alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### The People of the State of New York, Respondent, v Guy Reckart, Appellant.

Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: On appeal from his convictions of burglary in the second degree, criminal trespass in the second degree, and criminal mischief in the fourth degree, defendant argues that he was denied the right to testify before the Grand Jury. By failing to object within five days of his arraignment on the indictment, defendant has waived that claim *(see,*CPL 190.50 [5] [c]). Additionally, defendant failed to raise a repugnancy claim before the jury was discharged and thus has not preserved his argument that his conviction for burglary was repugnant to his acquittal on the charge of petit larceny *(see, People v Alfaro,*66 NY2d 985). The issue is without merit, in any event, because defendant’s acquittal on the petit larceny charge did not negate an essential element of the charge of burglary in the second degree *(see, People v Tucker,*55 NY2d 1, *rearg denied*55 NY2d 1039).

We agree with defendant’s argument that the burglary and criminal trespass charges should have been submitted to the jury in the alternative (CPL 300.40 [3] [b]). Consequently, we reverse the conviction of criminal trespass in the second degree, vacate the sentence imposed thereon, and dismiss that count of the indictment. On this record, we are unable to evaluate defendant’s claim that he was denied the effective assistance of counsel. That claim is more appropriately addressed in a proceeding brought pursuant to CPL article 440. Finally, we see no reason to modify the sentence in the interest of justice. (Appeal from judgment of Niagara County Court, Hannigan, J.—burglary, second degree.) Present—Dillon, P. J., Callahan, Doerr, Pine and Lawton, JJ.
**Exhibit 23.1**

 

**Consent of Independent Registered Public Accounting Firm**

 

TheBoard of Directors

FoxChase Bancorp, Inc.:

 

Weconsent to the incorporation by reference in the registration statements No. 333-143509and No. 333-138175 on Form S-8 of Fox Chase Bancorp, Inc. (theCompany) of our reports dated March 12, 2009, with respect to theconsolidated statements of condition of Fox Chase Bancorp, Inc. andsubsidiary as of December 31, 2008 and 2007, and the related consolidatedstatements of operations, changes in equity, and cash flows for each of theyears in the three-year period ended December 31, 2008, and theeffectiveness of internal control over financial reporting as of December 31,2008, which reports appear in the December 31, 2008 annual report on Form 10-Kof Fox Chase Bancorp, Inc.

 

Ourreport dated March 12, 2009 on the consolidated statements of condition ofFox Chase Bancorp, Inc. and subsidiary as of December 31, 2008 and2007, and the related consolidated statements of operations, changes in equity,and cash flows for each of the years in the three-year period ended December 31,2008, refers to the Company’s adoption of FASB Statement No. 158, “Employers’Accounting for Defined Benefit Pensions and Other Post Retirement Plans,”effective December 31, 2006, and FASB Statement No. 159, “Fair ValueOption for Financial Assets and Financial Liabilities,” effective January 1,2008.

 

 

/s/  KPMG LLP

 

 

Philadelphia,Pennsylvania

March 12,2009

 

----
EXHIBIT 12-1


<TABLE>
                  PECO ENERGY COMPANY AND SUBSIDIARY COMPANIES
                COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
                                   SEC METHOD
                                     ($000)

<CAPTION>
                                                        3 MONTHS
                                                          ENDED                                                       03/31/98
                                                        --------

<S>                                                     <C>     
NET INCOME                                              $113,554

ADD BACK:
- INCOME TAXES:
     OPERATING INCOME                                     73,838
     NON-OPERATING INCOME                                 (5,105)
                                                        --------
  NET TAXES                                               68,733

- FIXED CHARGES:
     INTEREST APPLICABLE TO DEBT                          83,691
     ANNUAL RENTALS                                        2,101
                                                        --------
     TOTAL FIXED CHARGES                                  85,792

ADJUSTED EARNINGS INCLUDING AFUDC                       $268,079
                                                        ========
RATIO OF EARNINGS TO FIXED CHARGES                          3.12
                                                            ====
</TABLE>
EX-10.1



 EXHIBIT 10.1 

AMENDMENT TO THE 
 SECOND AMENDED
AND RESTATED CONSULTING AGREEMENT 
 THIS AMENDMENT TO THE SECOND AMENDED AND RESTATED CONSULTING AGREEMENT (“Amendment”) is dated this 20th day of March 2013, among F.N.B. Corporation, First National Bank of Pennsylvania, and F.N.B. Payroll Services, LLC (collectively “Companies”), and Stephen J. Gurgovits
(“Consultant”), and provides as follows: 
 WITNESSETH: 

WHEREAS, there is a scrivener’s error in the Second Amended and Restated Consulting Agreement (“Second Agreement”); and 

WHEREAS, this Amendment is designed to clarify the Second Agreement. 

NOW, THEREFORE, in consideration of the premises and mutual covenants contained in this Amendment, and intending to be legally bound hereby,
it is mutually agreed as follows: 
 SECTION 1 RECITALS. 

The foregoing recitals are incorporated by reference as if fully set forth in this section. 

SECTION 2 AMENDMENT. 
 The Second
Agreement is amended by deleting Section 1(a)(i) and substituting the following: 
 Effective on March 1, 2012,
(the “Effective Date”), the Companies shall employ the Consultant to provide consulting services to the Companies and the Consultant shall provide consulting services to the Companies in accordance with the terms and subject to the
conditions set forth in this Agreement for a term (the “Term”) that shall commence on the Effective Date and, subject to paragraphs 1(b), 1(c) and 1(d), shall expire on the 58th month
after the Effective Date such that the termination date will be December 31, 2016. 

  
 1 








 SECTION 3 OTHER PROVISIONS. 

Except as amended in paragraph 2 above, all other terms and provisions of the Second Agreement shall remain in full force and effect. 

IN WITNESS WHEREOF, the parties hereto executed this Amendment as of the date and year first above written. 

 

			
	F.N.B. CORPORATION
		
	By:	 	/s/ Vincent J. Delie, Jr.
		 	     Vincent J. Delie, Jr.
		 	     Chief Executive Officer
	
	FIRST NATIONAL BANK OF PENNSYLVANIA
		
	By:	 	/s/ Vincent J. Delie, Jr.
		 	     Vincent J. Delie, Jr.
		 	     Chief Executive Officer
	
	F.N.B. PAYROLL SERVICES, LLC.
		
	By:	 	/s/ Vincent J. Delie, Jr.
		 	     Vincent J. Delie, Jr.
		 	     Chief Executive Officer
	
	STEPHEN J. GURGOVITS
	
	/s/ Stephen J. Gurgovits



  
 2
NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RENE A. CRUZ, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 16-70888 

Agency No. A095-025-283 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted April 11, 2022**

Before: McKEOWN, CHRISTEN, and BRESS, Circuit Judges. 

Rene A. Cruz, a native and citizen of El Salvador, petitions for review of the 

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an 

immigration judge’s (“IJ”) decision denying his application for asylum, 

withholding of removal, and relief under the Convention Against Torture (“CAT”). 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

APR 14 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-70888 

Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial 

evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-

85 (9th Cir. 2006). We deny in part and dismiss in part the petition for review.

In his opening brief, Cruz does not contest the BIA’s conclusion that he 

waived any challenge to the IJ’s denial of his asylum and withholding of removal 

claims, see Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) 

(issues not specifically raised and argued in a party’s opening brief are waived), 

and we lack jurisdiction to consider his contentions as to whether his drug 

conviction constitutes a particularly serious crime because he failed to raise them 

to the BIA, see Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court 

lacks jurisdiction to review claims not presented to the agency). We do not reach 

Cruz’s remaining contentions as to his eligibility for asylum and withholding of 

removal. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) 

(review limited to the grounds relied on by the BIA). Thus, we deny the petition 

for review as to Cruz’s asylum and withholding of removal claims.

Substantial evidence supports the agency’s denial of CAT relief because 

Cruz failed to show it is more likely than not he will be tortured by or with the 

consent or acquiescence of the government if returned to El Salvador. See Aden v. 

Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
3 16-70888 

The temporary stay of removal remains in place until issuance of the 

mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.
EXHIBIT 32.1



                       CERTIFICATION PURSUANT TO
                        18 U.S.C. SECTION 1350,
                        AS ADOPTED PURSUANT TO
              SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002


In connection with the Quarterly Report of Portsmouth Square, Inc. (the
"Company") on Form 10-QSB for the quarterly period ended September 30, 2007,
as filed with the Securities and Exchange Commission on the date hereof (the
"Report"), I John V. Winfield, President and Chief Executive Officer of the
Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002, to the best of my knowledge,
that:

(1) The Report fully complies with the requirements of Section 13(a) or
    15(d) of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material
    respects, the financial condition and results of operations of the
    Company.


Date: November 13, 2007                         /s/ John V. Winfield
                                                ----------------------------
                                                John V. Winfield, President
                                                and Chief Executive Officer




[A signed original of this written statement required by Section 906 has been
provided to Portsmouth Square, Inc. and will be retained by Portsmouth
Square, Inc. and furnished to the Securities and Exchange Commission or its
staff upon request.]
#### Deborah A. Smith, Respondent, v James B. McDaniel, Jr., Appellant, et al., Defendant.

Order unanimously reversed on the law without costs, cross motion denied, motion granted and complaint dismissed. Memorandum: It was error for the court in this medical malpractice action to grant plaintiff’s motion for permission to serve a late certificate of merit and to deny defendant doctor’s motion to dismiss plaintiff’s complaint for failure to serve a certificate of merit with the complaint *(see,*CPLR 3012-a). Plaintiff’s failure to serve a certificate of merit with the complaint was a pleading default and dismissal is required absent a showing by plaintiff of a reasonable excuse for the default and a meritorious cause of action *(see, Matter of Prince v State of New York,*149 AD2d 963, 964). Here, dismissal is required because plaintiff’s affidavits fail to establish a meritorious cause of action. Plaintiff’s expert failed to state that defendant doctor’s conduct deviated from acceptable standards of medical practice in the community, that his conduct was negligent or that any of defendant’s actions were a competent producing cause of any injuries *870sustained by plaintiff. Plaintiff’s complaint is therefore dismissed without prejudice to re-serve the complaint accompanied by the required certificate of merit *(see,*CPLR 205 [a]; *Kerns v Panahon,*158 AD2d 936; *Matter of Prince v State of New York, supra).*(Appeal from order of Supreme Court, Niagara County, Gossel, J.—dismiss complaint.) Present—Dillon, P. J., Doerr, Boomer, Lawton and Davis, JJ.
#### Milton SAMPSON and Anne Dauber Sampson, his wife, Appellants, v. STANLEY CORPORATION, a Florida corporation, Appellee.

Supreme Court of Florida. Division B.

Oct. 19, 1954.

Gordon & Sweet, Miami, for appellant.

Blackwell, Walker & Gray, Miami, for appellee.

HOBSON, Justice.

The amended complaint in this action was .dismissed for insufficiency, without leave further to amend. It alleges, inter alia, that appellants leased an apartment from the appellee corporation in an old building owned by the latter, that the building “had begun to deteriorate prior to the time the aforedescribed lease agreement was entered into”, and that nearly two years after the lease commenced, appellants were injured when plaster fell from the ceiling of their bedroom. It appears from the affirmative allegations of the amended complaint that the age and decreptitude of the building at the time the lea.se was entered should have caused the tenants to make a thorough' examination of the apartment in which *‘*they planned to live, and had they done so at that time or within the succeeding period of almost two years, they would have been in as good a. position as the landlord to discover the condition of. the plaster. As we said in Butler v. Maney, 146 Fla. 33, 200 So. 226, 229:

> “If the tenant has the same opportunities -as the owner to discover a defect at the time of the leasing, then .the rule of caveat emptor applies and-the tenant - takes the property as he finds it.”

This principle controls the present case.

Affirmed.

ROBERTS, C. J., and THOMAS .and DREW, JJ., concur.
Exhibit 11


                              PIPER JAFFRAY COMPANIES INC.

                    STATEMENT RE: COMPUTATION OF PER SHARE EARNINGS
                        (In Thousands, Except Per Share Amounts)
                                      (Unaudited)


                                                            Three Months Ended
                                                               December 31,
                                                            1995           1994

PRIMARY NET INCOME PER SHARE:

  Net income .......................................       $ 6,654       $ 4,650
                                                           =======       =======

  Average number of common and common equivalent shares outstanding:

   Average common shares outstanding ...............        17,541        17,084
   Dilutive effect of CSE's:
     Book value plan options .......................           198           201
     Executive incentive stock options .............           263           109
                                                           -------       -------
                                                            18,002        17,394
                                                           =======       =======

  Primary net income per share .....................       $  0.37       $  0.27
                                                           =======       =======



NET INCOME PER SHARE
  ASSUMING FULL DILUTION:

  Net income .......................................       $ 6,654       $ 4,650
                                                           =======       =======

  Average number of common and common equivalent shares outstanding:

   Average common shares outstanding ...............        17,541        17,084
   Dilutive effect of CSE's:
     Book value plan options .......................           205           206
     Executive incentive stock options .............           291           110
                                                           -------       -------
                                                            18,037        17,400
                                                           =======       =======

Fully diluted net income per share .................       $  0.37       $  0.27
                                                           =======       =======
<TABLE> <S> <C>


<ARTICLE> 5
       
<S>                             <C>
<PERIOD-TYPE>                   3-MOS
<FISCAL-YEAR-END>                          DEC-31-1999
<PERIOD-START>                             JAN-01-1999
<PERIOD-END>                               MAR-31-1999
<CASH>                                         360,782
<SECURITIES>                                         0
<RECEIVABLES>                                  586,242
<ALLOWANCES>                                         0
<INVENTORY>                                  4,376,023
<CURRENT-ASSETS>                             5,331,047
<PP&E>                                       5,631,787
<DEPRECIATION>                               3,940,454
<TOTAL-ASSETS>                               7,476,137
<CURRENT-LIABILITIES>                        1,088,721
<BONDS>                                              0
<PREFERRED-MANDATORY>                                0
<PREFERRED>                                          0
<COMMON>                                       128,333
<OTHER-SE>                                   5,622,303
<TOTAL-LIABILITY-AND-EQUITY>                 7,476,137
<SALES>                                      1,829,552
<TOTAL-REVENUES>                             1,829,552
<CGS>                                        1,353,717
<TOTAL-COSTS>                                1,353,717
<OTHER-EXPENSES>                               675,861
<LOSS-PROVISION>                                     0
<INTEREST-EXPENSE>                                   0
<INCOME-PRETAX>                               (200,026)
<INCOME-TAX>                                         0
<INCOME-CONTINUING>                           (200,026)
<DISCONTINUED>                                       0
<EXTRAORDINARY>                                      0
<CHANGES>                                            0
<NET-INCOME>                                  (200,026)
<EPS-PRIMARY>                                    (0.12)
<EPS-DILUTED>                                    (0.12)
        


</TABLE>
EXHIBIT 11

                    PCA INTERNATIONAL, INC. AND SUBSIDIARIES
                    COMPUTATION OF PRIMARY AND FULLY DILUTED
                           EARNINGS PER COMMON SHARE
<TABLE>
<CAPTION>
<S>                                                 <C>           <C>         <C>            <C>  


                                                    Three Months Ended            Six Months Ended
                                                    August 3,      July 28,      August 3,     July 28,
                                                      1997          1996          1997         1996
PRIMARY EARNINGS PER COMMON SHARE:
 EARNINGS APPLICABLE TO COMMON STOCK:
  Net income.......................................$ (1,639,620)   $  232,297     $(996,294)   $ 1,371,075
                                                    ==============   ===========   ============  ============ 
 COMPUTATION OF COMMON SHARES AND
  COMMON EQUIVALENT SHARES:
   Weighted average number of common shares........   7,761,749     7,469,353     7,696,476      7,468,868
   Dilutive effect of stock options................     684,387       589,272       593,571        494,682
                                                    -------------   ------------   ------------  ------------
   Weighted average number of common shares after
    dilutive effect................................   8,446,136     8,058,625     8,290,047      7,963,550
                                                   ==============   ===========   ============  ============ 

 EARNINGS PER COMMON SHARE AND COMMON
  EQUIVALENT SHARE:

   Net income..................................... $     (0.19)    $     0.03     $   (0.12)   $     0.17
                                                   ==============   ===========   ============  ============ 

FULLY DILUTED EARNINGS PER COMMON SHARE:
 EARNINGS APPLICABLE TO COMMON STOCK:
  Net income...................................... $ (1,639,620)   $  232,297    $(996,294)   $1,371,075
                                                   ==============   ===========   ============  ============ 

 COMPUTATION OF COMMON SHARES AND
  COMMON EQUIVALENT SHARES:
   Weighted average number of common shares 
     outstanding..................................    7,761,749    7,469,353     7,696,476      7,468,868
   Dilutive effect of stock options...............      817,880      600,643       832,167        658,493
                                                    -------------   ------------   ------------  ------------
   Weighted average number of common shares after
    dilutive effect...............................    8,579,629    8,069,996     8,528,643      8,127,361
                                                   ==============   ===========   ============  ============ 

 EARNINGS PER COMMON SHARE AND COMMON
  EQUIVALENT SHARE ASSUMING FULL DILUTION:

   Net income.....................................  $     (0.19)   $    0.03      $  (0.12)     $    0.17
                                                   ==============   ===========   ============  ============ 



</TABLE>
#### Mark C. Teska, Appellant, v Camperlino & Fatti Builders, Inc., Respondent and Third-Party Plaintiff. Colonnesse Construction Co., Inc., Third-Party Defendant-Respondent.

Order insofar as appealed from unanimously reversed on the law with costs and motion granted. Memorandum: Supreme Court erred in denying plaintiff’s motion for partial summary judgment on the issue of defendant’s liability under Labor Law § 240 (1). Plaintiff sustained injuries while performing construction work at an elevated height. The accident was witnessed by Adrian Colonnesse, whose affidavit was submitted in opposition to plaintiff’s motion. Colonnesse’s averments fail to refute, or even address, plaintiff’s showing that the extension ladder on which he was standing "gave way and closed” and "dropped out from under [him]”, causing him to fall to the ground. Moreover, it is not disputed that the ladder fell to the ground as well *(cf., Landry v Di Sarro Constr. Co.,*149 AD2d 859, *affd*74 NY2d 940).

It is settled law that "the duty imposed by the statute is nondelegable and where a violation of that duty proximately causes injury to a member of the class for whose benefit the statute was enacted, the owner and general contractor are absolutely liable” *(Heath v Soloff Constr.,*107 AD2d 507, 510; *see, Zimmer v Chemung County Performing Arts,*65 NY2d 513, 523-524, *rearg denied*65 NY2d 1054).

Here, plaintiff established by evidence in admissible form that defendant, as owner and contractor, violated Labor Law § 240 (1) and that the violation was the proximate cause of plaintiff’s injuries. Since defendant failed to present evidence raising an issue of fact, absolute liability must be imposed upon defendant *(see, Zimmer v Chemung County Performing Arts, supra; Klien v General Foods Corp.,*148 AD2d 968; *Ferra v County of Wayne,*147 AD2d 964; *Heath v Soloff Constr., supra).*

Accordingly, plaintiff’s motion for summary judgment on the issue of defendant’s liability under Labor Law § 240 (1) must be granted. It follows that the affirmative defenses raised in defendant’s answer must be dismissed. (Appeal from order of Supreme Court, Cayuga County, Corning, J.—summary judgment.) Present—Dillon, P. J., Doerr, Boomer, Law-ton and Davis, JJ.