transfer error in New York

2022"Given that Supreme Court had the power to hear the case, the transfer error defendant alleges is the equivalent of an improper venue claim, which is not jurisdictional in nature and is waived if not timely raised" ( People v Wilson , 14 NY3d 895 , 897 [2010] [citation omitted]; see People v Rashid , 166 AD3d 1382 , 1385 [3d Dept 2018], lv denied 32 NY3d 1208 [2019]).

2021Preliminarily, "[a]lthough a contention that a [jurist] lacks subject matter jurisdiction to preside over a matter may be raised for the first time on appeal . . . , '[g]iven that Supreme Court [and County Court] had the power to hear the [motion], the transfer error defendant alleges [here] is the equivalent of an improper venue claim, which is not jurisdictional in nature and is waived if not timely raised,' " i.e., that contention is subject to the preservation rule ( People v Ott , 83 AD3d 1495, 1496 [4th Dept 2011], lv denied 17 NY3d 808 [2011], writ of error coram nobis granted on other

2021Preliminarily, "[a]lthough a contention that a [jurist] lacks subject matter jurisdiction to preside over a matter may be raised for the first time on appeal . . . , '[g]iven that Supreme Court [and County Court] had the power to hear the [motion], the transfer error defendant alleges [here] is the equivalent of an improper venue claim, which is not jurisdictional in nature and is waived if not timely raised,' " i.e., that contention is subject to the preservation rule ( People v Ott , 83 AD3d 1495, 1496 [4th Dept 2011], lv denied 17 NY3d 808 [2011], writ of error coram nobis granted on other

2011“Given that Supreme Court had the power to hear the case, the transfer error defendant alleges is the equivalent of an improper venue claim, which is not jurisdictional in nature and is waived if not timely raised” (People v Wilson, 14 NY3d 895, 897 [2010]; see Ott, 83 AD3d at 1496 ), and here defendant did not timely raise the alleged transfer error inasmuch as his contention is raised for the first time on appeal.

2024While the question of an assignee's intent and purpose as to the transfer of a claim is often factual, here, the court correctly dismissed the defense on summary judgment ( see Fundo de RecuperaÇ o de Ativos-Fundo de Investimentos em Direitos CreditÓrios N o Padronizados v Ceagro AgrÍcola LTDA, 210 AD3d 585, 585-586 [1st Dept 2022]).

2024While the question of an assignee's intent and purpose as to the transfer of a claim is often factual, here, the court correctly dismissed the defense on summary judgment ( see Fundo de RecuperaÇ o de Ativos-Fundo de Investimentos em Direitos CreditÓrios N o Padronizados v Ceagro AgrÍcola LTDA, 210 AD3d 585, 585-586 [1st Dept 2022]).

2022As defendant did not object to the transfer either prior to or during the trial, he waived this claim ( see People v Roberts-Alexandrov , 102 AD3d 219, 222 [3d Dept 2012]; People v Woodrow , 91 AD3d 1188, 1189 [3d Dept 2012], lv denied 18 NY3d 999 [2012]).

2021People v Morgan , 96 AD3d 1418, 1420 [4th Dept 2012], lv denied 20 NY3d 987 [2012]; People v Woodrow , 91 AD3d 1188, 1189 [3d Dept 2012], lv denied 18 NY3d 999 [2012]).

2022"We reject defendant's contention that the alleged transfer error constitutes a mode of proceedings error such that preservation is not required" ( People v Perez , 89 AD3d 1393, 1395 [4th Dept 2011] [citations omitted], lv denied 18 NY3d 961 [2012]; see People v Morgan , 96 AD3d 1418, 1420 [4th Dept 2012], lv denied 20 NY3d 987 [2012]).

2021People v Morgan , 96 AD3d 1418, 1420 [4th Dept 2012], lv denied 20 NY3d 987 [2012]; People v Woodrow , 91 AD3d 1188, 1189 [3d Dept 2012], lv denied 18 NY3d 999 [2012]).

2022"We reject defendant's contention that the alleged transfer error constitutes a mode of proceedings error such that preservation is not required" ( People v Perez , 89 AD3d 1393, 1395 [4th Dept 2011] [citations omitted], lv denied 18 NY3d 961 [2012]; see People v Morgan , 96 AD3d 1418, 1420 [4th Dept 2012], lv denied 20 NY3d 987 [2012]).

2012Contrary to defendant’s contention, the alleged transfer error does not constitute a mode of proceedings error such that preservation is not required (see Perez, 89 AD3d at 1395 ).

2024Rather, the elements of a claim for imposition of a constructive trust are "(1) a confidential [*6]or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment" ( Sharp v Kosmalski , 40 NY2d 119, 121 [1976]).

2024Instead, the elements of a claim for imposition of a [*4]constructive trust are (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment. ( Matter of Newman , 2024 NY Slip Op. 03544 (1st Dept 2024); Sharp v. Kosmalski , 40 NY2d 119 [1976]).

2002“Although the transfer of a defense attorney to a District Attorney’s office might well create a conflict of interest constituting a disqualification of the District Attorney’s staff from prosecuting the defendant previously represented by the former defense attorney * * * the converse situation of an Assistant District Attorney transferring to a defense counsel’s office [ordinarily] involves no such conflict * * *[,] appearance of impropriety or opportunity for abuse of confidence * * *” (People v Clevenger, 189 Misc 2d 80, 81 [citations omitted]; see, People v Shinkle, 51 NY2d 417 ; People v

2001Although the transfer of a defense attorney to a District Attorney’s office might well create á conflict of interest constituting a disqualification of the District Attorney’s staff from prosecuting the defendant previously represented by the former defense attorney (People v Shinkle, 51 NY2d 417 ), the converse situation of an Assistant District Attorney transferring to a defense counsel’s office involves no such conflict (People v Sawyer, 83 AD2d 205 , affd 57 NY2d 12 , cert denied 459 US 1178 ; see also, People v Lincoln, 109 AD2d 1044, 1047 [Casey, J., dissenting on other grounds]).

2022As defendant did not object to the transfer either prior to or during the trial, he waived this claim ( see People v Roberts-Alexandrov , 102 AD3d 219, 222 [3d Dept 2012]; People v Woodrow , 91 AD3d 1188, 1189 [3d Dept 2012], lv denied 18 NY3d 999 [2012]).

2016School Dist. v Springs Union Free School Dist., 1 NY3d 385, 388-390 [2004]; Appeal of J.H.L., 48 Ed Dept Rep 190 [Decision No. 15,827]; Appeal of Haldane Cent.

2016Although respondent was entitled to raise that issue on appeal as an alternative ground for affirmance (see generally Parochial Bus Sys. v Board of Educ. of City of N.Y, 60 NY2d 539, 545-546 [1983]), it has not done so.

2010Given that Supreme Court had the power to hear the case, the transfer error defendant alleges is the equivalent of an improper venue claim, which is not jurisdictional in nature and is waived if not timely raised (see People v Carvajal, 6 NY3d 305, 312 [2005] [“venue issues—which relate only to the proper place of trial, rather than to the power of the court to hear and determine the case—are waivable”] [emphasis and citation omitted]).

2004The transfer was in violation of Partnership Law § 40 (7), which provides that “[n]o person can become a member of the partnership without the consent of all the partners.” The transfer of the property effectively made Anita a partner to the partnership, and it is undisputed that defendant did not consent to the transfer of the partnership property (see Rapoport v 55 Perry Co., 50 AD2d 54, 57-58 [1975]).

2002“Although the transfer of a defense attorney to a District Attorney’s office might well create a conflict of interest constituting a disqualification of the District Attorney’s staff from prosecuting the defendant previously represented by the former defense attorney * * * the converse situation of an Assistant District Attorney transferring to a defense counsel’s office [ordinarily] involves no such conflict * * *[,] appearance of impropriety or opportunity for abuse of confidence * * *” (People v Clevenger, 189 Misc 2d 80, 81 [citations omitted]; see, People v Shinkle, 51 NY2d 417 ; People v

2001Although the transfer of a defense attorney to a District Attorney’s office might well create á conflict of interest constituting a disqualification of the District Attorney’s staff from prosecuting the defendant previously represented by the former defense attorney (People v Shinkle, 51 NY2d 417 ), the converse situation of an Assistant District Attorney transferring to a defense counsel’s office involves no such conflict (People v Sawyer, 83 AD2d 205 , affd 57 NY2d 12 , cert denied 459 US 1178 ; see also, People v Lincoln, 109 AD2d 1044, 1047 [Casey, J., dissenting on other grounds]).

2001Indeed, it was pointed out in case law long ago that the rule “sweep [s] too broadly * * * [by] creating] an over-inclusive class — those who move from one school to another for reasons wholly unrelated to athletics are grouped together with those who have been recruited or who have ‘jumped’ for athletic reasons.” (Sturrup v Mahan, 261 Ind 463, 468-469, 305 NE2d 877, 881 [1974].) By “severely limit [ing] the transferee eligibility in general,” the transfer rule “penalize [s] a student-athlete who * * * transferís] for academic or religious reasons or for any number of other legitimate reasons,