viability claim in New York

2024To determine unity of interest, therefore, one looks not to whether the two defendants will assert different defenses but rather whether they could assert such different defenses . ( Connell v Hayden , 83 AD2d 30, 41-42 [2d Dept 1981] [emphasis added].) As Plaintiff cannot establish that Prospective Defendant Sublessee Melbo is united in interest with either Defendant in this action, she cannot rely upon the relation back doctrine to amend the summons and complaint to add Prospective Defendant Sublessee Melbo as an additional defendant in this matter.

2024To determine unity of interest, therefore, one looks not to whether the two defendants will assert different defenses but rather whether they could assert such different defenses . ( Connell v Hayden , 83 AD2d 30, 41-42 [2d Dept 1981] [emphasis added].) As Plaintiff cannot establish that Prospective Defendant Sublessee Melbo is united in interest with either Defendant in this action, she cannot rely upon the relation back doctrine to amend the summons and complaint to add Prospective Defendant Sublessee Melbo as an additional defendant in this matter.

2018"It is, then, ordinarily elemental to the viability of a claim of a Fourth Amendment violation, that its proponent is able to allege a legitimate expectation of privacy in the places or items said to have been illegally searched or seized" ( People v DeProspero, 20 NY3d at 531 , citing Rakas v Illinois, 439 US 128 ; see People v Scully, 14 NY3d 861, 864 ; People v Ramirez-Portoreal, 88 NY2d 99, 108 ; People v Di Lucchio, 115 AD2d 555, 556 ).

2015“It is, then, ordinarily elemental to the viability of a claim of a Fourth Amendment violation, that its proponent is able to allege a legitimate expectation of privacy in the places or items said to have been illegally searched or seized” (People v DeProspero, 20 NY3d at 531 , citing Rakas v Illinois, 439 US 128, 148 [1978]; see People v Scully, 14 NY3d 861, 864 [2010]; People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; People v Di Lucchio, 115 AD2d 555, 556 [1985]).

2025Later is too late, unless there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning." Subsequently, in People v Bethea , 67 NY2d 364, 366 (1986), the Court of Appeals reaffirmed the viability of the rule declared in Chapple .

2025Later is too late, unless there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning." Subsequently, in People v Bethea , 67 NY2d 364, 366 (1986), the Court of Appeals reaffirmed the viability of the rule declared in Chapple .

2024Protective League v Time, Inc. , 50 NY2d 259, 264 [1980]).

2024Protective League v Time, Inc. , 50 NY2d 259, 264 [1980]).

2018"It is, then, ordinarily elemental to the viability of a claim of a Fourth Amendment violation, that its proponent is able to allege a legitimate expectation of privacy in the places or items said to have been illegally searched or seized" ( People v DeProspero, 20 NY3d at 531 , citing Rakas v Illinois, 439 US 128 ; see People v Scully, 14 NY3d 861, 864 ; People v Ramirez-Portoreal, 88 NY2d 99, 108 ; People v Di Lucchio, 115 AD2d 555, 556 ).

2015“It is, then, ordinarily elemental to the viability of a claim of a Fourth Amendment violation, that its proponent is able to allege a legitimate expectation of privacy in the places or items said to have been illegally searched or seized” (People v DeProspero, 20 NY3d at 531 , citing Rakas v Illinois, 439 US 128, 148 [1978]; see People v Scully, 14 NY3d 861, 864 [2010]; People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; People v Di Lucchio, 115 AD2d 555, 556 [1985]).

2004Contrary to defendants’ contentions that the remaining sections state only general propositions of law, this court notes that section 23-1.5 of the Industrial Code (12 NYCRR), cited by plaintiff in his complaint, and specifically subdivision (c) (1) of that provision which applies to the facts here in issue, is “sufficiently specific to constitute [a] predicate [ ] for the imposition of liability pursuant to Labor Law § 241 (6).” (Gonzalez v United Parcel Serv., 249 AD2d 210, 211 [1st Dept 1998].) Accordingly, defendants’ motion to dismiss plaintiffs’ claims under sections 200 and 241 (6) of t

2004Contrary to defendants' contentions that the remaining sections state only general propositions of law, this court notes that section 23-1.5 of the Industrial Code (12 NYCRR), cited by plaintiff in his complaint, and specifically subdivision (c) (1) of that provision which applies to the facts here in issue, is "sufficiently specific to constitute [a] predicate[ ] for the imposition of liability pursuant to Labor Law § 241 (6)." ( Gonzalez v United Parcel Serv. , 249 AD2d 210, 211 [1st Dept 1998].) Accordingly, defendants' motion to dismiss plaintiffs' claims under sections 200 and 241 (6) of

2018"It is, then, ordinarily elemental to the viability of a claim of a Fourth Amendment violation, that its proponent is able to allege a legitimate expectation of privacy in the places or items said to have been illegally searched or seized" ( People v DeProspero, 20 NY3d at 531 , citing Rakas v Illinois, 439 US 128 ; see People v Scully, 14 NY3d 861, 864 ; People v Ramirez-Portoreal, 88 NY2d 99, 108 ; People v Di Lucchio, 115 AD2d 555, 556 ).

2015“It is, then, ordinarily elemental to the viability of a claim of a Fourth Amendment violation, that its proponent is able to allege a legitimate expectation of privacy in the places or items said to have been illegally searched or seized” (People v DeProspero, 20 NY3d at 531 , citing Rakas v Illinois, 439 US 128, 148 [1978]; see People v Scully, 14 NY3d 861, 864 [2010]; People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; People v Di Lucchio, 115 AD2d 555, 556 [1985]).

2018"It is, then, ordinarily elemental to the viability of a claim of a Fourth Amendment violation, that its proponent is able to allege a legitimate expectation of privacy in the places or items said to have been illegally searched or seized" ( People v DeProspero, 20 NY3d at 531 , citing Rakas v Illinois, 439 US 128 ; see People v Scully, 14 NY3d 861, 864 ; People v Ramirez-Portoreal, 88 NY2d 99, 108 ; People v Di Lucchio, 115 AD2d 555, 556 ).

2015“It is, then, ordinarily elemental to the viability of a claim of a Fourth Amendment violation, that its proponent is able to allege a legitimate expectation of privacy in the places or items said to have been illegally searched or seized” (People v DeProspero, 20 NY3d at 531 , citing Rakas v Illinois, 439 US 128, 148 [1978]; see People v Scully, 14 NY3d 861, 864 [2010]; People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; People v Di Lucchio, 115 AD2d 555, 556 [1985]).

2023While the Court shall not determine the viability of this claim on this motion, it nevertheless bears noting that "[w]here property of one person is used in discharging an obligation owed by another or a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lien-holder" (King v Pelkofski, 20 NY2d 326, 333 [1967]; Matter of Benedictine Hosp. v Glessing , 90 AD3d 1383, 1386 [3d Dept 2011]).

2023While the Court shall not determine the viability of this claim on this motion, it nevertheless bears noting that "[w]here property of one person is used in discharging an obligation owed by another or a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lien-holder" (King v Pelkofski, 20 NY2d 326, 333 [1967]; Matter of Benedictine Hosp. v Glessing , 90 AD3d 1383, 1386 [3d Dept 2011]).

2020Under the circumstances, defense counsel's error deprived defendant of meaningful representation and a fair trial( see People v Benevento , 91 NY2d 708, 713 [1998]; People v Stephans , 168 AD3d 990 [2019]; People v Murray , 40 Misc 3d 47 [App Term, 2d Dept, 9th & 10th Jud Dists 2013]).

2018In determining whether an expectation of privacy is reasonable, one must look to " a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society'" ( Minnesota v Carter, 525 US 83, 88 , [*3]quoting Rakas v Illinois, 439 US at 143 n 12; see People v Hardy, 77 AD3d 133, 138 ).

2018Thus, we did not make a legal determination necessarily resolving the merits of the viability of the doctrine, and our prior decision is not the law of the case with respect to that issue ( see Matter of Doman , 150 AD3d 994, 995 [2d Dept 2017]; Howard v BioWorks, Inc. , 103 AD3d 1112, 1113 [4th Dept 2013]; Sharrow v Dick Corp. , 233 AD2d 858 , 859-860 [4th Dept 1996], lv denied 89 NY2d 810 [1997], rearg denied 89 NY2d 1087 [1997]).

2018Thus, we did not make a legal determination necessarily resolving the merits of the viability of the doctrine, and our prior decision is not the law of the case with respect to that issue ( see Matter of Doman , 150 AD3d 994, 995 [2d Dept 2017]; Howard v BioWorks, Inc. , 103 AD3d 1112, 1113 [4th Dept 2013]; Sharrow v Dick Corp. , 233 AD2d 858 , 859-860 [4th Dept 1996], lv denied 89 NY2d 810 [1997], rearg denied 89 NY2d 1087 [1997]).

2018In contending that the sophisticated intermediary doctrine should apply to preclude liability here as a matter of law, defendants and the dissent rely, inter alia, on the Restatement (Second) of Torts, and on New York case law establishing that a manufacturer of prescription drugs or medical devices satisfies its duty to warn by providing a proper warning to a physician, with no need for a direct warning to a plaintiff patient ( see Martin v Hacker , 83 NY2d 1, 8-9 [1993]; see also Bukowski v CooperVision Inc. , 185 AD2d 31, 34-35 [3d Dept 1993]).

2018In contending that the sophisticated intermediary doctrine should apply to preclude liability here as a matter of law, defendants and the dissent rely, inter alia, on the Restatement (Second) of Torts, and on New York case law establishing that a manufacturer of prescription drugs or medical devices satisfies its duty to warn by providing a proper warning to a physician, with no need for a direct warning to a plaintiff patient ( see Martin v Hacker , 83 NY2d 1, 8-9 [1993]; see also Bukowski v CooperVision Inc. , 185 AD2d 31, 34-35 [3d Dept 1993]).

2018Thus, we did not make a legal determination necessarily resolving the merits of the viability of the doctrine, and our prior decision is not the law of the case with respect to that issue ( see Matter of Doman , 150 AD3d 994, 995 [2d Dept 2017]; Howard v BioWorks, Inc. , 103 AD3d 1112, 1113 [4th Dept 2013]; Sharrow v Dick Corp. , 233 AD2d 858 , 859-860 [4th Dept 1996], lv denied 89 NY2d 810 [1997], rearg denied 89 NY2d 1087 [1997]).

2018Thus, we did not make a legal determination necessarily resolving the merits of the viability of the doctrine, and our prior decision is not the law of the case with respect to that issue ( see Matter of Doman , 150 AD3d 994, 995 [2d Dept 2017]; Howard v BioWorks, Inc. , 103 AD3d 1112, 1113 [4th Dept 2013]; Sharrow v Dick Corp. , 233 AD2d 858 , 859-860 [4th Dept 1996], lv denied 89 NY2d 810 [1997], rearg denied 89 NY2d 1087 [1997]).

2015In Willey the Second Circuit Court of Appeals recently rejected a bright-line durational requirement in determining whether a prisoner’s exposure to raw sewage may form the basis for an Eighth Amendment claim for cruel and inhuman treatment, holding that the viability of such a claim depends upon a balancing of “both the duration and the severity of the exposure” and that its “qualitative offense to a prisoner’s dignity should be given due consideration” (Willey v Kirkpatrick, 801 F3d at 68 ; see also Gaston v Coughlin, 249 F3d 156 [2d Cir 2001] [Second Circuit reversed summary judgment dismis

2014But the viability of such a claim, conditioned upon a demonstration of prejudice attributable to counsel’s inadequacy (see Strickland, 466 US at 694 ; People v Caban, 5 NY3d at 155-156), would depend, in crucial part, upon facts making the adverse inference Handy merely makes available at least reasonably plausible.