The propriety of a jury instruction is reviewable as a matter of law (see CPL 470.05 [2] [“For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same”]; see also People v Medina, 18 NY3d 98, 104 [2011], quoting People v Gray, 86 NY2d 10, 19 [1995]; William C.

2025In addition, "[c]ontractual rights may be waived if they are knowingly, voluntarily and intentionally abandoned" ( Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P. , 7 NY3d 96, 104 ; Hannigan v Hannigan , 104 AD3d 732, 734 [internal quotation marks omitted]; see Town of Hempstead v Incorporated Vil. of Freeport , 15 AD3d 567, 569 ).

2025In addition, "[c]ontractual rights may be waived if they are knowingly, voluntarily and intentionally abandoned" ( Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P. , 7 NY3d 96, 104 ; Hannigan v Hannigan , 104 AD3d 732, 734 [internal quotation marks omitted]; see Town of Hempstead v Incorporated Vil. of Freeport , 15 AD3d 567, 569 ).

2022Although defendant did not raise that issue in his omnibus motion, "[a] question of law with respect to a ruling of a suppression court is preserved for appeal when 'a protest thereto was registered, by the party claiming error, at the time of such ruling . . . or at any subsequent time when the court had an opportunity of effectively changing the same . . . , or if in response to a protest by a party, the court expressly decided the question raised on appeal' " ( People v Murray , 194 AD3d 1360, 1362 [4th Dept 2021], quoting CPL 470.05 [2]).

2022Here, defendant specifically raised the issue of unlawful detention in a posthearing submission ( cf. id. ), which is a time when the court still had an opportunity of changing its ruling.

2022Pursuant to CPL 470.05(2), "[f]or purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same." However, CPL 470.05(2) provides that "[s]uch protest need not be in the form of an 'exception' but is sufficient if . . . in re[s]ponse to a protest by a party, the court expressly decided the question raised on appeal."

2020Here, in opposition to the defendant's motion, the plaintiff failed to establish, as a matter of law, that the defendant's conduct after the parties entered into the separation agreement constituted "a voluntary and intentional relinquishment of . . . known and otherwise enforceable right[s]" pursuant to the parties' separation agreement and judgment of divorce ( Matter of O'Connor v Curcio , 281 AD2d 100, 104 [internal quotation marks omitted]; see Matter of Dox v Tynon , 90 NY2d 166 ; Matter of Gleason v Gleason , 247 AD2d 384 ).

2020In turn, “a question of law arises in a criminal proceeding when ‘a protest thereto was registered, by the party claiming error, at the time of such ruling or -6- -7- No. 21 instruction or at any subsequent time when the court had an opportunity of effectively changing the same’” (People v Hawkins, 11 NY3d 484, 491 [2008], quoting CPL 470.05 [2]).

2020Here, in opposition to the defendant's motion, the plaintiff failed to establish, as a matter of law, that the defendant's conduct after the parties entered into the separation agreement constituted "a voluntary and intentional relinquishment of . . . known and otherwise enforceable right[s]" pursuant to the parties' separation agreement and judgment of divorce ( Matter of O'Connor v Curcio , 281 AD2d 100, 104 [internal quotation marks omitted]; see Matter of Dox v Tynon , 90 NY2d 166 ; Matter of Gleason v Gleason , 247 AD2d 384 ).

2020This requirement allows the trial court “an opportunity to correct any error in the proceedings below at a time when the issue can be dealt with most effectively” (People v Lopez, 71 NY2d 662, 665 [1988]).

2017CPLR 3101 (a) entitles parties to “full disclosure of all matter material and necessary in the prosecution or defense of an action.” Rugar correctly asserts that, pursuant to CPLR 3101 (d) (2), statements provided by a party to his or her insurer are conditionally immune from disclosure as material prepared for litigation (see Hewitt v Palmer Veterinary Clinic, PC, 145 AD3d 1415, 1415 [2016]); however, it is well settled that the party claiming such immunity “has the initial burden of showing that the materials being sought were prepared solely and exclusively for litigation” and were not othe

2017Corp.-U.S. Branch v Equitas Ltd., 18 NY3d 722, 731 [2012]).

2015CPL 470.05 (2) further provides that such protest is “sufficient if the party made his position with respect to the ruling or instruction known to the court, or if in response to a protest by a party, the court expressly decided the question raised on appeal.” The Court of Appeals has interpreted this to mean that “an attorney need not repeatedly protest a court’s clear ruling” (People v Lewis, 5 NY3d 546, 551 [2005]; see People v Mezon, 80 NY2d 155, 161 [1992] [counsel need not “make repeated pointless protests after the court has made its position clear”]).

2015CPL 470.05(2) further provides that such protest is "sufficient if the party made his position with respect to the ruling or instruction known to the court, or if in response to a protest by a party, the court expressly decided the question raised on appeal." The Court of Appeals has interpreted this to mean that "an attorney need not repeatedly protest a court's clear ruling" ( People v Lewis , 5 NY3d 546, 551 ; see People v Mezon , 80 NY2d 155, 161 [counsel need not "make repeated pointless protests after the court has made its position clear"]).